Opinion
No. 15–P–1496.
12-22-2016
Cathleen BASTIBLE v. Martin GORENC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father, Martin Gorenc, moved for relief from judgment pursuant to Mass.R.Dom.Rel.P. 60(b)(1) and (6), after a judgment of modification entered in favor of the mother, Cathleen Bastible. A judge of the Probate and Family Court denied the motion, and the father appeals. We affirm.
Background. In 2003, the mother and the father entered into an agreement for judgment on a complaint to establish paternity as to their son, who was born in 1996. The agreement provides, in pertinent part, that the father is obligated to pay child support and that the parties are to share equally the child's uninsured medical, dental, prescription, and hospital expenses. The order establishing child support reflects that the father is self-employed by American Way Home Improvement Co., which is operated out of his home in Southwick, Massachusetts.
On October 22, 2014, the mother filed a complaint for modification seeking an extension of child support. Therein, she alleged as a change in circumstances that the child, then aged eighteen, was living with her, enrolled full time in college, and had incurred significant uninsured medical and dental expenses. She further alleged that the father had ceased paying child support once the child had turned eighteen.
On October 30, 2014, a deputy sheriff, on behalf of the mother, served the complaint for modification and summons by leaving it at the last and usual home of the father, and by mailing it, first class, to the same address. On January 6, 2015, a notice and order was sent to each party informing them that a pretrial conference on the matter had been scheduled for May 5, 2015, at 11:00 A.M. It also ordered that "[a]t least one week before the day of the pre-trial conference, all parties and any lawyers shall meet and shall talk in person about the case." The order further specified the "[t]he Court may order the case to immediate trial on the date of the pre-trial conference if the Court determines at the pre-trial conference that ... one party, by failure to appear at the pre-trial conference or otherwise, will not present a case...."
Service was made at the same address listed by the father when the original judgment entered.
The mother's response to the order stated that "[a]n in-person meeting was not conducted as the defendant represented that he is not in this part of the country and will not be back for the Pre–Trial Conference."
The pretrial conference was held, as scheduled, on May 5, 2015. The clerk read into the record a telephone message from the father, who had called the court at 10:30 A.M. on the day of the hearing, stating, "Can't make hearing. Out of state. Was only notified a few days ago." The judge then conducted a hearing on the merits and later issued a judgment of modification in favor of the mother.
On May 21, 2015, an attorney filed an appearance on behalf of the father. On July 29, 2015, more than two months after the judgment had entered, the father filed a motion pursuant to rule 60(b) for relief from judgment, which the mother opposed, and the judge summarily denied. This appeal followed.
Because the statements contained in both the father's rule 60(b) motion and accompanying memorandum, and the mother's opposition, are signed under the pains and penalties of perjury, we treat them as affidavits.
We note that the appeal is only from the denial of the rule 60(b) motion. The notice of appeal was filed more than thirty days after the entry of the modification judgment, and the filing of the rule 60(b) motion, more than ten days after the entry of the modification judgment, did not stay the running of the appeal period. See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013).
Discussion. The father argues, under rule 60(b)(1), that the judgment was a product of "mistake, inadvertence, surprise or excusable neglect" because he did not receive the complaint and summons, and only received notice of the hearing a few days before it was scheduled to occur. See Bushnell v. Bushnell, 393 Mass. 462, 474 (1984). "[A] judge's action taken pursuant to a rule 60 motion will not be reversed on appeal in the absence of an abuse of discretion." Rezendes v. Rezendes, 46 Mass.App.Ct. 438, 441 (1999).
Here, the record supports the conclusion that the father had sufficient notice and an opportunity to be heard. In his affidavit, the father admitted that he received a telephone call from the mother's counsel no later than April 29, 2015. Other than to state that he was "[o]ut of state" the father did not explain why he could not get back to the Commonwealth for the hearing, nor did he specify what "best efforts" he employed to attend the hearing. The only record evidence of the father's efforts are reflected in the telephone message received by the court one-half hour prior to the hearing. In that call, the father did not request a continuance or ask to participate in the hearing by telephone.
Moreover, the mother averred that the last child support check she received, in February of 2014, listed the father's Southwick address, and that he had never notified her of any change of address. She also averred that at the time of the hearing, the father's voice mail greeting was from American Way Home Improvement Co., located at his home address in Southwick, and that the business's Web site continued to list that address. The record also contains no evidence that any of the correspondence sent to the father by the court at his Southwick address was returned as undeliverable. Under the circumstances, the motion judge was free to reject the father's assertions. In short, the father knew that his rights were at stake, and gambled by not appearing at the hearing or otherwise adequately communicating with the court.
Finally, even assuming we were persuaded by the father's due process argument, he has not shown that he has a meritorious claim or defense. Contrary to his assertion, the lack of a provision regarding college expenses and the continuation of child support after age eighteen in the parties' agreement is not a bar to a modification action. This is particularly so in this case where the child was seven years old when the parties entered into the agreement. See, e.g., Cabot v. Cabot, 55 Mass.App.Ct. 756, 762–765 (2002). As to father's assertion that the amount of income attributed to him by the judge was incorrect, this claim fails for the reason, if no other, that the father has neither disclosed nor provided any documentation of his true income.
The father's claim fares no better under rule 60(b)(6), as he has failed to establish the kind of "compelling or extraordinary circumstances" that would merit relief. See DeMarco v. DeMarco, 89 Mass.App.Ct. 618, 621 (2016), quoting from Winthrop Corp. v. Lowenthal, 29 Mass.App.Ct. 180, 188 (1990).
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The judge did not abuse his discretion in denying the father's motion for relief from judgment.
Order denying motion for relief from judgment affirmed.