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-145
L.B.R.
vs.
B.J.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (husband) appeals from a judgment of divorce
nisi that entered in the Probate and Family Court following a
trial. On appeal, the husband argues that the trial judge erred
by refusing to grant his request for a continuance, crediting
the plaintiff's (wife's) representations at trial, failing to
issue factual findings, and ordering him to pay the wife child
support. Because the judge failed to make the statutory
findings required by G. L. c. 208, § 34, on the division of
property, we vacate that portion of the judgment and remand. We
otherwise affirm the judgment.
Background. The parties were married and had three
children together. On April 30, 2019, the wife filed a complaint for divorce, alleging an irretrievable breakdown in
the relationship.
On December 13, 2022 -- seven days before the trial date --
the husband filed a motion for a continuance due to, inter alia,
a spinal cord injury preventing his travel to the court. The
husband provided no documentary evidence of his injuries or
ongoing medical treatment. At trial, the wife presented a
photograph taken on December 17, 2022 -- four days after the
husband requested a continuance due to his injuries -- depicting
him lifting a trailer. In a handwritten endorsement denying the
husband's request for a continuance, the judge noted that the
photograph depicted the husband "engaging in activities without
limitation" and concluded that "[t]o the extent that [the]
[d]efendant's motion alleges he is unable to attend the trial
due to any injury, the court does not find this credible." The
husband noticed an interlocutory appeal on the continuance
issue, which was not addressed.
On December 20, 2022, the judge held a trial on the merits
with only the wife present and issued a judgment of divorce
nisi. The judgment did not include comprehensive findings of
fact and conclusions of law. In awarding attorney's fees to the
wife, the judge found that "[t]he [h]usband has repeatedly and
willfully ignored Court orders, impeded the divorce process,
2 misrepresented various facts, and harassed numerous individuals
related to the divorce." Elaborating further, the judge
concluded that "the [h]usband has not negotiated this matter in
good faith and that the [h]usband's actions are solely the
reason that this matter did not resolve short of trial." The
judge, among other things, also awarded the wife sole legal and
physical custody of the parties' minor children and $209 weekly
in child support to be paid by the husband. The husband
appealed.1
Discussion. We begin by noting that most of the
defendant's arguments are unsupported by legal authority and
therefore fail because they do not rise to the level of
appellate argument as required by Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019). However, in reviewing
the record and considering the husband's arguments, we discern
no error with the exception of the failure to issue factual
findings on the division of property.2
1 After the judgment, the husband filed several postjudgment motions. The judge denied all the motions. The husband did not include these motions in his notice of appeal.
2 While we are not insensitive to challenges faced by self- represented litigants, we hold them to the same standards as litigants represented by counsel. See Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997), cert. denied, 522 U.S. 982 (1997); Pandey v. Roulston, 419 Mass. 1010, 1011 (1995) ("The fact that the plaintiff is pro se does not excuse him from compliance with relevant rules of substantive and procedural law").
3 1. Motion for continuance. The husband argues that the
judge abused her discretion in denying his motion to continue
the trial date. We disagree.
"Whether a case shall be continued or proceed to trial is
within the sound discretion of the judge." Beninati v.
Beninati, 18 Mass. App. Ct. 529, 534 (1984). Trial judges abuse
their discretion when committing "a clear error of judgment in
weighing the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable alternatives"
(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
Here, the husband filed his motion for a continuance one
week before the trial date and over four months after the judge
set the trial date. The primary reason for the husband's motion
was a spinal cord injury that required "extended medical
treatment" and rendered him unable to attend the trial. The
ongoing medical treatment. Because the wife presented unopposed
evidence -- in the form of a photograph depicting the husband
lifting a trailer -- undermining the husband's claim of
significant physical limitation, a denial of the husband's last-
minute motion was not "outside the range of reasonable
alternatives." L.L., 470 Mass. at 185 n.27. See Commonwealth
4 v. Werner, 81 Mass. App. Ct. 689, 698 (2012) ("We are in no
position to substitute our judgment for that of the judge on
credibility questions"). See also Beninati, 18 Mass. App. Ct.
at 535 ("The orderly management of the trial list is a
legitimate concern of a judge and, while not necessarily a
determinative consideration, ought not to be belittled").
