Opinion
11-P-957
03-06-2012
JOE LINCOLN AUSTIN v. ADRIENNE MCGLONE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises out of a continuing dispute over the enforcement of orders of the Probate and Family Court Department directing the mother and appellant, Adrienne McGlone (mother), to allow supervised visitation by the father, appellee Joe Lincoln Austin (father). The mother seeks appellate review of judgments and orders dated April 13, 2010, June 18, 2010, September 30, 2010, and February 22, 2011. For the reasons set out below, only the mother's appeal from the February 22, 2011, orders is before us. We affirm.
April 13, 2010, judgment. The record demonstrates the mother did not appeal from the April 13, 2010, judgment and order. Secondly, the mother has previously appealed from the denial of her motions related to the April 13, 2010, judgment and from the amended judgment of contempt, all issued on May 12, 2010, and entered on May 17, 2010. In fact, this court has already decided that appeal.
Austin v. McGlone, 79 Mass. App. Ct. 1124 (2011).
June 18, 2010, judgment. There is nothing in the record to indicate that the mother appealed from this judgment, nor is this judgment included in her notice of appeal.
September 30, 2010, order. On September 30, 2010, the judge issued an order on the father's July 19, 2010, amended complaint for contempt. She found that the mother had notice of the September 20, 2010, hearing, but failed to appear and that she had notice of the September 30, 2010, hearing, but again failed to appear or present credible evidence of an inability to appear. The judge ordered the mother to pay the cost of the service of the capias and the father's legal fees for the September 20 and 30, 2010, hearings. There is nothing in the record to indicate that the mother appealed from this order. The mother's subsequent motions were not filed withing ten days and did not toll the thirty-day appeal period.
February 22, 2011, orders. The judge denied the mother's January 28, 2011, motion for clarification of the September 30, 2010 order. The mother timely appealed. However, her appellate brief contains factual assertions not supported by the record, erroneous statements about the procedural history of the case, and fails to present a coherent, understandable legal argument supported by relevant legal authorities. In addition, she did not include a transcript of any relevant hearings and did not include any of the father's pleadings in the record appendix. Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-86 (1995). Even if this were not dispositive, we would still conclude that it has not been made to appear that the judge abused her discretion or committed error of law in denying the mother's motion for clarification.
The mother also purported to appeal from the denial of her motion for clarification and reconsideration of the September 30, 2010, order and recall of capias. However, that motion was denied on December 13, 2010, and the March 9, 2011, notice of appeal was not timely with respect to that motion. Furthermore, the mother included only the first page of that motion in the record appendix.
On the same date, after a hearing, the judge also denied the mother's motion for relief from the judgment dated April 13, 2010. Although the mother filed a notice of appeal from that order, she did not include this motion and the transcript of the hearing in the record appendix, nor is she raising any argument about its denial.
The mother is proceeding pro se on appeal. However, a pro se litigant is held to the same standard as a litigant represented by counsel. Maza v. Commonwealth, 423 Mass. 1006 (1996).
The order provided: 'it is ORDERED as follows:
'1. A capias shall issue, returnable forthwith.
'2. Mother shall pay the cost of service of the capias.
'3. Mother shall pay Plaintiff's ('Father') legal costs and fees in the amount of $1,137.50 for appearing on September 20, 2010 (4 hours), and September 30, 2010 (2.5 hours), without prejudice to Father's right to seek additional fees pursuant to G. L. 215 § 34A. Payment shall be made forthwith.'
Orders dated February 22, 2011, affirmed.
By the Court (Green, Brown & Agnes, JJ.),
The order spoke for itself and was not in need of clarification. In fact, the mother's motion, although styled as a motion for clarification, challenged its terms.