Carole A. Hinkley v. Michael W. Guntor.

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

25-P-355

CAROLE A. HINKLEY

vs.

MICHAEL W. GUNTOR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother, Carole A. Hinkley, appeals from a judgment of

the Probate and Family Court dismissing her complaint in equity

against the father, Michael W. Guntor. The mother contends that

the judge erred by analyzing her claim of fraud under Mass.

R. Dom. Rel. P. 60(b), instead of G. L. c. 215, § 6; abused his

discretion in denying her relief under rule 60(b); and abused

his discretion in ordering her to pay the father's attorney's

fees and costs. We affirm.

Background. A judgment of divorce nisi entered relating to

the parties in 2007. Between 2009 and 2019, the judgment was

modified several times as to the father's child support

obligation. In 2018, the father filed a complaint for
modification in which he sought to reduce his child support

obligation in anticipation of his retirement from the military

and the resulting loss of his civilian employment. The father

filed three financial statements in support of his complaint for

modification, and neither party conducted discovery. Following

a hearing, the first judge issued a temporary order in November

2018 that reduced the father's child support obligation to $25

per week and required him to document any unemployment benefits

he may receive. After another hearing in February 2019, the

judge found that the father had begun receiving unemployment

benefits and increased his child support obligation to $199 per

week. The judge also found that, because the father failed to

provide notice of his unemployment benefits, the increased

amount applied retroactively. Ultimately, the parties entered

into an agreement for judgment on April 12, 2019, that set the

father's child support obligation at $202 per week.

On January 19, 2021, the mother filed an affidavit stating

that she discovered the father was "receiving monthly disability

payments in the amount of $3,263.74 which he has never reported

as income." Following a hearing, a second judge issued a

temporary order requiring that a retroactive arrearage of the

father's child support obligation "be calculated from July 2,

2019," the date of notice of the father's complaint for

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modification. The order further stated that "if [the mother]

wishes to seek retroactive support prior to July 2, 2019, that

must be pled by special proceedings outside of the present

action."

On April 15, 2021, the mother filed a complaint in equity

"pursuant to Mass. R. Dom. Rel. P. 9(b)" for relief from the

April 12, 2019, agreement for judgment, alleging that it was a

result of fraudulent statements and documents provided by the

father. In 2024, a trial on the complaint was held before the

first judge, and both parties were represented by counsel.

Before the trial began, the judge explained that because the

mother had filed her complaint more than a year after the

judgment on modification entered, she was required under Mass.

R. Dom. Rel. P. 60(b) to prove "fraud upon the court," which

entails "more than just the elements of common law fraud."

Following trial, the judge entered judgment for the father and

issued a memorandum explaining his decision. In short, the

judge determined that, even though the father's "financial

statements submitted in the modification action certainly did

not set a high-water mark for accuracy," he did not find that

the father's misconduct was "deliberate and calculated to

mislead and defraud the [mother] or the court." After another

hearing, the judge ordered the mother to pay the father

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$16,051.66 in attorney's fees and costs expended in defending

against the mother's equity action. The judge based his

decision, inter alia, "on the Mother's complete failure to

demonstrate the heightened legal standard necessary" to sustain

her claim. The mother appeals from both judgments.

Discussion. 1. Claim in equity. The mother contends that

the judge erred by analyzing her claim of fraud under Mass.

R. Dom. Rel. P. 60(b), instead of G. L. c. 215, § 6, which

establishes the Probate and Family Court's equity jurisdiction.

However, the mother did not assert G. L. c. 215, § 6, as a basis

for relief in her complaint, but rather sought relief "pursuant

to Mass. R. Dom. Rel. P. 9(b)." Rule 9(b) establishes a

heightened pleading standard for allegations of fraud and

deceit, but does not authorize or create an action in equity for

relief from a judgment on that basis. See Equipment & Sys. For

Indus., Inc. v. Northmeadows Constr. Co., 59 Mass. App. Ct. 931,

931-932 (2003). In these circumstances, it was reasonable for

the judge to treat the mother's complaint as a motion under rule

60(b). See Sahin v. Sahin, 435 Mass. 396, 399-400 (2001) ("Rule

60 sets forth a comprehensive framework for obtaining relief

from a final judgment or order"). Although the mother now

contends that the Probate and Family Court may use its general

equitable powers to "close gaps in child support," she did not

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advance that theory in the Probate and Family Court.

Accordingly, her argument is waived. See Carey v. New England

Organ Bank, 446 Mass. 270, 285 (2006).

2. Relief under rule 60(b). In the alternative, the

mother argues that the judge erred in concluding that she was

not entitled to relief under rule 60(b). "[W]e review the

judge's ruling for abuse of discretion," as "[a] motion for

relief under rule 60(b) is directed to the sound discretion of

the motion judge." Dilanian v. Dilanian, 94 Mass. App. Ct. 505,

515 (2018), quoting Ulin v. Polansky, 83 Mass. App. Ct. 303, 308

(2013). "[A] judge's discretionary decision constitutes an

abuse of discretion where [the reviewing court] conclude[s] 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

omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

In pertinent part, Mass. R. Dom. Rel. P. 60(b) provides

that "the court may relieve a party . . . from a final judgment,

order, or proceeding for . . . (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party." A motion pursuant to rule

60(b)(3) "must be made within one year following the entry of

judgment. This one-year time limit cannot be extended."

