Mancuso v. Mancuso

• Court: Appeals Court of Massachusetts
• Writing for the Court: ARMSTRONG
• Citation: 408 N.E.2d 652,10 Mass.App.Ct. 395
• Decision Date: 14 August 1980
• Parties: Joseph R. MANCUSO v. Judith A. MANCUSO.

Page 652

408 N.E.2d 652 10 Mass.App.Ct. 395 Joseph R. MANCUSO
v.
Judith A. MANCUSO. Appeals Court of Massachusetts, Worcester. Argued March 12, 1980.
Decided Aug. 14, 1980.

Page 653

John S. McCann, Worcester, for plaintiff.

[10 Mass.App.Ct. 396] Michael N. Abodeely, Jr., Worcester, for defendant.

[10 Mass.App.Ct. 395] ARMSTRONG, BROWN and KASS, JJ.

[10 Mass.App.Ct. 396] ARMSTRONG, Justice.

On December 13, 1978, the plaintiff (husband) filed a complaint for divorce against the wife. On July 24, 1979, the wife filed two motions, one seeking an increase in the amount of an earlier temporary support order, the other seeking an interlocutory conveyance of the husband's interest in the marital home to the wife. These motions were served on the husband's counsel on July 24 with a notice they they were marked for hearing on July 25. They were in fact heard on July 26, apparently (no stenographer having been present) over the objections of counsel for the husband to the effect that, due to the short notice (see Mass.R.Dom.Rel.P. 6(c) and (d) (1975) ), he had been unable to reach his client to arrange for his appearance. The same day the judge entered two orders, one for an increase in temporary support and one, captioned "Judgment", which ordered the husband to transfer his interest in the home to the wife forthwith "without prejudice to the assignment of (the) real estate at a subsequent hearing under G.L. c. 208, § 34" and authorized the wife to give a mortgage on the property to raise $5,000 to pay bills and household expenses "until the hearing on the merits of the basic cause of action."

On August 21, 1979, the husband filed a notice of appeal from the two orders. The register issued a notice of assembly of the record on October 4, 1979, and the appeals were entered in this court on October 12, 1979.

It is clear that the order increasing the temporary support has come before us for appellate review prematurely. It is not a judgment; the statutes relative to appeals from orders of the Probate Courts (contrast G.L. c. 231, § 118, par. 2, relating to the Superior Court and the Housing Courts) do not authorize appellate review as of right on an interlocutory basis; and interlocutory appellate review has not been authorized by the probate judge (see G.L. c. 215, § 13, under which the judge may report for appellate review questions concerning the correctness of interlocutory orders) or by a single justice of this court or the Supreme Judicial Court (see [10 Mass.App.Ct. 397] Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 470, 326 N.E.2d 888 (1975); National Assn. of Govt. Employees, Inc. v. Central Bdcst. Corp., --- Mass. ---, --- ^a, 396 N.E.2d 996 (1979) ).

We think the same is true of the appeal from the order requiring the husband to transfer his interest in the marital home to the wife and authorizing her to encumber the title to raise money for current expenses. That order was not a judgment merely because it was so labeled. Borman v. Borman, --- Mass. ---, --- n. 8 ^b, 393 N.E.2d 847 (1979). It did not dispose of all the claims raised by the pleadings (see Mass.R.Dom.Rel.P. 54(b); Massachusetts Cas. Ins. Co. v. Landy, 1 Mass.App.Ct. 35, 37, 294 N.E.2d 538 (1973) ); the purpose of the order was merely to provide temporary support for the wife, and by its express terms it was not intended to be a final adjudication of the parties' rights in the house (see School Comm. of Agawam v. Agawam Educ. Assn., 371 Mass. 845, 846, 359 N.E.2d 956 (1977) ). Although presently to be executed, the order did not fall within the limited class of orders of that type which are by tradition treated as exceptions to the usual requirement of finality.

Page 654

See Vincent v. Plecker, 319 Mass. 560, 564 n. 2, 67 N.E.2d 145 (1946); Lynde v. Vose, 326 Mass. 621, 622-623, 96 N.E.2d 172 (1951); Borman v. Borman, --- Mass. at --- - --- ^c, 393 N.E.2d 847; Mahoney v. Mahoney, 5 Mass.App. 720, 725-726, 370 N.E.2d 1011 (1977); Asker v. Asker, --- Mass.App. ---, --- ^d, 396 N.E.2d 704 (1979). ¹ The order was therefore interlocutory, and the appeal from it is before us prematurely.

Counsel for the husband, at argument, disclaimed an intention to have these appeals heard in "piecemeal" fashion: that is, heard forthwith in advance of any appeal he might take from the judgment nisi of divorce. ² The premature entry[10 Mass.App.Ct. 398] in this court is instead the result of a confusing anomaly which has developed in practice under the still relatively new rules of appellate procedure. In the earlier practice in the Probate Courts, appeals could generally be filed as of right from interlocutory orders and decrees. See G.L. c. 215, § 9, as in effect prior to St. 1973, c. 1114, § 65; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45, 47 (1869) (decided under predecessor statute, Gen.St. c. 113, § 10, identical to § 9 in material part). But, like appeals from interlocutory decrees in the Superior Court (see G.L. c. 214, § 26, as in effect prior to St. 1973, c. 1114, § 62), such appeals lay dormant until the entry of a final decree and were heard only in conjunction with an appeal from the final decree. Fuller v. Chapin, 165 Mass. 1, 2-4, 42 N.E. 115 (1895). School Comm. of Winchendon v. Selectmen of Winchendon, 300 Mass. 266, 15 N.E.2d 230 (1938). Slater v. Munroe, 313 Mass. 538, 540, 48 N.E.2d 149 (1943). Lynde v. Vose, 326 Mass. 621, 92 N.E.2d 172. LaRaia v. LaRaia, 329 Mass. 92, 105 N.E.2d 537 (1952). It was not the function of an appeal from an interlocutory decree to secure appellate review of the decree on an interlocutory basis; rather, its function, like that of an exception in an action at law, was to save a party's right to have an erroneous interlocutory order rectified in conjunction with the regular appellate process following final disposition of the case in the trial court. See Henn, Civil Interlocutory Appeals in the Massachusetts State Courts, 62 Mass.L.Q. 225, 226 (1977). An interlocutory decree not appealed from was subject to revision on appeal only insofar as it erroneously affected the final decree. G.L. c. 214, § 27, as in effect prior to St. 1973, c. 1114, § 62. Smith v. Knapp, 297 Mass. 466, 9 N.E.2d 399 (1937). Burwen v. Burwen, 2 Mass.App. 29, 31, 308 N.E.2d 554 (1974).

The new rules contemplated the abolition both of exceptions (see Mass.R.Civ.P. 46, 365 Mass. 811 (1974), iterated with one amendment in the corresponding rule of domestic [10 Mass.App.Ct. 399] relations procedure) and of appeals from interlocutory orders (see Mass.R.A.P. 4, applicable from the outset both to Superior Court and Probate Court appeals). The coordinating legislation, St. 1973, c. 1114, repealed the general statutes dealing with interlocutory appeals, G.L. c. 214, §§ 26 and 27. ³ The new...