Blackburn v. Blackburn
Decision Date | 05 August 1986 |
Citation | 495 N.E.2d 900,22 Mass.App.Ct. 633 |
Court | Appeals Court of Massachusetts |
Parties | Kathleen H. BLACKBURN v. George L. BLACKBURN (and a companion case 1 ). |
Kevin J. Mulvey, Cambridge, for Kathleen H. Blackburn.
Robert J. O'Regan (John P. White, Jr., Boston, with him), for George L. Blackburn.
Before GREANEY, C.J., and DREBEN and WARNER, JJ.
On June 28, 1985, judgments of divorce nisi were entered on the parties' cross-complaints. On July 8, 1985, the wife filed a motion to amend the probate judge's findings of fact and the judgments, and the husband filed a motion to amend the judgments. See Mass.R.Dom.Rel.P. 52(b) & 59 (e) (1975). The only notice of appeal from the judgments ever filed was by the wife on July 25, 1985. On August 28, 1985, the judge entered an order amending his findings of fact by striking certain findings and adding one. On September 25, 1985, the wife filed a notice of appeal "from the Order striking findings of fact, entered August 28, 1985." Responding to the wife's motion for clarification of his August 28, 1985, order, the judge issued a memorandum on September 26, 1985, stating that the order applied to and disposed of both parties' motions of July 8, 1985. No notice of appeal from the judgments was filed after the disposition of the motions brought under rules 52(b) and 59(e).
In relevant part, Mass.R.A.P. 4(a), as amended effective January 1, 1985, --- Mass. ----, provides that,
Anthony v. Anthony, 21 Mass.App.Ct. 299, 302, 486 N.E.2d 773 (1985). There is no longer a requirement of a showing of prejudice to the appellee. Id. at 301-302, 486 N.E.2d 773.
We announced in Anthony that, "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." Rule 4(a), as construed in Anthony, has full effect here with the result that the wife's appeals must be dismissed. The only notice of appeal filed by her from the judgments of divorce nisi is a nullity. The only notice of appeal filed by the wife after disposition of the rule 52(b) and 59(e) motions was not from the judgments but expressly from the "Order striking findings of fact, entered August 28, 1985." 2
The wife was on notice at least as of November 7, 1985, of the husband's claim that there had been no valid notice of appeal. That claim was pressed in subsequent motions in the Probate Court and before single justices of this court. The decision in the Anthony case was issued on December 24, 1985. A motion to dismiss the appeal, expressly relying on Anthony, was filed with a single justice of this court on April 24, 1985. Yet at no time did the wife seek leave to file a notice of appeal late. See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Under the rule the time for filing a notice of appeal may be enlarged up to one year from the date of the entry of the judgment sought to be reviewed. While the request for an enlargement of time to file a notice of appeal is burdened, see Tisei v. Building Inspector...
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