Guy J. Musto v. Carolyn Musto.

• Court: Massachusetts Appeals Court
• Decided: June 12, 2025
• Docket: 23-P-1418
• Status: Unpublished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

23-P-1418

GUY J. MUSTO

vs.

CAROLYN MUSTO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Carolyn Musto (wife) appeals from the denial of a motion

for reconsideration. We affirm.

Background. On March 26, 2021, a judge of the Probate and

Family Court granted a judgment of divorce nisi that divided

property of Guy Musto (husband) and the wife. As to certain

retirement accounts of the husband, the judge ordered "that

Husband receives 50% and Wife receives 50% of the total value in

the accounts as of [the divorce trial date of] November 25,

2020." The wife did not appeal from the judgment.

In the months that followed the judgment, the value of the

accounts substantially increased, and the wife filed a motion

for relief from judgment on August 12, 2021. She argued that the judgment was "not clear" and should have provided that the

wife also receive "gains" on her fifty percent share of the

retirement accounts "up until the date of transfer" under a

qualified domestic relations order (QDRO) that was yet to be

executed. In an endorsement order, the judge denied the motion

on September 13, 2021, and the wife filed a notice of appeal.

Weeks later, on November 1, 2021, the wife filed a motion

for clarification of the divorce judgment. She claimed that the

judgment was "silent as to what should happen to gains or losses

of the three accounts from November 25, 2020 to the date of

transfer by QDRO." Following a hearing, the judge denied the

motion for clarification on April 4, 2022. In a memorandum and

order the judge summarized the procedural posture of the case

and noted that the wife had previously filed a notice of appeal

from the denial of the motion for relief from judgment. Less

than two weeks later, on April 13, 2022, a different judge

dismissed the wife's appeal from the order denying her motion

for reconsideration citing lack of prosecution.

Represented by new counsel, the wife filed, on June 24,

2022, a motion for reconsideration of the order denying the

motion for clarification. The wife claimed that the dismissal

of her appeal constituted a change in circumstances that

warranted the judge to reconsider his denial of the motion for

clarification. After a hearing on the motion for clarification

2 and a review of the language in the divorce judgment, the judge

once again denied relief. He concluded that "the Divorce

Judgment does not include gains and losses."

Discussion. "A question of law not seasonably and properly

saved, cannot be revived by the simple expedient of bringing it

forward again, demanding a second ruling, and claiming an

exception or appeal from that second ruling." Peterson v.

Hopson, 306 Mass. 597, 599 (1940). "Logic simply does not

support the proposition that appellate rights once lost may be

revived through the expedient of 'renewing' a motion." Littles

v. Commissioner of Correction, 444 Mass. 871, 875 (2005). A

litigant cannot file "a second, basically identical motion

seeking the same relief in an attempt to avoid [her] failure to

appeal timely from the denial of the first motion." Passatempo

v. McMenimen, 458 Mass. 1007, 1008 (2010), S.C., 461 Mass. 279

(2012).

Here, the wife has essentially "repackaged" a claim that

she waived by failing to prosecute the first appeal.

Passatempo, 458 Mass. at 1008. The record shows that the wife

made three attempts in the trial court to challenge the language

of the judgment (motion for relief from judgment, motion for

clarification, and motion for reconsideration), and the same

judge who composed the language in the judgment rejected each

challenge. The wife abandoned her appeal from the order denying

3 the first motion. Though captioned differently, these motions

all rested on the same substantive proposition that the judgment

entitled her to share the increased value of the retirement

accounts after November 25, 2020. By failing to prosecute her

appeal from the denial of the first motion, the wife has waived

her present claim for relief. See Littles, 444 Mass. at 873.

Even if the claim were not waived, we discern no abuse of

discretion in the denial of the motion for reconsideration. A

motion for reconsideration should set forth changed

circumstances (such as newly discovered evidence or a change in

relevant law) or a particular and demonstrable error in the

original decision. Audubon Hill S. Condominium Ass'n v.

Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct.

461, 470 (2012). We review a decision denying such a motion for

an abuse of discretion. Blake v. Hometown Am. Communities,

Inc., 486 Mass. 268, 278 (2020).

We discern no abuse of discretion. The wife has not

identified any new evidence, change in the law, or demonstrable

error that would warrant relief. Instead, she insists that the

judgment was "silent as to the handling of market fluctuations

on the parties' respective 50% shares of the retirement

accounts." We disagree and note that the wife's premise is

incorrect. The judgment did not divide the "accounts" as the

wife put it; the judgment divided "the total value in the

4 accounts as of November 25, 2020" (emphasis added). Thus, the

judgment is not silent at all and by its terms fixed the wife's

share to a certain value that could be readily calculated,

thereby excluding (or insulating) her from any market

fluctuations after November 25, 2020. The judge had discretion

to do so, and the wife points to no new facts or authority to

the contrary that would have warranted reconsideration. See

Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 543 (2011) (judge has

"broad discretion as to the division of property").

The husband's request for attorney's fees is denied.

Order denying motion for reconsideration affirmed.

By the Court (Desmond, Grant & Hodgens, JJ.1),

Clerk

Entered: June 12, 2025.

1 The panelists are listed in order of seniority.