Camillo v. Camillo, 90-P-976

• Decision Date: 28 August 1991
• Docket Number: No. 90-P-976,90-P-976
• Citation: 577 N.E.2d 310,31 Mass.App.Ct. 286
• Parties: Susanne M. CAMILLO v. Vincent J. CAMILLO.
• Court: Appeals Court of Massachusetts

Page 310

577 N.E.2d 310

31 Mass.App.Ct. 286

Susanne M. CAMILLO v. Vincent J. CAMILLO.

No. 90-P-976.

Appeals Court of Massachusetts Suffolk.

Argued June 25, 1991.

Decided Aug. 28, 1991.

Helen Holcomb, for Susanne M. Camillo, submitted a brief.

Michael O'Brien, for Vincent J. Camillo.

Before WARNER, C.J., and PERRETTA and PORADA, JJ.

PERRETTA, Justice.

Because the mother's record appendix was insufficient to permit us to consider her claim on appeal, i.e., that the trial judge made numerous errors in ruling upon her complaint seeking modification of the father's child support obligation, we were unable to consider her arguments. The appendix did not include a transcript. Although the mother explained in her brief that the tape cassette of the hearing had been lost, we noted in our unpublished memorandum and order under Appeals Court Rule 1:28, as amended, 10 Mass.App.Ct. 942 (1980), that the mother had not availed herself of the procedures set out in Mass.R.A.P. 8(c), as amended, 378 Mass. 933 (1979), and we affirmed the judgment. See 30 Mass.App.Ct. 1115, 573 N.E.2d 534 (1991). The mother now petitions for rehearing, claiming that she in fact did obtain an approved statement of the evidence under rule 8(c). A copy of the statement is attached to the petition. We see from the petition that numerous mishaps occurred in the process of bringing an accurate record before us. Because we cannot say that the mother is entirely responsible for the procedural missteps, we reconsider her claim on appeal. Upon reconsideration, we describe how the procedural error occurred, in order to avoid its recurrence, and we conclude that, in light of the evidence, our order affirming the judgment is to stand.

1. The mother's brief and appendix. The docket entries of this court show that the mother's appeal was entered on August 20, 1990. ¹ She filed her brief and appendix on December 3, 1990, and the father chose not to respond. As required by Mass.R.A.P. 18(a), as amended, 399 Mass. 1217 (1987), the mother included the following documents, among others, in her appendix: the lower court docket entries, through January 23, 1990, the parties' financial statements filed under Rule 401 of the Supplemental Probate Court Rules (1979), and the judgment of March 10, 1989.

In her brief, the mother made many factual assertions without the required references to the record. See Mass.R.A.P. 16(a)(3), 365 Mass. 861 (1974), and Mass.R.A.P 16(e), as amended, 378 Mass. 940 (1979). She pointed out that the judge did not make any findings of fact and that the tape cassette of the hearing could not be found. We regarded these statements as an unsatisfactory explanation for the state of the record before us for a number of reasons. Prior to the amendment of the Child Support Guidelines effective October 1, 1989, a judge was not required to make findings when the Guidelines were not followed, as here. See Kindregan & Inker, Family Law and Practice § 223, at 367 n. 7 & 376 (1990). Further, the docket entries do not reflect that the mother had requested that, pursuant to Mass.R.Dom.Rel.P. 52(a) (1987), findings be made. See Harvey, Moriarty, Bryant, & Asch, Massachusetts Domestic Relations § 31:8 (1990). ² Finally, and as earlier noted, the docket entries did not reflect that a statement of the evidence had been presented and approved under Mass.R.A.P. 8(c). It was not until the filing of the petition for rehearing on June 19, 1991, that we discovered that a statement of the evidence had been approved on January 10, 1991, some five weeks after the mother had filed her brief and appendix.

From all that appeared from the materials before us at the time the mother's appeal was taken up for consideration, her claim could not succeed because of the lack of record support (see Kunen v. First Agricultural Natl. Bank, 6 Mass.App.Ct. 684, 687, 689, 382 N.E.2d 750 [1978]; Burda v. Spencer, 28 Mass.App.Ct. 685, 688, 554 N.E.2d 1227 [1990] ), and there was no purpose to be served by granting oral argument. Disposition of the appeal under Appeals Court Rule 1:28 was, therefore, particularly appropriate. ³

2. The procedural mistakes. Upon receipt of the mother's petition, we exercised our powers under Mass.R.A.P. 18(b), as amended, 378 Mass. 941 (1979), and called for the lower court docket entries. Those docket entries reflect activity in the trial court subsequent to December 3, 1990, the date the mother filed her brief and appendix.

