Opinion
19-P-1669
07-30-2020
LAURA MARIE CREEDON v. JOSEPH E. HAYNES.
NOTICE: 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
In 1995, the parties entered into a separation agreement that entitled the wife to forty-five percent of the marital portion of the husband's public pension upon the husband's retirement. In 2005, the husband retired without informing the wife and collected all of his pension. Upon discovering this in 2007, the wife filed a complaint for contempt. A qualified domestic relations order (QDRO) entered in 2008, ordering the local retirement board (board) to make monthly pension payments to the wife in a specified amount. On August 4, 2009, a second QDRO entered, replacing the earlier one and ordering payments to the wife in a decreased amount. The wife's motion for reconsideration of the 2009 QDRO was denied in a written decision by the judge who had entered it (QDRO judge). The wife did not appeal.
In September 2010, the wife moved for relief from the 2009 QDRO under Mass. R. Dom. Rel. P. 60 (b) (6), "in order to accomplish justice," claiming that the QDRO judge had made an error in calculating the wife's monthly payment amount. The wife requested that the 2008 QDRO (providing for higher payments) be reinstated. The QDRO judge carefully analyzed the mother's claim and agreed that he had made a miscalculation. However, the judge denied her motion for relief from the 2009 QDRO because the correct calculation resulted in an even lower payment. A panel of this court, in a summary decision pursuant to rule 1:28, affirmed the QDRO judge's decision. See Creedon v. Haynes, 84 Mass. App. Ct. 1123 (2013). In that decision, the panel concluded that the wife had not shown either an error or an abuse of discretion by the QDRO judge in determining (1) that the disability portion of the husband's pension did not accrue during the course of the parties' marriage, or (2) the proper amount of the wife's payment under their separation agreement. Id.
The wife then went to the board and petitioned for an order that she receive the higher payment amount set forth in the 2008 QDRO. After the board declined to order payments to the wife in any amount other than that set forth in the 2009 QDRO, she sought review of the board's decision from the Division of Administrative Law Appeals (DALA). At a DALA hearing on her appeal, the wife stated "that she is barred from petitioning the [Probate] court to review any of her claims, or believes this be the case," because the decision to deny her relief from the 2009 QDRO had been affirmed on appeal to this court. On April 28, 2017, the DALA upheld the board's determination in a lengthy decision. The wife did not seek further administrative or judicial review of the DALA ruling.
On August 22, 2017, the wife returned to the Probate and Family Court and filed another motion for relief from the 2009 QDRO, citing to all six provisions of rule 60 (b). The wife reiterated the same arguments she advanced in her 2010 rule 60 (b) (6) motion, and again asked that the 2008 QDRO be reinstated. The judge who issued the QDRO having retired, another Probate and Family Court judge "denied" the wife's motion in a margin endorsement, without elaboration. The wife timely appealed, and asks that we (1) reinstate the 2008 QDRO, (2) order the board to garnish from the husband's monthly pension payments the arrears she believes the husband owes her, (3) award her interest on the arrears pursuant to G. L. c. 231, § 6 (c), and (4) exercise our "inherent power" to sanction the husband's attorney. We affirm.
Massachusetts Rules of Domestic Relations Procedure 60 (b), which is identical to Mass. R. Civ. P. 60, 365 Mass. 828 (1974), provides: "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation."
Standard of review. A motion pursuant to rule 60 (b) (1), (2), or (3) must be brought within one year of entry of the judgment from which relief is sought. Mass. R. Dom. Rel. P. 60 (b). "There is no time limit with respect to rule 60 (b) (4) motions based on void judgments." Uzoma v. Okereke, 88 Mass. App. Ct. 330, 331 (2015). Motions under rule 60 (b) (5) and (6) must be brought "within a reasonable time." Mass. R. Dom. Rel. P. 60 (b). A judge's conclusion that a rule 60 (b) motion has not been brought "within a reasonable time" is reviewed for an abuse of discretion, Owens v. Mukendi, 448 Mass. 66, 72 (2006), which we will not find unless "we conclude the judge made a 'clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "In determining whether a motion was filed within a reasonable time, a judge may consider the reasons for the delay; the ability of the movant to learn of the grounds earlier; prejudice to the parties, if any; and the important interest of finality." Owens, supra at 74.
Discussion. The judge correctly denied the rule 60 (b) motion insofar as it sought relief under subsections (1), (2), and (3), because the applicable one-year deadline "had long elapsed" since the August 4, 2009 second QDRO entered. Honer v. Wisniewski, 48 Mass. App. Ct. 291, 294 (1999). The wife's challenge to the merits of the 2009 QDRO do not render that judgment void within the meaning of subsection (4). As we explain below, we see no abuse of discretion or other error in the judge's implicit conclusion that the motion was not brought "within a reasonable time" of either the entry of the 2009 QDRO, or of the 2010 order denying the first rule 60 (b) (6) motion to vacate, such that the wife would be entitled to relief under subsections (5) or (6).
First, the wife gave no explanation for the seven-year delay between the filing of her first and second rule 60 (b) motions. From the record she has provided, we can discern that the wife spent those years unsuccessfully litigating the propriety of the 2009 QDRO in front of the board and the DALA. Thus, the judge could conclude, the wife was able to and in fact did "learn of the grounds [for her rule 60 (b) motion] earlier" than 2017. Owens, 448 Mass. at 74.
Second, the wife did not appeal from the denial of her motion for reconsideration of the 2009 QDRO. Thus, as of 2017, the board had for eight years been deducting from the husband's monthly pension payments the amount to which the wife was entitled under the terms of the 2009 QDRO. Permitting the wife to, once again, seek an order from the Probate and Family Court retroactively reducing the husband's pension payments -- to afford the wife the higher payment amount set forth in the 2008 QDRO -- would unreasonably prejudice the husband by forcing him to (once again) defend against a significant decrease of his pension payments necessary to sustain him in retirement. It would also undermine "the important interest of finality" of judgments. Owens, 448 Mass. at 74. Where the wife declined to appeal the 2009 denial of her motion for reconsideration, she was not entitled to seek the very same relief in 2017. "There is no error in the denial of a motion that merely seeks, as this one did, a 'second bite at the apple.'" Liberty Sq. Dev. Trust v. Worcester, 441 Mass. 605, 611 (2004). It is well settled that rule 60 (b) "is not a substitute for the normal appellate process." Jones v. Boykan, 464 Mass. 285, 291 (2013) (Spina, J., dissenting). The judge's decision in 2017 to deny the wife relief under rule 60 (b) from a 2009 judgment did not fall "outside the range of reasonable alternatives." L.L., 470 Mass. at 185 n.27. There was no abuse of discretion.
The husband retired from the fire department at the age of 47 due to "accidental disability."
The husband has requested an award of trial and appellate costs and attorney's fees incurred in defending this action, on the ground that it is frivolous. In light of all that is before us, we agree, but the husband cites no authority authorizing us to award costs and fees incurred in the trial court proceedings. The husband is invited to submit a petition for appellate fees and costs, together with supporting documentation, within fourteen days of the issuance of the rescript in this case. The wife shall have fourteen days thereafter to respond. See NTV Mgt., Inc. v. Lightship Global Ventures, LLC, 484 Mass. 235, 248 (2020).
Order dated February 28, 2018, denying motion for relief affirmed.
By the Court (Sacks, Singh & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 30, 2020.