Opinion
15-P-317
03-30-2016
JOHN CAROLLO v. CAROLINE STANZIONE CAROLLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant wife, acting pro se, appeals from a "corrective judgment of divorce nisi," a modification judgment, the order denying her motion to amend findings on the modification judgment, and the order denying her motion for relief from a contempt judgment. We affirm.
Background. In 2011, the plaintiff husband filed a complaint for divorce. In 2012, the husband filed two complaints for contempt of temporary orders regarding visitation with the parties' minor child. On April 9, 2013, following two evidentiary hearings, the contempt judge issued findings of fact, conclusions of law, and judgment on the contempt complaints (the contempt judgment). A divorce trial took place over the course of several days in April and May of 2013, and on October 3, 2013, a corrective judgment of divorce nisi entered nunc pro tunc to August 19, 2013 (the divorce judgment).
Three months later, the wife filed a complaint for modification of the husband's alimony and child support obligations, alleging an increase in living expenses and health care costs. The husband filed a counterclaim for modification, and a trial on the complaint and counterclaim took place. On June 3, 2014, judgment entered on the complaints for modification (the modification judgment). On July 9, 2014, the wife's motion to amend the modification judgment was denied.
Neither the husband's counterclaim for modification nor the transcript of the modification trial are included in the record appendix.
The wife filed a notice of appeal from the modification judgment and from the order denying her motion to amend. She also filed a notice of appeal from the divorce judgment, having received from a single justice of this court leave to file a late notice of appeal. On August 20, 2014, the wife filed a motion for relief from the contempt judgment. On September 3, 2014, the wife's motion for relief from the contempt judgment was denied, and the wife appealed.
This notice of appeal is not included in the record appendix.
Discussion. 1. Modification and contempt judgments. While the wife purports to appeal from the modification judgment, the order denying her motion to amend that judgment, and from the order denying her motion for relief from the contempt judgment, she makes no argument regarding these decisions in her brief. Accordingly, we decline to address them. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
2. Divorce judgment. In light of the modification judgment, the wife's challenge to the alimony and child support provisions of the divorce judgment is moot. See Braun v. Braun, 68 Mass. App. Ct. 846, 854 (2007). On this record, we cannot review her claims regarding the division of assets. As a result of her delay in appealing from the divorce judgment, findings pursuant to Mass.R.Dom.Rel.P. 52(a) are unavailable because the divorce judge has retired. The appendix "contains only limited excerpts from the transcript" of the multi-day trial, Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995), and it does not include testimony regarding the assets she complains were inequitably divided. It was the wife's burden, as the appellant, to "include in the record a transcript of all evidence relevant to" the judge's findings and conclusions regarding the division of assets, Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1601 (1999), and she "failed to include all portions of the trial transcript that are crucial to our review of the evidence in the record appendix, as required by" Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). See Cameron, supra at 83. See also Commonwealth v. Montanez, 388 Mass. 603, 604 (1983) (it is appellant's burden "to bring us a satisfactory transcript"). The appendix improperly includes materials that were not before the divorce judge, and the "fact that [the wife] represents [herself] does not excuse [her] compliance with procedural rules." Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994). The wife has not presented us with anything that would lead us to conclude that the divorce judge abused her broad discretion in dividing the marital assets equitably. See Brower v. Brower, 61 Mass. App. Ct. 216, 221 (2004).
Conclusion. For the reasons stated, we affirm the October 3, 2013, corrective judgment of divorce nisi; the June 3, 2014, modification judgment; the July 9, 2014, order denying the wife's motion to amend the modification judgment; and the September 3, 2014, order denying the wife's motion for relief from the contempt judgment.
We deny the husband's request for appellate attorney's fees pursuant to G. L. c. 231, § 6F.
So ordered.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.