Adam B. Silverman v. Shannon L. Gabriel.

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

22-P-643

ADAM B. SILVERMAN

vs.

SHANNON L. GABRIEL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this paternity action, the plaintiff (father) appeals

from an ex parte default judgment for child support entered on

January 31, 2022, and from the denial of his Mass. R. Dom. Rel.

P. 60 (b) motion to vacate that judgment. He makes two

arguments on appeal. First, he contends that it was error to

enter a default judgment because (a) he was not given notice

that a final judgment could result from his nonappearance at the

status conference, and (b) his counsel's failure to appear was

due to illness. Second, he argues that, in light of the

circumstances, the judge abused her discretion in denying his

rule 60 (b) motion. Because we agree with the latter

contention, we need not consider the first. We vacate the order

denying the father's rule 60 (b) motion, and we instruct that

the child support order entered on January 31, 2022, be changed
from a final judgment to a temporary order. We also remand for

further proceedings as to the amount of child support.

Background. On December 5, 2017, the father filed a

complaint for custody, support, and parenting time. Thereafter,

the parties, proceeding pro se, reached various agreements

regarding temporary orders and modifications of those orders,

none of which are at issue in this appeal. On January 19, 2021,

the mother filed a complaint for modification. On September 8,

2021, an attorney entered an appearance for the mother, and nine

days later filed a motion to amend the modification complaint.

At this time, the father was still proceeding pro se. On

September 30, 2021, the parties filed a partial agreement for

judgment, leaving only the amount of child support to be

determined. Partial judgment entered that same day in

accordance with the parties' agreement.

At the same time, the judge ordered that a pretrial

conference would take place on the issue of child support on

October 19, 2021, and that "financial statements and

memos/calculations with analysis as to proposed orders" were to

be filed. At the October 19, 2021 conference, the mother's

counsel and an attorney who had recently been retained by the

father both represented that they needed additional financial

information. The judge stated at the conclusion of the October

19 conference that she would "give [the parties] a status date

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in 90 days and then hopefully you both have the information you

are each looking for relative to the finances and we can enter a

judgment as to child support on that date." A temporary order

entered scheduling the matter for a Zoom status conference on

Monday, January 31, 2022, at 9 A.M.

On Friday, January 28, 2022, the mother filed a status

memorandum, a financial statement, and a child support

guidelines worksheet. The father did not make the required

filings.

At 8:30 A.M. on the day of the Zoom conference (January 31,

2022), the father's counsel informed a first-year associate in

his office that he would be unable to attend because he was

extremely ill with a virus that had affected his entire family.

The associate, who was unfamiliar with this case, felt that

there was not enough time for her to prepare sufficiently to

appear herself at the status conference, especially as a newly

minted attorney. Accordingly, ten minutes later, she called the

mother's counsel to inform her of the situation and stated the

need to continue the conference. The mother's counsel does not

dispute the call, but disputes that she agreed to the

continuance. In an affidavit submitted in connection with the

rule 60 (b) motion, the new associate averred that the mother's

counsel agreed to a continuance, assured her that she would

inform the court, and that there was no need for the associate

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to draft an assented-to motion for continuance. We need not

resolve the conflicts between these two accounts; but we do note

that one version was submitted under the pains and penalties of

perjury and that the other was not. In addition, the

associate's averments were corroborated by a contemporaneous

confirmatory text message from the associate to the father's

counsel.

At the Zoom status conference, the mother's counsel told

the judge that the associate had called twenty minutes earlier

to tell her that the father's counsel was sick and unable to

attend the conference. She then stated:

"Now, Your Honor, I do just want to mention that I
understand if you're sick, you're sick, and things
happen and things come up, but I do just want to say
too that, you know, this has been continued because
the defendant hasn't produced financial documents and
we weren't able to enter a judgment, and it just feels
a little planned that we didn't -- again, we're
supposed to enter a judgment today, we didn't receive
any of the documents and then 20 minutes before the
hearing they aren't able to make it, so I do want to
put on the record that, you know, it's frustrating on
that end, and I did receive a call regarding him being
sick, but that's where we stand."

The mother's counsel then asked either that her proposed

judgment for child support be entered, or that the judge put a

temporary order in place. The judge decided to enter a final

judgment, stating, "you know, if it's an issue, counsel can try

and vacate it, but I'm going to enter it as a judgment, because

that was the sole remaining issue in this case." As foreseen,

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the father's counsel filed a motion to vacate the day after

receiving the judgment. That motion was, as we have already

noted, supported by a detailed affidavit from his associate that

explained why the father's counsel had been unable to attend the

January 31, 2022 conference.

