Opinion
SJC–11146.
04-19-2012
G.G., petitioner.
G.G., pro se.
G.G., pro se.
RESCRIPT.
The father of two children filed a petition for relief under G.L. c. 211, § 3, in the single justice session of this court. In his petition, the father requested that the single justice order a judge in the Probate and Family Court to make a ruling on a complaint for contempt or, alternatively, assign a different judge to hear the contempt complaint. The single justice denied relief without a hearing, and the father appeals. We affirm the judgment.
The father named as the sole respondents the Justices of the Middlesex Division of the Probate and Family Court Department. He failed to name the real party in interest, the children's mother, as a respondent. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996) ("Any petition seeking to invoke the general superintendency power of the court pursuant to G.L. c. 211, § 3, shall name as respondents and make service upon all parties to the proceeding before the lower court.... Unless otherwise ordered by the single justice, the lower court shall thereafter be treated as a nominal party which may, but need not, appear and be heard"). It appears that the mother was served with a copy of the petition, but she has not participated, either before the single justice or the full court.
The father's paternity of the children, who are twins, was established in two actions commenced by their mother. The mother has physical custody of the children, and the parents share joint legal custody. After the father filed a complaint for modification, a judge in the Probate and Family Court issued a judgment ordering the parties to comply with a stipulated visitation schedule. The father thereafter filed a complaint for contempt, alleging that the mother refused to allow the children to visit with him. The father contended that the mother alienated the children from him. For her part, the mother claimed that the children themselves resisted visitation with their father. After a hearing, the judge issued an order in which he found that contempt had not been proved by clear and convincing evidence, and he referred the matter to the Probate and Family Court's family service clinic for evaluation and recommendations. It appears that the judge did not enter a final judgment on the complaint for contempt, although he later stated on the record that he would do so to permit the father to appeal. In addition, the father filed a motion to recuse the judge, which was denied. The father thereafter filed his G.L. c. 211, § 3, petition.
The father has filed what appears to be a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Bypassing the question whether that rule applies in these circumstances, it is clear on the record that extraordinary relief was not warranted. The father has an alternative remedy available to him, namely, a motion in the trial court for entry of final judgment on his complaint for contempt. As noted above, the judge indicated that he was willing to enter such a judgment. The father will then have the right to appeal to the Appeals Court in the ordinary course. The father has not shown why this would not be an adequate remedy. The single justice neither erred nor abused his discretion by denying extraordinary relief.
Judgment affirmed.
The case was submitted on the papers filed, accompanied by a memorandum of law.