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Chavoor v. Lewis, 383 Mass. 801, 803 (1981). Because the mother

filed her complaint on April 15, 2021, more than one year after

the judgment on modification entered on April 12, 2019, relief

under rule 60(b)(3) was unavailable to her. Furthermore,

because her claim for "relief from fraud," which was based on

her alleged reliance on the father's "fraudulent

misrepresentation of his income," plainly falls within the scope

of rule 60(b)(3), the catchall provision of rule 60(b)(6), which

provides for relief "for any other reason justifying relief from

the operation of the judgment," does not apply. Paternity of

Cheryl, 434 Mass. 23, 34-35 (2001) (party seeking relief from

judgment may not utilize rule 60[b][6] where "arguments are not

requests for relief independent of subsections [1]-[5]").

It is true that rule 60(b) "contains one more possible

escape valve as to the timing of the challenge to a judgment."

Guardianship of Ingrid, 102 Mass. App. Ct. 1, 6 (2022). A party

may pursue an "an independent action [for relief] from a

judgment, order, or proceeding, or to set aside a judgment for

fraud upon the court." Mass. R. Dom. Rel. P. 60(b).

In Paternity of Cheryl, 434 Mass. at 35, the Supreme Judicial

Court stated that

"[a] 'fraud on the court' occurs where 'it can be
demonstrated, clearly and convincingly, that a party has
sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system's ability

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impartially to adjudicate a matter by improperly
influencing the trier or unfairly hampering the
presentation of the opposing party's claim or defense'"
(citation omitted).

Allegations of fraud or failure to disclose are not sufficient,

"particularly where the moving party was aware of facts, or in a

position to discover the true facts, before or shortly after the

judgment entered." Guardianship of Ingrid, supra at 10. "The

question . . . is not whether the [party] committed misconduct,

even misconduct amounting to fraud, but rather whether their

misconduct led to a judgment that was 'manifestly

unconscionable' or a 'grave miscarriage of justice.'" Id. at

12, quoting Sahin, 435 Mass. at 402.

Here, the judge acted well within his discretion in

concluding that the mother did not "satisfy[] this high burden."

After hearing the parties' testimony, the judge concluded that

the evidence was insufficient to prove that the father's

misconduct was deliberate or "calculated to mislead and defraud

the plaintiff or the court." Furthermore, even if the father

had "deliberately underreported his income, under oath, to

mislead and defraud the [mother] into accepting less child

support," the judge concluded that such actions would have

amounted to "perjury and common law fraud -- but no more than

that." In addition, the mother could have discovered the

discrepancies in the father's reporting through reasonable

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discovery, but "did not take advantage of that opportunity."

The possibility that a party may perjure himself is a "common

hazard of the adversary process with which litigants are

equipped to deal through discovery and cross-examination"

(citation omitted). Sahin, 435 Mass. at 402. Finally, the

judge found that the father's misconduct had not resulted in a

judgment that was "manifestly unconscionable." See Guardianship

of Ingrid, 102 Mass. App. Ct. at 12, quoting Sahin, supra.

After considering the amount of the unpaid child support, the

respective incomes, assets, and liabilities of the mother and

father, and the absence of any claim that the reduced child

support affected the children's welfare, the judge reasonably

concluded that no "grave miscarriage of justice" had occurred.

See id.

3. Award of attorney's fees. The mother also challenges

the order requiring her to pay the father's attorney's fees. A

probate judge may award attorney's fees and costs in appropriate

circumstances. G. L. c. 208, § 38. "An award of attorney's

fees . . . will not be disturbed unless there is an abuse of

discretion." Hunter v. Rose, 463 Mass. 488, 499 (2012), citing

DeMatteo v. DeMatteo, 436 Mass. 18, 38-39 (2002).

The mother contends that the judge abused his discretion

because her claims arose from the father's misconduct and were

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not made in bad faith. We disagree. A showing of "bad faith or

frivolous claims or defenses" is not required for an award of

fees under G. L. c. 208, § 38. Wasson v. Wasson, 81 Mass. App.

Ct. 574, 582 (2012). The judge concluded that an award was

warranted here because the mother's evidence at trial "fell

woefully short of the required mark," even though she had been

reminded "throughout the proceedings" of the heightened standard

that applied to her request for relief from the judgment. The

judge also acted reasonably in considering the wealth disparity

between the parties, noting that the father "credibly testified

he had to forgo necessary repairs to his home to finance his

defense." See Cox v. Cox, 56 Mass. App. Ct. 864, 881 (2002)

(statute is "designed to level the playing field and allow both

sides access to capable legal representation"). Finally, the

judge did not abuse his discretion in determining the amount of

fees to be awarded, particularly since, "having conducted the

trial," he had "ample opportunity to observe" counsel's

performance and assess the reasonableness of the requested fees.

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See Murphy v. Murphy, 82 Mass. App. Ct. 186, 195 (2012).1

Judgment dated October 7,
2024, affirmed.

Judgment dated February 5,
2025, affirmed.

By the Court (Meade,
Ditkoff & Toone, JJ.2),

Clerk

Entered: December 2, 2025.

1 In the Probate and Family Court, the father was also
awarded a partial amount of fees for this appeal. Although the
mother filed a notice of appeal from the order awarding the
partial fees, the argument in the mother's brief is limited to
those fees awarded the father in defending against the action in
equity. We limit our decision to the claim raised. See Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)
("The appellate court need not pass upon questions or issues not
argued in the brief . . ."). We deny the father's request for
further appellate attorney's fees and costs. Although the
mother's arguments on appeal are unpersuasive, they are not
frivolous. See Marabello v. Boston Bark Corp., 463 Mass. 394,
400 (2012).

2 The panelists are listed in order of seniority.

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