Opinion
19-P-858
06-12-2020
ALLISON SMITH v. GREGORY AGHAJANIAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Gregory Aghajanian appeals from a judgment of divorce nisi entered by the Probate and Family Court approving a separation agreement signed on February 21, 2019, between Aghajanian and his former spouse, Allison Smith. On appeal, Aghajanian contends that the judge erred by declining to continue a pretrial conference, by urging the parties to discuss settlement, and finding that the separation agreement was fair and reasonable. We affirm.
Background. Smith filed a complaint for divorce on August 29, 2016. The parties had been living together for some years in a house in Quincy that Aghajanian had inherited. They had been married for about one and one-half years. Smith had made contributions to upkeep and made payments on a home equity loan on the house. She also made payments for upkeep and utilities at a second property on Cape Cod owned either by Aghajanian's uncle or by Aghajanian with his uncle.
The parties were scheduled to have a pretrial hearing on December 20, 2018, but Aghajanian failed to appear because he had elected to travel instead. The judge issued an order of sanctions against Aghajanian to compensate Smith for her costs associated with traveling from California for the hearing.
On February 21, 2019, the parties and Smith's attorney appeared for a rescheduled pretrial conference. Aghajanian's attorney had withdrawn earlier in the month. Aghajanian requested a continuance to seek a new lawyer; the request was denied. The judge urged the parties to discuss a settlement, which they did. After reaching a settlement memorialized in a thirteen-page separation agreement drafted by Smith's attorney, the parties returned to the court room. The separation agreement consisted, in substance, of a lump-sum $60,000 payment to be made to Smith by January 1, 2020, secured by a mortgage on Aghajanian's Quincy property, and either the return of Smith's engagement ring to her or the payment of $1,700. After a colloquy with the parties, the judge found that the separation agreement was fair and reasonable and entered a judgment incorporating but not merging the separation agreement into the judgment. See generally Bercume v. Bercume, 428 Mass. 635, 641 (1999).
On March 20, 2019, represented by new counsel, Aghajanian filed a notice of appeal from the February 21, 2019 judgment of divorce nisi. He then filed a Mass. R. Dom. Rel. P. 60 (b) (6) motion for relief from judgment alleging that the settlement was coerced and unreasonable. The motion was denied.
Discussion. Aghajanian did not appeal from the denial of his rule 60 (b) (6) motion. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 188 (1995) (denial of rule 60 [b] motion is separately appealable). As a consequence, that motion is not properly before us. See Mass. R. A. P. 4 (a) (1), as amended, 464 Mass. 1601 (2013); Eyster v. Pechenik, 71 Mass. App. Ct. 773, 779 (2008) (timely notice of appeal must be filed); Piedra, supra. Nor is the affidavit that was submitted for the first time on appeal.
Neither did Aghajanian file a timely motion under Mass. R. Dom. Rel. P. 58 (c). See Innis v. Innis, 35 Mass. App. Ct. 115, 118 (1993) (litigant "was not at liberty to let the judgment enter with [his] apparent approval and later invite a battle of affidavits about why the judgment should not have entered").
We turn to the direct appeal. Even if we were to treat the husband's argument that the motion to continue should have been allowed as a motion arising under the direct appeal, the result would be no different. The judge did not abuse his discretion in denying Aghajanian's motion for a continuance. See Hunnewell v. Hunnewell, 15 Mass. App. Ct. 358, 363 (1983). The case had been pending for more than two years, Aghajanian had failed to appear at the previous pretrial conference without notice or excuse, he had been sanctioned for that failure, his financial statements were incomplete, and he had not complied with discovery orders before the hearing. He sought the continuance at the pretrial conference with no prior notice to Smith or the judge without securing new counsel. Contrast Botsaris v. Botsaris, 26 Mass. App. Ct. 254, 256-258 (1988). In addition, Smith incurred significant costs to travel from California to attend proceedings where Aghajanian either failed to appear or attempted to interpose further delay. It was well within the judge's discretion to weigh these factors as he did when considering Aghajanian's motion for a continuance. See Hunnewell, supra.
Because neither his rule 60 (b) (6) motion nor the facts on which he based it are properly before us, we need not decide Aghajanian's remaining contentions that the separation agreement was "unauthorized" and that the judge erred in finding the separation agreement "fair and reasonable." Even if we were to reach the merits of Aghajanian's arguments in some manner on his direct appeal, however, he would not prevail.
That the trial judge encouraged the parties to settle was not an abuse of discretion. The agreement was made between them. Cf. Bower v. Bournay-Bower, 469 Mass. 690, 700-701 (2014) (recognizing court's inherent authority to encourage settlements, but limiting that authority where judge orders use of third-party decision-maker, such as parenting coordinator, over one party's objection); Gravlin v. Gravlin, 89 Mass. App. Ct. 363, 366 (2016) (same). Nothing in the record before us supports the belated contention that Aghajanian was coerced into settling. The judge encouraged the parties to settle and pointed out the obvious -- that both parties were on the same coast, a settlement could minimize the risk for both parties, an adverse decision at trial could result in an order of sale of the house, and that if they did not settle they could always try the case. The judge told Aghajanian that setting the case for trial would give him additional time to get a lawyer. The contemporaneous record demonstrates that Aghajanian was well aware that he could have rejected the terms proposed and proceeded to trial. His pro se status does not alter our conclusion. "We observe . . . that the husband cannot claim any particular indulgence on the ground that he was acting without the benefit of counsel. He chose this predicament." Hunnewell, 15 Mass. App. Ct. at 362. The argument now made on appeal that he was coerced into settlement negotiations is utterly lacking in support in the record.
Nor does the record before us support the contention that the financial terms of the settlement were unreasonable, as Aghajanian now asserts. The judge considered the relevant factors. See Paixao v. Paixao, 429 Mass. 307, 311 & n.4 (1999); Dominick v. Dominick, 18 Mass. App. Ct. 85, 92 (1984). See also G. L. c. 208, § 34. There was considerable equity in the home, Smith settled for fifty percent of what she initially requested, and the settlement permitted Aghajanian to avoid a trial, and to avoid a forced sale if he were unable to pay the agreed upon amounts due. "In passing on the agreement, . . . the judge is not required to divine what judgment he would likely enter if the case were fully litigated, but only whether the agreement is fair and reasonable when considered in light of the factors enumerated . . . and any other relevant circumstances." Dominick, supra. We decline Aghajanian invitation to speculate as to how his personal bankruptcy would impact his ability to secure funds to pay the obligation. Any other legal or financial obligations he may have had in the bankruptcy proceeding have not been briefed, and are in any event for the bankruptcy court to resolve.
He claimed at a hearing that he was unable to obtain conventional financing. Even if true, there was equity in the home and his agreement to the settlement was indicative of his willingness to seek financing from other sources.
We agree with Smith that Aghajanian's claims are frivolous and that she is entitled to an award of appellate attorney's fees and costs. See G. L. c. 211A, § 15; Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). Smith may submit a petition to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within fourteen days of the date of this decision. Aghajanian may respond to the petition within fourteen days of that filing.
Judgment affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 12, 2020.