Opinion
No. 11–P–2182.
2012-11-13
Jean Caswell BROUSSEAU v. John B. CASWELL.
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant John B. Caswell (husband) appeals from an order of the Probate and Family Court that denied his motion for relief from judgment under the provisions of Mass.R.Dom.Rel.P. 60(b)(4) and (6). The husband filed his motion on the ground that the Colorado judgment and arrears order registered in Massachusetts pursuant to G .L.c. 209D, § 6–605, for which enforcement was thereafter sought, is “void” within the meaning of rule 60(b)(4). Noteworthy is that the defendant does not challenge the Probate Court's jurisdiction (either subject matter or personal), and indeed asserts that only the Probate Court can properly exercise jurisdiction. Thus, the husband does not contend that the Probate Court's judgment is “void” but, instead, avers it to be “erroneous” because the Probate Court judge incorrectly resolved the underlying issues. An erroneous judgment, however, is not a void judgment. Bowers v. Board of Appeals of Marshfield, 16 Mass.App.Ct. 29, 32 (1983). Reporter's Notes to Mass.R.Civ.P. 60(b)(4), Mass. Ann. Laws Rules, Rules of Civil Procedure at 1126 (Lexis–Nexus 2012–2013). As such, the husband does not state a proper ground upon which to vacate a judgment under rule 60(b)(4). See M.M. v. D.A., 79 Mass.App.Ct. 197, 208 (2011) (citation omitted) (“A judgment is void if the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law”). Turning to the denial of the motion as it seeks relief under rule 60(b)(6), similarly, appellate review examines not whether the trial court erred in rendering the underlying judgment but considers only whether that denial itself was a proper exercise of judicial discretion. See Sahin v. Sahin, 435 Mass. 396, 400 n. 6 (2001) (a trial court's denial of a rule 60(b)(6) motion “will not be disturbed absent an abuse of discretion”). See also Care & Protection of Georgette, 54 Mass.App.Ct. 778, 787 (2002), S C., 439 Mass. 28 (2003) (denial of 60(b)(6) motion within judge's “extensive discretion and is entitled to great deference by an appellate court”). On appeal, a trial judge's decision to deny a motion under rule 60(b)(6) will not be reversed unless “the judge's broad discretion was abused to such an extent that his decision constitutes an arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice which no conscientious judge, acting intelligently, could honestly have reached and which effectively amounts to a miscarriage of justice.” Care & Protection of Georgette, 54 Mass.App.Ct. at 787. Moreover, relief under the “catchall provision” of rule 60(b)(6) is only to be granted “in extraordinary circumstances” presenting some justification for relief other than those set forth in the prior subsections of the rule. Sahin, supra at 406–407. Such “extraordinary circumstances” are not present “when the allegedly aggrieved party could have reasonably sought relief by means of direct appeal.” Care & Protection of Georgette, supra at 788. In other words, and significantly, the defendant seeks to use a rule 60(b) motion as an alternative avenue of appeal. This he may not do. See Muir v. Hall, 37 Mass.App.Ct. 38, 41 (1994); Piedra v. Mercy Hosp., Inc., 39 Mass.App.Ct. 184, 188 (1995); Pielech v. Massasoit Greyhound, Inc., 47 Mass.App.Ct. 322, 327 (1999), S. C., 441 Mass. 188 (2004). Upon consideration of this motion record, we are thus unpersuaded that the judge abused her discretion in denying the motion.
Order denying motion for relief from judgment under Mass.R.Dom.Rel.P. 60(b)(4) and (6) affirmed.