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-356
CAROLYN S. ELMORE
vs.
JAMES F. ELMORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2021 James Elmore (father) filed a complaint for
modification of a 2015 divorce judgment, seeking to reduce or
terminate his child support obligation to Carolyn S. Elmore
(mother) on the ground that the parties' two grown daughters
were emancipated. The mother counterclaimed, seeking to reduce
or terminate her obligation to pay alimony and provide life
insurance for the father. Following a three-day trial in the
Probate and Family Court, the judge issued a modification
judgment in favor of the father, reducing his child support
obligation and leaving the mother's alimony and life insurance
obligations undisturbed. The mother timely filed a motion for a
new trial under Mass. R. Dom. Rel. P. 59, which was denied, an
order from which the mother also timely appealed. On appeal the
mother claims that the judge violated her procedural due process rights by adhering to a previously-issued temporary order,
quashing her discovery requests, and denying her motion to
present expert testimony and related documents at trial. We
affirm.
Background. The parties were involved in contentious
divorce proceedings, which resulted in the entry of a judgment
of divorce in 2015. Shortly thereafter, the parties filed
complaints for contempt and modification, with numerous
associated motions, prompting the judge assigned to hear those
matters to enter a temporary order dated September 20, 2016,
requiring the parties to seek permission of the court before
filing additional pleadings or motions. About one month later
the parties jointly moved to dismiss the pending claims.
Although the temporary order was addressed to the anticipated
trial on the matters then pending, neither party moved to vacate
it, and both parties continued to abide by its terms in
subsequent proceedings.
Thus, when the father filed his current complaint for
modification, he also filed a motion for permission to file it,
which was granted. The mother responded by filing an answer and
her counterclaim, without first seeking permission. At the same
time, the mother served the father with twenty-six
interrogatories and sixty-one requests for production of
documents with respect to the years 2016 through 2021. In
2 addition, she served seven recordkeeper deposition notices (on
the husband's bank, employer, accountant, and mortgage lenders)
seeking documents for the same five-year period, and a notice of
deposition on the father's girlfriend. The father asked the
court's permission to file a motion to dismiss the mother's
counterclaim and to file a motion to quash and for a protective
order. The judge granted the father permission to file his
motions and scheduled them for hearing on the date of the
already-scheduled pretrial conference.1
The father's motions were addressed at the pretrial
conference. The father argued that his complaint for
modification was very simple, that the matters before the court
could be decided on the financial documents already available to
the mother, and that the mother's discovery requests were part
of a recurring pattern of over-litigating. The mother argued
that the discovery was relevant to the father's request to
terminate his child support obligation -- which turned primarily
on whether the parties' younger daughter, who was twenty years
old, had the ability to work full-time.2 The judge allowed the
1 In response to the father's motion to quash, the mother filed a motion for permission to file a dueling motion to compel. On the same day that the judge scheduled the father's motions for hearing, she denied the mother permission to file the motion to compel. The mother did, however, file a comprehensive opposition to the motion to quash. 2 The judge ultimately ruled that the daughter would be
considered emancipated on her twenty-first birthday, and that
3 motion to quash, noting that the parties' financial statements
were "signed under pains and penalties of perjury" and that the
mother had more financial resources available than the father.
As to the father's motion to dismiss the mother's
counterclaim, the father argued, among other things, that the
mother had failed to seek permission to file it. The mother
argued that the temporary order requiring permission for filing
dissolved when the parties' 2016 complaints were dismissed. The
judge disagreed, stating that such orders remain in effect once
they are issued, as the parties' subsequent conduct confirmed.
The judge nonetheless denied the father's motion to dismiss and
allowed the mother to proceed on her counterclaim. Noting that
the father had estimated the trial would take thirty minutes,
the judge asked the mother's counsel how long she anticipated
the trial would last. When mother's counsel answered "two
days," the judge responded, "No. It's not going to take two
days to try this case." The judge ordered the parties to return
at 3 P.M. for trial.
The mother filed an emergency motion to continue the trial
(accompanied by a motion for permission to file the motion).
The judge denied the mother's motion, stating that "this seems
like a very simple complaint for modification and simple issues,
the father's child support obligation would be reduced to $74 per week until then.
