CHERYL GARDNER v. ROBERT DANGELO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case between the petitioner, Cheryl Gardner, and her brother, the respondent, Robert Dangelo, arises from an ownership dispute regarding a jointly-owned property in which Gardner had a one-third interest. In this appeal from the Norfolk Division of the Probate and Family Court Department, Dangelo primarily appeals from an order dated July 15, 2025, and entered July 25, 2025, denying his motion to vacate a default judgment dated October 22, 2024, granting Gardner's request for partition of the property.¹ Dangelo argues that he was denied a meaningful opportunity to be heard and also that the underlying judgment was erroneous. We affirm.

Discussion. 1. Meaningful opportunity to be heard. Dangelo essentially claims that he was denied due process because the litigation proceeded without the necessary accommodations for him, therefore violating Title II of the Americans with Disabilities Act (ADA), and also because his request for a limited spokesperson, “support-person,” or guardian ad litem (GAL) was denied. We disagree.²

In fact, Dangelo did not file a motion requesting any accommodation until September 29, 2025, well after the partition judgment entered, and therefore, Dangelo cannot argue now that he was prejudiced for a lack of accommodation. Moreover, his request for accommodation was allowed in part. The judge granted Dangelo's requests for additional time to submit filings, for additional time to respond to the court, and to submit written replies when he could not adequately respond orally. The only request that the court denied was the appointment of his sister-in-law as GAL, where he requested to have her, a nonattorney, argue on behalf of him in court. Allowing this request would have violated Massachusetts law. See G. L. c. 221, § 46A (“No individual, other than a member, in good standing, of the bar of this [C]ommonwealth shall practice law ․”).

Furthermore, given that Dangelo's stated reason for requesting a GAL was because of “difficulty processing complex legal documents, organizing court filings, and responding under pressure during hearings,” and given that Dangelo explicitly stated that he is “not asking the Court to make any finding of incompetence or incapacity,” the judge did not abuse his discretion in denying the motion for the appointment of a GAL.³ See Rule 5 of the Supplemental Rules of the Probate and Family Court (2012) (“In addition to making appointments of guardians ad litem in cases required by statute, whenever it shall appear that a minor, intellectually disabled person, a person under disability, an incapacitated person, a person to be protected or a person not ascertained or not in being is interested in any matter pending, a guardian ad litem for said person may be appointed by the court at its discretion“ [emphasis added]).⁴ See also G. L. c. 190B, § 5-303 (“An incapacitated person ․ may petition for a determination of incapacity, in whole or in part, and the appointment of a guardian” [emphasis added]); G. L. c. 190B, § 5-308 (“if an incapacitated person has no guardian, ․ on appropriate motion the court may appoint a temporary guardian” [emphasis added]).

2. Default judgment and entry of judgment of partition. The defendant also claims that the default judgment granting Gardner's request for partition was error, alleging that he was not in default, that the court awarded relief different in kind to the relief requested, and that there were unresolved material title and ownership issues at the time of the entry of the judgment. Though not worded as such, Dangelo essentially requests that we review the order dated July 15, 2025, denying his motion to vacate the default judgment.⁵ See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). We disagree with Dangelo's arguments.

We review the entry of a default judgment and the denial of a motion to vacate the judgment for an abuse of discretion. See Atlanticare Med. Ctr. v. Division of Med. Assistance, 485 Mass. 233, 247 (2020); L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014); Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 684-685 (2007). A judge's 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 ․ such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L., supra.

Gardner filed her petition to partition on September 29, 2022. The citation giving notice to Dangelo of the date by which he must file an appearance and answer if objecting to the partition was issued on January 31, 2023. Gardner served the citation on Dangelo by sheriff on February 15, 2023, and also published notice in the local newspaper on February 21, February 28, and March 7, 2023. The judge ordered Dangelo to respond by March 8, 2023. Dangelo failed to do so.

Approximately one year after the date to respond, Gardner moved for default under Mass. R. Civ. P. 55, as amended, 477 Mass. 1401 (2017). Dangelo first filed something in the case in April 2024, more than a year after his answer and appearance were due. The judge held a hearing on Gardner's motion for default on August 20, 2024, pursuant to Mass. R. Civ. P. 55 (b) (2), as amended, 463 Mass. 1401 (2012). The judge allowed Gardner's motion on September 10, 2024. Given these circumstances, the judge did not abuse his discretion by issuing a default judgment, where Dangelo failed to file any response by the court-imposed deadline.

Dangelo also argues that the ensuing default judgment violated Mass. R. Civ. P. 54 (c), as amended, 463 Mass. 1401 (2012) (rule 54 [c]), because the judge awarded relief different in kind and greater in amount than Gardner sought in her petition. We disagree.

Rule 54 (c) prohibits entry of a default judgment granting relief different in kind from that prayed for in the demand for judgment. Dangelo claims that the default judgment awarded “retroactive rent and use-and-occupancy charges.” Upon full review of the record, it appears that Dangelo is actually taking issue with the partition proceeds being used to reimburse Gardener for back use and occupancy (or rent) before Gardner received one-third of the remaining net proceeds of the sale. The petition itself requested that the commissioner appointed to sell the property “distribute and pay over the net proceeds of such sale in such manner as to make the partition equitable.” Given this language, we disagree with Dangelo's assertion that the judge ordered broader relief than was requested.

