Adams v. Lamarine, 2004 Mass. App. Div. 36 (MA 3/11/2004)
| Decision Date | 11 March 2004 |
| Citation | 2004 Mass. App. Div. 36 |
| Parties | Darlene M. Adams, <I>vs.</I> Donald E. Lamarine, Jr. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: Ripps, Rutberg & Koenigs, JJ.
Practice, Civil, Adjudication of paternity; Dist./Mun. Cts. R. A. D. A., Rule 8C; Motion to vacate judgment, Denial of; Motion to strike affidavit, Denial of; Service of process; Notice.
Opinion affirming denial of defendant's motion to vacate judgment. Action heard in Fitchburg District Court by Paul LoConto, J.
Darlene Adams Guccione for the plaintiff.
Mark S. Maynard for the defendant.
In this appeal, pursuant to Dist./Mun. Cts. R. A. D. A., Rule 8C, the defendant appeals from the judge's September 19, 2002 denial of a Motion to Vacate a 1987 judgment which adjudicated him the father of the plaintiff's child and ordered him to pay child support and arrears. He bases his motion upon lack of sufficient service and knowledge of the original action. He also appeals from the judge's October 17, 2002 denial of his Motion to Strike the plaintiff's late-filed affidavit in opposition to his Motion to Vacate.
On September 30, 1987, the Department of Revenue (DOR) filed this complaint on behalf of the plaintiff against the defendant in the Fitchburg District Court. The "Paternity/Support Docket" sheet has a space to fill in the date and/or check off the appropriate event. There are four lines of options about service. It shows that the "Certified and First Class Notice" was mailed on 9/30/87 to Williams Street, Fitchburg, the address apparently told DOR by the plaintiff.1 It shows that the Certified Notice was returned undelivered on October 2, 1987. Copies of the envelope and return receipt both say the reason was that the time for forwarding had expired. As to the First Class mail, there is a line on the docket sheet entitled "First Class Notice returned Undelivered." No date is entered before that line. We read that line to mean that because no date was entered, the First Class mail was not returned to the court as undelivered. The defendant did not appear on October 27, 1987, was defaulted, adjudicated the father and ordered to pay $75 per week plus $1776.50 in arrears.
On August 1, 2002, he filed a Motion to Vacate (pursuant to M.R.C.P., Rule 60, although not denoting a subsection) seeking to vacate the 1987 paternity and support judgment and the arrears in excess of $50,000 on the ground of lack of proof of service. The plaintiff, who was then residing in Florida, filed an Answer and a Motion for Contempt. The Motion to Vacate was heard on September 6, 2002. The plaintiff was not present, but phoned the court to say she was in Florida and unable to attend.
During the hearing, the defendant testified that he had not received the summons and complaint and no notice of the action filed on or about September 30, 1987 (Tr. 12), nor did he get notice of the judgment until around 2000 when he was served notice in Florida to appear on a "Petition to Adopt and Enforce A Judgment of a Sister County/Foreign Jurisdiction," Docket 05-1999-OR-48907. He supports his lack of knowledge by stating that he had not lived at Williams Street, his parents' address, since he was 19, that he lived with Ms. Adams for two years in Fitchburg during which the child was born, that they moved to Florida in 1988 and lived together almost continuously until 1990, when they separated for the last time. Further, they have lived near each other in Florida for many years. The defendant has not disputed paternity.
On September 16, 2002, the plaintiff filed an Affidavit in Opposition to the Motion to Vacate which was given to the judge. (See docket entry.)2 On September 18, 2002, the judge denied the Motion to Vacate. On September 20, 2002, the defendant filed a Motion to Strike the Plaintiff's Affidavit on the ground that it was late-filed. It was heard on October 4, without the plaintiff present, or notice to her, and denied on October 17, 2002.3
The defendant appeals on three grounds: (1) that he had not received proper notice of the complaint and therefore the court lacked jurisdiction to adjudicate the matter; (2) that denial of the Motion to Vacate was not proper; and (3) that the judge's refusal to strike the plaintiff's September 16, 2002 Affidavit was in error. The first two reasons are identical, as ground for the Motion to Vacate was lack of appropriate service.
