Anthony v. Anthony

• 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
• Court: Appeals Court of Massachusetts

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.

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.

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 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.

The change in the second paragraph of Mass.R.A.P. 4(a) which became effective January 1, 1985, tracks an amendment 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. 2 & 3, 319 N.E.2d 448 (1974), and Sheinkopf v. Eskin, 367 Mass. 573, 574-576, 327 N.E.2d 879 (1975), compliance with amended rules of appellate procedure was not required as to appeals claimed and steps taken prior to the effective date of a rule amendment. As a general principle courts obliged to resolve transitional questions were to interpret and construe the guidelines in Rule 1B "in such manner as will, by the exercise of sound judicial discretion, ensure justice." Mass.R.A.P. 1B(5), 378 Mass. 927 (1979).

It would be pointless in this case to dismiss the appeal, claimed when old Rule 4(a) still applied, and to put the parties to the burden of starting the proceedings all over again. None of the questions placed by the parties before us for consideration would be affected by disposition of the motion to amend the judgment which is still pending. ⁴ The appellee suffers no prejudice. Compare Cole v. Westinghouse Bdcstg. Co., 386 Mass. 303, 307, 435 N.E.2d 1021 (1982); Swampscott Educ. Assn. v. Swampscott, 391 Mass. at 865-866, 464 N.E.2d 953.

2. The merits. Whether a spouse shall be held to pay the full measure of a divorce judgment on pain of contempt and whether that judgment should be modified as to future payments involves an essentially similar inquiry, i.e., Has a material change of circumstances occurred since entry of the original judgment? See Pemberton v. Pemberton, 9 Mass.App. 9, 12-13, 411 N.E.2d 1305 (1980). Binder v. Binder, 9 Mass.App. 845, 399 N.E.2d 1109 (1980). A major aspect of that question is the ability of the obligated spouse to pay. Ibid. As to that ability to pay and other significant changes of circumstances, we defer to the trial judge's firsthand evaluation. Schuler v. Schuler, 382 Mass. 366, 370, 416 N.E.2d 197 (1981). Heistand v Heistand, 384 Mass. 20, 26, 423 N.E.2d 313 (1981).

The judge found that at the time of the original divorce judgment, 1976, William was earning a salary of $69,800 as president of the Sign Division of Federal Signal Corporation. That employment ended for reasons not discussed in the record. Around 1978 William found another chief executive position, with Ball and Socket Company, at an annual salary of $50,000, plus a stock package which produced $4,900 per year in dividends. The original 1976 judgment was modified August 8, 1979, setting alimony at $1,375 per month, a reduction of about $300 per month. Ball and Socket was liquidated in 1983. At that time, William's salary had risen to $63,180. William was close to age sixty when his job wound up and he experienced difficulty in finding a new job. He turned to self-employment as a business consultant but at the time of hearing of the contempt and modification complaints, earnings from that work were meagre.

William had remarried and the second Mrs. Anthony pooled her annual earnings of $14,000 with his. Nonetheless, William had, between August, 1983, and March, 1984, reduced his cash account from $29,943.34 to $3,400. For her part, Jane, the first Mrs. Anthony, lived frugally, earned approximately $10,816, and suffered from a hyperthyroid condition and a bleeding retina. The bulk of her assets were frozen in a home.

The judge was faced with straitened circumstances on both sides. His conclusion that William's situation had materially changed is unassailable. He found William's reduction of income to be temporary and predicted that his earnings ought to increase, either through success as a consultant, or some new employment. Although the judge found that William possessed assets which, if liquidated, could satisfy the entire arrearage, interest, and attorney's fees, the judge opted for some capital retention to launch William on a self-employed or salaried enterprise in which he could earn more money. ⁵ The engine...