NORRIS v. NORRIS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The former husband, Whitton E. Norris, Third (husband), appearing pro se, appeals from an order entered by the Probate and Family Court, dismissing his earlier appeal from judgments of contempt and modification that entered on January 12, 2018.² In the present appeal, he contends that the Register of Probate (Register) improperly dismissed his earlier appeal because Rule 30 of the Supplemental Rules of the Probate Court (2012)³ (supplemental rule 30) did not authorize dismissal, and he has otherwise complied with the applicable Massachusetts Rules of Appellate Procedure.⁴ We reverse.

Background. The former wife, Julie F. Norris (wife), filed the underlying divorce action in the Probate and Family Court on December 1, 2000. She has since filed numerous complaints for contempt; the most recent was filed on January 4, 2017. On January 12, 2018, the judge issued judgments on this most recent contempt complaint, and as to a complaint for modification that was filed on June 3, 2016. A week later, on January 19, 2018, the husband filed a motion pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), to amend the judgments that had entered on January 12, 2018. This motion was denied on January 31, 2018.

On March 9, 2018, the husband filed a notice of appeal from the judgments entered on January 12, 2018, and from the denial of his rule 59 (e) motion. He subsequently filed a second notice of appeal on March 14, 2018.⁵ On March 23, 2018, the husband filed a handwritten “statement” that purported to “give[ ] notice that, pursuant to Rule 8(b) of the Mass. R. App. P., [the husband] decline[d] to order a transcript of the proceedings to be included in the record on appeal.” Months later, on November 21, 2018,⁶ the Register issued to the husband a “notice of intent to dismiss appeal” informing him that, pursuant to supplemental rule 30, his appeal “will be dismissed for lack of prosecution unless cured within fourteen days of the date of this notice.”⁷ The notice did not state what the husband needed to “cure[ ].” On November 30, 2018, the husband filed, with a supporting affidavit, a motion pursuant to Mass. R. A. P. 10 (c), as amended, 417 Mass. 1602 (1994), in which he argued that the November 21, 2018, notice was “unjustified” because he had complied with all applicable rules, and that, should the court disagree, he should be allowed ten additional days to cure any defect identified by the court. On January 10, 2019, a judge allowed the motion and granted the husband an additional thirty days to comply, without specifying the “defect” the husband needed to “cure.”

On February 4, 2019, the husband filed another motion pursuant to Mass. R. A. P. 10 (c), again arguing that he had already complied with the relevant rules and that, if the court disagreed, it should grant him “a 30-day enlargement of time to so comply in the manner specified as required by the Court.” After a hearing on March 7, 2019, a judge denied the motion, and the Register formally dismissed the appeal on the same day.

Discussion. The Register dismissed the husband's original appeal “[p]ursuant to Rule 30 of the Massachusetts Supplemental Rules of the Probate and Family Court.” The husband argues that the dismissal of his appeal based on supplemental rule 30 was erroneous. “The test to determine whether the [Register] was warranted in dismissing the plaintiff's appeal is whether he abused his discretion.” McCarthy v. O'Connor, 398 Mass. 193, 196 (1986).

Supplemental rule 30 provides, in relevant part, that “[i]f the appellant has failed to ․ file the transcript of the proceedings or the designated portions thereof or the statement of certification within the time required by Rule 8(b)(3) and Rule 9(c) of the Massachusetts Rules of Appellate Procedure,” the Register “shall send written notice” to the appellant “that the appeal will be dismissed for lack of prosecution.” Supplemental rule 30 further instructs the Register to dismiss, under certain circumstances, an appeal by an appellant who has failed to timely file the required transcript or statement of certification.

The husband has not failed to comply with either rule 8 (b) (3) or rule 9 (c). Under Mass. R. A. P. 9 (c) (2), as amended, 437 Mass. 1602 (2002), an appellant in a civil case is required, “within ten days after filing a notice of appeal,” to submit to the clerk of the lower court the portions of the transcript “the appellant deems necessary for determination of the appeal.” Alternatively, the rule provides that the appellant may submit “a signed statement certifying that the appellant has ordered such portions from the court reporter,” or “a signed statement certifying that the appellant has not ordered and does not intend to order the transcript or any portion thereof.” Here, the husband filed a signed statement on March 23, 2018, informing the court that he was “declin[ing] to order a transcript of the proceedings to be included in the record on appeal.” Though handwritten and somewhat imprecise, this signed statement sufficed to constitute the husband's notification to the court that he did not intend to order a transcript. Therefore, the husband complied with his obligations under rule 9 (c) (2), and thus did not trigger dismissal of his appeal under supplemental rule 30.

Rule 8 (b) (3) (ii) of the Massachusetts Rules of Appellate Procedure, as amended, 428 Mass. 1601 (1998), does not furnish a proper ground for dismissal either. Assuming, without deciding, that rule 8 (b) (3) applies to the recordings of the proceedings below,⁸ rule 8 (b) (3) (ii) by its terms leaves to the appellant the discretion to “deem[ ] all or part of the electronic recording necessary for inclusion in the record.” Here, the husband filed a statement indicating his intent not to order a transcript of the proceedings. The Register does not indicate, nor do we discern, any other violation of rule 8 (b) (3) on the husband's part.

“[A]n appeal should not be dismissed for failure to follow the rules of appellate procedure if the error was not attributable to the appellant.” Hawkins v. Hawkins, 397 Mass. 401, 408 (1986). Here, there was no error attributable to the husband because he timely and effectively exercised one of the three options available to him under Mass. R. A. P. 9 (c) (2). Therefore, the dismissal of the husband's appeal was an abuse of discretion. See South Boston Elderly Residences, Inc. v. Moynahan, 88 Mass. App. Ct. 742, 743-744 (2015).

The order entered on March 7, 2019, dismissing the husband's original appeal is vacated, and the case is remanded to the Probate and Family Court for entry of an order requiring the Register to assemble and transmit notice of the assembled record within twenty-one days of the date of this decision.

So ordered.

FOOTNOTES

2.   The former wife, Julie F. Norris, did not submit a brief in this appeal.

3.   The Massachusetts Supplemental Rules of the Probate and Family Court were recently amended, effective November 1, 2019. Throughout this memorandum and order, we refer to the rules in effect during the time period relevant to this case.

4.   The Massachusetts Rules of Appellate Procedure were recently amended, effective March 1, 2019. See Reporters' Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 446 (LexisNexis 2019). Throughout this memorandum and order, we refer to the appellate rules in effect during the time period relevant to this case.

5.   The notice of appeal appears to have been timely filed, as the denial of the rule 59 (e) motion entered on the Probate and Family Court docket on February 12, 2018. There is no argument or evidence in the record before us to the contrary.

6.   Between the husband's filing on March 23, 2018, and the Register's issuance of the notice, the husband had filed a motion for stay pending appeal. A single justice of this court denied that motion on September 20, 2018.

7.   A copy of supplemental rule 30 in effect at that time was attached to the notice.

8.   “Rule 8(b)(3) applies to proceedings which were recorded electronically on equipment under the control of the Court and which were not recorded by an official court reporter.” Mass. R. A. P. 8 (b) (3) (i), as appearing in 388 Mass. 1106 (1983).