Opinion
No. 12–P–778.
2013-09-6
Vahig GHARIBIAN v. Dzovig GHARIBIAN.
By the Court (KAFKER, VUONO & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Vahig Gharibian (husband) filed a complaint in the Probate and Family Court against Dzovig Gharibian (wife) seeking relief from a divorce judgment by means of an equity action pursuant to Mass.R.Dom .Rel.P. 60(b). Among other allegations, the husband claimed fraud and misrepresentation on the part of the wife, ineffective assistance of his former counsel, fraud on the court by the attorneys, and error on the part of the divorce judge (who also was motion judge) for her failure to inquire more thoroughly into the parties' financial statements. This is the husband's appeal from the dismissal of his complaint.
Background. The parties were married on May 29, 1988. The wife filed for divorce in July of 2009, and, following a hearing on the parties' separation agreement, the judgment of divorce issued on November 20, 2009. The wife received sole legal and physical custody of the parties' three minor children. The husband did not appeal from the divorce judgment. On or about August 11, 2011, the husband, represented by new counsel, commenced this action for relief from the divorce judgment. Following a hearing, the judge dismissed the husband's complaint on the grounds that Mass.R.Dom.Rel .P. 60(b) barred the husband's equity complaint because more than one year had passed since entry of judgment, and also because much of the complaint was based upon facts known or discoverable prior to the divorce hearing. The judge also noted that the Probate and Family Court lacked jurisdiction to address a legal malpractice claim against the husband's former attorney. Finally, the judge rejected any revisionist view of her inquiry about the husband's finances at the time of the hearing because the husband was aware that his income was being attributed at a certain level, openly agreed to it in court, and did not object to any underlying facts or otherwise raise anything else as material.
On July 5, 2011, the husband filed a complaint seeking to modify his child support obligation.
Discussion. The husband maintains that the appropriate standard of review is de novo, rather than abuse of discretion. Because his arguments fail under either standard, we need not determine which standard applies. We address the husband's claims in turn.
It was the husband, not the wife, who alleged that the wife brought her motion to dismiss under Mass.R.Dom.Rel.P. 12(b)(6).
Our review of the appeal is hindered by the husband's failure to file a proper appendix, see Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997), and his failure to comply with Mass.R.A.P. 16(h), as amended, 438 Mass. 1601 (2003), and Mass.R.A.P. 20(a), as amended, 428 Mass. 1601 (1999). Furthermore, we do not address the husband's factual allegations that are not supported by record citations. Nor do we address allegations not raised below.
1. Fraud by the wife (count I). The husband's brief does not discuss the issue whether dismissal of this count was appropriate. Accordingly, we do not address this claim. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
2. Ineffective assistance of counsel (count II). The husband's claim of ineffective assistance of counsel properly was dismissed because such a claim only can be raised in a criminal case or in a child custody case to which the Department of Children and Families is a party. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Care & Protection of Stephen, 401 Mass. 144, 149 (1987).
3. Equitable relief (count III). In the equity count of his complaint, the husband focused on the judge's “mistakes,” asserting, in part, that the judge should have inquired as to his income history and should have considered his education, training, health, and past employment history when attributing $65,000 in income to him. He also asserted that in light of his financial statement indicating no income, the judge deviated from the child support guidelines in approving child support payments and payments for the children's extracurricular activities, and failed to enter written findings to support this deviation.
During the divorce hearing, in response to the judge's question about the husband's listing his income as zero dollars, his counsel stated: “My client purchases and resells properties upon the completion of construction on certain various and sundry properties. And for the past number of years he's been the house dad and my sister's client understands that he's now getting back involved in the purchasing and selling of properties.”
The wife's counsel stated that the husband is a licensed contractor who develops properties; that pursuant to the separation agreement, he will be getting a duplex that the parties purchased for $400,000, which he will be developing; that his income has been approximately $65,000 each year for the past few years; and that the husband, because of the nature of his business, suggested lump sum child support payments in lieu of weekly payments.
These claims ignore the fact that the parties, both of whom were represented by counsel, presented the judge with a signed separation agreement; that the judge questioned counsel and the parties; that none of the facts and representations at the hearing, including the attribution of income, were contested; and that the husband testified under oath that he met with his attorney prior to signing the separation agreement, that he understood his rights and obligations under the agreement, that his attorney answered all of his questions to his satisfaction, that based on everything he knew about the case he believed the agreement to be fair and reasonable, that he read the agreement before he signed it, that he signed it of his own free will, and that he had no questions for the judge. In these circumstances, we conclude that the husband has not shown that equity required the judge to grant him relief from the divorce judgment. See Sahin v. Sahin, 435 Mass. 396, 403 (2001).
4. Attorneys' fraud upon the court (count IV). There is no merit to the husband's allegations that the representations by the wife's counsel that he has averaged $65,000 in income as a contractor, and that $65,000 should be attributed to him, along with his own counsel's silence, constituted fraud on the court. It suffices to note, as we previously have stated, that the parties presented an agreed-upon separation agreement to the judge, which included an agreed-upon attribution of income. See id. at 405–406.
5. Mass.R.Dom.Rel.P. 60(b)(6). Finally, the husband's assertion that he is entitled to relief pursuant to rule 60(b)(6) as to the dismissal of counts II, III, and IV fails for the reason, if no other, that he has not shown extraordinary circumstances justifying such relief. Id. at 406.
The husband first cited to Mass.R.Dom.Rel.P. 60(b)(6) in his opposition to the wife's motion to dismiss his complaint.
Moreover, as the husband filed no affidavit setting forth the reason for the more than twenty-month delay in filing the complaint seeking rule 60(b) relief, he has not shown that he brought the complaint within a reasonable time. See Owens v. Mukendi, 448 Mass. 66, 72–73 (2006).
We further conclude that the husband's appeal is frivolous and therefore the wife is entitled to an award of appellate attorney's fees and costs. The wife should file, within fourteen days of the date of the rescript, her request for fees and costs with supporting documentations. See Fabre v. Walton, 441 Mass. 9, 10 (2004). The husband then will have seven days to respond. Ibid.
Judgment affirmed.