Opinion
14-P-1250
05-28-2015
ESTATE OF MARGARET PARKER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from an order denying Edward Sean Parker's motion for relief from judgment pursuant to Mass.R.Dom.Rel.P. 60(b). Parker contends that the judge abused her discretion in denying the motion. We affirm.
Background. This cases arises from a fifteen-year effort to settle the estate of Margaret Parker (the estate). On or about April 3, 2009, Harry C. Christensen, administrator of the estate, filed a first account, for the period of April 3, 2003, through March 31, 2009. In July of 2009, Christensen filed a substituted first account for the same period. In September of 2009, Parker, an heir and beneficiary of his mother's estate, filed an objection to the substituted first account. It was stamped by the court, but not docketed. On November 3, 2009, the Probate and Family Court judge entered judgment on the "substituted first account," with a notation that there were "no objections made thereto."
On July 16, 2012, Christensen filed the "second and final account" with the court. That document listed three disbursements that were paid from the estate to Parker -- the first on October 11, 2011, the second on November 22, 2011, and the third on June 18, 2012 -- that together totaled $85,000. On July 3, 2013, approximately three and one-half years after judgment entered on the account, Parker filed a motion for relief from judgment on the account dated November 3, 2009, pursuant to Mass.R.Dom.Rel.P. rule 60(b)(6).
Parker filed an objection to the second and final account.
Discussion. "Resolution of a rule 60(b) motion rests in the discretion of the trial judge, and we 'will show marked deference to the lower court's resolution of such a motion.'" Raheman v. Raheman, 59 Mass. App. Ct. 915, 916 (2003), quoting from Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 894 (1987).
On its face, the motion appears to fall within the parameters of Mass.R.Dom.Rel.P. rule 60(b)(1); motions under this rule must be filed within one year of judgment. By this measure, the motion was untimely, and would have been properly denied on this basis alone. We nonetheless consider the appeal under the grounds decided by the judge. A judge's ruling on a rule 60(b)(6) motion "will not be reversed on appeal in the absence of an abuse of discretion." Rezendes v. Rezendes, 46 Mass. App. Ct. 438, 441 (1999).
The judge determined that, while there was sufficient grounds to consider the motion under rule 60(b)(6), Parker did not file the motion in a "reasonable time" as required by the rule. Id. at 440. See Chavoor v. Lewis, 383 Mass. 802, 803 (1981). "In determining whether a motion was filed within a reasonable time, a judge may consider the reasons for delay; the ability of the movant to learn of the grounds earlier; prejudice to the parties, if any; and the important interest of finality." Kennedy v. Beth Israel Deaconess Med. Center, Inc., 73 Mass. App. Ct. 459, 467 (2009), quoting from Owens v. Mukendi, 448 Mass. 66, 74-75 (2006).
Parker contends he had insufficient notice from the court that a judgment had been entered. However, Parker received without objection three separate disbursements from the estate between October of 2011 and June of 2012. Upon receipt of these payments, Parker was on notice that action had been taken to approve the account. In addition, he filed numerous motions between 2009 and 2012. Parker was responsible for inquiring into the status of the case. See generally BJ's Wholesale Club, Inc. v. City Council of Fitchburg, 52 Mass. App. Ct. 585, 588 (2001), quoting from Abbott v. John Hancock Mut. Life Ins. Co., 18 Mass. App. Ct. 508, 513 (1984) ("[W]e do not find excusable neglect in the 'simple case of reliance by the parties on the clerk's duty to send notice of orders' where they had neglected 'their obligation to check the docket entries periodically'"). Further, Parker's active participation in the case from the beginning, taken together with the judge's findings regarding the specific times that Parker could have learned of the judgment, support the judge's finding that Parker could have learned of the grounds upon which his motion relied at an earlier time.
The prejudice to the estate is manifest. This judgment was entered over three years earlier and has since been acted upon, in the form of several disbursements that were paid to and accepted by Parker from the estate. For the same reason the judge did not abuse her discretion in concluding that the finality of the judgment prevailed over Parker's belatedly filed motion.
Parker also contends that the judge erred because she did not make findings on the merits of Parker's objection; he has made no argument on appeal as to the merits of the objections. Assertions of error unsupported by reference to the record or citation to legal authority do not rise to the level of appellate argument. Mass.R.A.P. 16(4), as amended 367 Mass. 921 (1975). Adams v. Adams, 459 Mass. 361, 392 (2011).
Order denying motion for relief from judgment affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 28, 2015.