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-50
KEN DOWNEY
vs.
LARISSA M. CRANE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Ken Downey (father), appeals from an amended
judgment of modification of the Probate and Family Court dated
May 10, 2023 (amended judgment). In this appeal, the father
argues that the judge erred by entering the amended judgment
because the defendant, Larissa M. Crane's (mother), motion to
alter or amend the judgment was untimely and the amended
judgment contains a "self-modifying" provision. We affirm
except as to the change to the schedule for the mother's weekday
overnight parenting time.
1As is our custom, we use the caption from the father's original complaint for custody, support, and parenting time. We recognize that the father refers to himself as Kenneth in this appeal. Background. The parties' twin daughters were born in 2016.
Six months after their birth, the family moved to Wellesley.
Sometime thereafter, the parties, who had never married, ended
their romantic relationship.
In November 2019, the parties filed a custody, support, and
parenting time agreement, which established an equal parenting
plan. At that time, the father was living in Wellesley and the
mother was living in Natick. In 2021, the mother moved to
Marshfield. Following her move, the mother filed a complaint
for modification and the father filed a complaint for contempt.
On January 9, 2023, after a trial, a judgment issued on the
parties' consolidated complaints (January 2023 judgment). The
January 2023 judgment provided, in relevant part, that the
mother "shall have parenting time with the children as the
parties may agree, but at a minimum," every Thursday from school
pickup or 5 P.M. until school drop-off on Friday morning (or
until 5 P.M. if school is not in session), and every other
weekend (from Friday at school pickup or 5 P.M. to Sunday at
5 P.M.) (default parenting plan). The January 2023 judgment
also contained an alternative parenting plan that would go into
effect "[i]f the parties reside within ten (10) miles of each
other."2
2 The alternative parenting plan contained the following provisions: the mother shall have parenting time with the
2 On February 1, 2023, more than ten days after the entry of
the January 2023 judgment, the mother served a verified motion
to alter or amend pursuant to rules 59 and 60 (b) of the
Massachusetts Rules of Domestic Relations Procedure.3 In her
motion, the mother requested, inter alia, to change her weekday
parenting time to Wednesday (instead of Thursday) overnights if
she is unable to locate housing within ten miles of the father,
on the asserted basis that it would reduce the children's
commute time because their school has half days on Wednesdays.
The father opposed the mother's motion.
On May 10, 2023, the judge issued an amended judgment
changing the mother's weekday overnights to Wednesdays beginning
at school pickup or at 1 P.M. if school is not in session
(weekday overnights provision), and, sua sponte, permitting the
alternative parenting plan to go into effect if "[the] [m]other
stays overnight with the children on school nights at a part-
children "as the parties may agree, but at a minimum," every Wednesday from school pickup or 5 P.M. until school drop-off on Friday morning (or until 5 P.M. if school is not in session), and every other weekend (from Friday at 5 P.M. until school drop-off on Monday morning or at 5 P.M. if school is not in session).
3 Mass. R. Dom. Rel. P. 59 (e) is identical to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974). Mass. R. Dom. Rel. P. 60 (b) is identical to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).
3 time residence (for example a leased apartment) within [ten]
miles of the [f]ather" (part-time provision).
Discussion. 1. Part-time provision. The father's
argument that the part-time provision is an impermissible
"'self-modifying' provision of the parties['] parenting plan
based only upon a possible future material change in
circumstances" fails. Because the father did not file a notice
of appeal from the January 2023 judgment which set forth the
alternative parenting plan, this issue is waived. In any event,
the part-time provision is not a modification; rather, it was a
clarification of the manner in which the mother may satisfy the
geographical housing requirement for the alternative parenting
plan to go into effect.4 Accordingly, we discern no error.
Judges have the authority to clarify a judgment sua sponte,
especially where, as here, the clarification does not materially
alter the original judgment. See Mass. R. Dom. Rel. P. 60 (a)
("Clerical mistakes in judgments . . . and errors therein
arising from oversight or omission may be corrected by the court
at any time of its own initiative"). Cf. Morgan v. Jozus, 67
Mass. App. Ct. 17, 20 (2006) (judge had "authority to clarify"
ambiguous order and vacate it sua sponte). Contrast Murray v.
