Opinion
19-P-890
05-11-2020
ALICE DONAHUE v. ROBERT F. DONAHUE.
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 plaintiff, Alice Donahue (wife), appeals from a Probate and Family Court judge's order denying her motion under Mass. R. Dom. Rel. Pro. 60 (b) (1) for relief from a judgment entered in this divorce action against the defendant, Robert F. Donahue (husband). Seeing no abuse of discretion, we affirm.
Background. The parties were divorced in 2015. The judgment incorporated the parties' separation agreement, which in pertinent part provided that (1) the wife would receive one-half of the marital portion of the vested accrued benefit of the husband's pension, which was already in payout status; and (2) the wife would retain her retirement plan and pension, with one-half of each being "credited" to the husband. The agreement further required the husband's attorney to retain a "valuator" to determine the amount and value of all retirement accounts, and the husband's pension would thereafter be divided by way of a qualified domestic relations order (QDRO).
In 2017, the wife filed a complaint for contempt, alleging that the husband had violated the terms of the agreement regarding preparation of a QDRO. At this point, the husband was self-represented. On April 5, 2018, at a hearing on the complaint, both parties executed a stipulation providing that the husband would execute the QDRO, which he simultaneously did. The stipulation also provided that (1) the husband would pay the wife retirement arrears in the "negotiated sum" of $22,500 pursuant to a payment schedule; (2) the "negotiated sum" cured the arrearage due to the wife from the husband's pension and satisfied the "credits" due to the husband from the wife's retirement plan and pension; and (3) "the settlement herein resolves all issues before the court today and no further sums are due (other than the QDRO benefit to [the wife])." In signing the stipulation, both parties acknowledged that they had read it, understood its terms, and signed it freely and voluntarily.
The parties were then sworn, and the judge held a brief colloquy in which she asked the wife: "Did you have enough time to review these terms with your attorney," "[a]re you content that you understand the terms," and "[d]id you sign voluntarily?" The wife answered each of these questions in the affirmative. The judge then asked whether the wife's counsel wished to put anything on the record. Counsel explained that, as a result of the earlier failure to execute the QDRO, "there were three years of total arrears that would have been due to my client from the pension payout that the [husband] had received." She further explained that, to address both the arrears issue and the amounts due from the wife to the husband, "the parties have agreed on the global settlement that the [c]ourt has. It's a negotiated sum, the parties realize that these are not accurate figures before the [c]ourt, they negotiated it for the purpose of coming to a global resolution today." The judge then approved the stipulation and entered it as a judgment that same day, April 5, 2018.
The judge asked similar questions of the husband, and he too answered in the affirmative.
Later that afternoon, the wife's counsel sent an e-mail to the husband, stating:
"Unfortunately, with all the due care that I exercised in[] taking time to review the drafted [a]greement, I made a mathematical error in calculating the number of months that were owed to [the wife] as retirement arrears. I missed the [twelve] month period of 2016; therefore, the negotiated figure failed to account for an additional $17,612.40 for 2016.
". . .
"I do not want to engage [in] unnecessary litigation of the retirement arrears by filing a [m]otion for [r]elief from
[j]udgment. I would like to have open dialogue with you about resolving the discrepancy."Six weeks later, having heard nothing from the husband, the wife, asserting "mistake, inadvertence[,] or excusable neglect," filed a rule 60 (b) (1) motion for relief from the April 5 judgment, attaching a copy of the e-mail and requesting a hearing. The judge denied the motion without a hearing, and this appeal followed.
Discussion. A rule 60 (b) (1) motion "is properly addressed to the sound discretion of the trial judge," and "[t]herefore, while appellate courts have not hesitated to intercede when the circumstances so required, . . . a judge's decision will not be overturned, except upon a showing of a clear abuse of discretion." Scannell v. Ed. Ferreirinha & Irmao, Lda, 401 Mass. 155, 157-158 (1987). See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 434 (1979) (appellate decisions under rule 60 [b] "have shown a marked deference to the decision reached by lower court judges"). An abuse of discretion means a "clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
"The burden to establish" excusable neglect is on the party seeking relief, Hermanson v. Szafarowicz, 457 Mass. 39, 46 (2010), and the Berube decision "set[s] out several factors that may inform the court's decision concerning whether the [party] has met [her] burden under this rule." Hermanson, supra at 46-47. These factors are set forth in the margin.
The factors are: "(1) whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself." Berube, 7 Mass. App. Ct. at 430-431.
