BOTTA v. BOTTA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Plaintiff Samantha Botta (mother) appeals from the order of a single justice denying her application for a stay of judgment pending appeal. See Mass. R. A. P. 6 (a), as appearing in 454 Mass. 1601 (2009).² We affirm.

We first observe that the mother makes no argument addressing the single justice's decision in any respect, arguing only that we must vacate the underlying judgment. That judgment, we emphasize, is not presently before us. The trial court docket indicates that a notice of appeal was filed in the trial court on July 9, 2018. The record in that appeal has not been assembled or properly entered in this court. If and when that appeal is perfected, it can be decided by a panel.

By failing to make appropriate argument as to whether the single justice abused his discretion in denying the stay pending appeal, the mother has waived her present appeal and we need not consider the matter further. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975); Doe v. New Bedford Hous. Auth., 417 Mass. 273, 279 n.7 (1994).

In any event, we are unpersuaded that the single justice abused his discretion in denying a stay pending appeal. See Adoption of Duval, 46 Mass. App. Ct. 916, 917 (1999) (Appeals Court reviews single justice's decision for abuse of discretion); Mezoff v. Cudnohufsky, 5 Mass. App. Ct. 874, 874 (1977) (“Rarely, if ever, can it be said that a single justice is in error in denying” application for stay pending appeal). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

To obtain a stay pending appeal, the mother was required to demonstrate to the single justice that: (i) the mother likely will succeed on the merits of her appeal from the underlying judgment; (ii) the mother likely will suffer irreparable harm if a stay is denied; (iii) the other parties will not suffer substantial harm if the stay issues; and (iv) the public interest will not be harmed if the stay is granted. C.E. v. J.E., 472 Mass. 1016, 1017 (2015). In her briefing, the mother addresses only the first, and arguably second, of these factors. However, it is the latter two factors that appear to have most concerned the single justice. In this regard, we observe that defendant Dustin Botta's (father) interest in maintaining a “relationship with” the child is “fundamental, and is constitutionally protected.” Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979). Continuing to limit the father's visitation with the child to two “hours ․ on Wednesday evenings,” at a supervised visitation center represents -- at the very least -- a significant burden on, and harm to, the father's constitutionally protected parental interests. This is particularly so where, as here, the original judgment nisi did not impose that burden on the father. See Delmolina v. Nance, 14 Mass. App. Ct. 209, 211 (1982) (“For decades, it has been the law that the original judgment awarding custody to a parent is presumed to have been correct”).

The mother argues that the child may be injured if it is ultimately determined, after appeal and remand, that the mother's allegations are well founded. The mother focuses exclusively on this point, suggesting that the judge's underlying decision is flawed in numerous -- if primarily formal or procedural -- respects.³ Otherwise put, and liberally construed, the mother argues she is likely to prevail on the underlying appeal's merits. The underlying appeal is not before us, and we express no opinion as to its merits. That said, based on our review of the very limited record before us, it appears that the probability of the mother's success on appeal, while not insignificant, is not so great as to require the conclusion that the single justice erroneously considered and weighed the relevant, conflicting factors. In sum, the record before us shows no indication that the single justice, after considering the relevant factors, made a clear error of judgment falling outside the range of reasonable alternatives. See and compare C.E., 472 Mass. at 1017.

We deny, without prejudice to renewal in the Probate and Family Court, the father's motion to introduce new evidence, and strike from the father's supplemental appendix those documents appearing at pages ten through twenty-two, inclusive, thereof.

Order of the single justice affirmed.

FOOTNOTES

2.   All citations to the Massachusetts Rules of Appellate Procedure in this memorandum and order are to the version of the rules in effect during the relevant time period.

3.   The mother argues, for example, that we must vacate the underlying judgment and remand for a full evidentiary trial because (i) her complaint could not properly be dismissed on what the mother views as the father's motion for judgment on the pleadings; and (ii) the judge did not issue factual findings and conclusions of law.