Super, 87 Mass. App. Ct. 146, 155-156 (2015) (judge's sua sponte
4 The father does not explain why it is his or the court's concern where the mother resides when she is not parenting.
4 elimination of father's obligation to pay part of bonus as child
support was error where change had potential to render child
support either too low or too high under guidelines depending on
amount of father's bonus in given year). The mother stated in
her motion that she was seeking housing within ten miles of the
father but that locating housing that would accommodate herself,
her two children, and her four pets was challenging.5 Given this
potentially high conflict situation between the parties, it was
within the judge's discretion to state clearly that the mother's
part-time residence within ten miles of the father could trigger
the alternative parenting plan so that the mother did not have
to find an apartment that allows pets.
2. Weekday overnights provision. Unlike the part-time
provision, the weekday overnights provision was a modification,
rather than a clarification, to the January 2023 judgment.
Therefore, we must determine whether the judge had the authority
to so modify the January 2023 judgment by the mother's motion.
We conclude that the judge did not.
5 We ordered the parties to file a status report whether the mother relocated to a residence within ten miles of the father on either a full-time or part-time basis.
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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
24-P-50
KEN DOWNEY
vs.
LARISSA M. CRANE.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Ken Downey (father), appeals from an amended
judgment of modification of the Probate and Family Court dated
May 10, 2023 (amended judgment). In this appeal, the father
argues that the judge erred by entering the amended judgment
because the defendant, Larissa M. Crane's (mother), motion to
alter or amend the judgment was untimely and the amended
judgment contains a "self-modifying" provision. We affirm
except as to the change to the schedule for the mother's weekday
overnight parenting time.
1As is our custom, we use the caption from the father's original complaint for custody, support, and parenting time. We recognize that the father refers to himself as Kenneth in this appeal. Background. The parties' twin daughters were born in 2016.
Six months after their birth, the family moved to Wellesley.
Sometime thereafter, the parties, who had never married, ended
their romantic relationship.
In November 2019, the parties filed a custody, support, and
parenting time agreement, which established an equal parenting
plan. At that time, the father was living in Wellesley and the
mother was living in Natick. In 2021, the mother moved to
Marshfield. Following her move, the mother filed a complaint
for modification and the father filed a complaint for contempt.
On January 9, 2023, after a trial, a judgment issued on the
parties' consolidated complaints (January 2023 judgment). The
January 2023 judgment provided, in relevant part, that the
mother "shall have parenting time with the children as the
parties may agree, but at a minimum," every Thursday from school
pickup or 5 P.M. until school drop-off on Friday morning (or
until 5 P.M. if school is not in session), and every other
weekend (from Friday at school pickup or 5 P.M. to Sunday at
5 P.M.) (default parenting plan). The January 2023 judgment
also contained an alternative parenting plan that would go into
effect "[i]f the parties reside within ten (10) miles of each
other."2
2 The alternative parenting plan contained the following provisions: the mother shall have parenting time with the
2 On February 1, 2023, more than ten days after the entry of
the January 2023 judgment, the mother served a verified motion
to alter or amend pursuant to rules 59 and 60 (b) of the
Massachusetts Rules of Domestic Relations Procedure.3 In her
motion, the mother requested, inter alia, to change her weekday
parenting time to Wednesday (instead of Thursday) overnights if
she is unable to locate housing within ten miles of the father,
on the asserted basis that it would reduce the children's
commute time because their school has half days on Wednesdays.
The father opposed the mother's motion.
On May 10, 2023, the judge issued an amended judgment
changing the mother's weekday overnights to Wednesdays beginning
at school pickup or at 1 P.M. if school is not in session
(weekday overnights provision), and, sua sponte, permitting the
alternative parenting plan to go into effect if "[the] [m]other
stays overnight with the children on school nights at a part-
children "as the parties may agree, but at a minimum," every Wednesday from school pickup or 5 P.M. until school drop-off on Friday morning (or until 5 P.M. if school is not in session), and every other weekend (from Friday at 5 P.M. until school drop-off on Monday morning or at 5 P.M. if school is not in session).
