MATTER OF CLARA INTONTI IRREVOCABLE TRUST v. << (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial, a judge of the Probate and Family Court declared, inter alia, that the Clara G. Intonti Irrevocable Trust is the sole beneficiary of the 7 Wheeler Street Realty Trust. Albert Intonti (Albert), the son of the settlor of both trusts, Clara G. Intonti, appeals from this portion of the judgment, arguing that certain provisions of the irrevocable trust allowed the settlor to change the beneficiaries of the realty trust without complying with certain provisions of the realty trust. He also appeals from an award of attorney's fees based on a judgment of contempt. We affirm.

In the probate matter, an issue not raised in the Probate and Family Court “is deemed waived on appeal.” Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 526 n.1 (2016). Accord Matter of the Trusts Under the Will of Crabtree, 449 Mass. 128, 153 (2007). Here, Albert's posttrial proposed findings of fact and conclusions of law contain no reference to any of the legal theories advanced on appeal. Albert has not provided us with a transcript of the trial ² or any pleading in which he raised his current legal theories. “The burden is on the appellant ․ to furnish a record that supports his claims on appeal.” Hasouris v. Sorour, 92 Mass. App. Ct. 607, 610 n.4 (2018), quoting Arch Med. Assocs. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992). Where, as here, the record before us does not demonstrate that the appellant's current claims were preserved in the trial court, we may not grant relief. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 412 (2018).

The same goes for Albert's challenge to the attorney's fees awarded as part of the contempt judgment. Albert requests that “the award of attorney's fees be vacated as unsupported by the record,” but has not provided us with the motion for attorney's fees or the affidavit that accompanied it. Where the appellant has “failed to include in the record on appeal the evidentiary submissions in support of the original fee petition ․, we treat the issue as waived.” Passatempo v. McMenimen, 461 Mass. 279, 303 (2012). Accordingly, we are unable to review any of Albert's claims on appeal.³

Judgments affirmed.

FOOTNOTES

2.   The docket reflects that a trial transcript was prepared. Albert, however, did not provide it to this court.

3.   The appellees (consisting of Albert's three children and his former wife) request attorney's fees, but do not provide any basis for an award of appellate attorney's fees. See Mass. R. A. P. 16 (a) (10), as appearing in 481 Mass. 1628 (2019) (“Any request for appellate attorney's fees and costs must be included in the brief, with a citation to the authority therefor”). Accordingly, the request is denied.