Onello v. Twomey

• Decision Date: 24 December 1993
• Docket Number: No. 92-P-948,92-P-948
• Citation: 624 N.E.2d 610,35 Mass.App.Ct. 671
• Parties: Harriett Holzman ONELLO, 1 administratrix, v. John B. TWOMEY.
• Court: Appeals Court of Massachusetts

Page 610

624 N.E.2d 610

35 Mass.App.Ct. 671

Harriett Holzman ONELLO, ¹ administratrix, v. John B. TWOMEY.

No. 92-P-948.

Appeals Court of Massachusetts Middlesex.

Argued Nov. 17, 1993.

Decided Dec. 24, 1993.

Lawrence W. Frisoli, Cambridge, for defendant.

Beth S. Herr, Cambridge, for plaintiff.

Before ARMSTRONG, DREBEN and IRELAND, JJ.

DREBEN, Justice.

After the death of his wife, the husband, citing Diggs v. Diggs, 291 Mass. 399, 401, 196 N.E. 858 (1935), and Edinburg v. Edinburg, 22 Mass.App.Ct. 192, 197, 492 N.E.2d 1159 (1986), moved to dismiss her divorce complaint and to vacate the judgment of divorce nisi. He claimed that the judgment had not become absolute and, hence, the death of his wife abated the pending divorce action. This is an appeal from the denial of his motion. We hold that the judgment of divorce became absolute ninety days after February 21, 1990, long before the death of his wife on September 24, 1991. Accordingly, there was no occasion to dismiss the divorce complaint.

A complaint for divorce was brought by the wife in August, 1986, after forty-one years of marriage. ² The husband opposed the divorce and claimed that his wife was not competent and was unduly influenced by their daughter. After an evidentiary hearing, a Probate Court judge, on November 29, 1989, found that the wife was competent when she filed for divorce in August, 1986, and that she "is currently competent to understand the concept of divorce and ... wants a divorce." ³ In reaching his conclusion, the judge noted that the husband had not produced any evidence that his wife was incompetent to file for divorce, that she did not understand the concept of divorce, or that she did not want to divorce John Twomey.

Several months later, in February, 1990, the judge made extensive findings and ordered that a judgment of divorce nisi be entered. The judgment is dated February 15, but it appears not to have been entered until February 21, 1990. The judgment purported to be nunc pro tunc as of December 29, 1989.

The judge found there had been an irretrievable breakdown of the marriage. He also found that the husband had dissipated $390,000 in treasury bills, had been untruthful to the court on several occasions with respect to his assets, and had perjured himself on his September 11, 1986, financial statement. Other questionable behavior on the husband's part was noted by the judge: "The husband intentionally attempted to delay and did indeed delay the divorce proceedings with the goal of denying the wife an equitable division of the marital estate. These delay tactics were flagrant, disingenuous, and served to delay the granting of a divorce and the division of assets to which the wife was and is entitled."

At the time of the divorce nisi the wife was eighty-one years old, had suffered a stroke and had multiple medical problems. The husband was seventy-four and had a heart condition.

There were several financial aspects of the judgment. The husband was ordered to vacate the former marital home, but title was left in their joint names. He was also required to pay alimony of fifty dollars per week.

A flurry of activity followed the entry of the judgment of divorce nisi. Those here relevant were a pro se notice of appeal by the husband dated March 7, 1990, from the judgment nisi and a motion by the wife, dated March 14, 1990, purporting to be under Mass.R.Dom.Rel.P. 59(a) (1975), for reconsideration of the division of property. Accompanying her motion for reconsideration was an explanation for her late filing, namely that she had not received notice of the judgment until March 2.

The judge entered an amended judgment also dated February 15, nunc pro tunc, December 29, 1989, accompanied by a memorandum dated March 28, 1990, which stated that the wife "does not have long to live." The new judgment, which we treat as having been entered on March 28, differed from the previous one in that it required the husband to convey his rights in the marital home to the wife, while retaining a twenty percent interest in the net proceeds if the property were sold, or in its fair market value, if the wife died before it was sold. No alimony was to be paid.

On March 29, 1990, pursuant to Mass.R.Dom.Rel.P. 58(c) (1989), the husband filed a statement of objections to the judgment becoming absolute, accompanied by an affidavit. On April 2, he filed an amended notice of appeal specifically challenging the dissolution of the marriage, and, on April 12, he filed an amended notice of appeal from the amended judgment. ⁴

The husband relies on his statement of objections and his notices of appeal to support his claim that the decree nisi had not become absolute at the time of the wife's death.