4 and for Court's efficiency and time I believe that all parties
are better served to have this trial today." Before the second
day of trial, the mother sought permission to file an emergency
motion in limine to be permitted to call two expert witnesses, a
vocational expert and an accounting expert, to establish that
the father's income was higher than he represented in his
financial statement. The judge denied the motion on the ground
that the presentation of previously-undisclosed expert testimony
would be prejudicial to the father and because the judge did not
believe the mother "need[ed] to over litigate this with
experts." On the third day of trial the mother discussed
presenting a third expert to rebut the husband's testimony about
the state of the real estate market, and she filed an offer of
proof regarding the proposed testimony of all three experts.
She also sought to introduce documents concerning the value of
the properties that the father had sold as a real estate agent,
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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
22-P-356
CAROLYN S. ELMORE
vs.
JAMES F. ELMORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2021 James Elmore (father) filed a complaint for
modification of a 2015 divorce judgment, seeking to reduce or
terminate his child support obligation to Carolyn S. Elmore
(mother) on the ground that the parties' two grown daughters
were emancipated. The mother counterclaimed, seeking to reduce
or terminate her obligation to pay alimony and provide life
insurance for the father. Following a three-day trial in the
Probate and Family Court, the judge issued a modification
judgment in favor of the father, reducing his child support
obligation and leaving the mother's alimony and life insurance
obligations undisturbed. The mother timely filed a motion for a
new trial under Mass. R. Dom. Rel. P. 59, which was denied, an
order from which the mother also timely appealed. On appeal the
mother claims that the judge violated her procedural due process rights by adhering to a previously-issued temporary order,
quashing her discovery requests, and denying her motion to
present expert testimony and related documents at trial. We
affirm.
Background. The parties were involved in contentious
divorce proceedings, which resulted in the entry of a judgment
of divorce in 2015. Shortly thereafter, the parties filed
complaints for contempt and modification, with numerous
associated motions, prompting the judge assigned to hear those
matters to enter a temporary order dated September 20, 2016,
requiring the parties to seek permission of the court before
filing additional pleadings or motions. About one month later
the parties jointly moved to dismiss the pending claims.
Although the temporary order was addressed to the anticipated
trial on the matters then pending, neither party moved to vacate
it, and both parties continued to abide by its terms in
subsequent proceedings.
Thus, when the father filed his current complaint for
modification, he also filed a motion for permission to file it,
which was granted. The mother responded by filing an answer and
her counterclaim, without first seeking permission. At the same
time, the mother served the father with twenty-six
interrogatories and sixty-one requests for production of
documents with respect to the years 2016 through 2021. In
2 addition, she served seven recordkeeper deposition notices (on
the husband's bank, employer, accountant, and mortgage lenders)
seeking documents for the same five-year period, and a notice of
deposition on the father's girlfriend. The father asked the
court's permission to file a motion to dismiss the mother's
counterclaim and to file a motion to quash and for a protective
order. The judge granted the father permission to file his
motions and scheduled them for hearing on the date of the
already-scheduled pretrial conference.1
The father's motions were addressed at the pretrial
conference. The father argued that his complaint for
modification was very simple, that the matters before the court
could be decided on the financial documents already available to
the mother, and that the mother's discovery requests were part
of a recurring pattern of over-litigating. The mother argued
that the discovery was relevant to the father's request to
terminate his child support obligation -- which turned primarily
on whether the parties' younger daughter, who was twenty years
old, had the ability to work full-time.2 The judge allowed the
1 In response to the father's motion to quash, the mother filed a motion for permission to file a dueling motion to compel. On the same day that the judge scheduled the father's motions for hearing, she denied the mother permission to file the motion to compel. The mother did, however, file a comprehensive opposition to the motion to quash. 2 The judge ultimately ruled that the daughter would be
considered emancipated on her twenty-first birthday, and that
3 motion to quash, noting that the parties' financial statements
were "signed under pains and penalties of perjury" and that the
mother had more financial resources available than the father.
As to the father's motion to dismiss the mother's
counterclaim, the father argued, among other things, that the
mother had failed to seek permission to file it. The mother
argued that the temporary order requiring permission for filing
dissolved when the parties' 2016 complaints were dismissed. The
judge disagreed, stating that such orders remain in effect once
they are issued, as the parties' subsequent conduct confirmed.
The judge nonetheless denied the father's motion to dismiss and
allowed the mother to proceed on her counterclaim. Noting that
the father had estimated the trial would take thirty minutes,
the judge asked the mother's counsel how long she anticipated
the trial would last. When mother's counsel answered "two
days," the judge responded, "No. It's not going to take two
days to try this case." The judge ordered the parties to return
at 3 P.M. for trial.
