SERRANO LOPEZ v. RIVERA MELGAR (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jose Lopez, appeals after a judge of the Probate and Family Court denied his motion to reconsider her order denying his request for special findings brought pursuant to G. L. c. 190B, § 5-204 (a) (v).² In June 2018, the plaintiff father, living in Massachusetts, requested that the Probate and Family Court judge make specific findings necessary for his daughter, who was fifteen years old at the time, to qualify for special immigrant juvenile status under Federal law. See 8 U.S.C. § 1101(a)(27)(J) (2012). After a hearing, the judge declined to issue special findings because, as pertinent here, she determined that “it is apparent from the submissions and credible evidence that neither parent has abused, neglected [ ]or abandoned the child. To the contrary, each has acted responsibly at all times to see to the child's needs.” Judgment so entered on November 14, 2018. As stated above, the father moved for reconsideration; however, he did not serve the mother until December 28, 2018. The motion to reconsider was denied without comment on February 28, 2019. The father appeals only from the order denying his motion to reconsider. We affirm.

Background. In short, the child is the minor daughter of the plaintiff father and the defendant mother. The child lived with her mother in Honduras until March 2018, when she moved to Massachusetts to live with her father. In June 2018, the father filed a complaint for separate support in Probate and Family Court and also submitted a motion requesting special findings relating to his daughter's petition for special immigrant juvenile status. In support of that motion, the father filed an affidavit from the child and his own affidavit.³ The child's affidavit stated that she was forced to flee Honduras because she was “in danger” and because no one there could protect her. She described an attempted rape by a gang member. She also stated that her family -– her mother and brother -– were “desperately poor and [that] every day we struggled to find food.” Her mother forced her to drop out of school in the sixth grade and to join the mother in agricultural labor.

Discussion. On appeal, the father presents no argument on the motion to reconsider and instead attempts to attack the underlying judgment.⁴ That issue is not before us. See Piedra v. Mercy Hosp., Inc., 39 Mass. App. Ct. 184, 186 (1995). Because the father's motion to reconsider was served more than ten days after judgment entered, we treat the motion as a motion pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). See Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 682 (2007). As such, we review for abuse of discretion. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 434 (1979).

A judge abuses that discretion when he or she makes “ ‘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), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). Here, we see no abuse of discretion in denying what is akin to a rule 60 (b) motion. The plaintiff makes no allegation of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud by an adverse party. See rule 60 (b).⁵ See also Liberty Sq. Dev. Trust v. Worcester, 441 Mass. 605, 611 (2004) (“There is no error in the denial of a motion that merely seeks, as this one did, a ‘second bite at the apple’ ”).

Order denying motion to reconsider affirmed.

FOOTNOTES

2.   The defendant, Maria Elena Rivera Melgar, did not file a brief.

3.   The defendant's affidavit was not included in the appellate record appendix.

4.   He argues that the judge's findings regarding parental neglect and abuse are clearly erroneous and not in the child's best interests.

5.   The unfortunate circumstances described in the child's affidavit are indeed tragic, but the denial of the father's motion to reconsider was sound.