Opinion
No. 15–P–1222.
08-24-2016
Gail F. SULLIVAN v. Louis C. DiNATALE, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment entered by a judge of the Probate and Family Court on her complaint for contempt against the defendant, her former husband. Pro se on appeal as she was in the trial court, the plaintiff seeks to raise “five, discreet [sic ], interrelated errors.” Specifically, she contends that the judge erred in (1) declining to default the defendant after he failed to answer the contempt complaint and appear at a hearing; (2) concluding that the plaintiff had waived all claims in her contempt complaint except those related to tuition payments owed by the defendant; (3) miscalculating the amount of tuition arrearages the defendant owed; (4) ordering that the defendant cure his arrearages at the rate of $50 per month rather than all at once; and (5) failing to hold the defendant to a higher standard than the general public because, as sometimes alleged by the plaintiff, the defendant is an attorney.
The defendant has not filed a brief or otherwise participated in this appeal.
The plaintiff represents that she is an attorney currently admitted to practice law in Massachusetts.
We are for the most part unable to evaluate the claims raised by the plaintiff on appeal because of her failure to satisfy her burden of providing an adequate record appendix. See Mass.R.A.P. 8, as amended, 430 Mass. 1601 (1999); Mass.R.A.P. 16, as amended, 428 Mass. 1603 (1999); Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998); Kunen v. First Agric. Natl. Bank, 6 Mass.App.Ct. 684, 684–689, 691 (1978) ; Spivey v. Neitlich, 59 Mass.App.Ct. 742, 744 (2003). Her briefing on the various issues—jumbled, repetitive, and frequently lacking citation to relevant authority—also often fails to rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Without an adequate record, we are unable to determine what transpired in the lower court. The burden of providing an adequate record on appeal applies to pro se litigants, even when those pro se litigants are not, unlike the plaintiff here, attorneys. See E.H.S. v. K.E.S., 424 Mass. 1011, 1012 (1997) ; Buckmore v. Czelusnak Funeral Home, Inc., 427 Mass. 1014 (1998).
In spite of the difficulties presented by the incomplete record and the shortcomings in the briefing, we attempt to sort out the plaintiff's various appellate claims and address their merits to the limited extent possible.
1. Declining to default the defendant. The plaintiff has failed to show that the judge erred in declining to default the defendant. First, we note that the judge's memorandum of decision and order on the plaintiff's motion for entry of default indicates that a hearing on the plaintiff's motion was heard on March 2, 2015. We have not been provided with a transcript of that hearing and so are unable to determine what arguments were made and what options were considered.
From what we can discern without the benefit of that transcript, we cannot say that the judge abused his discretion in declining to default the defendant. As the judge explained, even if default judgments are available in the Probate and Family Court, other sanctions are available as well. See Imprescia v. Imprescia, 392 Mass. 101, 104 (1984) ; Vangel v. Martin, 45 Mass.App.Ct. 76, 80 (1998). In this case, the defendant had already been arrested pursuant to a capias warrant, brought before the court, and participated at a subsequent hearing by the time the judge ruled on the motion for entry of default. At the time of the ruling, the judge was confident that the matter would “be resolved with participation by both parties ” at the next hearing (emphasis added), and was therefore apparently satisfied that judicial “mechanism[s]” short of default were working “to achieve compliance with his authority.” Vangel, supra. The plaintiff has not called our attention to any authority suggesting that only the entry of a default would have been appropriate under the circumstances, or that, in declining to default the defendant, the judge “made ‘a clear error of judgment in weighing’ the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives.” Murray v. Super, 87 Mass.App.Ct. 146, 148 (2015), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
Moreover, where the plaintiff prevailed on the tuition payment issue—the only issue considered by the judge on the plaintiff's contempt complaint—she has not shown that she was prejudiced from the judge's refusal to default the defendant or order that the defendant answer the complaint. The question whether the judge improperly narrowed the focus of the litigation to the tuition issue is a point we turn to next.
2. Waiver of nontuition claims. In his findings of fact as to the contempt complaint at issue in this appeal, the judge stated that “[o]n May 4, 2015, the Plaintiff waived all issues raised in the complaint except as to the payment of the daughter's college expenses.” In her previously filed “Motion to Partially Vacate” an upcoming evidentiary hearing, the plaintiff stated, “The interests of justice require that only the issues concerning Defendant's willful and intentional failure to pay his half of college tuition bills, ... in the exact liquidated amount of $8,750.00, without interest at the statutory rate, a matter requiring no discovery, be adjudicated at such hearing. “In response to that motion, the judge ordered on May 4, 2015, that the hearing on the plaintiff's contempt complaint, scheduled for May 11, 2015, “shall be limited to the issue of payment of the daughter's college expenses.” In that same order, the judge also quashed subpoenas that appear to relate to the plaintiff's allegations of fraudulent conveyance of real estate, allegations unrelated to the tuition issue.
