Irakli Qirjazi v. Enkelejda Qirjazi.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-458

IRAKLI QIRJAZI

vs.

ENKELEJDA QIRJAZI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Irakli Qirjazi (husband) and Enkelejda Qirjazi (wife) were

divorced in 2022. The husband appeals from the denial of his

motion for relief from the divorce judgment and the dismissal of

his amended complaint for modification.1 We affirm.

Background. On May 5, 2022, the former spouses represented

themselves and entered into a separation agreement in which they

agreed not to pursue further discovery and to resolve all

financial matters between themselves based on the information

they had exchanged. The separation agreement was incorporated

into and made part of the judgement of divorce nisi, which

entered on August 22, 2022.

1 The wife did not file a brief in this appeal.
On November 9, 2022, the husband filed a complaint for

modification of the divorce judgment, alleging that the wife had

failed to disclose complete and accurate financial statements as

required by Rule 410 of the Supplemental Rules of the Probate

Court (2012). The husband later amended his complaint, alleging

that at the time of the divorce judgment, the wife had not

disclosed her Eastern Bank account containing approximately

$30,000.

At a pretrial conference on October 19, 2023, the judge

observed that what the husband was describing was a request for

relief from the divorce judgment, rather than what he had filed

-- a request for modification of the divorce judgment. The

judge suggested that the husband may want to file a motion for

relief from judgment under Mass R. Dom. Rel. P. 60 (b) (rule 60

[b]), and she set the matter down for a further status

conference to allow him to do so. The husband filed a "Motion

for Relief from Judgment" citing rule 60 (b), mirroring the same

allegation in his motion for modification, i.e., that the wife

had failed to disclose a bank account in her name prior to the

divorce.

The parties returned to court on October 31, 2023, for a

further status conference, and the judge asked the husband if he

wished to proceed with his motion for relief under rule 60 (b)

in lieu of his amended complaint for modification. The husband

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told the judge that he wanted to continue "with everything."

The judge explained to the parties that the motion for relief

from judgment would be decided "just on the papers." The judge

commented that, while she was not ruling on the husband's

amended complaint to modify the divorce judgment, it appeared to

be duplicative of the motion for relief from judgment. Finally,

the judge informed the parties that they would be notified if an

evidentiary hearing was necessary. That same day, the wife

filed a handwritten opposition to the husband's rule 60 (b)

motion, stating that the bank account in question belonged to

their son and not to her. The wife explained that the reason

her name appeared on the bank account was that it was opened

when their son was a minor.

On December 21, 2023, the husband's rule 60 (b) motion was

denied without a hearing. On January 10, 2024, a judge

conducted an administrative review of the docket and dismissed

the husband's amended complaint for modification of the divorce

judgment without prejudice, noting that it was duplicative of

the rule 60 (b) motion, which had been denied.2 This appeal

followed.

2 To the extent the husband appeals this decision, he
continues to allege no change in circumstances, and
consequently, his argument does not rise to the level of
appellate argument. See Cameron v. Carelli, 39 Mass. App. Ct.
81, 85 (1995). A party seeking to modify a divorce judgment
must file a complaint for modification based on a material and

3
Discussion. "It is well established as a general matter

that denial of a motion under rule 60 (b) will be set aside only

on a clear showing of an abuse of discretion." Wang v.

Niakaros, 67 Mass. App. Ct. 166, 169 (2006). A judge's

discretionary decision should be affirmed unless 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" (citation omitted). Dacey v.

Burgess, 491 Mass. 311, 317 (2023). Accord L.L. v.

Commonwealth, 470 169, 185 n.27 (2014).

The husband claims that the bank account information was

newly discovered evidence and that the judge erred by failing to

"fix the nature and value" of the undisclosed property. The

husband confuses the factors a judge takes into consideration

when determining alimony with the standard for determining a

motion under rule 60 (b). To prevail on a motion under rule

60 (b) on a claim of newly discovered evidence, the husband must

establish the following: "(1) the evidence has been discovered

since the trial; (2) the evidence could not by due diligence

have been discovered earlier by the movant; (3) the evidence is

not merely cumulative or impeaching; and (4) the evidence is of

substantial change in circumstances that has occurred since the
entry of the original judgment or a prior modification. See
Loebel v. Loebel, 77 Mass. App. Ct. 740, 749-750 (2010).

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such a nature that it would probably change the result were a

new trial to be granted." Cahaly v. Benister Prop. Exch. Trust

Co., 451 Mass. 343, 361 (2008). See Sahin v. Sahin, 435 Mass.

396, 398 n.4 (2001) (proper to apply standards applicable to

Mass. R. Civ. P. 60 to motions under Mass. R. Dom. Rel. P. 60;

text of two rules is identical).

The husband's appellate argument mainly centers on the

judge's alleged failure to reallocate marital assets under G. L.

c. 208, § 34, a question which is not before us. The former

couple's marital assets were allocated as the parties agreed in

the separation agreement, which was incorporated into and made

part of the 2022 divorce judgment. To the extent the husband

makes an argument that the judge abused her discretion in

denying the rule 60 (b) motion, he simply asserts that the wife

admitted the existence of the bank account. Standing alone,

this is insufficient to establish an abuse of discretion. The

husband does not address why he could not have discovered the

existence of the bank account through due diligence before the

divorce judgment was entered. He also fails to address why,

given the undisputed statement by the wife that her name was

associated with the bank account only because it was opened when

their son was a minor, its existence would have changed the

result of the divorce judgment.

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Finally, we note that the husband's contention that the

judge erred by denying him an evidentiary hearing is unavailing,

as it was entirely within the judge's discretion whether to hold

an evidentiary hearing on a rule 60 (b) motion after reviewing

the papers. See Knott v. Racicot, 442 Mass. 314, 326 (2004) (no

requirement to hold hearing for rule 60 [b] motion to further

probe claims). Accordingly, the husband's motion for relief

from the divorce judgment was appropriately denied.

Order denying motion for
relief from divorce
judgment affirmed.

Judgment of dismissal on
amended complaint for
modification affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.3),

Clerk

Entered: April 16, 2025.

3 The panelists are listed in order of seniority.

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