Farnsworth v. Dziurgot-Farnsworth

100 Mass.App.Ct. 1105

173 N.E.3d 56 (Table)

John A. FARNSWORTH

v.Cynthia A. DZIURGOT-FARNSWORTH.

20-P-140

Appeals Court of Massachusetts.

Entered: August 11, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Cynthia A. Dziurgot-Farnsworth, has filed this pro se appeal from a Probate and Family Court judge's denial of a motion under Mass. R. Dom. Rel. P. 60 (b) to vacate an order denying the defendant's motion to reconsider an earlier contempt judgment. Because we discern no abuse of discretion, we affirm.

In 1996, the plaintiff, John A. Farnsworth, filed for divorce from the defendant. In 2008, a judgment of divorce nisi entered (2008 divorce judgment). From the 2008 divorce judgment, the docket reflects numerous contempt complaints and orders, and notices of appeals therefrom, most stemming from the defendant's failure to pay the plaintiff approximately one million dollars in asset division under an order dated January 29, 2014 (2014 payment order).

In December 2016, the plaintiff filed a complaint for contempt due, in relevant part, to the defendant's failure to comply with the terms of the 2014 payment order. On May 2, 2017, after a hearing in which the parties were sworn and the judge considered each party's arguments and financial statements, the judge entered a finding of contempt and ordered the defendant to pay the outstanding balance (May 2017 contempt judgment). The judge found the following: (1) "the Defendant ha[d] intentionally failed to pay the sum of $989,160[ ] under [the 2014 payment order]"; (2) "there [was] insufficient proof that the Defendant ha[d] assets to pay the debt at [that] time"; and (3) because the debt was from "a division of assets in a civil divorce proceeding[,] [i]ncarceration under these circumstances would [only] be punitive and outside the jurisdiction of the Probate and Family Court." The judge ordered execution to issue to the plaintiff in thirty days in the amount of $989,160 (plus statutory interest) nunc pro tunc to January 29, 2014.

The defendant's motion to reconsider the May 2017 contempt judgment was denied on June 2, 2017 (June 2017 order). Although the defendant filed a notice of appeal from the May 2017 contempt judgment, it was a nullity because it was filed prior to the June 2017 order. See Mass. R. A. P. 4 (a) (2)-(3), as amended, 464 Mass. 1601 (2013); Anthony v. Anthony, 21 Mass. App. Ct. 299, 302 (1985). The defendant did not file a separate notice of appeal from the June 2017 order. In August 2017, the judge found that "[t]here is no current appeal pending of the [2014 payment order] ... and the time for filing any appeal thereof is exhausted," and ordered the issuance of execution.

Over two years later, in October 2019, the defendant filed a motion pursuant to rule 60 (b) of the Massachusetts Rules of Domestic Procedure to vacate the June 2017 order denying the motion to reconsider ( rule 60 [b] motion). The rule 60 (b) motion was denied, and the defendant timely filed this appeal.

Rule 60 (b) states, in relevant part, that the court may relieve a party from an order for the following reasons:

"(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied ... [or otherwise discharged] ...; or (6) any other reason justifying relief from the operation of the judgement."

Mass. R. Dom. Rel. P. 60 (b). The motion must be filed "within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the ... order ... was entered." Id. We review the judge's denial of the rule 60 (b) motion for an abuse of discretion. See Dilanian v. Dilanian, 94 Mass. App. Ct. 505, 515 (2018). See also L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008) (abuse of discretion will not be found unless "we conclude the judge made a ‘clear error of judgment in weighing’ the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives").

In essence, the defendant's rule 60 (b) motion sought to vacate the June 2017 order and the issuance of execution in August 2017 based on...