Yanolis v. Yanolis
| Decision Date | 07 June 1988 |
| Citation | 524 N.E.2d 55,402 Mass. 470 |
| Parties | Charles J. YANOLIS v. David A. YANOLIS, administrator. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Carole A. Romano, Worcester, for Charles J. Yanolis.
Elliot J. Mahler, Boston, for David A. Yanolis, adm'r.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.
Doris Yanolis died before Charles Yanolis's appeal from judgments of divorce nisi was heard but after the date on which the judgments were to become absolute, unless the running of the nisi period was stayed by Charles's appeal. Charles's appeal raised no objection to the dissolution of the marriage, but challenged the alimony, child support, and property division portions of the judgments. He argues nevertheless that the filing of his appeal prevented the entry of judgments of divorce absolute and, because Doris died on November 12, 1986, before any judgment absolute was entered, the divorce proceedings were abated on Doris's death, citing Diggs v. Diggs, 291 Mass. 399, 401-402, 196 N.E. 858 (1935).
We reject this argument in the circumstances of this case and affirm the trial judge's order allowing a motion on behalf of Doris's estate for entry of a judgment of divorce absolute on Charles's counterclaim, nunc pro tunc to February 10, 1986. We also reject challenges made in Charles's original appeal to the support, alimony, and property division portions of the judgments. On our own motion we brought here Charles's appeal from the judge's order directing entry of judgment of divorce absolute nunc pro tunc, which has been consolidated with his original appeal.
In 1984 Doris filed a complaint for divorce. By counterclaim Charles also sought a divorce. On November 8, 1985, two judgments for divorce nisi were entered as separate documents. Each granted the divorce, one on Doris's complaint and the other on Charles's counterclaim. The judgment of divorce nisi entered under the name of Charles as plaintiff stated that "after the expiration of ninety days from the entry of this judgment it shall become and be absolute unless, upon the application of any person within such period, the Court shall otherwise order." See G.L. c. 208, § 21 (1986 ed.). On November 27, 1985, Charles filed a notice of appeal which referred in its text to the "Judgment and Order of the Court dated November 8, 1985," and referred in its caption to both the complaint and the counterclaim. Charles next moved, in December, for a stay of judgment in certain respects pending appeal, and, after hearing, the judge on February 6, 1986, stayed transfers of jointly held real estate pending appeal, except as to one property. The subject of the dissolution of the marriage was neither raised nor considered in Charles's request for a stay. The judge's order further directed that "[n]o other provisions of the Judgment of Divorce Nisi shall be stayed." 2 This is where matters stood until Doris's death, at which time the special administrator of her estate moved for entry of the divorce absolute nunc pro tunc. 3
Up to the time of Doris's death, neither party had objected to the dissolution of the marriage. Each had obtained the divorce he and she wanted. In his appeal Charles did not challenge the divorce granted to him on his counterclaim, nor could he have done so, even if he had wished to. Cf. Mailer v. Mailer, 387 Mass. 401, 405, 439 N.E.2d 811 (1982) ().
The judgments nisi by their terms were to be absolute on February 10, 1986, unless otherwise ordered. Charles had sought and obtained a stay of the judgments nisi in certain respects relating only to property but not otherwise. In these circumstances, a judgment of divorce absolute should have been entered on February 10, 1986, dissolving the marriage and leaving for appellate consideration the money and property issues raised by Charles's appeal. See G.L. c. 208, § 21 (1986 ed.). The judge's nunc pro tunc order properly achieved this result.
Under Mass.R.A.P. 3(c), as amended, 378 Mass. 927 (1979), Charles had an obligation to designate in his notice of appeal the part or parts of the judgment nisi from which he was appealing. He was not, and could not have been, appealing from the portion of the judgment nisi that awarded him a divorce on his counterclaim. His notice of appeal did not comply with the requirement that he designate the portion of the judgment from which he appealed. He should not be entitled to take advantage of this circumstance to argue now that, under Mass.R.Dom.Rel.P. 62(g) (1987), the running of the nisi period was stayed by his appeal. 4
Even if we were to treat rule 62(g) as staying the running of the nisi period in this case, G.L. c. 215, § 24 (1986 ed.), states that a nisi period in a divorce case is stayed by the filing of an appeal "as provided in the Massachusetts Rules of Domestic Relations Procedure." Rule 62(g) provides that, when an appeal concerning a divorce is dismissed by the appellate court, "the judgment shall be absolute as of ninety days from the date of the judgment nisi." Even if Charles's appeal could properly be treated as an attempted appeal from the divorce portion of the judgment on his counterclaim, that aspect of his appeal must be dismissed. Thereupon rule 62(g), as sanctioned by G.L. c. 215, § 24, directs in effect that the judgment of divorce be considered absolute as of February 10, 1986. The fact that in the course of the appeal Doris died does not prevent the judge from ordering to be done retroactively both what ought to have been done and what the rules of court direct be done with retroactive effect.
We think it important in such circumstances that the portion of a judgment of divorce nisi concerning dissolution of a marriage should be considered separately from the money and property portions of the judgment. Marital status should not be placed in limbo for months or years by an appeal wholely unrelated to dissolution of the marriage. Claims of appeal in such circumstances should be precisely stated so that, if the appeal does not challenge the divorce, a judgment absolute can be entered when the nisi period has run if no objection to the judgment becoming absolute has been filed (see Mass.R.Dom.Rel.P. 58[c] ). 5
We turn to Charles's appeal challenging the alimony, child...
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