The mother filed an emergency motion to continue the trial
(accompanied by a motion for permission to file the motion).
The judge denied the mother's motion, stating that "this seems
like a very simple complaint for modification and simple issues,
the father's child support obligation would be reduced to $74 per week until then.
4 and for Court's efficiency and time I believe that all parties
are better served to have this trial today." Before the second
day of trial, the mother sought permission to file an emergency
motion in limine to be permitted to call two expert witnesses, a
vocational expert and an accounting expert, to establish that
the father's income was higher than he represented in his
financial statement. The judge denied the motion on the ground
that the presentation of previously-undisclosed expert testimony
would be prejudicial to the father and because the judge did not
believe the mother "need[ed] to over litigate this with
experts." On the third day of trial the mother discussed
presenting a third expert to rebut the husband's testimony about
the state of the real estate market, and she filed an offer of
proof regarding the proposed testimony of all three experts.
She also sought to introduce documents concerning the value of
the properties that the father had sold as a real estate agent,
which the judge excluded, partly on hearsay grounds.
Discussion. 1. The temporary order. The mother argues on
appeal that the judge erred by enforcing the temporary order
because it had expired by its own terms and, if it was still in
effect, the order deprived her of access to the courts. Putting
aside the fact that the mother never moved to vacate the
temporary order, she has not shown prejudice, or any due process
violation, arising from the temporary order. See Mass. R. Dom.
5 Rel. P. 61 (identical to Mass. R. Civ. P. 61, 365 Mass. 829
[1974]). In the only context in which the mother questioned the
order's continuing validity -- her opposition to the father's
motion to dismiss the counterclaim -- she prevailed. Although
she was not permitted to file her motion to compel discovery,
she had a full and fair opportunity to oppose the father's
motion to quash, see note 1 supra, which raised identical
issues. Similarly, although she was not given permission to
file her motion to present expert testimony, as discussed below,
the judge denied that motion on grounds unrelated to the
temporary order. The existence of the temporary order did not
interfere with the mother's ability to litigate the father's
complaint or her counterclaim, or in any way deprive her of
meaningful access to the court.
2. Discovery. As noted, the mother made sixty-one
requests for production of documents and propounded twenty-six
interrogatories on the father, sought to obtain records from
seven business entities, and also sought to depose the father's
girlfriend about details of the father's finances since the
entry of the divorce judgment. These requests were made in the
context of divorce proceedings that had already been so
contentious that the parties were required to obtain leave of
the court before filing papers.
6 Under Mass. R. Dom. Rel. P. 26 (c) (identical to Mass. R.
Civ. P. 26 [c], as amended, 474 Mass. 1401 [2016]), "Upon motion
by a party or by the person from whom discovery is sought, and
for good cause shown, the court . . . may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including
. . . that the discovery not be had" or limiting the scope of
discovery. Likewise, under Mass. R. Dom. Rel. P. 45 (b)
(identical to Mass. R. Civ. P 45 [b], as appearing in 470 Mass.
1402 [2015]), the court may, upon motion, quash or modify a
request for documents from a third party if the request is
"unreasonable and oppressive." "Trial judges have broad
discretion to make discovery and evidentiary rulings conducive
to the conduct of a fair and orderly trial" (quotation and
citation omitted). Mattoon v. Pittsfield, 56 Mass. App. Ct.
124, 131 (2002).
Faced with the mother's argument that the discovery she
requested was necessary to address the question of child
support, the judge reasonably concluded that the matter could be
decided based on the parties' financial statements. As the
judge noted, the trial presented "simple issues," and she was
"not going to let this get out of hand and make it something
bigger than it actually is." The mother did not respond by
proposing more reasonable, targeted, or limited discovery. In
7 these circumstances, in a case in which the mother undeniably
had more financial resources available than the father and was
using those resources in a manner that the judge found to be
unreasonable and oppressive, we discern no abuse of discretion
in the allowance of the father's motion to quash and for a
protective order.
3. Expert testimony. The mother argues that the judge
abused her discretion by precluding the mother from calling
expert witnesses to testify at trial. "The decision to exclude
expert testimony rests in the broad discretion of the judge and
will not be disturbed unless the exercise of that discretion
constitutes an abuse of discretion or other error of law."