Finally, Dangelo claims that partition was inappropriate because substantial factual disputes concerning title or ownership interests still existed. We disagree.

As an initial matter, the entry of the default against Dangelo operated to establish the truth of the pertinent allegations of the petition to partition, including that Gardner held a one-third interest in the property. See Danca Corp. v. Raytheon Co., 28 Mass. App. Ct. 942, 943 (1990). In any event, at the very least, at the time of the partition judgment, there were no existing disputes regarding title or ownership of the property.⁶ While Dangelo disputes Gardner's interest in the property, claim preclusion bars Dangelo relitigating that issue, where a Superior Court judge previously ruled that Gardner had a one-third interest in the property, and a previous panel of this Court affirmed that judgment.⁷ See Gardner v. Dangelo, 99 Mass. App. Ct. 1130 (2021). Dangelo seeks to relitigate factual findings regarding the validity of the deed that gave Gardner an interest in the subject property, which he cannot do on appeal. Also, given that Dangelo cited no relevant legal authority to support his argument and that there is no genuine dispute over the ownership of the property, we find no merit to Dangelo's arguments.⁸

Conclusion. The order entered July 25, 2025, denying Dangelo's motion to vacate the judgment, is affirmed.⁹

So ordered.

FOOTNOTES

1.   Although Dangelo's July 21, 2025 notice of appeal also purported to appeal from the default judgment itself, that notice of appeal was not filed within thirty days after entry of that judgment, as required by Mass. R. A. P. 4 (a), as appearing in 481 Mass. 1606 (2019), nor was the appeal period altered by the filing of any timely postjudgment motion. Thus, the default judgment itself is not before us for review. Dangelo's July 21, 2025 notice of appeal was, however, timely insofar as it also sought to appeal from the order denying his motion to vacate the judgment and various enforcement and related orders dated July 15, 2025. In addition, we note that Dangelo's July 21, 2025 notice of appeal purports to appeal from an order denying his motion to approve notice of lis pendens, and that he filed notices of appeal from an order purportedly denying an emergency motion to stay execution of the judgment and “accompanying orders or findings” issued on August 26, 2025, and from orders of single justices of this court. Dangelo raises no arguments regarding any order but that which denied his motion to vacate the judgment, though, and we therefore do not address them further.

2.   Although we comment on the accommodation issues, no appeal of the judge's order on these issues is before us. The order was issued in November 2025, long after both Dangelo's July 21, 2025 notice of appeal and his August 26, 2025 emergency notice of appeal. The assembly of record transmitted to this court, and the appeal docketed here on September 10, 2025, concerned only those two notices of appeal. Although Dangelo apparently filed another notice of appeal on November 25, 2025, that appeal, whatever it may have encompassed, was never docketed here.

3.   Dangelo also has failed to cite to any legal authority that suggests the denial of his request for a GAL violated Title II of the ADA. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

4.   In conjunction with this argument, Dangelo alleges a violation of Standing Order 2-99 of the Probate and Family Court. However, Dangelo mischaracterizes Standing Order 2-99, as it contains no language addressing obligations on judges when a self-represented litigant is appearing before the court.

5.   Although the only issue properly before us regarding the default judgment is whether the judge erred or based his discretion in denying the motion to vacate that judgment, see note 1 supra, for simplicity we frame our discussion as if the judgment itself were before us. Because we see no error in the judgment, it follows that the order denying relief from the judgment was likewise proper.Also, the parties appear to believe a contempt judgment issued against Dangelo is before us on appeal. However, where the judgment on the complaint for contempt issued in the trial court after the docketing of this appeal, and no appeal from that judgment was ever docketed, the judgment is not properly before us.

6.   While Dangelo did initiate a quiet title action regarding the subject property, that proceeding did not begin until well after the entry of the default judgment granting the petition to partition. Therefore, quite simply, at the time of the entry of the partition judgment, there were no existing disputes regarding title or ownership of the property.

7.   In the Superior Court, the judge found that Gardner possessed a one-third interest in the property. On appeal of that judgment, Dangelo argued only that Gardner's claim was barred by the statute of limitations. Issue preclusion bars Dangelo from relitigating here whether Gardner had an interest in the property, because he had the obligation to raise that claim in the prior litigation. See Alicea v. Commonwealth, 466 Mass. 228, 235 (2013) (“Issue preclusion ․ bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment ․” [quotation and citation omitted]).

8.   Gardner's requests for appellate attorney's fees and double costs are denied.

9.   To the extent that we do not address other arguments, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). This includes Dangelo's claim that because he ultimately appeared in this action, the default judgment is void; the case on which he relies, Harris v. Sannella, 400 Mass. 392, 395 (1987), says no such thing. All of Dangelo's pending motions in this appeal are denied.