Opinion
No. 15–P–1414.
01-06-2017
Aina Pfeifer CULLEM v. James Gregory CULLEM.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the defendant filed an appeal from an abuse prevention order entered against him, the clerk's office of the Newburyport District Court notified the parties that a recording of the hearing could not be located. Several months later, a District Court judge dismissed the defendant's appeal on the ground that he did not act in a sufficiently timely manner to reconstruct the record in accordance with Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979) (rule 8(c) ). The defendant now appeals from the dismissal order. We vacate the order and remand because, to the extent the defendant failed to comply with rule 8(c), he cured his noncompliance such that Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994), precluded dismissal of the appeal. Resolving the case on this basis, we do not reach the defendant's other arguments.
Specifically, we do not address the defendant's arguments that rule 8(c) is "non-mandatory," and that it can never serve as the basis for dismissal of an appeal.
On November 19, 2013, the plaintiff sought and obtained an ex parte abuse prevention order under G.L. c. 209A against the defendant. By agreement of the parties, the order was extended and the hearing was continued for one year. Following a hearing on November 19, 2014, the trial judge extended the order for an additional three years until November 16, 2017.
On November 28, 2014, the defendant filed a notice of appeal of the extension order and, around the same time, sent a letter to the clerk's office requesting a copy of the audio recording from the November 19 hearing. On February 4, 2015, the clerk's office notified the parties that the recording was missing. Around four months later, on June 10, 2015, the defendant sent a letter to the court, with a copy to the plaintiff's trial counsel, stating that he was "filing a recreated record for the purposes of the appellate record." He also filed, on July 6, 2015, a "motion to recreate the record," explaining the timeline of events and noting that he had already filed "a proposed record that he created from his memory of the proceedings."
Although the defendant did not include the recreated record in his record appendix on appeal, the plaintiff, now proceeding pro se, conceded at oral argument that the recreated record was attached to the defendant's June 10, 2015, letter.
Instead of responding to the defendant's recreated record with her own statement of the evidence, the plaintiff moved on June 15, 2015, to dismiss the defendant's appeal, arguing that rule 8(c) required the defendant to file and serve the recreated record within thirty days of the notice of appeal. After a hearing on July 21, 2015, the judge allowed the plaintiff's motion, denied the defendant's motion to recreate the record, and dismissed the defendant's appeal, all on the basis that the defendant had unreasonably delayed for six months before attempting to reconstruct the record under rule 8(c). This appeal followed.
Rule 8(c) states in full: "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal."
We agree with the defendant that the judge abused his discretion in dismissing the underlying appeal because the defendant had cured any noncompliance with rule 8(c) by the time of the hearing on the plaintiff's motion to dismiss. Rule 10(c) of the Massachusetts Rules of Appellate Procedure provides, "If, prior to the lower court's hearing [a] motion for noncompliance with [the rules governing assembly and transmission of the record], the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely." See Springfield YWCA v. Evers, 30 Mass.App.Ct. 921, 922 (1991) ; Neuwirth v. Neuwirth, 85 Mass.App.Ct. 248, 259 (2014). Here, it is undisputed that the defendant filed and served a recreated record (functionally, a statement of the evidence under rule 8(c) ) on June 10, 2015, over a month before the hearing on the plaintiff's motion to dismiss, and filed and served a motion to recreate the record two weeks before the hearing. He therefore cured any noncompliance with rule 8(c) by the time of the hearing, and so his appeal should not have been dismissed. See Springfield YWCA, 30 Mass.App.Ct. at 922 (judge erred in dismissing appeal for failure to comply with rule 8(c) where appellant had submitted proposed statement of evidence by time of hearing on motion to dismiss). Cf. Neuwirth, 85 Mass.App.Ct. at 258–260 (judge erred in dismissing appeal for failure to order transcript where, prior to hearing, appellant had forwarded recording to transcriber and placed order for transcription).
To be sure, in Neuwirth, we left open the possibility that the cure provision may not protect an appellant who has acted with inordinate delay. Id. at 259. But in this case, like in Neuwirth, the delay was only "a matter of months," as opposed to "where an appellant inexcusably has let an appeal languish for years." Ibid. See Springfield YWCA, 30 Mass.App.Ct. at 923 (appellant's three-to four-month delay in submitting rule 8(c) statement did not prejudice appellee). Still, the plaintiff argues, and the trial judge found, that this relatively short delay prejudiced her because it interfered with the purpose of G.L. c. 209A to protect victims of domestic abuse. While that is undoubtedly an important purpose, however, we disagree that the delay caused the plaintiff any undue prejudice because, as she acknowledged at oral argument, the abuse prevention order will remain in effect pending resolution of the defendant's appeal.
The trial judge calculated the delay as "almost six months," but he erred by including the time up to the date of the July 21, 2015, hearing. In actuality, the delay was approximately three months: the period beginning thirty days after February 4, 2015 (the date the defendant was notified of the missing recording), and ending on June 10, 2015 (the date of the cure). See Springfield YWCA, 30 Mass.App.Ct. at 923.
For these reasons we vacate the order dismissing the defendant's appeal and remand the case to the District Court for reconstruction of the record. On remand, the plaintiff shall be given a reasonable period of time to present her own statement of the evidence. The defendant's request for appellate attorney's fees is denied.
So ordered.