Opinion
23-P-669
07-15-2024
CONGHUI ZHENG v. HONG LIANG SHEN.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Hong Liang Shen, the husband, appeals from the denial of his motion to amend a divorce judgment of the Probate and Family Court. Shen also appeals the denial of his request that the judge recuse himself, which was included in his motion to amend. We affirm.
Discussion.
In July 2020, Conghui Zheng, the wife, filed a complaint for divorce. In August 2021, the parties stipulated that the former marital home, their only significant joint asset, had a value of $263,000. In September 2022, less than a week before trial, Shen unsuccessfully moved to withdraw the stipulation. In December 2022, judgment entered entitling the husband to $85,309 in proceeds from the sale of the former marital home, representing one-half of the equity in the home less his one-half share of real estate taxes. In March 2023, the husband and wife signed a purchase and sale agreement for the marital home for $352,000. In April 2023, Shen filed a motion purporting to be a Mass. R. Dom. Rel. P. 60(b) motion for relief due to what he claimed to be newly discovered evidence. The motion was not accompanied by any newly discovered evidence that existed either at the time of trial or within ten days after trial. Rather, Shen requested an amended judgment establishing Shen's right to an equal share of proceeds from a sale of the marital home for $352,000. Accordingly, the judge treated the motion as a Mass. R. Dom. Rel. P. 59 motion to amend the judgment and denied it for lack of timeliness. The judge also denied Shen's request for recusal.
Although Shen titled his rule 59 motion as a rule 60 motion, we apply the "long-standing principle that judges have the flexibility to decide a motion based on its substance, rather than its title." Care & Protection of Rashida, 488 Mass. 217, 233 (2021). We review the denial of a rule 59 motion to amend a judgment for an abuse of discretion. See Wojcicki v. Caragher, 447 Mass. 200, 209 (2006). A motion to alter or amend a divorce judgment must be served within ten days after entry of the judgment. Mass. R. Dom. Rel. P. 59. Here, Shen filed his motion to amend the divorce judgment over three months after entry of the judgment. Thus, we discern no error from the judge's denial of the motion for untimeliness.
Shen included a request that the judge recuse himself within his motion to amend the judgment. The judge's decision whether to recuse himself was within his discretion. See Demoulas v. Demoulas Super Mkts., 428 Mass. 534, 546 n.5 (1998). As there was no pending action before the judge, he properly denied the request for recusal. Regardless, Shen's recusal request would have failed because it relied solely on the judge's adverse rulings. See Foley v. Foley, 27 Mass.App.Ct. 221, 222 (1989) (adverse rulings do not establish lack of impartiality).
Zheng's request for appellate fees and costs is denied.
Conclusion:
The order denying the motion to amend the judgment and for recusal of the judge is affirmed.
So ordered.
The panelists are listed in order of seniority.