Kifor v. Duchesne

• Decision Date: 23 June 2022
• Docket Number: 21-P-901,21-P-902,21-P-503
• Court: Appeals Court of Massachusetts
• Parties: IMRE KIFOR v. BARBARA A. DUCHESNE & another[1] (and two companion cases[2]).

IMRE KIFOR v. BARBARA A. DUCHESNE & another^[1] (and two companion cases^[2]).

Nos. 21-P-503, 21-P-901, 21-P-902

Appeals Court of Massachusetts

June 23, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The pro se appellant, Imre Kifor, has four children -- two with appellee Barbara A. Duchesne, and two with appellee Cynthia S. Oulton. He has been engaged in lengthy and acrimonious litigation with the appellees in the Probate and Family Court (Probate Court actions) and in the Superior Court (Superior Court action). After a judge in each of those courts dismissed complaints that Kifor filed against each of the appellees, Kifor filed notices of appeal purporting to address many -- and in one instance, "all" -- judgments and orders in each of the actions.^[3]

His appeals have been grouped together for our consideration. To the extent that we identify in his dense briefing timely appeals supported by proper appellate argument, we discern neither abuse of discretion nor other error in the challenged rulings. Thus, we affirm.

1. Superior Court action against Duchesne and Pulton.

Kifor's challenge to the dismissal of his complaint^[4] in the Superior Court action against Duchesne and Oulton fails for lack of a timely notice of appeal. Judgment of dismissal entered on October 15, 2020. Assuming that Kifor's motion for reconsideration, docketed on October 23, 2020, was properly served, it tolled the time for filing the notice of appeal only until October 27, 2020. See Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019). Kifor's April 26, 2021 notice of appeal was filed well beyond that date.^[5]

2. Probate and Family Court action against Duchesne.

On June 23, 2021, a judge dismissed Kifor's complaint for the modification of a 2019 judgment addressing, inter alia, Kifor's parenting time and other contact with his children with Duchesne.^[6] In doing so, the judge concluded that Kifor's complaint failed to allege a material change in circumstances after the date of the 2019 judgment. E.K. v. S.C., 97 Mass.App.Ct. 403, 408 (2020), citing Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 777-778 (2005) (party requesting custody modification "must first establish that a material and substantial change in circumstance has occurred"). To the extent that we are able to identify and parse any viable appellate arguments in Kifor's brief, none of them addresses the judge's rationale. Accordingly, his appeal fails. See Haufler, 446 Mass. at 499 n.25; Mass. R. A. P. 16 (a) (9) (A).

3. Probate and Family Court action against Pulton.

Kifor's July 6, 2021 and July 8, 2021 notices of appeal are timely only as to the orders dated June 4, 2021, and June 23, 2021. As to the June 4, 2021 order, assuming arguendo that his challenge to the order is properly before us, Kifor has not demonstrated that the judge abused her discretion or otherwise erred in setting a pretrial conference date in the case after Kifor failed to prosecute an appeal of the judge's denial of his motion to stay a pending complaint for modification. Cf. Beninati v. Beninati, 18 Mass.App.Ct. 529, 535 (1984) ("orderly management of the trial list" legitimate concern within trial judge's discretion). Kifor has likewise failed to show that the judge erred in concluding that the issues raised in his November 5, 2020 complaint for modification were already, as the judge determined, "proceeding under [a] prior action" or subject to a pending appeal and thus properly dismissed as duplicative. See M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass.App.Ct. 337, 339 (2004), citing Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008) (procedural rules "provide[ ] for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth").

Conclusion.^[7]

The order, dated June 4, 2021, and the judgment of dismissal, dated June 23, 2021, in the Probate Court action with Oulton are affirmed. The judgment of dismissal in the Probate Court action with Duchesne is affirmed. The judgment in the Superior Court action is not properly before us; we therefore dismiss that appeal. Kifor's requests for fees and costs in all matters are denied.

So ordered.

Milkey, Hand & Brennan, JJ. ^[8]

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^[1] Cynthia S. Oulton.

^[2] Barbara A. Duchesne vs. Imre Kifor and Cynthia S. Oulton vs. Imre Kifor. Neither of the appellees has appeared in these appeals.

^[3] As described infra, we consider only the appeals from judgments that are properly before us: the denial of Kifor's motion for reconsideration in the Probate Court action with Duchesne and the June 4, 2021 order and June 23, 2021 dismissal in the Probate Court action with Oulton.

^[4] To the extent that Kifor purports to appeal from the orders of the single justice, this appeal is not before us. However, we note that Kifor's attempts to appeal...