RAZA v. BEYLIN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from the June 21, 2019, denial of her rule 60 (b) motion for relief from judgment by a judge of the Family and Probate Court. That judgment, which issued on March 21, 2016, set forth the amount of child support that was payable by the defendant to the plaintiff. It was modified after a trial on May 9, 2017 (modification trial), but the motion sought relief from the judgment only as it stood from the date of entry to the date of the modification in June, 2017. The relief the plaintiff sought was an additional payment from the defendant to make up for child support he allegedly underpaid from March 2016 to June 2017.

The motion was filed on June 6, 2019, more than three years after the judgment from which it sought relief. Under Mass. R. Dom. Rel. P. 60 (b) (2), a motion may be brought on the basis of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under [r]ule 59 (b),” and under rule 60 (b) (3), a motion for relief from judgment may be brought on the basis of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” Motions under these two subsections, however, must be brought within a year of the judgment from which relief was sought. Rule 60 (b) (6) is a catchall provision allowing relief on the basis of “any other reason justifying relief from the operation of the judgment.” It has no specific time limit.

Rule 60 (b) (6) may not be used merely to allow an untimely motion properly brought under another specific subsection of rule 60 (b), see Anderson v. Anderson, 407 Mass. 251, 257 (1990), but we will assume without deciding that the plaintiff's motion was a proper motion under rule 60 (b) (6) –- although the defendant argues vigorously that it is more properly characterized as a rule 60 (b) (2) or rule 60 (b) (3) motion, and therefore that it is time barred. The parties agree that we review the judge's denial of this motion for abuse of discretion.

The gravamen of the plaintiff's motion is that the defendant had income that he deliberately hid from the plaintiff and the court during the proceedings, including the trial on February 16, 2016, leading up to the March 21, 2016, judgment. In particular, the plaintiff argues that the defendant hid $4,000 per month, plus the possibility of additional income from commissions, under a consulting agreement with a company called Apptopia. She also argues that the defendant misstated his arrangement with an individual named Ami Joseph, and that he, in fact, did not share commissions with Joseph at the rate to which he testified.

Turning first to the Apptopia contract, in the plaintiff's affidavit submitted in support of her motion, she states that “[o]n or about June, 2018, and May 29, 2019 ․ the [p]laintiff discovered new information that shows that [d]efendant signed a [c]onsulting [a]greement with Apptopia on February 11, 2016. This agreement provided that [d]efendant would receive $4,000 per month, with the possibility of additional income from commissions․ The [d]efendant submitted an invoice to Apptopia on February 11, 2016 ․ and received the first payment of $4,000 from Apptopia on February 17, 2016, ․ the day after trial. This agreement and this income were not disclosed by the [d]efendant to the [c]ourt at trial on February 16, 2016.” We will assume without deciding that the plaintiff's allegations are true, and that the defendant deliberately hid these arrangements from the plaintiff and the court at trial.

Nonetheless, at trial on the plaintiff's motion for modification in May, 2017 the defendant revealed the $4,000 per month agreement. Notwithstanding having that information about these payments in May, 2017 the plaintiff did not bring her rule 60 (b) motion until June, 2019. This fact alone renders the judge's decision to deny this aspect of the motion well within her discretion.

To be sure, the plaintiff argues that the defendant lied at the May, 2017 modification trial, claiming he started work for Apptopia at the end of February, 2016, after the initial trial, rather than having signed the agreement and sent his first invoice prior to that trial. She asserts that he also lied by claiming that his agreement with Apptopia was oral, when it is written.

Again, we may assume without deciding that she is correct as to these facts. Nonetheless, the plaintiff was made aware of the only fact material to her motion, that the defendant was receiving additional income of $4,000 per month beginning sometime in February, 2016 at the modification trial in May, 2017 at the latest.

As to the rate of commission paid to Ami Joseph, the plaintiff's affidavit avers that she discovered new information about the actual payments made “[o]n or about June[,] 2018.” Again, particularly because we are assessing the propriety of the denial of a rule 60 (b) motion brought more than three years after judgment, the plaintiff's failure to act for a year while in possession of this information also provides a sufficient basis to place the judge's denial of the motion well within the scope of her sound discretion.

The order denying the plaintiff's motion for relief from judgment is affirmed.

So ordered.

affirmed