L.B.R. v. B.J.R.

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-145

L.B.R.

vs.

B.J.R.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (husband) appeals from a judgment of divorce

nisi that entered in the Probate and Family Court following a

trial. On appeal, the husband argues that the trial judge erred

by refusing to grant his request for a continuance, crediting

the plaintiff's (wife's) representations at trial, failing to

issue factual findings, and ordering him to pay the wife child

support. Because the judge failed to make the statutory

findings required by G. L. c. 208, § 34, on the division of

property, we vacate that portion of the judgment and remand. We

otherwise affirm the judgment.

Background. The parties were married and had three

children together. On April 30, 2019, the wife filed a
complaint for divorce, alleging an irretrievable breakdown in

the relationship.

On December 13, 2022 -- seven days before the trial date --

the husband filed a motion for a continuance due to, inter alia,

a spinal cord injury preventing his travel to the court. The

husband provided no documentary evidence of his injuries or

ongoing medical treatment. At trial, the wife presented a

photograph taken on December 17, 2022 -- four days after the

husband requested a continuance due to his injuries -- depicting

him lifting a trailer. In a handwritten endorsement denying the

husband's request for a continuance, the judge noted that the

photograph depicted the husband "engaging in activities without

limitation" and concluded that "[t]o the extent that [the]

[d]efendant's motion alleges he is unable to attend the trial

due to any injury, the court does not find this credible." The

husband noticed an interlocutory appeal on the continuance

issue, which was not addressed.

On December 20, 2022, the judge held a trial on the merits

with only the wife present and issued a judgment of divorce

nisi. The judgment did not include comprehensive findings of

fact and conclusions of law. In awarding attorney's fees to the

wife, the judge found that "[t]he [h]usband has repeatedly and

willfully ignored Court orders, impeded the divorce process,

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misrepresented various facts, and harassed numerous individuals

related to the divorce." Elaborating further, the judge

concluded that "the [h]usband has not negotiated this matter in

good faith and that the [h]usband's actions are solely the

reason that this matter did not resolve short of trial." The

judge, among other things, also awarded the wife sole legal and

physical custody of the parties' minor children and $209 weekly

in child support to be paid by the husband. The husband

appealed.1

Discussion. We begin by noting that most of the

defendant's arguments are unsupported by legal authority and

therefore fail because they do not rise to the level of

appellate argument as required by Mass. R. A. P. 16 (a) (9) (A),

as appearing in 481 Mass. 1628 (2019). However, in reviewing

the record and considering the husband's arguments, we discern

no error with the exception of the failure to issue factual

findings on the division of property.2

1 After the judgment, the husband filed several postjudgment
motions. The judge denied all the motions. The husband did not
include these motions in his notice of appeal.

2 While we are not insensitive to challenges faced by self-
represented litigants, we hold them to the same standards as
litigants represented by counsel. See Davis v. Tabachnick, 425
Mass. 1010, 1010 (1997), cert. denied, 522 U.S. 982 (1997);
Pandey v. Roulston, 419 Mass. 1010, 1011 (1995) ("The fact that
the plaintiff is pro se does not excuse him from compliance with
relevant rules of substantive and procedural law").

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1. Motion for continuance. The husband argues that the

judge abused her discretion in denying his motion to continue

the trial date. We disagree.

"Whether a case shall be continued or proceed to trial is

within the sound discretion of the judge." Beninati v.

Beninati, 18 Mass. App. Ct. 529, 534 (1984). Trial judges abuse

their discretion when committing "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).

Here, the husband filed his motion for a continuance one

week before the trial date and over four months after the judge

set the trial date. The primary reason for the husband's motion

was a spinal cord injury that required "extended medical

treatment" and rendered him unable to attend the trial. The

husband provided no documentary evidence of his injuries or

ongoing medical treatment. Because the wife presented unopposed

evidence -- in the form of a photograph depicting the husband

lifting a trailer -- undermining the husband's claim of

significant physical limitation, a denial of the husband's last-

minute motion was not "outside the range of reasonable

alternatives." L.L., 470 Mass. at 185 n.27. See Commonwealth

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v. Werner, 81 Mass. App. Ct. 689, 698 (2012) ("We are in no

position to substitute our judgment for that of the judge on

credibility questions"). See also Beninati, 18 Mass. App. Ct.

at 535 ("The orderly management of the trial list is a

legitimate concern of a judge and, while not necessarily a

determinative consideration, ought not to be belittled").

