Opinion
20-P-956
08-09-2021
Sharon STOTSKY-HILMAN v. Eric HILMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties, Sharon Stotsky-Hilman and Eric Hilman, were divorced by judgment nisi in May 2011, and an amended judgment was entered on December 1, 2011. On December 24, 2012, Stotsky-Hilman filed a complaint seeking relief from the divorce judgment by means of an independent equity action. She alleged that the division of assets was not equitable because Hilman concealed certain pension and stock benefits during the divorce proceedings and manipulated information pertaining to the value of her medical practice at the divorce trial.
Stotsky-Hilman filed two notices of appeal from the divorce judgment, but neither was perfected and both were dismissed voluntarily. Stotsky-Hilman later claimed that she had been improperly pressured by her attorney to dismiss her appeal and brought a legal malpractice action in the Superior Court. According to Stotsky-Hilman, the case was settled by agreement. To the extent that Stotsky-Hilman disputes the date the amended divorce judgment entered, see note 6, infra.
Stotsky-Hilman's claim that the complaint was filed on December 12, 2012, is not supported in the record. The docket indicates that the filing fee was received on December 24, 2012, and the complaint was docketed the same day.
Stotsky-Hilman took no further action in connection with her complaint until June 2019, when she received a notice from the Probate and Family Court informing her that, absent further activity, the case would be administratively dismissed pursuant to Rule 408 of the Supplemental Rules of the Probate and Family Court (2012) (rule 408). Stotsky-Hilman then filed a pro se notice of appearance, along with a motion to avoid dismissal in which she stated that she intended to (1) seek her attorney's withdrawal and proceed pro se, (2) file an amended complaint, and (3) engage in discovery. See rule 408 (2) (b). Stotsky-Hilman also filed a motion to amend the complaint. Hilman filed an opposition to Stotsky-Hilman's motions and a cross motion to dismiss under Mass. R. Dom. Rel. P. 12 (b) (6).
Following a hearing, a judge of the Probate and Family Court denied Stotsky-Hilman's motions and allowed Hilman's cross motion to dismiss the complaint in margin endorsements. Although the judge provided no written explanation for her decision, based on our review of the transcript of the hearing, it is clear that the judge converted Stotsky-Hilman's complaint into a motion for relief from the divorce judgment pursuant to Mass. R. Dom. Rel. P. 60 (b) (rule 60 [b]), the text of which is identical to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). We conclude that the judge properly treated Stotsky-Hilman's complaint as a motion for relief from judgment and affirm the judgment dismissing her complaint.
The judge was not the same judge who presided over the divorce trial.
In light of our conclusion, we need not address Stotsky-Hilman's remaining arguments, that the judge (1) improperly converted Hilman's motion to dismiss into one for summary judgment without giving Stotsky-Hilman the opportunity to conduct discovery, (2) unfairly struck Stotsky-Hilman's supporting affidavits and documents, (3) abused her discretion by denying Stotsky-Hilman's motion to avoid dismissal under rule 408, and (4) should have allowed Stotsky-Hilman's motion to amend the complaint.
Discussion. "[T]he label attached to a pleading or motion is far less important than its substance." Lambley v. Kameny, 43 Mass. App. Ct. 277, 280 (1997). Here, although styled as a complaint for equitable relief, Stotsky-Hilman's complaint in effect sought relief from the division of property as set forth in the divorce judgment. Significantly, Stotsky-Hilman acknowledges in her brief that she filed the complaint once she discovered "the existence of pension funds in Hilman's name, the release of which required her never given signature," specifically "to find a way to undo what she believes to be an inequitable divorce judgment." That she filed a new complaint instead of a motion pursuant to rule 60 (b) is not dispositive. See Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 33 (1983). Given the relief sought, the judge correctly treated the complaint as a motion for relief from the divorce judgment under rule 60 (b). See Colorio v. Marx, 72 Mass. App. Ct. 382, 385 (2008) ("we determine the nature of the trial judge's decision from its substance as opposed to its heading").
Rule 60 (b) provides for relief from a final judgment "for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment." Mass. R. Dom. Rel. P. 60 (b), Massachusetts Rules of Court, at 826 (Thomson Reuters 2020).
As previously noted, Stotsky-Hilman alleges that Hilman failed to disclose certain assets and that she learned of that omission after the divorce trial had concluded. She further alleges that Hilman manipulated data at trial, resulting in an inflated valuation of her medical practice. These allegations fall squarely within subsections (2) and (3) of rule 60 (b). See Sahin v. Sahin, 435 Mass. 396, 407 (2001). A motion under rule 60 (b) (2) or (3) must be filed "not more than one year after the judgment, order or proceeding was entered or taken." Rule 60 (b). Thus, in order to prevail, Stotsky-Hilman was required to file her complaint before December 1, 2012, i.e., not more than one year after final judgment in the divorce proceeding entered. She failed to do so and, consequently, she cannot obtain relief under subsection (2) or (3).
We note that Stotsky-Hilman acknowledged at the motion hearing that the information on which she relies for her claim of undisclosed benefits was contained in a spreadsheet (1) created by Hilman "some time [sic ] after probably ‘97, ‘98, 2001," (2) maintained on "our computer," and (3) accessible to Stotsky-Hilman prior to the divorce, though "passworded and encrypted." In response to the judge's question, "And for how long have you had that document?" Stotsky-Hilman stated, "A few years."
Stotsky-Hilman's assertion that the amended divorce judgment was entered on December 12, and not December 1 of 2011, is not supported by the record filed with this appeal. In any event, because the complaint was not filed until December 24, 2012 (see note 2, supra ), nothing turns on whether the amended divorce judgment entered on December 1 or December 12.
Furthermore, Stotsky-Hilman cannot obtain relief under rule 60 (b) (6), the so called "catch all provision," because "relief under rule 60 (b) (6) is only appropriate when justified by some reason other than those set forth in rule 60 (b) (1)-(5)." Sahin, 435 Mass. at 406-407. Stotsky-Hilman's claims fall within subsections (2) and (3), and therefore, she is not entitled to relief under rule 60 (b) (6). Id. at 407.
Stotsky-Hilman would fare no better if we were to consider the judge's decision as a denial of her motion to avoid dismissal under rule 408. Stotsky-Hilman argues that the judge abused her discretion in denying the motion to avoid dismissal because her work obligations and certain health issues prevented her from pursuing her case between 2012 and 2019. These claims ring hollow given that during that same period of time, in addition to obtaining and reviewing a second expert evaluation of her business, Stotsky-Hilman filed various motions and actions in this court and in the Supreme Judicial Court: (1) a legal malpractice suit against her appellate attorneys, see note 1, supra; (2) motions seeking to reverse her decision voluntarily to dismiss her appeals, Hilman v. Stotsky-Hilman, 85 Mass. App. Ct. 1113, rev. denied, 468 Mass. 1107 (2014) ; (3) a legal malpractice suit against one of her divorce attorneys, Stotsky-Hilman v. Freed, 94 Mass. App. Ct. 1109 (2018) ; and (4) a malpractice suit against the business valuation expert she retained for trial on the divorce, Stotsky-Hilman v. Dietrich, 93 Mass. App. Ct. 1101, rev. denied, 479 Mass. 1107 (2018).
Hilman requests that we award him attorney's fees and costs related to this appeal. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). We allow his request. Hilman may submit, within fourteen days of the date of the rescript, an application for fees and costs, together with supporting documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Stotsky-Hilman shall have fourteen days thereafter to respond.
Judgment dismissing complaint affirmed.