ADJEI v. AGYEMANG (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (father) brought the underlying paternity complaint in the Probate and Family Court, seeking to be declared the father of the child born to the defendant (mother) in 2012, and to establish custody, support, and a parenting schedule for the child.² The mother's amended answer and counterclaim admitted all of the father's factual allegations, and sought essentially the same relief, namely: a declaration of paternity, support, custody, and a parenting schedule. The issues being joined in this posture, a pretrial conference was noticed and scheduled for April 29, 2019. The father, who was proceeding pro se, did not appear. After conducting a hearing, the father's complaint was dismissed with prejudice, and a default judgment entered on the mother's counterclaim in which the plaintiff was adjudged to be the father of the child, the mother was awarded sole legal and physical custody, and the father was ordered to pay a child support arrearage of $13,000 and $451 per month in child support going forward.³ These figures were based on information provided by the mother, including in her pretrial report; the father neither filed a pretrial report, nor provided financial information in any other fashion to the court.

On appeal, the father does not quarrel with the declaration of paternity; he contests only the amount of child support, the child support arrearage, and the parenting plan. He argues that his failure to appear at the pretrial conference was a result of his limited command of English, his misunderstanding of how to obtain a continuance of the court date, and his unavailability on the day of the conference because of his work schedule. The father also points to the fact that he requested a continuance from the mother's counsel, and argues that the mother's counsel should have agreed to it.⁴ The father concedes that he never moved for a continuance of the pretrial conference (about which he had notice),⁵ nor did he otherwise inform the court of his scheduling difficulties.⁶ The father does not argue that the judge lacked the authority to enter the judgment or grant relief given his failure (1) to appear, (2) to notify the court of the reason(s) for his nonappearance, and (3) to disclose and file the required financial information. See G. L. c. 209C, § 8 (upon showing of notice and intercourse during probable period of conception, judgment of paternity shall be entered if father fails to appear or defaults in paternity action); G. L. c. 209C, § 9 (provided notice is given, support order shall be entered notwithstanding father's failure to appear or default). Instead, the father's argument is that the judgment should be vacated under either Mass. R. Civ. P. 55, as amended, 477 Mass. 1401 (2017), or Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), in light of the reasons for his failure to appear.⁷

Whatever might be the merits of the father's arguments (and we express no opinion on them), we think the prudent course would be to allow the trial judge to address them in the first instance. The trial court is in the best position to assess and weigh in the first instance the reasons for the father's failure to appear, and whether (and, if so, to what degree) to allow relief from the judgment.

Consequently, while affirming the judgment, we grant leave for the father to file a motion pursuant to Mass. R. Dom. Rel. P. 60 (b), should he wish, to set aside the awards of custody, child support, and arrearage.⁸ See G. L. c. 209C, § 9 (a) (judgment of support [including one entered by default] may be set aside via rule 60 [b] motion). The trial judge shall treat the time for filing such motion as tolled from the time of the filing of the notice of appeal in this case through the date of the issuance of the decision in this matter by this panel of the Appeals Court. If the father files such a motion in the trial court, the judge should take into account the following factors that mitigate in favor of revisiting the custody, child support, and the arrearage aspects of the judgment. First, there is a “traditional policy against default judgments in domestic relations cases,” Imprescia v. Imprescia, 392 Mass. 101, 104 (1984), and even where default may be entered as a sanction (which it does not appear happened here), it is “ ‘significantly more restricted under the domestic rules’ than under the rules of civil procedure” (citation omitted). Id. at 103. Second, although the pretrial conference notice alerted the father that sanctions could be imposed in the event he failed to appear, it did not notify him that a default judgment might enter on the mother's counterclaim. Third, although a judgment of paternity and an award of support can both be made even where a father fails to appear, see G. L. c. 209C, §§ 8, 9 (a), there is no explicit statutory authorization for a default judgment as to custody. Indeed, “there may be an inherent tension between [a judgment] by default in child custody disputes and a judge's obligation in such matters to ensure that an award of custody is in the child's best interests.” ⁹ Houston v. Houston, 64 Mass. App. Ct. 529, 535 (2005). Finally, judgment entered even though the judge did not convert the pretrial conference into a trial on the merits, the judge did not hear testimony under oath (other than a single sworn statement as to paternity), and no exhibits were offered or admitted. There thus may well have been insufficient evidentiary basis upon which to rest the judgment, but the father's brief does not ask us to vacate the judgment and for this reason we do not do so.¹⁰

Judgment on counterclaim affirmed.

FOOTNOTES

2.   Subsequently, the father filed a motion to amend the complaint in ways that are not pertinent to the issues on appeal.

3.   The judgment also provided for medical insurance and expenses, life insurance, extra-curricular activities, and postsecondary educational costs.

4.   The mother's counsel did not agree to a continuance because of the mother's own work schedule and desire to get the disputed issues adjudicated. Neither the mother nor her counsel were required to agree to the father's request for a continuance. We note that the mother's counsel informed the judge that the father had told her that he could not attend the pretrial conference because of a work scheduling conflict (and commend counsel for doing so).

5.   The pretrial conference notice prominently stated that the date of the conference “MAY BE CHANGED ONLY IF A WRITTEN MOTION TO CONTINUE IS ALLOWED BY THE COURT.”

6.   The father asserts in his brief that he attempted to contact the clerk's office, but that information is not presented by way of affidavit, nor was it presented in any fashion below.

7.   There is no rule 55 in the Rules of Domestic Relations Procedure. “This omission appears to reflect the traditional policy against default judgments in domestic relations cases. See, e.g., the comment explaining that a counterpart to Mass. R. Civ. P. 55 ․ was omitted from the domestic rules because such a rule would have been ‘inappropriate to Domestic Relations cases’ ” (citation omitted). Imprescia v. Imprescia, 392 Mass. 101, 104 (1984).

8.   The determination of paternity is final because the father has not challenged it on appeal.

9.   We note that, should the father file a rule 60 (b) motion, the judge will have the opportunity to consider the custody factors contained in G. L. c. 209C, § 10, as well as the arrearage factors contained in G. L. c. 209C, § 9 (a), which the scant record before him did not permit him to do.

10.   The mother's request for appellate attorney's fees is denied.