On December 13, 1990, the mother moved in the Probate Court for an enlargement of time in which to file a statement of the evidence and for approval of her attached statement. Her motions and statement were "allowed" on January 10, 1991, by a judge other than the one who had presided at the hearing on her complaint. ⁴ Copies of the motion and statement, with the judge's endorsements thereon, were also attached to the petition filed with us.

Rule 8(c), 378 Mass. 933 (1979), provides, as here pertinent: "[I]f a transcript is unavailable, the appellant may, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon, the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal." The mother's notice of appeal was docketed on March 30, 1989, and "on or around April 3, 1989," she ordered a copy of the tape cassette.

We learn from the attachments to the mother's petition that after the thirty-day period in rule 8(c) had expired, she was informed that the cassette could not be found. Notwithstanding this information, the mother did not seek an enlargement of time, pursuant to Mass.R.A.P. 10(c), as amended, 378 Mass. 938 (1979), in which to meet her obligations under Mass.R.A.P. 9(c)(2), as amended, 378 Mass. 936 (1979), all as explained in Patten v. Mayo, 23 Mass.App.Ct. 657, 658-659, 505 N.E.2d 198 (1987). Because of this failure, there was nothing to alert the register to the fact that, as far as the mother was concerned, the record was incomplete and should not be assembled. Consequently, the register continued with his duty and completed assembly of the record on July 2, 1990. See Mass.R.A.P. 9(d), as amended, 378 Mass. 936 (1979). That the mother was attempting to draft an agreed statement of facts is irrelevant, even if commendable, because, as clear from the materials now before us, no one was advised of these efforts until long after the assembly of the record had been completed.

Apparently, it was not until after the appeal had been docketed that the mother's efforts to reach agreement with the father as to the facts proved futile. Her brief makes no mention of her attempts to secure record support for her factual statements, other than to note that the cassette could not be found. Her motions of December 13, 1990, are telling as to her awareness of the fact that the appendix filed with us on December 3, 1990, was seriously, indeed fatally, deficient.

The mother also knew that, her motion and statement having been allowed by the Probate Court, it remained necessary to transmit the statement to the appellate court. In her motion seeking approval of the statement, she did request "an Order approving the attached 'Statement of Evidence' for inclusion in the record on Appeal." At this point, December 13, 1990 (the date of the filing of the motion and proposed statement), the mother reasonably could assume that some time remained in which the statement could be transmitted before the appeal would be taken up for consideration, even if under rule 1:28.

When the motion and statement were allowed on January 10, 1991, it became the obligation of the register, by reason of both the language of rule 8(c) ("the statement ... as settled and approved shall be included by the clerk of the lower court in the record on appeal") and the allowance of the mother's specific request for inclusion in the record, to transmit to this court an amended or updated record. According to the mother's petition, she was assured several times by the register that the statement of evidence "had been incorporated into the appellate record." The docket entries, however, do not reflect that the register of the trial court ever transmitted an updated record to this court.

Even had the transmission been made by the register, we still would not have had a copy of the rule 8(c) statement. Once again we point out that, in a civil case, the record transmitted by the clerk of the lower court consists of "two certified copies of the docket entries," Mass.R.A.P. 9(d), and no more. It is the duty of the appellant to bring any other part of the record on appeal, see Mass.R.A.P. 8(a), as amended, 378 Mass. 932 (1979), to an appellate court under either Mass.R.A.P. 18(a), as amended, 399 Mass. 1217 (1987), or 18(f), 365 Mass. 867 (1974). See Holleman v. Gibbons, 27 Mass.App.Ct. 563, 567, 541 N.E.2d 345 (1989).

We recapitulate. Had the mother timely sought an enlargement of time under rule 10(c) to meet her obligations under rule 9(c)(2), see Patten v. Mayo, 23 Mass.App.Ct. at 658-659, 505 N.E.2d 198, it is likely that, in view of her grounds, the motion would have been allowed, and none of this would have happened. Had her request been denied, relief could have been sought from a single justice of this court. See Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Had the register transmitted updated docket entries as he should have we would not have had the actual rule 8(c) statement, but we would have had the knowledge of its existence and the discretion to exercise our powers under rule 18(b). We also would have been alerted to the problem...