Elmore v. Elmore

1

CAROLYN S. ELMORE v. JAMES F. ELMORE.

No. 22-P-356

Appeals Court of Massachusetts

March 24, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0

In 2021 James Elmore (father) filed a complaint for modification of a 2015 divorce judgment, seeking to reduce or terminate his child support obligation to Carolyn S. Elmore (mother) on the ground that the parties' two grown daughters were emancipated. The mother counterclaimed, seeking to reduce or terminate her obligation to pay alimony and provide life insurance for the father. Following a three-day trial in the Probate and Family Court, the judge issued a modification judgment in favor of the father, reducing his child support obligation and leaving the mother's alimony and life insurance obligations undisturbed. The mother timely filed a motion for a new trial under Mass. R. Dom. Rel. P. 59, which was denied, an order from which the mother also timely appealed. On appeal the mother claims that the judge violated her procedural due process rights by adhering to a previously-issued temporary order quashing her discovery requests, and denying her motion to present expert testimony and related documents at trial. We affirm.

Background.

The parties were involved in contentious divorce proceedings, which resulted in the entry of a judgment of divorce in 2015. Shortly thereafter, the parties filed complaints for contempt and modification, with numerous associated motions, prompting the judge assigned to hear those matters to enter a temporary order dated September 20, 2016, requiring the parties to seek permission of the court before filing additional pleadings or motions. About one month later the parties jointly moved to dismiss the pending claims. Although the temporary order was addressed to the anticipated trial on the matters then pending, neither party moved to vacate it, and both parties continued to abide by its terms in subsequent proceedings.

Thus, when the father filed his current complaint for modification, he also filed a motion for permission to file it, which was granted. The mother responded by filing an answer and her counterclaim, without first seeking permission. At the same time, the mother served the father with twenty-six interrogatories and sixty-one requests for production of documents with respect to the years 2016 through 2021. In addition, she served seven recordkeeper deposition notices (on the husband's bank, employer, accountant, and mortgage lenders) seeking documents for the same five-year period, and a notice of deposition on the father's girlfriend. The father asked the court's permission to file a motion to dismiss the mother's counterclaim and to file a motion to quash and for a protective order. The judge granted the father permission to file his motions and scheduled them for hearing on the date of the already-scheduled pretrial conference.^[1]

The father's motions were addressed at the pretrial conference. The father argued that his complaint for modification was very simple, that the matters before the court could be decided on the financial documents already available to the mother, and that the mother's discovery requests were part of a recurring pattern of over-litigating. The mother argued that the discovery was relevant to the father's request to terminate his child support obligation -- which turned primarily on whether the parties' younger daughter, who was twenty years old, had the ability to work full-time.^[2] The judge allowed the motion to quash, noting that the parties' financial statements were "signed under pains and penalties of perjury" and that the mother had more financial resources available than the father.

As to the father's motion to dismiss the mother's counterclaim, the father argued, among other things, that the mother had failed to seek permission to file it. The mother argued that the temporary order requiring permission for filing dissolved when the parties' 2016 complaints were dismissed. The judge disagreed, stating that such orders remain in effect once they are issued, as the parties' subsequent conduct confirmed. The judge nonetheless denied the father's motion to dismiss and allowed the mother to proceed on her counterclaim. Noting that the father had estimated the trial would take thirty minutes, the judge asked the mother's counsel how long she anticipated the trial would last. When mother's counsel answered "two days," the judge responded, "No. It's not going to take two days to try this case." The judge ordered the parties to return at 3 P.M. for trial.

The mother filed an emergency motion to continue the trial (accompanied by a motion for permission to file the motion). The judge denied the mother's motion, stating that "this seems like a very simple complaint for modification and simple issues, the father's child support obligation would be reduced to $74 and for Court's efficiency and time I believe that all parties are better served to have this trial today." Before the second day of trial, the mother sought permission to file an emergency motion in limine to be permitted to call two expert witnesses, a vocational expert and an accounting expert, to establish that the father's income was higher than he represented in his financial statement. The judge denied the motion on the ground that the presentation of previously-undisclosed expert testimony would be prejudicial to the father and because the judge did not believe the mother "need[ed] to over litigate this with experts." On the third day of trial the mother discussed presenting a third expert to rebut the husband's testimony about the state of the real estate market, and she filed an offer of proof regarding the proposed testimony of all three experts. She also sought to introduce documents concerning the value of the properties that the father had sold as a real estate agent, which the judge excluded, partly on hearsay grounds.

Discussion.

1. The temporary order.

The mother argues on appeal that the judge erred by enforcing the temporary order because it had expired by its own terms and, if it was still in effect, the order deprived her of access to the courts. Putting aside the fact that the mother never moved to vacate the temporary order, she has not shown prejudice, or any due process violation, arising from the temporary order. See Mass. R. Dom.

Rel. P. 61 (identical to Mass. R. Civ. P. 61, 365 Mass. 829 [1974]). In the only context in which the mother questioned the order's continuing validity -- her opposition to the father's motion to dismiss the counterclaim -- she prevailed. Although she was not permitted to file her motion to compel discovery, she had a full and fair opportunity to oppose the father's motion to quash, see note 1 supra, which raised identical issues. Similarly, although she was not given permission to file her motion to present expert testimony, as discussed below, the judge denied that motion on grounds unrelated to the temporary order. The existence of the temporary order did not interfere with the mother's ability to litigate the father's complaint or her counterclaim, or in any way deprive her of meaningful access to the court.

2. Discovery.

As noted, the mother made sixty-one requests for production of documents and propounded twenty-six interrogatories on the father, sought to obtain records from seven business entities, and also sought to depose the father's girlfriend about details of the father's finances since the entry of the divorce judgment. These requests were made in the context of divorce proceedings that had already been so contentious that the parties were required to obtain leave of the court before filing papers.

Under Mass. R. Dom. Rel. P. 26 (c) (identical to Mass. R. Civ. P. 26 [c], as amended, 474 Mass. 1401 [2016]), "Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that the discovery not be had" or limiting the scope of discovery. Likewise, under Mass. R. Dom. Rel. P. 45 (b) (identical to Mass. R. Civ. P 45 [b], as appearing in 470 Mass. 1402 [2015]), the court may, upon motion, quash or modify a request for documents from a third party if the request is "unreasonable and oppressive." "Trial judges have broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial" (quotation and citation omitted). Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 131 (2002).

Faced with the mother's argument that the discovery she requested was necessary to address the question of child support, the judge reasonably concluded that the matter could be decided based on the parties' financial statements. As the judge noted, the trial presented "simple issues," and she was "not going to let this get out of hand and make it something bigger than it actually is." The mother did not respond by proposing more reasonable,...