Opinion
10-P-1262
08-02-2011
MONICA TAFT v. GERALD PRICE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises out of a child support order issued as part of a 1994 divorce agreement and judgment. On October 2, 2009, Taft (mother) filed a complaint for contempt against the defendant, Price (father). The complaint was the subject of three hearings and three orders -- the November 6, 2009, order; the December 10, 2009, order, which is the subject of this appeal; and the January 21, 2010, order. Eventually, the judgment on the wife's October 2, 2009, complaint was issued on April 23, 2010, and was entered on May 5, 2010. The April 23, 2010, judgment is not before us, as the father did not appeal therefrom. In his brief, the father appears to challenge only the December 10, 2009, order, which found him in civil contempt, ordered him incarcerated for thirty days or until $2,500 was paid in child support arrearages, and awarded the mother attorney's fees of $1,500.
At the outset, we note that the December 10, 2009, order on appeal before us merely continued the matter to January 21, 2010. In addition, it was the second in a line of three orders issued prior to the issuance of a judgment on the wife's complaint for contempt. It is therefore far from clear that this December order is a final appealable judgment rather than an interlocutory order.
The docket indicates that a stipulation, assenting to and ordering attachment in the amount of $18,546, the amount of child support arrears set out in the January 21, 2010, order, was filed by the parties on April 23, 2010, and entered on the same day. This raises the possibility that the husband's appeal from the December 10, 2009, order is moot.
However, even assuming that the order constituted an appealable judgment, we are unable to review the father's claims, for the reason that he did not provide us either with a record appendix or a transcript of the lower court proceedings in support of his appeal. Indeed, even after the mother pointed out these omissions in her brief, the father failed to supplement the record, and, although the mother filed a supplemental appendix, it does not include all of the materials necessary to review the father's claims. It was the responsibility of the father to include materials necessary to his appeal, including exhibits, in the appendix. See Mass.R.A.P. 18(a), and 18(b), as amended, 425 Mass. 1602 (1997); Guardianship of Brandon, 424 Mass. 482, 497 n.22 (1997); Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 n.6 (1995). Here, his failure to meet his burden of providing us with a record showing the alleged errors, is fatal to his claim.] See Buckmore v. Czelusniak Funeral Home, Inc., 427 Mass. 1014, 1014 (1998); Breyan v. Breyan, 54 Mass. App. Ct. 372, 382 (2002). See also Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995).
Holding as we do, we do not address the mother's motion to strike the father's brief and dismiss the appeal because of the father's violation of the Massachusetts Rules of Appellate Procedure.
We recognize that both parties are proceeding pro se. However, a pro se litigant is held to the same standard as a litigant represented by counsel, so long as he is given an opportunity meaningfully to present his case. See Maza v. Commonwealth, 423 Mass. 1006 (1996), and Carter v. Lynn Hous. Authy., 450 Mass. 626, 637 n.17 (2008).
The mother requests that the court award the attorney's fees that she incurred in the trial court after December 10, 2009, in pursuit of the contempt complaint. However, nothing in the record indicates that she requested such fees below or that this issue was not addressed or rendered moot by the April 23, 2010, judgment on her complaint, together with the stipulation of the parties of the same date. See Siegel v. Berkshire Life Ins. Co., 70 Mass. App. Ct. 318, 324 (2007). In addition, the mother did not appeal from the April 23 judgment.
The mother also filed a motion for an award of interest on the amount of child support arrears as determined by the trial judge, G. L. c. 215, § 34A. However, the case is before us as the father's appeal of the sufficiency of the contempt order. The mother's motion for interest must be pursued in the Probate and Family Court. See Allen v. Allen, 25 Mass. App. Ct. 515, 523 (1988). Cf. Halpern v. Rabb, 75 Mass. App. Ct. 331, 333 (2009).
The mother also asks for double the costs of the appeal on the ground that the father's appeal is frivolous. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). We decline to award double costs in connection with this appeal.
Order dated December 10, 2009, affirmed.
By the Court (Wolohojian, Milkey & Hanlon, JJ.),