JANES v. JANES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (husband) appeals from an order allowing the plaintiff's (wife) motion for relief from judgment pursuant to Mass. R. Dom. Rel. P. 60 (b) (6). We affirm.

The parties entered into a separation agreement (agreement) on November 27, 2018. The provisions of the agreement were approved by the court and incorporated into a judgment of divorce nisi entered the same day. With the exception of the provisions relating to the children, the provisions of the agreement survived and did not merge. Among those provisions are those relating to the sale of the former marital home (home), which the parties had listed through a broker on October 31, 2018, at a price of $650,000. Specifically, paragraph II.A.2 of exhibit D (Division of Assets) of the agreement provided:

“The Husband and the Wife have placed the Former Marital Home on the real estate market for sale at the highest possible selling price with an agreed-upon broker and shall divide the resulting net sales proceeds equally (50/50), according to the terms set forth herein. In the event that any disputes arise between the parties with respect to any aspect of the sale of the Former Marital Home, The Hon. Anthony Nesi (Ret.) and Steven Hanna shall serve as co-Special Masters to resolve any disputes, which shall include sale prices, price reductions, accepting reasonable offers, necessary repairs required for sale, and the selection of a broker․ In the event of a disagreement between the parties with respect to any aspect of the sale, the Special Master[s'] decision, which shall be made after consulting with the real estate broker, shall be binding on the parties.”

The parties received no offer to buy the home. Recognizing this fact, on January 2, 2019, the special masters appointed to resolve any disputes relating to the sale of the parties' real estate (Special Masters) issued an order providing, among other things:

“As to the [home], we believe that the winter market is unlikely to be improved by a reduction in price at this time. If there [are] no offers by March 1, 2019[,] the price will be reduced to $624,900 (unless a different figure is agreed to by the parties). Should there be no offer obtained 30 days after the price reduction, a further reduction will be undertaken.”

The Special Masters resigned two days later.³

Subsequently, the parties received an offer to purchase the home for $575,000. This was the first and only offer received for the property. After negotiation and counteroffer, the buyers increased the offer to $605,000 on February 18, 2019.⁴ The wife wished to accept the offer; the husband did not. Facing the expiration of the offer, the wife filed an emergency motion for relief from judgment pursuant to rule 60 (b) (6) seeking to have sole authority to accept the offer and for the appointment of new special masters. After a hearing, a judge of the Probate and Family Court allowed the wife to accept the offer, but declined to appoint new special masters. The husband appeals that portion of the order giving the wife sole authority to accept the offer to purchase the home for $605,000.

We review a judge's decision to allow relief from a judgment pursuant to rule 60 (b) (6) only for abuse of discretion. See Mt. Ivy Press, LP v. Defonseca, 78 Mass. App. Ct. 340, 347 n.18 (2010), citing Gath v. M/A–Com, Inc., 440 Mass. 482, 497 (2003). “[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, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir.2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the judge carefully weighed the various considerations presented by the parties. These included that (1) the home had been listed for several months without receiving any other offers, (2) the home had been priced high, (3) the Special Masters had already anticipated a price reduction and the possibility that no offer would be received by March 1, (4) the offer was the result of an arms-length negotiation, (5) the offer came with no unusual contingencies or conditions, (6) the buyers were willing to close quickly, (7) the parties were unable to work together constructively, and, in the absence of the Special Masters, there was no existing dispute resolution mechanism provided in the agreement, (8) the amount of the offer was not unreasonable relative to the listing price, and (9) both parties claimed that their finances were such that they needed to monetize their interest in the home. In these circumstances, the husband has failed to show that the judge abused her discretion in allowing the wife sole authority to accept the offer before it expired.

Order dated February 22, 2019, allowing motion for relief from judgment affirmed.⁵

FOOTNOTES

3.   The wife suggests that the Special Masters resigned because of difficulties created by the husband, but we note that the Special Masters gave no reason in their resignation letter. For purposes of this appeal, the Special Masters' motivation does not matter.

4.   The offer was to expire on February 20, 2019, at 5 p.m.

5.   The wife's request for appellate attorney's fees and costs is denied.