Raheman v. Raheman
Raheman v. Raheman
Opinion of the Court
The defendant husband appeals from the denial, after reconsideration, of his motion for relief from a judgment of divorce nisi, based on his postjudgment claim of insufficient service of process.
Timeliness of appeal. The plaintiff contends that the defendant’s appeal should be dismissed as untimely. The postjudgment procedural history of the case is confusing, and we relate only so much as necessary to frame the issue.
Following the entry, on August 4, 1998, of a corrected judgment of divorce nisi, nunc pro tune to June 25, 1998, the defendant filed a motion for relief from judgment on January 20, 1999, which included a request that he be given thirty days to assemble and file materials supporting the motion. On or about May 6, 1999,
The plaintiff contends that the defendant’s appeal is untimely, since the defendant did not file a notice of appeal within thirty days following denial of his motion for relief from judgment. Citing Selby Assocs. v. Boston Redev. Authy., 27 Mass. App. Ct. 1188, 1189 (1989), the plaintiff argues that a motion for reconsideration does not postpone the time for appeal. See also Turner v. Evers, 726 F.2d 112, 114 (3d Gir. 1984).
Both Selby Assocs. and Turner involved circumstances different from those
By contrast to Selby Assocs. and Turner, there was no notice of appeal from the denial of the motion for relief from judgment in the present case, so the circumstances do not raise the question whether to nullify a previously filed notice of appeal. More importantly, the motion for reconsideration was supported by a significant body of additional material, the absence of which, in fact, played a significant role in the denial of the earlier motion for relief from judgment. In the circumstances presented here, where the earlier motion appears to have been denied principally due to the absence of supporting materials, the motion for reconsideration relies on a significant body of supplemental supporting material, and where the motion judge reconsiders the merits of the motion before deciding it, we conclude that the disposition of the motion for reconsideration is separately appealable.
2. Denial of relief from judgment. On our review of the record, we conclude that the motion judge did not abuse her discretion in denying after reconsideration the defendant’s request for relief from judgment. “Resolution of a rule 60(b) motion rests in the discretion of the trial judge, and we ‘will show marked deference to the lower court’s resolution of such a motion.’ ” Cullen Enterprises, Inc. v. Massachusetts Property Ins. Underwriting Assn., 399 Mass. 886, 894 (1987), quoting from Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949, 949 (1983). Though the defendant was aware of the wife’s complaint,
So ordered.
Though the defendant also filed a notice of appeal from the judgment itself, his counsel stated at the hearing on his motion for relief from judgment that he had elected not to pursue that appeal, and the record assembled and filed with the instant appeal is limited to the record on the motion for reconsideration. In any event, as the defendant (though aware of the complaint) elected not to raise his challenge to the sufficiency of service of process until after judgment had entered, our consideration of his claim on appeal from the judgment itself would be essentially similar to our consideration of the motion judge’s disposition, on reconsideration, of the defendant’s motion for relief from judgment.
Neither the docket nor the transcript reflects the date of the hearing, but the judge’s order refers to a hearing on that date.
Unlike Selby Assocs., the motion judge in Turner denied the motion for reconsideratian without reconsidering the merits.
On December 29, 1997, a list of the pleadings in the instant case was filed in separate proceedings involving the same parties pending in India, and the defendant’s Indian counsel moved in an Indian court on January 16, 1998, to obtain copies of the pleadings.
Reference
- Full Case Name
- Saihba Raheman v. Fazal Raheman
- Cited By
- 8 cases
- Status
- Published