Raheman v. Raheman9/23/2003
Practice, Civil, Appeal, Notice of appeal, Reconsideration, Relief from judgment. Divorce and Separation, Appeal, Relief from judgment.
The defendant husband appeals from the denial, after reconsideration, of his motion for relief from a judgment of divorce nisi, based on his postjudgment claim of insufficient service of process. In the circumstances presented here, we conclude that his appeal is properly before us. However, we also conclude that the motion judge did not abuse her discretion in denying relief, and affirm the order.
1. Timeliness of appeal.
The plaintiff contends that the defendant's appeal should be dismissed as untimely. The postjudgment procedural history of the case is confusing, and we relate only so much as necessary to frame the issue.
Following the entry, on August 4, 1998, of a corrected judgment of divorce nisi, nunc pro tunc to June 25, 1998, the defendant filed a motion for relief from judgment on January 20, 1999, which included a request that he be given thirty days to assemble and file materials supporting the motion. On or about May 6, 1999, no supporting materials having been filed, a judge of the Probate and Family Court held a hearing on the motion and, by order entered on May 20, 1999, denied it. On June 14, 1999, the defendant filed a motion for reconsideration of his motion for relief from judgment, together with affidavits and other materials to support the motion. A hearing was held on the motion for reconsideration on July 8, 1999, and on November 24, 1999, the motion was endorsed as "denied after reconsideration."
The plaintiff contends that the defendant's appeal is untimely, since the defendant did not file a notice of appeal within thirty days following denial of his motion for relief from judgment. Citing Selby Assocs. v. Boston Redev. Authy., 27 Mass. App. Ct. 1188, 1189 (1989), the plaintiff argues that a motion for reconsideration does not postpone the time for appeal. See also Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984).
Both Selby Assocs. and Turner involved circumstances different from those in the present case. In both cases denial of a new trial motion was followed by a notice of appeal, and then by a motion for reconsideration. At issue was whether the motion for reconsideration revived the new trial motion and, under Mass.R.A.P. 4(a), as amended, 430 Mass. 1003 (1994) (and the cognate Federal rule), thereby nullified the intervening notice of appeal. The Turner court (quoted by the Selby Assocs. court) stated: " here, as here, a motion styled as one for reconsideration is made by the same party that lost an earlier motion covered by [Fed.R.A.P.] 4(a)(4) and the factual and legal issues surrounding the earlier motion and the current motion are roughly similar, we see no good reason to allow such motions either to postpone the time for appeal or to destroy appeals filed during their pendency." Turner, supra. Selby Assocs., supra.
By contrast to Selby Assocs. and Turner, there was no notice of appeal from the denial of the motion for relief from judgment in the present case, so the circumstances do not raise the question whether to nullify a previously filed notice of appeal. More importantly, the motion for reconsideration was supported by a significant body of additional material, the absence of which, in fact, played a significant role in the denial of the earlier motion for relief from judgment. In the circumstances presented here, where the earlier motion appears to have been denied principally due to the absence of supporting materials, the motion for reconsideration relies on a significant body of supplemental supporting material, and the motion judge reconsi
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