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
2 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
3 $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
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
4 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."
5 Chavoor v. Lewis, 383 Mass.
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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
2 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
3 $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
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
4 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."
5 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
6 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
7 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
8 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.
9 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.