SAWYER v. SAWYER
04-P-1358 Appeals Court
EDGAR FREEMAN SAWYER,
JR. vs. MARGARET M. SAWYER.
No. 04-P-1358. April
18, 2006.
Divorce and Separation,
Appeal. Practice, Civil, Notice
of appeal.
This appeal is from a
judgment of divorce nisi entered
on November 20, 2003, in the
Probate Court. The wife claims
that the judge committed error
in his determination of the
fair market value of the former
marital home and also challenges
several findings of fact as
not being supported by the evidence.
The husband argues that
the Probate Court judgment must
be affirmed and the appeal dismissed
because the wife failed to file
a timely notice of appeal.
After the judgment of
divorce nisi entered on November
20, 2003, both parties filed
timely motions to alter or amend
the judgment. The judge denied
both motions by orders dated
December 3, 2003, and entered
on December 5, 2003, thereby
triggering the thirty-day appeal
period. On December 10, 2003,
the wife filed a timely notice
of appeal from the judgment.
On January 27, 2004,
the judge issued his findings
of fact, which were entered
on the docket on January 28.
On February 6, 2004, the wife
filed a motion to alter or amend
the findings under Mass.R.Dom.Rel.P.
52(b). By order dated March
10, 2004, the judge denied the
motion. The wife did not file
a notice of appeal from that
order nor did she file any new
notice of appeal from the judgment.
The husband argues that
the wife's notice of appeal
from the judgment became a nullity
because she did not file a new
notice of appeal from the denial
of her motion to alter or amend
the findings. See Anthony v.
Anthony, 21 Mass. App. Ct. 299,
300-303 (1985); Blackburn v.
Blackburn, 22 Mass. App. Ct.
633, 634-635 (1986).
The 1985 revision to
Mass.R.A.P. 4(a), as amended,
430 Mass. 1603 (1999), rendered
a notice of appeal from a judgment
a nullity where the notice of
appeal is filed prior to the
disposition of certain postjudgment
motions. The revised rule reads
in pertinent part: "If
a timely motion under the Massachusetts
Rules of Civil Procedure is
filed in the lower court by
any party: . . .
(2) under Rule 52(b) to
amend or make additional findings
of fact, whether or not an alteration
of the judgment would be required
if the motion is granted . .
. , the time for appeal for
all parties shall run from the
entry of the order . . . granting
or denying . .. such motion.
A notice of appeal filed before
the disposition of any of the
above motions shall have no
effect. A new notice of appeal
must be filed within the prescribed
time measured from the entry
of the order disposing of the
motion as provided above."
(Emphases supplied.)
Although the Massachusetts
Rules of Civil Procedure expressly
do not apply to divorce proceedings,
see Mass.R.Civ.P. 81(a)(1)(9),
as appearing in 423 Mass. 1412
(1996), the court in Anthony,
supra at 302, announced that
"[a]s to all appeals to
which new Mass.R.A.P. 4(a)[,
as amended, effective January
1, 1985,] applies we shall give
unqualified effect to the language
of the new rule, i.e., an appeal
founded on a notice of appeal
filed prior to disposition of
a postjudgment motion under
Mass.R.Civ.P. 50(b), 52(b),
or 59 is a nullity and shall
be dismissed." See Blackburn
v. Blackburn, supra.
In Finn v. McNeil, 23
Mass. App. Ct. 367, 369 (1987),
the court stated that the purpose
underlying the 1985 revision
of rule 4(a), and the reason
underlying its decisions in
Anthony and Blackburn, "was
the undesirability of having
a case proceed along the appellate
path on the basis of a judgment
which might be modified. Such
a state of affairs was, at best,
disorderly and, at worst, it
was likely to provoke mischief
if a trial court and an appellate
court possessed power to modify
the same judgment."
In contrast with Mass.R.Civ.P.
52(a), as amended, 423 Mass.
1402 (1996), rule 52(a) of the
Massachusetts Rules of Domestic
Relations Procedure, effective
July 1, 1984, states, "Where
the court enters judgment pursuant
to [G. L. c. 208, § 34,]
it shall issue findings of fact
and conclusions of law thereon
within sixty (60) days of the
filing of a notice of appeal."
The rule plainly contemplates
that findings in § 34 divorce
cases will be issued after entry
of judgment, after the filing
of an appeal from that judgment,
and, in most cases, after the
expiration of the appeal period.
We recognize that our
decisions in Anthony and Blackburn
may be seen as setting a trap
for the unwary. However, those
decisions were announced more
than twenty years ago and, as
evidenced by the lack of appeals
on that issue, the decisions
apparently have been accepted
generally by the probate bar.
In this matter, the wife was
required to file a new notice
of appeal after the disposition
of her motion to alter or amend
the findings, the first notice
having been rendered a nullity.
We have reviewed the
record in this matter and see
no reason to depart from the
normal rule.[1]
Appeal from judgment
of divorce nisi dismissed.
Jennifer E. Vecchi for
Edgar Freeman Sawyer, Jr.
John B. Hopkins for Margaret
M. Sawyer.
FOOTNOTES:
[1]
In any event, the wife would
fare no better on the merits.
The Probate Court judge did
not abuse his discretion in
determining the fair market
value of the marital home and
the judge's findings of fact
were supported by the evidence. |