Opinion
No. 15–P–1486.
07-08-2016
Thomas EDDY v. Kenia FRANCO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff father appeals from an order of a single justice denying his petition pursuant to Mass.R.A.P. 6(a), as appearing in 454 Mass. 1601 (2009), seeking a stay of portions of a judgment of the Probate and Family Court that permitted the defendant mother to remove the parties' daughter to Florida, set prospective child support, granted retroactive child support and determined its amount, and apportioned guardian ad litem (GAL) fees.
A single justice has broad discretion in deciding whether to grant relief in the form of a stay of judgment under rule 6(a). “An appellant seeking a stay pending appeal must ordinarily meet four tests: (1) the likelihood of appellant's success on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of substantial harm to other parties if the stay issues; and (4) the absence of harm to the public interest from granting the stay.” C.E. v. J.E., 472 Mass. 1016, 1017 (2015) (quotation omitted). “Rarely ... can it be said that a single justice is in error in denying relief.” Mezoff v. Cudnohufsky, 5 Mass.App.Ct. 874 (1977).
Given the trial judge's findings of fact, including the finding that the defendant was sincere in her desire to move to Florida for reasons other than disrupting the child's relationship with her father and the findings concerning the plaintiff's credibility, we conclude that the single justice did not abuse his considerable discretion. Of the factors described in C.E., the first three are of primary significance. The single justice may have concluded that the plaintiff was not likely to succeed on the merits. He may have concluded that there was no likely irreparable harm to the plaintiff if the stay were denied. (This is particularly the case given that the plaintiff lives in New York and had visitation with his daughter away from his home state in Massachusetts as he will, although at a further distance, in Florida under the judge's order.) The single justice may have concluded that the stay would create substantial harm to the defendant or the child in light of the trial judge's findings of fact and the timing of the motion for stay, after the child had been moved to Florida and the plaintiff had commenced visitation there. Or he may have concluded that some or all of these first three factors weighed against granting the petition seeking a stay and that the balance among the factors ultimately weighed in the defendant's favor. Any such determinations were well within the scope of his discretion.
Order denying motion for stay affirmed.