2. Request to vacate. The husband argues that the

judgment of divorce should be vacated because the judge's

rulings -- particularly those regarding the division of property

-- were unsupported by the evidence presented at trial. The

husband contends further that his ability to challenge the

judgment was unfairly inhibited by the judge's decision not to

issue findings of fact and conclusions of law following the

trial.

"General Laws c. 208, § 34, confers broad discretion on a
judge in . . . making an equitable property division. The
judge's order must be accompanied by express findings which
indicate that all relevant factors under § 34 have been
fairly considered. 'The weight to be accorded each of the
§ 34 factors in a particular case is committed to the
judge.' If the reasons for the judge's conclusions are
apparent in [her] decision, [her] determinations as to
. . . property division may not be reversed unless 'plainly
wrong and excessive.'" (Citations omitted.)

Early v. Early, 413 Mass. 720, 727 (1992).

The judgment states that "[a]ll property has already been

divided, and the Court credits that it has been divided evenly,

with a 50-50 distribution." Pursuant to the judgment, each

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party also was entitled to retain his or her own motor vehicle,

retirement accounts, and bank accounts. The judge was required

to issue findings of fact and conclusions of law on the issue of

the property division within sixty days of the filing of the

notice of appeal. See Mass. R. Dom. Rel. P. 52 (a). The

findings are necessary to determine whether the judge properly

considered the factors pursuant to G. L. c. 208, § 34. See

Drapek v. Drapek, 399 Mass. 240, 243 (1987) ("The judge's

findings must indicate that he or she has weighed all the

statutory factors" [emphasis added]). Because the judge failed

to issue findings of fact and conclusions of law, we cannot

determine whether she properly weighed all the statutory

requirements when she made equitable property divisions as

required under G. L. c. 208, § 34. We therefore vacate the

portion of the judgment on the issue of property division and

remand for findings on the § 34 factors.

As to the husband's argument that the divorce judgment was

otherwise unsupported by the evidence at trial, the husband has

the burden of presenting an appellate argument and producing a

record appendix that are adequate for appellate review. See

Mass. R. A. P. 16 (a) (9); Mass. R. A. P. 18 (a), as appearing

in 481 Mass. 1637 (2019). The rule "is more than a 'mere

technicality. It is founded on the sound principle that the

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right of a party to have this court consider a point entails a

duty; that duty is to assist the court with argument and

appropriate citation of authority.'" Cameron v. Carelli, 39

Mass. App. Ct. 81, 85-86 (1995), quoting Lolos v. Berlin, 338

Mass. 10, 14 (1958). Here, the husband's failure to present the

transcript of the divorce trial -- a critical portion of the

factual record -- precludes our review of his request to vacate

the divorce judgment based on insufficient evidence.

3. Child Support. The husband argues that the judge erred

in awarding the wife child support because one of the parties'

children -- an adult at the time of judgment -- lives with him.

We disagree.3

As an initial matter, the husband's assertions concerning

child support are unsupported by adequate legal argument or a

record that supports his claim.4 In any event, even if we were

to consider the husband's arguments, G. L. c. 208 § 28, dictates

that "[t]he court may make appropriate orders of maintenance,

3 The husband also argues that the child support awarded by
the judge exceeded the amount allowed by law. This claim,
unsupported by legal authority or citation to the record, does
not rise to the level of appellate argument. See Mass. R. A. P.
16 (a) (9).

4 In addition to the trial transcript, the husband also did
not provide the parties' financial statements or the child
support guidelines worksheets.

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support and education of any child who has attained age eighteen

but who has not attained age twenty-one and who is domiciled in

the home of a parent, and is principally dependent upon said

parent for maintenance." Here, to the extent that the judge

declined to award support to the husband for the adult child,

this action was permissible. The child support statute, permits

-- not requires -- a judge to award child support for an adult

child between the ages of eighteen and twenty-one years old.5

Conclusion. So much of the judgment of divorce nisi as

pertains to property division is vacated, and the case is

remanded for the judge to make findings required by G. L.

c. 208, § 34, and issue an amended judgment of divorce,

5 With regard to additional claims raised by the husband, we
conclude that they do not merit further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other
points, relied on by the [husband] but not discussed in this
opinion, have not been overlooked. We find nothing in them that
requires discussion").

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consistent with this memorandum and order. The judgment of

divorce nisi is affirmed in all other respects.

So ordered.

By the Court (Rubin, Neyman &
Tan, JJ.6),

Clerk

Entered: August 22, 2025.

6 The panelists are listed in order of seniority.

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