3 Mass. R. Dom. Rel. P. 59 (e) is identical to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974). Mass. R. Dom. Rel. P. 60 (b) is identical to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).
3 time residence (for example a leased apartment) within [ten]
miles of the [f]ather" (part-time provision).
Discussion. 1. Part-time provision. The father's
argument that the part-time provision is an impermissible
"'self-modifying' provision of the parties['] parenting plan
based only upon a possible future material change in
circumstances" fails. Because the father did not file a notice
of appeal from the January 2023 judgment which set forth the
alternative parenting plan, this issue is waived. In any event,
the part-time provision is not a modification; rather, it was a
clarification of the manner in which the mother may satisfy the
geographical housing requirement for the alternative parenting
plan to go into effect.4 Accordingly, we discern no error.
Judges have the authority to clarify a judgment sua sponte,
especially where, as here, the clarification does not materially
alter the original judgment. See Mass. R. Dom. Rel. P. 60 (a)
("Clerical mistakes in judgments . . . and errors therein
arising from oversight or omission may be corrected by the court
at any time of its own initiative"). Cf. Morgan v. Jozus, 67
Mass. App. Ct. 17, 20 (2006) (judge had "authority to clarify"
ambiguous order and vacate it sua sponte). Contrast Murray v.
Super, 87 Mass. App. Ct. 146, 155-156 (2015) (judge's sua sponte
4 The father does not explain why it is his or the court's concern where the mother resides when she is not parenting.
4 elimination of father's obligation to pay part of bonus as child
support was error where change had potential to render child
support either too low or too high under guidelines depending on
amount of father's bonus in given year). The mother stated in
her motion that she was seeking housing within ten miles of the
father but that locating housing that would accommodate herself,
her two children, and her four pets was challenging.5 Given this
potentially high conflict situation between the parties, it was
within the judge's discretion to state clearly that the mother's
part-time residence within ten miles of the father could trigger
the alternative parenting plan so that the mother did not have
to find an apartment that allows pets.
2. Weekday overnights provision. Unlike the part-time
provision, the weekday overnights provision was a modification,
rather than a clarification, to the January 2023 judgment.
Therefore, we must determine whether the judge had the authority
to so modify the January 2023 judgment by the mother's motion.
We conclude that the judge did not.
5 We ordered the parties to file a status report whether the mother relocated to a residence within ten miles of the father on either a full-time or part-time basis. The mother maintains that she relocated to a residence within ten miles of the father's home and lives there on a part-time basis. The father agrees this is the mother's position but disputes that she is complying with the amended judgment. We cannot decide this issue; the parties may resolve it through a contempt action.
5 The mother filed her motion pursuant to rules 59 (e) and
60 (b). Because the motion was served more than ten days after
the January 2023 judgment was entered, it was untimely under
rule 59 (e). See Lopes v. Peabody, 426 Mass. 1001, 1002 (1997)
(rule 59 [e] motion "shall be served not later than [ten] days
after the entry of judgment"); Mass. R. Dom. Rel. P. 59 (e).
Therefore, the judge could not consider the mother's motion
under rule 59 (e). See Peabody, supra. Furthermore, the
mother's motion was not entitled to relief under rule 60 (b), as
she made no claims applicable to subdivisions (b) (1) through
(b) (5), and did not demonstrate any extraordinary circumstances
warranting relief under subsection (b) (6). See DeMarco v.
DeMarco, 89 Mass. App. Ct. 618, 621-622 (2016); Mass. R. Dom.
Rel. P. 60 (b). Accordingly, the judge erred in modifying the
weekday overnights provision.
Conclusion. Paragraph 2(a) of the amended judgment is
vacated. The matter is remanded for entry of a new judgment
restoring the mother's weekday overnight parenting time to
Thursday nights as set forth in paragraph 2(a) of the January
2023 judgment. The amended judgment is otherwise affirmed.
Pending entry of the new judgment or other order of the Probate
6 and Family Court, the parenting schedule set forth in the
amended judgment shall remain in effect as a temporary order.
So ordered.
By the Court (Henry, Smyth & Toone, JJ.6),
Clerk
Entered: June 10, 2025.
6 The panelists are listed in order of seniority.