Anthony v. Anthony

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before GREANEY; KASS
• Citation: 21 Mass.App.Ct. 299,486 N.E.2d 773
• Parties: Jane Parker ANTHONY v. William W. ANTHONY, Jr.
• Decision Date: 24 December 1985

Page 773

486 N.E.2d 773 21 Mass.App.Ct. 299 Jane Parker ANTHONY
v.
William W. ANTHONY, Jr. Appeals Court of Massachusetts,
Hampshire. Argued Oct. 9, 1985.
Decided Dec. 24, 1985.

Judith Kundl, Northampton, for plaintiff.

Charles W. Danis, Jr., Springfield, for defendant.

Before GREANEY, C.J., and PERRETTA, and KASS, JJ.

[21 Mass.App.Ct. 300] KASS, Justice.

William Anthony's complaint for modification of a 1976 divorce judgment, already once modified, was followed in close order by the complaint of his former wife, Jane, for contempt. The Probate Court judge found William to be in contempt, fixed the arrears, and ordered entry of a judgment requiring partial payment. At the same time he found William's economic circumstances to have changed materially and ordered entry of a judgment reducing monthly alimony to $458. Jane has appealed.

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1. Jurisdictional question. Although neither party raised the issue, we must consider whether, as a jurisdictional matter, we may entertain the appeal. Litton Business Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622, 420 N.E.2d 339 (1981). Flynn v. Contributory Retirement Appeal Bd., 17 Mass.App. 668, 670, 461 N.E.2d 1225 (1984). The judgment of contempt and what we consider to have been (see below) a judgment amending a previous alimony order were entered on May 4, 1984. Within ten days, on May 14, 1984, William filed a motion to alter or amend so much of the judgment of contempt as established William's arrearage. ¹ Thereafter, on May 24, 1984, Jane filed a notice of appeal from the contempt judgment (which she thought unduly postponed payment of the bulk of William's arrearage) and on May 31, 1984, she filed a notice of appeal from the judgment of modification. The appeal was entered in this court on February 28, 1985.

Prior to that date, on January 1, 1985, an amendment to Mass.R.A.P. 4(a), promulgated July 20, 1984, had become effective. As amended, Rule 4(a) provides that, "A notice of appeal filed before the disposition of [a timely motion to alter or amend a judgment] shall have no effect." ² The rule further [21 Mass.App.Ct. 301] provides that "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above." In its earlier formulation, Rule 4(a) had provided simply that the time for filing a notice of appeal would be tolled pending action on any of the designated post-judgment motions. Some confusion resulted on both the State and Federal level about the status of appeals in which the notice of appeal had been filed out of time. For examples see: Swampscott Educ. Assn. v. Swampscott, 391 Mass. 864, 865-866, 464 N.E.2d 953 (1984); Hutchinson v. Hutchinson, 6 Mass.App. 705, 707, 383 N.E.2d 82 (1978); Yaretsky v. Blum, 592 F.2d 65, 66 (2d Cir.1979), cert. denied, 454 U.S. 817, 102 S.Ct. 96, 70 L.Ed.2d 87 (1981); Dougherty v. Harper's Magazine Co., 537 F.2d 758, 762 (3d Cir.1976). The debate about how to regard appeals which proceeded out of time was neither academic nor mechanical; the considerations were practical ones. There was little point in having an appeal work its way up the ladder from a judgment which might be altered. See generally, 15 Wright, Miller & Cooper, Federal Practice & Procedure §§ 3915 (1976 and Supp.1985) and 16 Wright, Miller, Cooper & Gressman, Federal Practice & Procedure § 3950 (1977 and Supp.1985).

Under the old rule, Federal courts divided whether premature appeals should be dismissed solely by reason of their prematurity or whether a finding of prejudice to the appellee ought to be an indispensible additional basis for dismissal. ³ The Massachusetts courts opted for the latter approach, i.e., the mere fact of a notice of appeal having been filed before disposition of a postjudgment motion under Mass.R.Civ.P. 50(b), 52(b), or 59, would not trigger dismissal of the appeal, unless there were also a showing of prejudice to the appellee. See Swampscott Educ. Assn. v. Swampscott, 391 Mass. at 865, 464 N.E.2d 953; Hutchinson v. Hutchinson, 6 Mass.App. at 707, 383 N.E.2d 82.

[21 Mass.App.Ct. 302] The change in the second paragraph of Mass.R.A.P. 4(a) which became effective January 1, 1985, tracks an amendment

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made to the analogous Federal rule in 1979, and which appears as new Fed.R.A.P. 4(a)(4). Because of a split in the application of Rule 4(a)(4) by the Courts of Appeal, the Supreme Court construed the new rule in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). The Court held that the rule as revised meant what it said viz., a premature notice of appeal "shall have no effect," id. at 61, 103 S.Ct. at 403, and that "it is as if no notice of appeal were filed at all." Ibid. In so saying the Court quoted Professor Moore's observation that the effect of one or more of the postjudgment motions specified in Rule 4(a)(4) was that, "The appeal simply self-destructs." 9 Moore, Ward & Lucas, Moore's Federal Practice § 204.12, at 4-65 n. 17 (1985).

In considering questions arising under rules of procedure patterned on the Federal model, we take guidance from Federal decisions. Rollins Environmental Serv., Inc. v. Superior Court, 368 Mass. 174, 179-180, 330 N.E.2d 814 (1975). Albano v. Bonanza Internatl. Dev. Co., 5 Mass.App. 692, 693-694, 369 N.E.2d 473 (1977). As to all appeals to which new Mass.R.A.P. 4(a) applies we shall give unqualified effect to the language of the new rule, i.e., an appeal founded on a notice of appeal filed prior to disposition of a postjudgment motion under Mass.R.Civ.P. 50(b), 52(b), or 59 is a nullity and shall be dismissed.

It remains to ask whether the old or new Rule 4(a) applies in this case. Although Mass.R.A.P. 1B, 378 Mass. 926 (1979), is a transitional rule which applies to appeals in progress on July 1, 1979, the approach of the transitional rules to deciding whether new or old procedure should be applicable in a particular situation has been applied in a case in which a transitional rule did not apply in a literal sense. See Snow v. E.L. Dauphinais, Inc., 13 Mass.App. 330, 333, 432 N.E.2d 730 (1982). Under Mass.R.A.P. 1B(1) & (2) and under cases such as Seibolt v. County of Middlesex, 366 Mass. 411, 412 & nn....