We review the judge's decision for an abuse of discretion or other error of law. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 414, 816 N.E.2d 1027 (2004). "At any time before the expiration of ninety days from the entry of a judgment of divorce nisi, the defendant ... may file in the Registry of Probate a statement of objections to the judgment becoming absolute, which shall set forth specifically the facts on which it is founded and shall be verified by affidavit."
Accordingly, the judge acted within his discretion in denying relief from judgment based on newly discovered evidence. See Gawv. Sappett, 62 Mass.App.Ct. 405, 408 (2004).
The judge was not required to credit Vona's expert's testimony and report, particularly where his financial analysis was not comprehensive in scope. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509–510 (1997) ; Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004). Contrary to Vona's argument, the judge did not disqualify Schwarz as an expert witness.
Parties to a separation agreement stand as fiduciaries to each other, and will be held to the highest standards of good faith and fair dealing in the performance of their contractual obligations." See Gaw v. Sappett, 62 Mass. App. Ct. 405, 413 (2004). In this connection, see note 4, supra.
In contrast, Rule 60(b)(3) focuses not on erroneous judgments as such, but on judgments which were unfairly procured. . . .Id. at 924 n. 10. See alsoGaw v. Sappett, 62 Mass. App. Ct. 405 (2004). In Lafata, the bankruptcy appellate panel summarized the requirements of Rule 60(b)(3) motions: the movant must demonstrate the alleged misrepresentations or misconduct by clear and convincing evidence and must demonstrate that the alleged misrepresentations or misconduct prevented it from fully and fairly presenting its case.
In contrast, Rule 60(b)(3) focuses not on erroneous judgments as such, but on judgments which were unfairly procured. . . .Id. at 924 n. 10. See alsoGaw v. Sappett, 62 Mass. App. Ct. 405 (2004). In Lafata, the bankruptcy appellate panel summarized the requirements of Rule 60(b)(3) motions: the movant must demonstrate the alleged misrepresentations or misconduct by clear and convincing evidence and must demonstrate that the alleged misrepresentations or misconduct prevented it from fully and fairly presenting its case.
In contrast, Rule 60(b)(3) focuses not on erroneous judgments as such, but on judgments which were unfairly procured. . . .Id. at 924 n. 10. See alsoGaw v. Sappett, 62 Mass. App. Ct. 405 (2004). In Lafata, the bankruptcy appellate panel summarized the requirements of Rule 60(b)(3) motions: the movant must demonstrate the alleged misrepresentations or misconduct by clear and convincing evidence and must demonstrate that the alleged misrepresentations or misconduct prevented it from fully and fairly presenting its case.
The judge was entitled to conclude that that testimony was not credible. The determination of the witnesses' credibility and the weight to be given to their testimony is peculiarly within the province of the trial judge. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004). As to the judge's other findings regarding the husband, he has failed to show that any of them are clearly erroneous.
Again, our review of the judge's findings, including findings that the husband's testimony on financial matters was not credible, shows that they support his conclusion that the husband's true income was significantly higher than claimed. See Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004) (the judge 'is in the best position to judge the weight and credibility of the evidence'), quoting from Fox Tree v. Hart-Hanks Communications, Inc., 398 Mass. 845, 847 (1986). The husband's complaint about the judge's lack of findings on his Federal presentencing report and his financial reports to the Federal probation department fails for the simple reason that the judge is not obligated to make findings on every piece of evidence.
Careyv. New England Organ Bank, 446 Mass. 270, 285 (2006). Such an argument is waived unless "such exceptional circumstances exist[] . . . as would justify our discretionary departure from that axiomatic principle of appellate practice ... or where injustice might otherwise result" (quotation and citations omitted). Gawv. Sappett, 62 Mass.App.Ct. 405, 410-411 (2004). Here, the wife did not raise her challenge to the standard for annulment based on fraud either at trial or in her motion for relief from judgment.