Opinion
No. 10–P–309.
2012-07-13
Tamara TATARINOV–LEVIN v. Alexander TATARINOV–LEVIN.
By the Court (RAPOZA, C.J., GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The former wife appeals from the judgment of divorce nisi, the trial judge's order denying her amended motion to stay the judgment of divorce, the contempt judgment against her, and the order denying her emergency motion for reconsideration of the appointment of a real estate master.
We affirm, referring to the judge's findings where pertinent.
While the wife filed several other notices of appeal related to these and other postdivorce orders and judgments, she has not identified and addressed each one separately in the argument section of her brief. To the extent any of those appeals were properly before us and have not been waived, they are without merit. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
1. Divorce judgment. By the time of trial, the parties' four children were emancipated. Both parties were healthy and employed. As part of the divorce judgment, the judge ordered equal division of the equity in the marital home. Pursuant to G.L. c. 208, § 34, a judge has “broad discretion to divide the marital property equitably.” Brower v. Brower, 61 Mass.App.Ct. 216, 221 (2004), quoting from Dalessio v. Dalessio, 409 Mass. 821, 830 (1991), S. C., 413 Mass. 1007 (1992). A judgment of property division is not to be reversed unless it is “plainly wrong and excessive.” Mahoney v. Mahoney, 425 Mass. 441, 447 (1997), quoting from Bowring v. Reid, 399 Mass. 265, 267 (1987).
a. Ineffective assistance. Represented by different counsel on appeal, the wife challenges the judgment of divorce on the ground that her counsel provided her with ineffective assistance of counsel. This argument is without merit as the claim of ineffective assistance of counsel can only be raised in a criminal case or in a child custody case to which the Department of Social Services is a party. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Care & Protection of Stephen, 401 Mass. 144, 149 (1987).
b. Judge's supervision of the trial. The wife also challenges the divorce judgment on the ground that the judge prematurely terminated the trial without giving her the opportunity to ask one more question and to make a closing argument. The record shows that the judge allowed the trial scheduled for two days to expand to four days. In addition the record also shows that the judge repeatedly cautioned counsel about his waste of time and the conclusion of trial at 4:30 on the fourth day. The trial judge did not abuse her discretion in concluding the trial when she did.
See, e.g., Clark v. Clark, 47 Mass.App.Ct. 737, 746 (1999) (“A judge, as the guiding spirit and controlling mind of the trial, should be able to set reasonable limits on the length of a trial”).
To the extent this complaint extends to closing arguments we note that neither side gave a closing argument.
2. Denial of motion for a stay. On appeal, the wife challenges the trial judge's denial of her amended motion for a stay of the divorce judgment pending appeal. “[A] decision on a request for a stay rests in the discretion of the trial judge. See Mass.R.Dom.Rel.P. 62(g)(1992).” Colorio v. Marx, 72 Mass.App.Ct. 382, 383 n.1 (2008). Rule 62(g) of the Massachusetts Rules of Domestic Relation Procedure (1992) states that an appeal from a divorce automatically stays the running of the nisi period when the appeal is from that portion of the judgment which dissolved the marriage. “[T]he filing of an appeal shall not stay the operation ... of any other aspect of a divorce judgment....” Mass.R.Dom.Rel.P. 62(g). As the wife's brief indicates, the stay she was seeking concerned only the property division; therefore the decision whether to grant a stay was discretionary, not automatic. Given the sufficient notice to the parties on how and when the property was to be divided, we find nothing in the record to indicate that the judge abused that discretion.
3. Contempt judgment. The divorce judgment allowed the wife to keep the marital home on the condition that she pay the husband $142,927 by December 31, 2009; it further provided that if she did not do so, the house was to be put on the market and sold with the net proceeds divided equally between the parties. On December 31, 2009, the husband filed an amended complaint for contempt arising out of the wife's failure either to pay him or put the house on the market. Following a hearing, the judge issued an order adjudicating the wife in contempt for having wilfully refused to place the marital home on the market after having failed to pay the husband the amount specified in the divorce judgment.
The wife's challenge to this judgment is without merit. “[I]n order to find a defendant in civil contempt there must be a clear and unequivocal command and an equally clear and undoubted disobedience.” Larson v. Larson, 28 Mass.App.Ct. 338, 340 (1990). The wife does not argue in her brief that the command was not clear and unequivocal or that there was no clear and convincing evidence of disobedience. Her attorney conceded that the order had not been followed, citing only the depressed real estate market as a rationale. There was no error in the judge's determination that the wife was in contempt.
4. Order on wife's emergency motion for reconsideration of the appointment of a real estate master. After finding the wife in contempt for not paying the husband or putting the marital home on the market, the judge appointed a special master to sell the house. While the wife states that the offer the special master accepted was not fair, “left many questions to be asked,” and should be viewed with “a jaundiced eye,” her brief makes no coherent legal argument and cites no case or statute for her objection to the judge's decision. Consequently, this argument fails to rise to the level of appellate review. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In her motion to stay, the wife reports that the sale of the real estate is complete.
The husband has requested costs and counsel fees pursuant to Mass .R.A.P. 25, as appearing in 376 Mass. 949 (1979), and Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979). The wife has no reasonable expectation of reversal, and the appeal is wholly frivolous. See Love v. Pratt, 64 Mass.App.Ct. 454, 459 (2005). In accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), the husband may file an application for such fees and costs, together with supporting materials, within fourteen days of the date of the rescript. The wife will have fourteen days thereafter to respond.
Judgment of divorce nisi affirmed.
Order denying amended petition to stay judgment of divorce nisi affirmed.
Order on amended complaint for contempt entered February 11, 2010, affirmed.
Order allowing motion for appointment of real estate master and attorney's fees affirmed.