Palandjian v. Foster, 446 Mass. 100, 104 (2006). In denying the
mother's requests, the judge explained that allowing the mother
to present expert testimony not previously provided to the
father and designated in her pretrial memorandum only as "expert
witnesses as needed" would be "highly prejudicial to him,
because he can't counter any experts, because he doesn't have
time." See Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993) ("a
trial judge has broad discretion in deciding whether to permit
expert testimony when the proponent has not given proper notice
of the identity of the expert or the subject matter of the
expert's anticipated testimony"). We discern no abuse of
discretion.
8 4. Prejudice. Even if we were to conclude that the judge
abused her discretion in quashing the mother's discovery
requests and excluding her proffered expert testimony, the
mother is unable to show that her inability to minutely
challenge the father's financial statement caused her prejudice.
See Solimene v. B. Grauel & Co., 399 Mass. 790, 799 (1987) (in
reviewing discovery orders "we do not interfere with the judge's
exercise of discretion in the absence of a showing of
prejudicial error resulting from an abuse of discretion");
Fourth St. Pub, Inc. v. National Union Fire Ins. Co., 28 Mass.
App. Ct. 157, 163 (1989) ("The erroneous exclusion of expert
testimony does not warrant a new trial unless the substantial
rights of a party are adversely affected").
"To be successful in an action to modify a judgment for
alimony . . . the petitioner must demonstrate a material change
of circumstances since the entry of the earlier judgment"
(citation omitted). Vedensky v. Vedensky, 86 Mass. App. Ct.
768, 772 (2014). "In determining whether a payor has met his or
her burden of demonstrating a material change in circumstances
warranting a downward modification of alimony, it is well
settled that a judge must consider the totality of the payor's
financial circumstances, including his or her income and
available assets." Dolan v. Dolan, 99 Mass. App. Ct. 284, 289
(2021).
9 Here, based on the financial statements, the judge found no
material change since the entry of the divorce judgment, in the
father's income or in the mother's ability to pay, that would
warrant a reduction of alimony. The judge found the father's
income to be $22,054.24 annually, not including alimony, which
was less than the income of $27,000 imputed to him at the time
of the divorce judgment. According to the mother's offer of
proof, her vocational expert would testify that the father's
earning capacity as a real estate agent was from $80,000 to
$87,000 annually, about $50,000 more than the father claimed he
earned. Her proffered real estate agent testimony and proffered
documents concerning the properties the father sold as an agent
would presumably support her claim that the father's financial
statements understated his earnings.3
The judge found the mother's income to be $935,054.12
annually, a sum far greater than the income of $350,000 used to
calculate her alimony obligation.4 The judge found that "there
3 The mother also proffered accounting expert testimony that, based on the tax payments reported in the father's financial statement, his gross earnings in 2020 were at least $175,000, including alimony received. As the father received alimony payments of $106,590.12 in 2020, this would result in earnings of less than $70,000. 4 In a footnote, the mother argues that the judge's focus on the
mother's increased income was misplaced because the father had been receiving equalizing payments based on the value of the mother's law practice. We disagree. The equalizing payments were based on the division of the parties' assets, not on the mother's income from her law practice.
10 was a disparity in the parties' income" at the time of the
divorce judgment, and that "there continues to be a disparity in
the parties' current income." Even if we assume that the
father's income had increased to as much as $87,000, the gross
disparity in the parties' relative resources remained. We are
confident that even if the mother had been permitted to present
expert testimony and evidence concerning the father's earnings,
it would not have made a material difference in the outcome of
the trial.
Conclusion. We recognize that the trial judge placed
rather extreme limits on the mother's ability to conduct
discovery and present evidence at the trial. However, the judge
acted in the context of a protracted divorce contest that had,
over the course of many years, burdened the Probate and Family
Court and several of its judges. In such circumstances, we
accord substantial deference to the trial judge's decisions
concerning how to manage the docket and control the proceedings,
and based on the record as a whole, the judge's restrictions
appear commensurate with the nature and complexity of the issues
before her. Moreover, even as restricted, the modification
trial carried over three days, and the mother had ample
opportunity to cross-examine the father and present her own
11 testimony. We discern no abuse of discretion affecting the
mother's substantial rights or requiring a new trial.
Modification judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Massing, Sacks & Walsh, JJ.5),
Clerk
Entered: March 24, 2023.
5 The panelists are listed in order of seniority.