Weighing in the wife's favor, the husband does not contest that she filed her motion promptly. See Berube, 7 Mass. App. Ct. at 430. And the fact that the neglectful conduct occurred after, rather than before or during, the trial on the merits does not appear to favor either party. See id. The remaining factors, however, could reasonably be thought to weigh in favor of the husband.
The claim set forth in the motion could be viewed as lacking merit, see Berube, 7 Mass. App. Ct. at 430, because it failed to set forth in any detail why the omission of one year of arrears from the stipulated settlement amount should be viewed as a mistake, rather than the result of a compromise that the wife later concluded was not in her interests. The wife affirmed in writing that she had read the stipulation, understood its terms, and was signing it freely and voluntarily. In the colloquy carefully conducted by the judge, the wife affirmed under oath that she had had enough time to discuss the terms with her counsel and was content that she understood them. The wife's counsel then explained to the judge that "three years of total arrears . . . would have been due," but that the parties had agreed on the global settlement -- "a negotiated sum, . . . not accurate figures" -- "for the purpose of coming to a global resolution today." Nevertheless, counsel's later e-mail to the husband asserted that she had made a mathematical error in omitting one of the three years of arrears. Counsel's subsequent motion asserted that "the parties" (not merely counsel for one party) mistakenly failed to account for all of the payments due from the husband to the wife.
The motion made no attempt to reconcile these various conflicting statements. It was not supported by any affidavit from either counsel or the wife detailing the course of negotiations and explaining the parties' calculations. The motion did not demonstrate how the omission of one year of arrears was a mistake (whether unilateral or mutual), rather than a conscious choice made in the interests of ending the litigation. Although the wife's appellate brief asserts that she could have given a further explanation had the judge held a hearing on the motion, it is incumbent upon a party seeking a hearing in these circumstances to make a sufficient threshold showing that the hearing will aid the court in deciding the motion. The judge could reasonably have concluded that the motion here failed to do so.
For largely the same reasons, the judge could well have viewed the omission of the third year of arrears as "a consciously chosen course of conduct on the part of counsel," Berube, 7 Mass. App. Ct. at 431, and as chargeable not only to counsel but to the wife herself. See id. The wife's written affirmation, her statements to the judge under oath, and counsel's explanation of the settlement all indicated that, although three years of arrears were due, the final numbers in the settlement were a negotiated compromise, fully understood by all parties. The judge could have viewed the unsworn and conflicting statements in the motion as doing little to establish the contrary.
The relief requested by the motion could reasonably be seen as prejudicial to the husband. See Berube, 7 Mass. App. Ct. at 431. The record made clear that he had agreed to a compromise to put an end to the litigation. Reopening the judgment would deprive him of the finality for which he had bargained.
No doubt, if the wife's claim of mistake were properly supported, then the wife was prejudiced by the loss of up to a year of pension arrears due from the husband. But the "prejudice" factor in Berube focuses on prejudice to the nonmoving party if the motion is allowed. See Berube, 7 Mass. App. Ct. at 431.
Finally, even assuming that the omission of a year of arrears was indeed counsel's mistake, "[e]xcusable neglect requires circumstances that are unique or extraordinary," and is "not extended to cover any kind of garden-variety oversight" (quotations and citations omitted). Feltch v. General Rental Co., 383 Mass. 603, 614 (1981). "Excusable neglect . . . is something other than, 'Oops, I forgot.'" Chu Tai v. Boston, 45 Mass. App. Ct. 220, 222 (1998).
That we see no abuse of discretion in the denial of the motion without a hearing does not foreclose the possibility that we would have decided the motion differently were it before us de novo. "There is no error of law amounting to an abuse of discretion simply because a reviewing court might have reached a different result; the standard of review is not substituted judgment." Scannell, 401 Mass. at 160, quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986).
It remains only to deny the husband's request for appellate attorney's fees and costs under G. L. c. 208, § 38. Assuming without deciding that that statute authorizes an award by an appellate court, as opposed to the Probate and Family Court, the equities here do not favor the husband. We note in particular the husband's role in the delayed preparation of the QDRO, leading to the contempt proceeding against him and to this appeal.
The husband also seeks fees under G. L. c. 208, § 17, and G. L. c. 231, § 118. Those statutes on their face do not apply here.
Order denying motion for relief from judgment affirmed.
By the Court (Sacks, Ditkoff & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 11, 2020.