The plaintiff's motion to partially vacate seems to explain that her request to narrow the focus of the upcoming hearing was based on the defendant's failure to provide documents in discovery necessary for her preparation on the other (nontuition) claims. But, it is not clear if she ever clarified for the judge that she was not waiving those other claims, but only seeking to postpone the evidentiary hearing thereon until she received the necessary discovery. The plaintiff has failed to provide a transcript of the May 11 hearing, and it does not appear from the record before us that she ever moved for clarification, reconsideration, or relief from the quashing of her subpoenas or the waiver aspect of the judgment.
We offer no view on any motion for reconsideration or relief from judgment that the plaintiff may file in connection with the claims the judge deemed waived. The plaintiff also appears to allege obstructionism and bad faith on the part of the defendant and that the defendant is receiving preferential treatment by the courts on the basis of his political connections. The plaintiff, however, has not filed on appeal a record that would permit review of those allegations.
3. Calculation of arrearages. The plaintiff has not persuaded us that the judge erred in calculating the defendant's arrearages at $8,750, the exact amount she had herself set out in the motion to partially vacate quoted above, as opposed to the $9,100 she claims on appeal. Once again, we have not been provided with a transcript from the May 11, 2015, hearing. The plaintiff also has not seen fit to provide this court with the underlying contempt judgment dated April 30, 2013, that she sought to enforce by means of the instant contempt complaint, and so we remain ignorant of its exact terms. Nevertheless, it appears that the judge concluded that the defendant had not made any of the monthly payments of $350 required of him under the April 30, 2013, judgment. Starting from (and including) May, 2013, twenty-five full months had passed between the date of the April 30, 2013, judgment and June 25, 2015, the date of the judgment at issue in this appeal. That means that the defendant owed twenty-five monthly payments of $350 in arrears, or $8,750, as determined by the judge. In the June 25, 2015, judgment, the judge ordered the defendant to pay this arrearage at the rate of $50 per month “together with his monthly payment of $350.00, for a total of $400.00 per month, beginning forthwith ” (emphasis added). As the arrearage was still ongoing as of June, 2015, and the defendant was ordered to begin paying the arrearage along with his existing monthly obligation “forthwith,” we understand the judge to have ordered the defendant to pay the first $50 arrearage installment along with the apparently as yet unpaid June, 2015, payment of $350 (the twenty-sixth month in the plaintiff's calculations). There was no miscalculation, and it does not appear that the plaintiff has been shorted.
In the appendix, the plaintiff included a summary of the “relevant provisions” of the April 30, 2013, judgment, which she attached to her complaint for contempt. We do not consider this an adequate substitute for the actual judgment.
4. Installments versus instant payment. Because the plaintiff has not provided us with the April 30, 2013, judgment (the underlying judgment that sets out the defendant's tuition obligations in the first instance), the transcript of the hearing that led to the June 25, 2015, judgment ordering the defendant to cure his arrearage in installments rather than all at once, or any of the underlying documentation that would be relevant to this issue, we are not in a position to consider the substance of this claim.
5. Holding the defendant to a higher standard. The plaintiff's arguments concerning the lower court's failure to hold the defendant to a higher standard because he may at one time have been a licensed attorney fail for numerous reasons.
First, the limited record we have demonstrates quite clearly that the plaintiff's submissions were inconsistent concerning the defendant's attorney status. For example, her motion for entry of default judgment and renewed motion for entry of default both assert that the defendant was “sworn in as a member of the Massachusetts bar in 1979” and is “an officer of this Court, whether currently licensed or not.” It appears, however, that the plaintiff actually had reason to believe that the defendant was not in fact currently licensed to practice law in Massachusetts. In a footnote to the mandamus petition that she filed in the Supreme Judicial Court, the plaintiff states that she indicated to a Probate and Family Court clerk that she believed the defendant “had been administratively suspended for not paying his bar dues for years and not bothering to file with the BBO for a status change.”
Second, even if we assume that the defendant is still a duly licensed attorney, the plaintiff has failed to draw our attention to any authority that would suggest that this status would have been relevant for any of the issues considered by the judge and raised on appeal. For example, the plaintiff cites to the Massachusetts rules of professional conduct and Matter of Ring, 427 Mass. 186, 191–192 (1998), regarding a lawyer being suspended for his misconduct in a divorce action commenced by his wife. However, that a lawyer can suffer professional consequences in separate disciplinary proceedings as a result of his conduct as a private litigant does not establish that the attorney status of a litigant changes the standard to which he or she is held in the primary proceedings.
The plaintiff cited, but did not provide copies of, numerous attorney discipline cases. Even if we accept for the sake of argument that the defendant, if still licensed, could be subject to professional discipline for the conduct alleged by the plaintiff in the proceedings below, it would still not explain how his asserted attorney status alters the formal standards to which he is held as a litigant in those proceedings.
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Judgment dated June 25, 2015, affirmed.