Opinion
11-P-2146
12-07-2012
KARIN L. FRASER v. HENRY M. FASSLER.
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
This protracted divorce dispute is fast approaching a duration twice the length of the parties' marriage. The husband has appealed from the denial by a judge of the Probate Court of his motion for relief from judgment pursuant to Mass. R. Dom. Rel. P. 60(b)(6). The judgment at issue comprised rulings denying the relief requested by the husband in a complaint for modification of the judgment of divorce, which in turn incorporated the provisions of a prior separation agreement executed by the parties.
The husband also asserts a right to appeal from subsequent recalculation of his child support obligation which was anticipated to be required by changes in the applicable guidelines. We find no merit in this claim.
Both parties submitted complaints for modification, which were consolidated by the judge and made the subject of a single order.
While we discern no explicit indication of error, we note that the husband raised an issue that has not been addressed directly in the motion judge's summary order of denial. See, e.g., Maillet . Maillet, 64 Mass. App. Ct. 683, 689-690 (2005). The husband alleges that the wife made contradictory representations in two successive court filings, and that the resulting disparity casts serious doubt on the evidence used to determine the husband's support obligations. Specifically, the judge's reference (finding of fact no. 65) to an inheritance received from the wife's new mother-in-law (by her second husband) is based on the wife's Probate Court filings submitted to explain a balance of $65,000 in a joint savings account held with her second husband. In a separate proceeding, however, the wife apparently asserted that the funds received from her mother-in-law were an inter vivos gift made to defray the daughter's college expenses. We recognize that the probate judge engaged in a thorough and conscientious review of voluminous materials, many of which were inadmissible or inconsistent or both, and issued comprehensive rulings well supported by the record. However, the husband's allegation, amounting to charges of fraud, was introduced after the decision on the motions for modification which, as stated, specifically listed the evidence of an inheritance as a finding of fact. We do not necessarily assume that the motion judge failed to consider the allegation of fraud in deciding the rule 60(b) motion; however we are unable to review the judge's conclusions in the absence of a written decision. Accordingly, the order denying the motion is reversed and the matter is remanded for an explicit finding whether the husband's allegations have any basis and, if so, whether there was an inter-vivos gift intended to defray college expenses that should result in an amendment to his support obligations.
The record appendix demonstrates that two different statements were made, but is inconclusive whether the same funds are described in each.
Our review is further impeded by the wife's failure to file a brief or otherwise respond to the appeal.
We consider the remaining issues raised by the husband on appeal to be unavailing. The husband's invitations to reject the Massachusetts child support guidelines or to apply those from other jurisdictions properly were denied by the judge. The husband's request that he be redesignated as the primary parent of the parties' daughter in order to elicit more financial aid was inappropriate, and also properly denied. We are additionally troubled by suggestions in the record that income and expenses reported in the husband's court filings and tax returns cannot be reconciled. Were it not for the single unresolved issue related to the allegation of inheritance, this case would be an appropriate one for an award of appellate fees and costs.
Finally we note that, while there is no absolute time limitation imposed for the filing of a motion under rule 60(b)6, general principles of reasonableness and equity do apply. The record provides no explanation for the three-year and four-month interval between the entry of judgment on the husband's complaint for modification and the filing of the husband's motion under rule 60(b)6.
The order denying the motion pursuant to rule 60(b) is reversed and the case is remanded for further proceedings consistent with this memorandum and order.
As is usually the case, it is within the judge's province to accept documentary evidence or live testimony, or to issue a satisfactory decision without either.
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So ordered.
By the Court (Kantrowitz, Berry & Grainger, JJ.),