Lasher v. Leslie-Lasher ( 2016 )

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SJC-11954
JEFFREY M. LASHER vs. TRICIA LESLIE-LASHER.
March 22, 2016.
Supreme Judicial Court, Superintendence of inferior courts.
Divorce and Separation, Relief from judgment. Practice,
Civil, Relief from judgment.
The petitioner, Jeffrey M. Lasher, was divorced from the
respondent, Tricia Leslie-Lasher, pursuant to a judgment of
divorce nisi in 2014. In March, 2015, he filed a motion for
relief from judgment, pursuant to Mass. R. Dom. Rel. P. 60 (b)
(2) and (3), which was denied by a judge of the Probate and
Family Court in May, 2015.
The petitioner then filed a petition in the Appeals Court,
pursuant to G. L. c. 231, § 118, first par., seeking review of
that order.1 He alleged both that the respondent had been
untruthful about her financial resources in the divorce
proceedings and that the Probate and Family Court judge should
have recused himself from ruling on the postjudgment motion. A
single justice of the Appeals Court initially remanded the case
to the Probate and Family Court judge for clarification and
findings regarding the status of the petitioner's recusal motion
and the judge's ruling on it. After the judge issued his
1
General Laws c. 231, § 118, first par., authorizes "[a]
party aggrieved by an interlocutory order of a trial court . . .
[to] file . . . a petition in the appropriate appellate court
seeking relief from such an order." It is doubtful that the
Probate and Family Court judge's order qualified as an
interlocutory order.
2
findings,2 the single justice denied the petition and later
denied a motion for reconsideration. A second single justice of
the Appeals Court struck the petitioner's notice of appeal. See
McMenimen v. Passatempo, 452 Mass. 178, 189 (2008).
The petitioner subsequently filed a substantially similar
petition in the county court, pursuant to G. L. c. 211, § 3. A
single justice of this court denied the petition. After
allowing the petitioner's motion for reconsideration, the single
justice again denied the petition. We affirm the judgment of
the single justice of this court.
It is incumbent on a party seeking exercise of this court's
extraordinary power of general superintendence under G. L.
c. 211, § 3, to demonstrate the absence or inadequacy of
alternative means of redress. See Russell v. Nichols, 434 Mass.
1015, 1016 (2001); McGuiness v. Commonwealth, 420 Mass. 495, 497
(1995), and cases cited. In this case, the petitioner failed to
allege, much less demonstrate, that the Probate and Family Court
judge's order denying relief from the divorce judgment could not
adequately be addressed through the ordinary appellate process,
in an appeal to a panel of the Appeals Court from the
2
According to the Probate and Family Court judge's
findings, at a hearing on March 25, 2015, the judge informed the
parties that he had received a Bible from the respondent with
his name inscribed on it, and that this would be ground for a
motion to recuse. The petitioner filed such a motion. Although
the judge indicated that he could remain impartial, he allowed
the motion:
"based [on] the Court's belief that its impartiality might
reasonably be questioned. After a recess, and upon further
consideration, the Court informed the parties that although
it had allowed the Motion to Recuse, it was still going to
rule on . . . [the petitioner's] Motion to Reconsider and
his Motion for Relief from Judgment, and that the recusal
would take effect after the [judge] ruled on those
[m]otions. Neither party objected. . . .
"The decision to rule on [the] Motions was made
because the Court had already taken those matters under
advisement, prior to recusal, and because the Court was
very familiar with the parties and the substance of the
Motions."
3
postjudgment order.3 See, e.g., Raheman v. Raheman, 59 Mass.
App. Ct. 915, 917 (2003), cert. denied, 541 U.S. 1013 (2004)
(reviewing postjudgment ruling denying motion for relief from
judgment); Rezendes v. Rezendes, 46 Mass. App. Ct. 438 (1999)
(same). For that reason, the single justice neither erred nor
abused her discretion in denying the G. L. c. 211, § 3,
petition.
Judgment affirmed.
Jeffrey M. Lasher, pro se.
3
It is not too late for the petitioner to pursue an appeal
to a panel of the Appeals Court in accordance with the ordinary
appellate process. If a notice of appeal is filed with the
Barnstable Division of the Probate and Family Court Department,
see Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013), not
later than May 5, 2016, "one year from the date of entry of the
. . . order sought to be reviewed," Mass. R. A. P. 14 (b), as
amended, 378 Mass. 939 (1979), the petitioner may request the
Appeals Court or a single justice of the Appeals Court to
enlarge the time periods prescribed by the rules of appellate
procedure. See Commonwealth v. White, 429 Mass. 258, 263
(1999). See also Tisei v. Building Inspector of Marlborough, 3
Mass. App. Ct. 377, 379 (1975). We express no view on the
merits of the Probate and Family Court judge's order denying
relief from judgment, or the judge's decision to not recuse
himself from ruling on the motion.