He points out that despite the purported entry of the divorce nisi nunc pro tunc as of December 29, 1989, the judge had no power to foreshorten the nisi period in this fashion. Our cases support his position, Silverstein v. Silverstein, 2 Mass.App.Ct. 94, 95, 308 N.E.2d 773 (1974); Hamilton v. Hamilton, 27 Mass.App.Ct. 1151, 1153, 539 N.E.2d 72 (1989), and we agree, at least in the circumstances of this case, that the date for the original judgment to become absolute was ninety days after the entry of the judgment nisi on February 21, 1990.

We turn next to the various documents relied on by the husband.

1. Statement of objections. Massachusetts Rule of Domestic Relations Procedure 58(c) requires that the statement "set forth specifically the facts on which it is founded." This the statement did not do, but merely asserted that "the amended judgment of divorce nisi dated December 29, 1989, incorrectly identifies marital assets, incorrectly finds the plaintiff competent, incorrectly finds a lack of undue influence exerted on the plaintiff by her daughter, and incorrectly divides that marital asset being the primary residence as between myself and the plaintiff." The accompanying affidavit merely repeated what was in the statement. Basically defective, the statement was not one "the filing of which would prevent the decree nisi from becoming absolute." Gailis v. Gailis, 1 Mass.App.Ct. 253, 255, 295 N.E.2d 175, S.C., 364 Mass. 832, 305 N.E.2d 829 (1973). ⁵ The statement of objections was endorsed "denied" on April 2, 1990.

While a timely appeal during the nisi period from an order dismissing a statement of objections complying with rule 58(c) would stay the running of the nisi period, see Saltmarsh v. Saltmarsh, 395 Mass. 405, 410, 480 N.E.2d 618 (1985), the husband took no such appeal. Both for the reason that the statement did not comply with rule 58(c) and that there was no appeal taken from the dismissal, the statement of objections cannot be relied upon to prevent the decree nisi from becoming absolute.

2. Notices of appeal. The March 7 notice of appeal from the February 21, 1990, judgment merely stated that the husband "pro se ... makes notice of his Appeal to the order ... of Judgment of Divorce Nisi (nunc pro tunc) to December 29, 1989." This general notice "did not comply with the requirement that he designate the portion of the judgment from which he appealed." Yanolis v. Yanolis, 402 Mass. 470, 472, 524 N.E.2d 55 (1988). Mass.R.Dom.Rel.P. 62(g). ⁶

The amended notice of appeal filed on April 2, 1990, was not timely filed as it was beyond the thirty-day period provided in Mass.R.A.P. 4(a), as amended, 395 Mass. 1110 (1985). Since the wife's motion for reconsideration under rule 59 was not timely, that motion did not extend the time for filing the husband's appeal. See Albano v. Bonanza Intl. Dev. Co., 5 Mass.App.Ct. 692, 694, 369 N.E.2d 473 (1977). Moreover, the judge did not err in refusing to allow the husband to amend his notice of appeal and to treat it as a request for an extension under Mass.R.A.P. 4(c). See note 4, supra. The husband showed no excusable neglect and the judge could correctly conclude in view of the previous lack of evidence, the continuing delay, and the motion for a continuance, that the husband had little basis for the challenge to the dissolution of the marriage.

The April 12, 1990 notice of appeal from the amended judgment of March 28, 1990, presents a closer question, but we conclude that it, too, did not operate to stay the decree nisi. The motion to amend the judgment did not, as we have indicated, extend the time for filing the notice of appeal from the dissolution of the marriage. Although the amended judgment repeated the dissolution of the marriage portion of the February 21, 1990, judgment, that repetition did not, we think, authorize or require a new appeal from the unchanged portion of the judgment of February 21, 1990, which dissolved the marriage. Cf. Finn v. McNeil, 23 Mass.App.Ct. 367, 369-371, 502 N.E.2d 557 (1987).

3. Dismissal of appeal. Even if the notice of appeal from the amended judgment were not untimely for purposes of challenging the dissolution of the marriage, we reach the same result under Mass.R.A.P. 3(a), 378 Mass. 927 (1979). In relevant part that rule provides that the:

"[F]ailure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal."

The...