Irakli Qirjazi v. Enkelejda Qirjazi.
This text of Irakli Qirjazi v. Enkelejda Qirjazi. (Irakli Qirjazi v. Enkelejda Qirjazi.) 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.
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
24-P-458
IRAKLI QIRJAZI
vs.
ENKELEJDA QIRJAZI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Irakli Qirjazi (husband) and Enkelejda Qirjazi (wife) were
divorced in 2022. The husband appeals from the denial of his
motion for relief from the divorce judgment and the dismissal of
his amended complaint for modification.1 We affirm.
Background. On May 5, 2022, the former spouses represented
themselves and entered into a separation agreement in which they
agreed not to pursue further discovery and to resolve all
financial matters between themselves based on the information
they had exchanged. The separation agreement was incorporated
into and made part of the judgement of divorce nisi, which
entered on August 22, 2022.
1 The wife did not file a brief in this appeal. On November 9, 2022, the husband filed a complaint for
modification of the divorce judgment, alleging that the wife had
failed to disclose complete and accurate financial statements as
required by Rule 410 of the Supplemental Rules of the Probate
Court (2012). The husband later amended his complaint, alleging
that at the time of the divorce judgment, the wife had not
disclosed her Eastern Bank account containing approximately
$30,000.
At a pretrial conference on October 19, 2023, the judge
observed that what the husband was describing was a request for
relief from the divorce judgment, rather than what he had filed
-- a request for modification of the divorce judgment. The
judge suggested that the husband may want to file a motion for
relief from judgment under Mass R. Dom. Rel. P. 60 (b) (rule 60
[b]), and she set the matter down for a further status
conference to allow him to do so. The husband filed a "Motion
for Relief from Judgment" citing rule 60 (b), mirroring the same
allegation in his motion for modification, i.e., that the wife
had failed to disclose a bank account in her name prior to the
divorce.
The parties returned to court on October 31, 2023, for a
further status conference, and the judge asked the husband if he
wished to proceed with his motion for relief under rule 60 (b)
in lieu of his amended complaint for modification. The husband
2 told the judge that he wanted to continue "with everything."
The judge explained to the parties that the motion for relief
from judgment would be decided "just on the papers." The judge
commented that, while she was not ruling on the husband's
amended complaint to modify the divorce judgment, it appeared to
be duplicative of the motion for relief from judgment. Finally,
the judge informed the parties that they would be notified if an
evidentiary hearing was necessary. That same day, the wife
filed a handwritten opposition to the husband's rule 60 (b)
motion, stating that the bank account in question belonged to
their son and not to her. The wife explained that the reason
her name appeared on the bank account was that it was opened
when their son was a minor.
On December 21, 2023, the husband's rule 60 (b) motion was
denied without a hearing. On January 10, 2024, a judge
conducted an administrative review of the docket and dismissed
the husband's amended complaint for modification of the divorce
judgment without prejudice, noting that it was duplicative of
the rule 60 (b) motion, which had been denied.2 This appeal
followed.
2 To the extent the husband appeals this decision, he continues to allege no change in circumstances, and consequently, his argument does not rise to the level of appellate argument. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 85 (1995). A party seeking to modify a divorce judgment must file a complaint for modification based on a material and
3 Discussion. "It is well established as a general matter
that denial of a motion under rule 60 (b) will be set aside only
on a clear showing of an abuse of discretion." Wang v.
Niakaros, 67 Mass. App. Ct. 166, 169 (2006). A judge's
discretionary decision should be affirmed unless 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" (citation omitted). Dacey v.
Burgess, 491 Mass. 311, 317 (2023). Accord L.L. v.
Commonwealth, 470 169, 185 n.27 (2014).
The husband claims that the bank account information was
newly discovered evidence and that the judge erred by failing to
"fix the nature and value" of the undisclosed property. The
husband confuses the factors a judge takes into consideration
when determining alimony with the standard for determining a
motion under rule 60 (b). To prevail on a motion under rule
60 (b) on a claim of newly discovered evidence, the husband must
establish the following: "(1) the evidence has been discovered
since the trial; (2) the evidence could not by due diligence
have been discovered earlier by the movant; (3) the evidence is
not merely cumulative or impeaching; and (4) the evidence is of
substantial change in circumstances that has occurred since the entry of the original judgment or a prior modification. See Loebel v. Loebel, 77 Mass. App. Ct. 740, 749-750 (2010).
4 such a nature that it would probably change the result were a
new trial to be granted." Cahaly v. Benister Prop. Exch. Trust
Co., 451 Mass. 343, 361 (2008). See Sahin v. Sahin, 435 Mass.
396, 398 n.4 (2001) (proper to apply standards applicable to
Mass. R. Civ. P. 60 to motions under Mass. R. Dom. Rel. P. 60;
text of two rules is identical).
The husband's appellate argument mainly centers on the
judge's alleged failure to reallocate marital assets under G. L.
c. 208, § 34, a question which is not before us. The former
couple's marital assets were allocated as the parties agreed in
the separation agreement, which was incorporated into and made
part of the 2022 divorce judgment. To the extent the husband
makes an argument that the judge abused her discretion in
denying the rule 60 (b) motion, he simply asserts that the wife
admitted the existence of the bank account. Standing alone,
this is insufficient to establish an abuse of discretion. The
husband does not address why he could not have discovered the
existence of the bank account through due diligence before the
divorce judgment was entered. He also fails to address why,
given the undisputed statement by the wife that her name was
associated with the bank account only because it was opened when
their son was a minor, its existence would have changed the
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