Discussion. We observe at the outset that both attorneys

should have done things differently. Had they done so, it may

well have avoided extra proceedings and expense for their

clients, conserved judicial resources, and -- most

importantly -- enhanced the judge's understanding of the

situation and her ability to make an informed decision. In

particular, the father's counsel should have timely filed the

required financial materials, disclosures, and calculations, or,

if he was unable to do so, filed an explanation as to why he

could not. He should also have informed the court, either

telephonically or, better yet, in writing, that he would not be

able to appear for the conference due to illness, and he should

have requested a continuance in writing. Even recognizing that

the timing was tight given that the conference was scheduled for

9 A.M. on a Monday, it was not too short to attempt to contact

the registrar's office, or to have someone dial in to the Zoom

for the simple purpose of informing the court of the situation.

At the same time, we cannot condone the mother's counsel's

failure to extend a customary courtesy of agreeing to a

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continuance in the face of opposing counsel's illness. In

addition, the mother's counsel's statement to the judge that the

previous continuance was due to the father's failure to produce

all financial information was less than accurate, where

information was needed from both sides. And the mother's

counsel should have exercised more caution before suggesting to

the judge that the father's counsel's illness was strategic or

feigned. Accuracy in this context is especially important

because the judge -- unlike this panel on appeal -- did not have

the benefit of the transcript of the earlier conference, and she

could not possibly be expected to remember the details three

months after they had occurred. The judge was entirely

dependent on the accuracy and fairness of counsel's report.

While we do not mean to suggest that either counsel's

performance fell below the standard of practice, both counsel's

missteps factor into our assessment of whether the judge abused

her discretion in denying the father's rule 60 (b) motion to

vacate the child support judgment.

"A motion for relief under rule 60 (b) is directed to the

sound discretion of the motion judge, and we review the judge's

ruling for abuse of discretion." Dilanian v. Dilanian, 94 Mass.

App. Ct. 505, 515 (2018), quoting Ulin v. Polansky, 83 Mass.

App. Ct. 303, 308 (2013). See, e.g., Atlanticare Med. Ctr. v.

Division of Med. Assistance, 485 Mass. 233, 247 (2020)

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("[D]enial of a motion under Rule 60 (b) will be set aside only

on a clear showing of an abuse of discretion" [citation

omitted]). Massachusetts Rule of Domestic Relations Procedure

60 (b), which is identical to Mass. R. Civ. P. 60 (b), 365 Mass.

828 (1974), allows parties to seek relief from final judgments

under a set of outlined circumstances. Unlike subsections 60

(b) (1) through 60 (b) (5), rule 60 (b) (6), under which the

father moved for relief, allows parties to seek relief for "any

other reason justifying relief from the operation of the

judgment." "[R]elief from judgment may not be granted under

rule 60 (b) (6), when the reason relied on can be construed to

fit within one of the specific categories enumerated in rule 60

(b) (1)-(5)." Anderson v. Anderson, 407 Mass. 251, 257 (1990).

See Bromfield v. Commonwealth, 400 Mass. 254, 256 (1987).

Here, given the detailed averments of the associate's

affidavit, the absence of a countervailing statement submitted

under the pains and penalties of perjury, our careful review of

the transcripts of the October 19, 2021 and January 31, 2022

conferences, and the fact that final judgment was entered after

an ex parte hearing where the father's lawyer was absent due to

illness, we conclude that the judge should have allowed the

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motion to vacate the judgment to the extent it was entered as a

final judgment rather than a temporary support order.1

For these reasons, we vacate the order denying the motion

for relief from judgment, with the instruction that the child

support order of January 31, 2022, be entered nunc pro tunc as a

temporary support order, rather than a final judgment. The case

is remanded for further proceedings to determine the issue of

child support. We caution the father to keep in mind the

importance of full and timely submission of all required

financial information.2

So ordered.

By the Court (Wolohojian,
Englander & D'Angelo, JJ.3),

Clerk

Entered: February 14, 2023.

1 At oral argument, the father's counsel conceded that the judge
would not have erred had she entered the support order as a
temporary order rather than a final judgment. The father also
does not argue that the judge abused her discretion in not
imposing sanctions. To the extent the father argues that
sanctions should be imposed on appeal, that request is denied.
2 The mother's request for fees and costs on appeal is denied.
3 The panelists are listed in order of seniority.

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