Opinion
16-P-1099
05-31-2017
R.E.R. v. J.I.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
J.I. (father) appeals from a modification judgment and from the order denying his motion for relief from judgment or for a new trial, pursuant to Mass.R.Dom.Rel.P. 59 and 60(b). He argues that the trial judge entered what was, in effect, a default judgment and erroneously refused to vacate that judgment upon the father's showing of excusable neglect. He also asserts that the judge failed to make the requisite findings for a change in custody and visitation. We agree.
Background. Although we have been provided with very little of the relevant record, it appears undisputed that the mother's December 19, 2013, complaint for modification sought sole legal and physical custody of the children on the basis of allegations that the father had abused the children, including an allegation, supported by the Department of Children and Families, involving the sexual abuse of his daughter. The father disputes those allegations.
We have not been provided with a copy of the complaint for modification or the earlier judgment, rendering it difficult for us to discern the extent to which custody and visitation were changed as a result of the modification judgment. It is clear from the record we have that the father enjoyed some form of supervised visitation with the children on the basis of temporary orders prior to the modification judgment.
The trial, originally scheduled for two days, was continued on several occasions. Both parties were representing themselves at the time. In a notice dated November 20, 2015, the two-day trial was rescheduled from February 2 and 4, 2016, to February 16 and 19, 2016. In a notice dated January 11, 2016, a notice of assignment was sent to the father indicating that a one-day trial would be held on February 26, 2016. A separate "rescheduling order" also was sent to the father; it was dated January 13, 2016, and stated that the "Trial scheduled for Tuesday February 16, 2016 is hereby rescheduled to: Friday, February 26, 2016." The rescheduling order did not mention the status of the February 19, 2016, previously scheduled second day of trial. On February 19, 2016, R.E.R. (mother) and the children's guardian ad litem (GAL) appeared for trial, but the father did not.
On the day of trial, the GAL gave an unsworn update on the father's visitation with the children; at that time, visits were conducted in a therapeutic setting. The GAL informed the judge that the therapist had not seen them often enough to make a recommendation on continued visitation. The mother, who had been sworn, informed the judge that there was a restraining order in effect. No other evidence or testimony was offered. Noting the father's failure to appear, the judge dismissed his pending complaints for contempt and heard the mother, briefly, on the relief she was seeking in her modification action. Upon the judge's inquiry, the GAL recommended continued visitation with the father in a therapeutic setting. The judge then stated:
"All right. Again, based on the fact that it's now 10:05, defendant has failed to appear and notify anybody of the cause of his absence, I'm going to enter judgment based on the discussion I just had with the guardian and next friend of the children and the plaintiff, and judgment will reflect accordingly."
That same day a modification judgment was signed by the trial judge granting the mother sole legal and physical custody, and suspending the father's parenting time, aside from the court-ordered family counseling. Within ten days of the date of the judgment, the father, now represented by counsel, filed a motion for relief from judgment or for a new trial. The motion was supported by an affidavit of the father indicating that he had appeared for trial on February 26, 2016, the date to which he had believed the trial had been rescheduled, and was informed upon his arrival that the trial had already taken place on February 19, 2016. His affidavit further indicated that he had not received a copy of a motion to continue the first day of trial, that he had relied on the notice indicating the trial had been continued to February 26, 2016, and that he appeared on that day ready for trial. The motion was denied by endorsement without comment by the trial judge on March 16, 2016 (entered on March 21, 2016). The father filed on April 14, 2016, a notice of appeal from both the judgment and the order denying his posttrial motion. The modification judgment finally entered on May 3, 2016. The judge issued brief findings dated July 21, 2016. They read, in their entirety, as follows:
The register's office failed to docket the judgment in a timely manner.
The failure to docket the modification judgment in a timely manner resulted in the filing of a premature notice of appeal. As no party raises any issue concerning the propriety of the notice of appeal and as the premature notice was the result of the actions of the register's office, we consider the appeal on the merits. See Sniffin v. Prudential Ins. Co. of America, 395 Mass. 415, 420 n.10 (1985) (where no party raised issue of timeliness of notice of appeal, court declined to dismiss late appeal); Standard Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 574 (1993) (procedural tangles caused by clerk's failure to follow rules generally are resolved in favor of preserving appellate rights). See also Hodge v. Klug, 33 Mass. App. Ct. 746, 750-751 (1992) (notice of appeal filed before belated entry of judgment by clerk does not render appeal untimely); Jose v. Wells Fargo Bank, N.A., 89 Mass. App. Ct. 772, 774 n.2 (2016) (same).
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"This matter came before the Court ... for trial scheduled for two (2) days commencing on February 19, 2016. After being duly notified, Mother appeared, Father failed to appear for Trial. As such, Judgment was rendered on the pleading."
Discussion. We review the order denying the motion for relief from judgment for abuse of discretion. See Rezendes v. Rezendes, 46 Mass. App. Ct. 438, 441 (1999). We agree with the father's argument that the notices sent by the register's office concerning the continuance of the first, but not the second, of the two scheduled trial dates were confusing. A reasonable person could interpret the notice and rescheduling order to indicate that the trial, in its entirety, had been rescheduled to February 26, 2016, the day the father appeared for trial. Accordingly, the father's neglect in failing to appear for trial was the result, in significant part, of the confusing notices sent by the register's office. See Chavoor v. Lewis, 383 Mass. 801, 805 n.3 (1981) (involving entry of default judgment after failure of court to notify: "Rule 60[b][1][, 365 Mass. 828 (1974),] applies not only to mistakes, acts or omissions by the parties, but also to those by the court"). Moreover, the father moved timely for relief from judgment, filing his motion within days after discovering the trial had taken place in his absence. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 430 (1979). Finally, the issues at stake in this matter concern the father's substantial interest in, and fundamental right to, custody and visitation with his children. See Parrell v. Keenan, 389 Mass. 809, 815 (1983) (appropriate factor to consider includes whether substantial rights will be affected by granting rule 60 [b] motion); Adoption of Eugene, 415 Mass. 431, 435 (1993) (parents have constitutionally protected interest in maintaining relationships with their children). Accordingly, we conclude that the decision denying the motion for relief from judgment was an abuse of discretion, as it constituted " ‘a clear error of judgment in weighing’ the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
The modification judgment cannot be sustained for an additional reason. A divorce judgment concerning the custody of a minor child may be modified only upon a finding "that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children." G. L. c. 208, § 28, as appearing in St. 1985, c. 490, § 1. "[W]e shall not sustain an award of custody ‘unless all relevant factors in determining the best interests of the child have been weighed.’ " Rosenberg v. Merida, 428 Mass. 182, 191 (1998), quoting from Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981). In the absence of any findings concerning the best interests of the children, the modification judgment cannot stand.
Conclusion. The order denying the father's motion for relief from judgment or for a new trial is reversed, and the February 19, 2016, modification judgment is vacated.
So ordered.
Order reversed; judgment vacated.