Donoghue v. Donoghue

Massachusetts Appeals Court

Donoghue v. Donoghue

420 N.E.2d 359, 11 Mass. App. Ct. 1035

DecidedMay 15, 1981

StatusPublished

This text of 420 N.E.2d 359 (Donoghue v. Donoghue) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Donoghue v. Donoghue, 420 N.E.2d 359, 11 Mass. App. Ct. 1035 (Mass. Ct. App. 1981).

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Opinion

This is an appeal from an order for the issuance of an execution enforcing a judgment of lump sum alimony. Notwithstanding the presence in the record of a statement of the evidence pursuant to Mass.R.A.P. 8(c), as appearing in 378 Mass. 933 (1979), we look to the transcript. After review of the transcript and the record appendix, we conclude that there was no error.

The husband appears not to have paid any portion of the outstanding judgment of alimony. It is within the discretion of the judge “to determine in what amount, if any, an execution should issue for unpaid arrears.” Briggs v. Briggs, 319 Mass. 149, 152 (1946). Notwithstanding the representations made by the husband’s counsel at the hearing, nowhere in this record has it been made to appear that the judge abused that discretion. The judge could reasonably have been unimpressed by the husband’s offer to give oral testimony at that hearing. The husband had not submitted a financial statement or presented by affidavit or otherwise any specific information pertaining to his present financial condition. Moreover, the record is devoid of any unequivocal assertion by the defendant of his present inability to pay the judgment due to changed circumstances.

It is unnecessary for us to consider whether the judge improperly rejected the defendant’s attempt to be heard on his complaint for modification. The judge could properly consider any evidence of changed circumstances on the motion to issue the execution. Cf. Briggs v. Briggs, supra.

Order affirmed.

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This is an appeal from an order for the issuance of an execution enforcing a judgment of lump sum alimony. Notwithstanding the presence in the record of a statement of the evidence pursuant to Mass.R.A.P. 8(c), as appearing in 378 Mass. 933 (1979), we look to the transcript. After review of the transcript and the record appendix, we conclude that there was no error.

The husband appears not to have paid any portion of the outstanding judgment of alimony. It is within the discretion of the judge “to determine in what amount, if any, an execution should issue for unpaid arrears.” Briggs v. Briggs, 319 Mass. 149, 152 (1946). Notwithstanding the representations made by the husband’s counsel at the hearing, nowhere in this record has it been made to appear that the judge abused that discretion. The judge could reasonably have been unimpressed by the husband’s offer to give oral testimony at that hearing. The husband had not submitted a financial statement or presented by affidavit or otherwise any specific information pertaining to his present financial condition. Moreover, the record is devoid of any unequivocal assertion by the defendant of his present inability to pay the judgment due to changed circumstances.

It is unnecessary for us to consider whether the judge improperly rejected the defendant’s attempt to be heard on his complaint for modification. The judge could properly consider any evidence of changed circumstances on the motion to issue the execution. Cf. Briggs v. Briggs, supra.

Order affirmed.

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420 N.E.2d 359, 11 Mass. App. Ct. 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donoghue-v-donoghue-massappct-1981.

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