Opinion
11-P-508
03-02-2012
JANET FEENEY v. JAMES A. FEENEY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from a judgment of contempt and other orders entered by a judge of the Probate and Family Court subsequent to the parties' divorce. He advances various claims of error, none of which warrant relief.
A judgment of divorce nisi was entered on January 23, 2006.
The husband is proceeding pro se and has requested that we hold him to a less stringent standard than if his brief had been submitted by a lawyer. The husband, however, is no stranger to litigation. He has pursued numerous appeals in this court and the Supreme Judicial Court in connection with his divorce. Furthermore, as our decisions have often stated, the fact that a litigant is proceeding pro se does not excuse his noncompliance with the applicable rules of appellate procedure. See Maza v. Commonwealth, 423 Mass. 1006 (1996). Nevertheless, in the interests of justice, we have given careful consideration to the husband's claims.
Procedural history and background. The procedural history is lengthy and complicated. For the present purposes it suffices to note that on September 2, 2009, the husband filed a complaint for contempt alleging that the wife had violated an order entered on April 9, 2009, requiring her to pay him fifty percent of income and penalty taxes he incurred as a result of making premature withdrawals from various retirement accounts. In her answer to the complaint, the wife asserted that she was unable to determine the amount that she owed because the husband had failed to produce the relevant tax returns as previously ordered. The wife also filed a counterclaim, alleging that the husband failed to comply with other provisions of the April 9 order and failed to pay child support and attorney's fees as required by an order entered on July 29, 2009.
The April 9 order required, among other things, that the husband return the Martha's Vineyard property to his name by recording a deed transferring the property back to him, provide the wife with a copy of the deed, tax returns for 2005, 2006, 2007, and 2008, details about the transfer of the Martha's Vineyard property, accounting of the sale of the Martha's Vineyard property, a list of supervisors' names, and a notarized letter explaining the husband's discharge from his former employer.
On October 16, 2009, a hearing was held on the husband's complaint for contempt and the wife's counterclaim. In a judgment issued on November 6, 2009, the wife was found not guilty of contempt while the husband was found guilty based on his violations of the April 9 and July 29 orders.
Thereafter, on February 12, 2010, the judge held a hearing on the husband's compliance with the November 6, 2009, judgment and on his motions for relief from the April 9 order and the November 6, 2009, judgment. Following the hearing, the judge issued a supplemental judgment in which she ordered the husband to provide the wife with a written calculation and explanation of the remaining sums in controversy and offsets due either party, ordered the wife to respond, and allowed the parties to file a stipulation by March 5, 2010.
On April 13, 2010, following the parties' submissions, the judge issued a second supplemental judgment in which she determined the amounts owed by each party to the other and ordered the wife, after the offsets, to pay the husband $3,985.85. The husband appealed from the November 6, 2009, contempt judgment, the February 12, 2010, supplemental judgment and denial of his motions to vacate, and the April 13, 2010, second supplemental judgment. His subsequent motion in the Probate and Family Court to consolidate these appeals was allowed. We address the husband's various arguments in turn.
The husband also filed a motion to amend the judgment or for a new trial, which was denied on July 8, 2010. There is nothing on the docket or in the record appendix to indicate that the husband appealed from this order.
The husband raises no argument regarding the first supplemental judgment providing for calculation by each party of the amounts owed and does not contest any of the calculations in the second supplemental judgment.
1. The November 6, 2009, judgment. The judge did not abuse her discretion by finding the wife not guilty of contempt. The judge explained that the wife was not in contempt for failing to pay her share of the taxes because the husband failed to provide her with back tax returns as required by the April 9 order. As the husband did not fulfill his court-ordered obligations, which would have allowed the wife to comply, the judge did not abuse her discretion in finding the wife not guilty of contempt. See Matter of Care & Protection of Summons, 437 Mass. 224, 237 (2002). We likewise see no basis for the husband's claim that the judge erred by finding him in contempt as the record clearly shows that the husband had not complied with the order requiring him to pay child support and the wife's attorney's fees.
2. The husband's rule 60 motion. The husband claims that the judge erred when she denied his motion for relief from judgment pursuant to Mass.R.Dom.Rel.P. 60 on the grounds that the wife's counterclaim was untimely filed. We disagree. The husband served his complaint for contempt on the wife on September 25, 2009. The wife answered and counterclaimed on the morning of the hearing, October 16, 2009. The husband did not object to the filing, did not move to dismiss it, and did not file a motion for a continuance. In fact, he did not raise the issue of the timing until February 10, 2010, when he filed his rule 60 motion. In these circumstances, we conclude that the judge did not abuse her broad discretion in denying the husband's motion for relief from judgment. Santagate v. Tower, 64 Mass. App. Ct. 324, 326-327 (2005).
Our conclusion is further supported by the hearing transcripts, which demonstrate that the husband had sufficient opportunity to prepare for the hearings that followed.
3. Attorney's fees. There is no merit to the husband's challenge to the award of $1,293.75 in attorney's fees and costs to the wife for having prevailed on her counterclaim as such an award is allowed by G. L. c. 215, § 34A. See Bisienere v. Buccino, 36 Mass. App. Ct. 749, 753 (1994).
4. Bias. The record does not support the husband's claim of bias on the part of the judge. Apart from the fact that the husband did not move for recusal until after the issuance of the decisions that are currently on appeal before us, the motion was subsequently allowed. Thus, the issue is now moot.
The judge allowed the motion, stating: 'While this judge has no reservations about her ability to remain impartial and to resolve any issues pending now or in the future, the [husband] has raised questions not only about as to the impartiality of this judge, but of the entire staff of the Bristol County Probate and Family Court and Registry. Accordingly, and in order to avoid even a scintilla of a suggestion of impropriety, a change of venue is deemed appropriate.'
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The judgments of November 6, 2009, February 12, 2010, and April 13, 2010, are affirmed.
So ordered.
By the Court (Green, Vuono & Milkey, JJ.),