DIVORCE MODIFICATION
Jane E. Cunningham v. Jerry E. Thomas, Massachusetts Appeals Court, (2023) No. 21-P-956
The requirement of the Court following its own Pre-Trial and other Probate Court Procedural Orders.
A new case in which the Massachusetts Appeals Court ruled that allowing a new issue to be raised at the time of trial and denying recourse to the parties was an abuse of judge’s discretion.
The Parties were formally divorced in January of 2017; in which their Judgment required the Father to pay $6000 a month in unallocated support to the Mother, who had primary custody of their three children. The Parties were also required to list the marital home for sale by April 2017 and would split the proceeds evenly.
In December 2018 the Mother filed a Complaint for Modification for greater support as the Father had failed to exercise any parenting time leaving her the sole, not just primary, caretaker. The Father counterclaimed for a reduction of support due to slightly declined income and the ability to enter the marital home and list it for sale as it had not yet occurred.
January 30, 2020 the parties entered into a stipulation regarding the Father’s support but left open the issue of the sale of the house. At a settlement conference in September 2022, the Judge affirmed that the sale of the marital home was “the only issue for trial” and Father would need to file a complaint for modification if he wanted the change in his financial situation affect his support amount.
After some back and forth about the Mother’s efforts to refinance the marital home the Judge decided she would “entertain” a motion to vacate the partial judgement about support by Father. In response the Mother requested that if that was allowed, her original complaint regarding support should be reopened by the Court. The Judge denied her request. She then requested to reopen discovery, as Mother asserted that she had reason to believe Father makes a lot more money than he was reporting and that it should be considered if modification of support were now an issue to be decided by the Court. The Judge denied Mother’s request to continue and/or to update discovery. The Father then filed a Rule 60(b)(6) motion to vacate the partial judgement which the Judge incorporated into an Order on the first day of trial on October 23, 2020.
Mother pointed out that she had successfully refinanced the home and that Father had signed the deed over to her making the “only issue for trial” moot. Regardless, the Judge announced they would move forward on the Father’s request and denied Mother's request for a continuance. At the next trial date in November, the Judge again denied Mother’s requests for continuance and/or extension of discovery and entered an order categorizing Father’s support as spousal support and decreased it to $4,290 per month.
The Appeals Court reversed the decision citing that the Court had sufficiently disposed of Father’s counterclaim when it issued the partial judgement and agreed the marital home was the only issue for trial. This was confirmed at the settlement conference in September. Thus, the Judge’s allowance of Father’s Rule 60(b)(6) motion was improper as his plea was a material change in circumstance, which should have been dealt with by his filing a new Complaint for Modification. The Appeals Court reiterated a rule of strict adherence to the pretrial order; as doing otherwise risks either party being foreclosed from presenting relevant evidence on pertinent issues. The Appeals Court further went on to note that the denial of Mother’s requests for a continuance or discovery on what was a new trial issue constituted an abuse of the Judge’s discretion.
This decision confirms that courts must abide by pretrial and other procedural orders and cannot materially change the issues at trial without providing the parties with due process.
The Probate Court’s judgement was vacated and the matter was remanded for further, limited proceedings reinstating the partial judgement as well as Father’s $6000 a month support obligation.
