Opinion
No. 11–P–1921.
2012-06-19
Stephen J. MORGAN v. Karen E.V. MORGAN (No. 2).
By the Court (MILLS, FECTEAU & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The former husband (husband) appeals from an order, entered on December 20, 2010, that denied his “ex-parte, verified motion for permission to refile his motion for fees per [judgment] dated [October 29, 2010].” We affirm.
Background. A corrected judgment of divorce nisi issued to the parties on February 17, 2010. On March 25, 2010, after an excess of 500 entries were made after the initial date of filing the divorce complaint, the judge issued, post judgment, a “ sua sponte order to not accept any further documents for filing by either party in the matter without prior approval.”
On November 25, 2011, in apparent connection with later pleadings for modification that had been exempted from her earlier order, the judge sua sponte issued a written order, memorializing an oral order of November 18, 2011, which prohibited any further filings by the parties, unless for “a true emergency.”.
Later that year, on October 19, 2010, a hearing was held on one (or more) of husband's contempt complaints, including that filed on September 17, 2010. On that date, husband's counsel filed a notice of limited appearance “[o]n Complaints for Contempt dated October 3, 2010 and October 12, 2010.” On the same date, as required by the “limited appearance” rule, counsel for the husband filed a notice of withdrawal. Following that hearing, on October 29, 2010, the judge entered a judgment entered on the complaint brought by the husband on September 17, 2010, whereby the judge found the former wife to be in contempt for failing to allow the husband visitation on September 8 and September 10–12, 2010, and also finding, as relevant here, that “[the husband's] counsel may file a motion for fees with an accompanying affidavit on this matter.” On November 16, 2010, the husband filed a motion for counsel fees pro se supported by an affidavit of counsel. On November 18, 2010, the wife filed an opposition and a request for an evidentiary hearing on husband's motion for counsel fees. On November 22, 2010, a Probate and Family Court judicial case manager returned the husband's motion for counsel fees, with the endorsement that the: “motion must be prepared and filed by Atty. Rockwell with notice marked before Judge DiLeo on her motion day.” Notwithstanding the return of the husband's motion with instructions for Attorney Rockwell to file the motion herself and, in spite of the written order prohibiting any filings by the parties, on December 20, 2010, the husband filed an “ex-parte motion for permission to refile his motion for fees per [judgment] dated [October 29, 2010].” The judge denied it on the same day.
It is unclear whether this motion was captioned in error or actually related to other complaints for contempt unrelated to that at bar.
Discussion. The only appeal before us concerns the husband's appeal from the order denying his motion for permission to refile his motion for attorney's fees. For reasons that follow, we affirm.
The husband's motion for fees filed on November 15, 2010, did not comply with the March 25, 2010, order issued by the court that the court give prior approval of any filings, nor did it comply with the express terms of the October 29, 2010, judgment on the complaint for contempt providing that “[t]he plaintiff's counsel may file a motion for fees with an accompanying affidavit on this matter.” The wife opposed said motion for fees and sought an evidentiary hearing, which generally entails presentation of evidence and an opportunity to cross-examine. See Tatar v. Schuker, 70 Mass.App.Ct. 436, 451, 874 N.E.2d 481 (2007), citing J.P. Constr. Co. v. Stateside Builders, Inc., 45 Mass.App.Ct. 920, 920–921, 699 N.E.2d 358 (1998) (evidentiary hearing on reasonableness of attorney's fees required if specifically and timely requested). As to the judge's denial of the husband's motion to refile the motion for fees, the husband submitted the motion in contradiction to the March, 2010, order of the court, as well as the direction provided by the judicial case manager, on November 22, 2010, that the “motion must be prepared and filed by Atty. Rockwell with notice marked before Judge DiLeo on her motion day.” Under these circumstances, the judge has discretion to control a proliferation of filings and to limit pleadings to those with prior approval of the court; that discretion may include an order that an attorney, even under the special limited representation rule, file for her counsel fees, consistent with prior orders. See Camoscio v. Hodder, 409 Mass. 1001, 565 N.E.2d 452 (1991)(plaintiff barred from challenging an order barring him from filing any pleadings without prior judicial approval, and where another avenue of relief was available). As we discern no abuse of that discretion, we affirm the December 20, 2010, order denying the husband's motion for permission to refile his motion for fees.
Order denying motion to refile motion for attorney's fees dated December 20, 2010, affirmed.