I
am taking John Flaherty's Liberty
Bell Union course on how to defend
yourself Pro Se. One of his
lessons was on the rules of appeals.
My former spouse filed an appeal
of the financial settlement.
John taught me that one needs to
request the tapes within ten days
or the appeal can be thrown out.
My former spouses attorney never
requested the tapes.
I forced my attorney to file a Motion
to Dismiss as I learned in John's
course.
TODAY THE JUDGE DISMISSED THE APPEAL.
They can try to vacate the appeal,
but this is the first win I have
had in a long time.
Thank you to John and his course.
Peter.
This is NOT always the case.
To bank on that this would always
dismiss a case would be truly misguided.
First you do NOT need the
transcript in all cases.
The rule that governs transcripts
if rule 8 of the Massachusetts Rules
of Appellate Procedure.
Massachusetts Rules of Appellate
Procedure Rule 8(a) reads as follows;
RULE 8. THE RECORD
ON APPEAL
(a) Composition of the Record on
Appeal. The original papers and
exhibits on file, the
transcript of proceedings, if any,
(NOT all appeals have transcript’s,
it all depends on what you are appealing,
I have appealed judges decisions
without any transcript, if nothing
in court was stated that would cause
a controversy you need NO transcript,
you could file an appeal on a judges
WRITTEN order!)(Now Peter states
“My
former spouse filed an appeal of
the financial settlement”,
how did you get the financial settlement,
from the judge stating in an open
court of the settlement? Or did
the judge file a an order that was
never objected to in an open court?
If so you need NO transcript! And
if I were your exes attorney I would
file a motion to reconsider and
then appeal the courts order to
dismiss you appeal!) and a
certified copy of the docket entries
prepared by the clerk of the lower
court shall constitute the record
on appeal in all cases. In a civil
case, in an appeal from an appellate
division, the original papers and
exhibits shall include the report
of the trial judge to the appellate
division with any exhibits made
a part of such report.
Now lets look at rule 8(b)
of he Massachusetts Rule of Appellate
Procedure.
8(b) The Transcript
of Proceedings.
(1)
Civil Cases, Except
Child Welfare Cases (did
this financial settlement have on
smidgen of evidence that any part
of the settlement would effect the
welfare of the children?, if so
throw the ten day rule out the window!)
: Duty of Appellant to Order; Notice
to Appellee if Partial Transcript
Is Ordered. Within ten days after
filing the notice of appeal the
appellant shall order from the court
reporter a transcript of such parts
of the proceedings not already on
file as he deems necessary for inclusion
in the record. If the appellant
intends to urge on appeal that a
finding or conclusion is unsupported
by the evidence or is contrary to
the evidence, he shall include in
the record a transcript of all evidence
relevant to such finding or conclusion.
Unless the entire transcript is
to be included, the appellant shall,
within the time above provided,
file and serve on the appellee a
description of the parts of the
transcript which he intends to include
in the record and a statement of
the issues he intends to present
on the appeal. If the appellee deems
a transcript of other parts of the
proceedings to be necessary he shall,
within 10 days after the service
of the statement of the appellant,
file and serve on the appellant
a designation of additional parts
to be included. If the appellant
shall refuse to order such parts,
the appellee shall either order
the parts or apply to the lower
court for an order requiring the
appellant to do so. At the time
of ordering, a party shall make
satisfactory arrangements with the
court reporter for payment of the
cost of the transcript.
Now we slide down to Massachusetts
Rule of Appellate Procedure 8(b)(5)
with reads;
(5) Child
Welfare Cases
(i)
Proceedings Recorded by an Official
Court Reporter. On the filing of
a notice of appeal, unless the parties
file therewith a stipulation designating
the parts of the proceedings which
need not be transcribed, the
clerk of the lower court on behalf
of the appellant, shall order from
the court reporter a transcript
of the entire proceeding or of such
parts of the proceeding not already
on file. The clerk of the lower
court shall notify all parties of
the date the transcript was ordered
by sending a copy of the order form
to all parties. On receipt
of the order the court reported
shall prepare an original typed
transcript for filing with the lower
court and a copy for the appellant
and any party who so requests. The
court reporter shall deliver the
original to the clerk of the lower
court who shall immediately notify
all parties of its receipt, and
the court reporter shall deliver
legible copies to the appellant
and to any party who so requests.
This rule CLEARLY and UNEQUIVOCALLY
states that if the case involves
the child’s welfare that the clerk
of courts on the appellate shall
order and notify the parties, again
does this case involve one iota
of evidence that it is or pertains
the children’s welfare? If I were
your exes attorney I would be claiming
that yes the children’s welfare
would be greatly effective if my
client (your ex) did get to keep
the house the stocks, money furniture
and all.
As I had stated earlier that
all cases do not need transcripts,
and taking into consideration that
it is a financial settlement that
was probably handed down in a form
of an judgment and do we know if
the transcript are available we
look to Massachusetts Rule of Appellate
Procedure 8(b)(5) which reads;
(c) Statement of
the Evidence or Proceedings When
No Report Was Made or When the Transcript
Is Unavailable. If no report of
the evidence or proceedings at a
hearing or trial was made, or if
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.
Good luck but don’t
count all you chickens yet and don’t
everyone believe that they can always
be dismissed because you don’t have
the transcript. I again have file
appeals with no transcript and the
defendant had 3 law firms defending
them and NO motion to dismiss was
filed for not obtaining transcripts.
