CHERYL BOYLE v. ARTHUR A. BOYLE & Another.

• Court: Massachusetts Appeals Court
• Decided: November 24, 2025
• Docket: 25-P-0004
• Status: Unpublished

Opinion

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-4

CHERYL BOYLE

vs.

ARTHUR A. BOYLE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendants, Arthur and Renee Boyle, appeal from the

order of a Superior Court judge dismissing their appeal on the

motion of the plaintiff, Cheryl Boyle, pursuant to Mass.

R. A. P. 10 (c), as appearing in 481 Mass. 1618 (2019). We

affirm.

Background. This appeal arises from a Superior Court

action to enforce a divorce judgment of the Probate and Family

Court.2 After a default judgment entered in Superior Court

against the defendants, they filed a notice of appeal, but did

1 Renee Boyle.

2Some of the prior litigation is described in Boyle v. Boyle, 103 Mass. App. Ct. 1110 (2023) (unpublished memorandum and order). not timely take certain steps to pursue the appeal. The

plaintiff filed a motion to dismiss the appeal, arguing that the

defendants had failed to: (1) serve their notice of appeal on

the plaintiff, Mass. R. A. P. 13 (b), as appearing in 481 Mass.

1624 (2019); (2) deliver to the clerk within fourteen days of

the filing of the notice of appeal a notice of whether

transcripts had been ordered, which was "reasonably necessary to

enable the clerk to assemble the record," Mass. R. A. P.

9 (d) (1)-(2), as appearing in 481 Mass. 1615 (2019); and (3)

enter the appeal upon the docket of this court within fourteen

days after receiving from the Superior Court clerk the notice of

assembly of the record, Mass. R. A. P. 10 (a) (1) (A), as

appearing in 481 Mass. 1618 (2019). The plaintiff originally

filed that motion to dismiss on October 31, 2024, with a

certificate of service attesting that it had been served on the

defendants. The Superior Court docket reflects that the

plaintiff also filed an affidavit of counsel regarding

compliance with Superior Court Rule 9A (Rule 9A), but no copy of

that affidavit is included in the appellate record. The

defendants then filed a motion to be permitted to file a late

opposition to the motion to dismiss, which the plaintiff

opposed, but no copies of those pleadings are in the appellate

record. The docket reflects that on November 19, 2024, the

defendants filed an untimely memorandum in opposition to the

2 motion to dismiss, which is also not in the appellate record.

The judge ruled that no action would be taken on the motion to

dismiss appeal, and ordered the plaintiff "to compile a package,

PURSUANT TO RULE 9A, and without any emergency or late filings,

and submit [it] to the Court, with all oppositions and filings,

at one time."

The Superior Court docket reflects that, on November 29,

2024, the plaintiff complied with the judge's order by refiling

the package that included her motion to dismiss the defendants'

appeal and the defendants' opposition. The docket also reflects

that the plaintiff filed an affidavit of her counsel certifying

compliance with Rule 9A, but no copy of that affidavit is

included in the appellate record.

The judge denied the defendants' motion to file their

untimely opposition to the motion to dismiss their appeal,

finding that their "arguments justifying the need to file this

opposition late are not convincing," because the defendants had

shown a "pattern of failing to meet filing or service and other

deadlines, which resulted in the default judgment that is the

subject of this appeal, [that] continues with this motion." The

judge allowed the plaintiff's motion to dismiss the defendants'

appeal, noting, "[t]his motion was unopposed when filed an[d] I

have today denied Defendant[s'] motion to file their opposition

3 late." The defendants timely appeal from the order allowing the

plaintiff's motion to dismiss their appeal.3

Discussion. The defendants argue that the judge should

have denied the motion to dismiss because "the Plaintiff failed

to adhere to Rule 9A." In support of that argument, the

defendants make assertions about the contents of the plaintiff's

counsel's affidavit of compliance with Rule 9A that was filed on

November 29, 2024, and argue that it caused the defendants to be

"unduly prejudiced." As mentioned, no copy of the November 29

Rule 9A affidavit is included in the appellate record; nor is

there a copy of the plaintiff's October 31 Rule 9A affidavit.

Indeed, from the incomplete record before us, we cannot

ascertain whether the defendants raised their Rule 9A argument

in the Superior Court. As appellants, it was the defendants'

duty to include in the record appendix "any parts of the record

relied upon in the brief," and "any document . . . relating to

an issue which is to be argued on appeal." Mass. R. A. P.

18 (a) (1) (A) (v) (a)-(b), as appearing in 481 Mass. 1637

(2019). By failing to include in the record appendix the parts

of the record necessary for us to assess their claims, the

3 The defendants did not appeal from the judge's order denying their motion to file their untimely opposition to the motion to dismiss, and so we do not consider that issue.

4 defendants have waived them. See Simmons v. Chace, 105 Mass.

App. Ct. 550, 557 (2025).

We further note that the defendants do not argue that the

judge exceeded the scope of his discretion under Mass. R. A. P.

10 (c) by dismissing the appeal. That rule provides: "If any

appellant in a civil case shall fail to comply with Rule 9(d) or

Rule 10(a)(1), the lower court may, on motion with notice by any

appellee, dismiss the appeal, but only upon a finding of

inexcusable neglect . . . ." Mass. R. A. P. 10 (c). From the

judge's findings denying the defendants' motion to file a late

opposition to the motion to dismiss, we infer that the judge

found inexcusable neglect. The defendants do not claim that

they have demonstrated either excusable neglect or a meritorious

issue on appeal. See Howard v. Boston Water & Sewer Comm'n, 96

Mass. App. Ct. 119, 122-123 (2019).

Conclusion. The judge did not abuse his discretion in

allowing the motion to dismiss the appeal. The plaintiff's

request for an award of appellate attorney's fees is allowed.

See G. L. c. 211A, § 15; Mass. R. A. P. 25, as appearing in 481

Mass. 1654 (2019).4 Accordingly, the plaintiff may submit a

4 In support of her request for appellate attorney's fees, the plaintiff cited G. L. c. 231, § 6F, and Mass. R. Civ. P. 11, as amended, 456 Mass. 1401 (2010), and argued that the defendants' counsel "be ordered to pay all or at least part of [the plaintiff]'s legal fees." Our allowance of fees is not predicated on § 6F or Rule 11, but on G. L. c. 211A, § 15, and

5 petition for appellate attorney's fees, accompanied by

appropriate supporting documentation, within fourteen days of

the date of the rescript, and the defendants may file a response

within fourteen days thereafter. See Fabre v. Walton, 441 Mass.

9, 10-11 (2004).

Order dated December 4, 2024, allowing motion to dismiss appeal, affirmed.

By the Court (Grant, Brennan & Smyth, JJ.5),

Clerk

Entered: November 24, 2025.

Mass. R. A. P. 25. See Reznik v. Mendes, 481 Mass. 1003, 1004 (2018).

5 The panelists are listed in order of seniority.