Motion to Vacate Under Rule 60(4)
Defendant Lamarine argues, without specifying subsection (4) or (6), that the judgment is void and should be vacated because he never received service of, or notice of, the action. We understand the Motion to be under subsection (4). Mass. Rule Civ. Proc., Rule 60(b) provides, in pertinent part, as follows:
(b) On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment order or proceeding for the following reasons:
(4) the judgment is void;
(6) any other reason justifying relief from the operation of the judgment.
Farley v. Sprague, 374 Mass. 419, 423 (1978). "Rule 60 sets forth a comprehensive framework for obtaining relief from a final judgment or order, balancing the competing needs for finality and flexibility to be certain that justice is done in light of all the facts." Sahin v. Sahin, 435 Mass. 396, 399-400 (2001).
The decision on a motion under this rule is committed to the sound discretion of the trial judge and will not be reversed on appeal absent a clear showing of abuse of discretion, Scannell v. Ed Ferreirinha & Irmao, Lda., 401 Mass. 155, 157-158 (1987), "that is, if it was a ruling that `no conscientious judge, acting intelligently, could honestly' have made." Maniscola v. Kenworthy, 2002 Mass. App. Div. 203, 204, quoting Mazzoleni v. Cotton, 33 Mass. App. Ct. 147, 152-153 (1992), quoting Davis v. Boston Elev. Ry., 235 Mass. 482, 502 (1920). "Implicit in the abuse of discretion standard is the possibility that two judges might come to opposite conclusions on the same set of facts, both of which might pass muster on appellate review." Maniscola v. Kenworthy, supra, at 204.
Although Rule 60(b)(4) is ostensibly subject to the "reasonable" time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.) (), cert. denied, 373 U.S. 911, 83 S. Ct. 1300, 10 L. Ed. 2d 412 (1963); Marquette Corp. v. Priester, 234 F. Supp. 799 (E.D.S.C. 1964) ().
The concept of a void judgment is "narrowly construed." O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 455 (1991). Void judgments subject to vacation are those where there is a lack of jurisdiction over the person or over the res, or a failure of notice. Id.
A judgment entered by a court which lacks personal jurisdiction over the defendant because of a lack of service of process is void from its inception [citations omitted] and the defendant is entitled to relief from such void judgment pursuant to M.R.C.P. 60(b)(4). No discretion is afforded to the court by Rule 60(b)(4) to deny a motion for relief from a default judgment which is in fact void for lack of proper service. Dombrowski v. Chute, 2000 Mass. App. Div. 127, citing Farley v. Sprague, supra at 425; Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass. App. Ct. 527, 533 (1997).
The reason is that service of process is designed to insure the defendant's due process rights to notice and an opportunity to be heard. Hardy v. Utica Mut. Ins. Co., 369 Mass. 696, 699 (1976); Carroll v. DeMoulas SuperMarkets, Inc., 1987 Mass. App. Div. 163, 165.
While Rule 60 does not mandate the filing of affidavits or counter affidavits, it is the common practice under Federal and State practice for the moving party to support the motion by an affidavit and for the other party to file a counter affidavit if they desire. "A defendant trying to set aside a default or default judgment (whether under Rule 55[c] or Rule 60[b]) must, in any event, accompany his motion with an affidavit setting forth the facts and circumstances (including the nature of his defense on the merits) upon which he rests his motion." SMITH & ZOBEL, MASSACHUSETTS RULES PRACTICE §55.8 (1977); New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 135, 140 (1989). Where "nothing in the documents submitted by the plaintiff refutes or contradicts the facts set out in the affidavits presented by the defendant ... the motion judge [is] required to accept as true the uncontroverted allegations recited in the defendant's affidavits." Fleishman v. Stone, 57 Mass. App. Ct. 916 (2003), citing Farley v. Sprague, supra at 423-424 (); Metivier v. McDonald's Corp., 16 Mass. App. Ct. 916, 918 (1983). "The party failing to file an opposing affidavit in such a situation cannot rely on the hope that the judge may draw `contradictory inferences' in his favor from the apparently undisputed facts alleged in the affidavit of the moving party." Id. at 425, citing Community Nat'l Bank v. Dawes, 369 Mass. 550, 553-556 (1976); Nichols Associates, Inc. v. Starr, 4 Mass. App. Ct. 91, 93-94 (1976). See also Konan v. Carroll, 37 Mass. App. Ct. 225 (1994) (...
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