CHIANG v. WEN HUA ZHANG (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is an appeal from an order of the single justice dated October 27, 2017, denying the husband's motion to stay pursuant to Mass. R. A. P. 6 (a), as appearing in 454 Mass. 1601 (2009), pending his appeal of judgments entered September 27, 2017, in the Probate and Family Court on the wife's complaint for modification and the husband's complaint for contempt. The request for a stay was raised briefly in the husband's October 2017 petition for relief to the single justice filed pursuant to G. L. c. 231, § 118, first par.² In the petition, the husband sought relief from the September 2017 judgments and various interlocutory orders entered prior to those judgments, and from judgments entered in 2013 and 2015. The single justice denied all relief requested in the petition, and thereafter the husband filed a notice of appeal from the single justice's order. A second single justice ordered that the assembly of the record in the appeal be limited to so much of the single justice's order as denied the husband's request to stay.³

Upon review of the husband's brief and record appendix, and the record before the single justice, we conclude that the single justice did not abuse his discretion in denying the request for a stay. See Blonde v. Antonelli, 463 Mass. 1002 (2012). Cf. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 614 (1980). The husband did not seek a stay in the Probate and Family Court in the first instance as ordinarily required prior to seeking relief in this court under Mass. R. A. P. 6. See Gifford v. Gifford, 451 Mass. 1012, 1013 n.2 (2008). The husband disagrees with the findings and rulings of the Probate Court judge, but has not shown that this was the type of case warranting single justice relief, which is typically granted in a “stinting manner.” Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 25 (1981) (this “power [of the single justice] will be exercised in a stinting manner with suitable respect for the principle that the exercise of judicial discretion circumscribes the scope of available relief”). The order of the single justice is affirmed.

We note that throughout his brief, the husband appears to make arguments concerning several judgments: the original judgment, entered on December 12, 2013, and on which a notice of appeal was docketed on December 19, 2013; a judgment on a complaint for modification, entered on December 8, 2015, and on which a notice of appeal was docketed on February 9, 2016; an order entered May 3, 2016, denying his motion for temporary orders and precluding him from proceeding on a complaint for modification filed on April 4, 2016, because two appeals were already pending, and on which a notice of appeal was docketed on June 9, 2016; and, the judgments entered on September 25, 2017, on which a notice of appeal was docketed on October 10, 2017. The record has not been assembled in any of these appeals, and none is before us.

The husband is clearly frustrated that his several appeals have not been assembled; less clear is whether all measures necessary to assemble the record in those appeals have been taken. On May 18, 2016, the husband filed with the Probate and Family Court a notice that at least one, if not two, of the sets of transcripts were complete.⁴ The record was not assembled thereafter, but since that time, two other notices of appeal have been filed. According to the trial court docket, no transcripts have been filed for those proceedings.

In order to expedite the processing of these four appeals, the husband shall file with the Probate and Family Court within thirty calendar days of the date of this memorandum and order, a notice stating whether the transcripts are complete for each of the four appeals listed above, and, if so, requesting that the record be assembled. If transcripts are complete as to some but not all appeals, the husband shall state which appeals are ready. If additional transcripts are needed for one or more appeals, it is the husband's obligation to obtain them. The notice shall be filed within thirty days of this memorandum and order.

Finally, the husband's brief states that he was disabled at some time during this litigation. Although it is unclear whether he claims that he is currently disabled, or that his disability has any impact on his ability to pursue his appeals, the Appeals Court Clerk is directed to supply him with an additional copy of the notice regarding the civil appeals clinic for self-represented individuals, originally sent to him when this appeal was entered. Provided he meets the eligibility criteria, the clinic may be available to assist the husband to fulfill his obligation to timely docket and pursue his remaining appeals.

In recent filings with this court, the husband has also suggested that he has difficulty making himself understood in writing in English. At such time as he files his briefs he may renew his request for oral argument, and may request translation services, if needed.⁵

So ordered.

Affirmed.

FOOTNOTES

2.   Although the husband indicated in his petition that he would be filing additional information regarding the motion for a stay, no further information was filed.

3.   The second single justice limited the assembly because there is no right of appeal from the denial of interlocutory relief in a petition filed pursuant to G. L. c. 231, § 118, first par. See Patel v. Martin, 481 Mass. 29, 32 (2018) (“a party has no right under § 118, first par., to bring the petition [for relief] directly to a panel or to seek review of the single justice's ruling by the panel”); McMenimen v. Passatempo, 452 Mass. 178, 189-193 (2008); Gibbs Ford, Inc. v. United Truck Leasing Corp., 399 Mass. 8, 10 n.8 (1987); Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 614 (1980). The husband did not appeal from the second single justice's order and has not argued on appeal that this decision was in error. In any event, we see no error in the order of the second single justice. In addition, the interlocutory orders were not independently appealable to a full panel. In Probate and Family Court matters, “absent a report from the trial judge, G. L. c. 215, § 13, an appeal from an interlocutory order will not be heard by an appellate court until a final judgment has been entered.” Borman v. Borman, 378 Mass. 775, 779 (1979). See G. L. c. 215, § 9. There was no report from the trial judge, and the husband therefore was not entitled to have his interlocutory appeal heard by a full panel.

4.   A date-stamped copy of the notice is included in the addendum to the husband's brief filed with this court. The notice does not appear to have been entered on the trial court docket.

5.   The wife has not participated in this appeal to date. If the wife wishes to participate in future appeals, she may be entitled to similar accommodations upon a showing of similar need.