MORTH v. MORTH (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The appellant/defendant, Karen Morth, filed a notice of appeal from a Land Court judge's interim order appointing a partition commissioner. The judge instructed the Land Court Recorder not to assemble the record and directed the case to proceed in the Land Court, because the interim order was not a final judgment and therefore not appealable. The appellant now appeals arguing that the Land Court judge did not have the authority to block or reject her timely filed appeal. We affirm.

Discussion. 1. Interim order. The appellant argues that because the Land Court judge's order appointing a partition commissioner was a final order or judgment she had the right to appeal. Since this is a question of law, we review de novo. “Partition is a matter of absolute right, it is not dependent on the consent of any of the co-tenants or the discretion of the court.” Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 92 (2008), quoting S.M. Dunphy, Probate Law and Practice § 16.3, at 247 (2d ed. 1997). “Alongside the common law, a coowner of property has had, since colonial times, a statutory right to petition the courts to divide property that he or she no longer wishes to own jointly with another.” Battle v. Howard, 489 Mass. 480, 485 (2022). “If the judge determines that the petitioner is entitled to partition, the judge enters an ‘interlocutory decree that partition be made’ (interlocutory decree) that specifies the parties and proportions in which the partition shall be made.” Id. at 486, citing G. L. c. 241, § 10. “A decree ordering partition, although denominated ‘interlocutory’ by G. L. c. 241, § 10, is final by its nature: ‘once rendered, it is a conclusive determination of the rights of all parties to the proceedings under the petition, and no question any longer remains open concerning either ownership or title, or their individual shares and interest.’ ” Asker v. Asker, 8 Mass. App. Ct. 634, 637 (1979), quoting Brown v. Bulkley, 11 Cush. 168, 169 (1853). “For this reason, an interlocutory decree is immediately appealable.” Battle, supra at 491.

As the Land Court judge explained, an interlocutory decree pursuant to G. L. c. 241, § 10, has not yet been issued in this case. The order at issue here was an interim order appointing a commissioner who was tasked with investigating and taking charge of the partition locus and, although the interim order states that “[i]t is clear that partition lies in this case,” the order did not include a warrant or decree ordering partition pursuant to G. L. c. 241, § 10. Nowhere in the interim order did the judge determine the proportions in which the partition is to be made. See Battle, supra at 486. Where there has been no decision on the rights of either party, there is no final order from which to appeal. See Chiminiello v. Chiminiello, 8 Mass. App. Ct. 806, 808 (1979). The interim order at issue here was not appealable.

When the Land Court does issue a decree ordering partition pursuant to G. L. c. 241, § 10, the appellant will have the right to appeal if she so chooses, but until then her appeal is not ripe for review.

2. Attorney's fees. The appellee/plaintiff seeks an award of appellate attorney's fees and costs pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019), on the ground that the defendant's appeal is frivolous. See G. L. c. 211A, § 15. Because the defendant had “no reasonable expectation of a reversal,” Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984), we agree that her appeal was frivolous, and an award of appellate attorney's fees and costs is appropriate. See Avery v. Steele, 414 Mass. 450, 455-457 (1993). Consistent with the requirements of Fabre v. Walton, 441 Mass. 9, 10 (2004), the appellee may file a request for appellate attorney's fees and costs, along with supporting documentation, within fourteen days of the issuance of the decision in this case. The appellant shall have fourteen days thereafter within which to respond.

3. Conclusion. The order of the Land Court judge, dated May 28, 2021, instructing the Recorder of the Land Court not to assemble a record on appeal and directing the case to proceed in the Land Court is affirmed. The plaintiff's request for appellate attorney's fees and costs is allowed.

So ordered.

Affirmed