2. Request to vacate. The husband argues that the
judgment of divorce should be vacated because the judge's
rulings -- particularly those regarding the division of property
-- were unsupported by the evidence presented at trial. The
husband contends further that his ability to challenge the
judgment was unfairly inhibited by the judge's decision not to
issue findings of fact and conclusions of law following the
trial.
"General Laws c. 208, § 34, confers broad discretion on a judge in . . . making an equitable property division. The judge's order must be accompanied by express findings which indicate that all relevant factors under § 34 have been fairly considered. 'The weight to be accorded each of the § 34 factors in a particular case is committed to the judge.' If the reasons for the judge's conclusions are apparent in [her] decision, [her] determinations as to . . . property division may not be reversed unless 'plainly wrong and excessive.'" (Citations omitted.)
Early v. Early, 413 Mass. 720, 727 (1992).
The judgment states that "[a]ll property has already been
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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-145
L.B.R.
vs.
B.J.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (husband) appeals from a judgment of divorce
nisi that entered in the Probate and Family Court following a
trial. On appeal, the husband argues that the trial judge erred
by refusing to grant his request for a continuance, crediting
the plaintiff's (wife's) representations at trial, failing to
issue factual findings, and ordering him to pay the wife child
support. Because the judge failed to make the statutory
findings required by G. L. c. 208, § 34, on the division of
property, we vacate that portion of the judgment and remand. We
otherwise affirm the judgment.
Background. The parties were married and had three
children together. On April 30, 2019, the wife filed a complaint for divorce, alleging an irretrievable breakdown in
the relationship.
On December 13, 2022 -- seven days before the trial date --
the husband filed a motion for a continuance due to, inter alia,
a spinal cord injury preventing his travel to the court. The
husband provided no documentary evidence of his injuries or
ongoing medical treatment. At trial, the wife presented a
photograph taken on December 17, 2022 -- four days after the
husband requested a continuance due to his injuries -- depicting
him lifting a trailer. In a handwritten endorsement denying the
husband's request for a continuance, the judge noted that the
photograph depicted the husband "engaging in activities without
limitation" and concluded that "[t]o the extent that [the]
[d]efendant's motion alleges he is unable to attend the trial
due to any injury, the court does not find this credible." The
husband noticed an interlocutory appeal on the continuance
issue, which was not addressed.
On December 20, 2022, the judge held a trial on the merits
with only the wife present and issued a judgment of divorce
nisi. The judgment did not include comprehensive findings of
fact and conclusions of law. In awarding attorney's fees to the
wife, the judge found that "[t]he [h]usband has repeatedly and
willfully ignored Court orders, impeded the divorce process,
2 misrepresented various facts, and harassed numerous individuals
related to the divorce." Elaborating further, the judge
concluded that "the [h]usband has not negotiated this matter in
good faith and that the [h]usband's actions are solely the
reason that this matter did not resolve short of trial." The
judge, among other things, also awarded the wife sole legal and
physical custody of the parties' minor children and $209 weekly
in child support to be paid by the husband. The husband
appealed.1
Discussion. We begin by noting that most of the
defendant's arguments are unsupported by legal authority and
therefore fail because they do not rise to the level of
appellate argument as required by Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019). However, in reviewing
the record and considering the husband's arguments, we discern
no error with the exception of the failure to issue factual
findings on the division of property.2
1 After the judgment, the husband filed several postjudgment motions. The judge denied all the motions. The husband did not include these motions in his notice of appeal.
2 While we are not insensitive to challenges faced by self- represented litigants, we hold them to the same standards as litigants represented by counsel. See Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997), cert. denied, 522 U.S. 982 (1997); Pandey v. Roulston, 419 Mass. 1010, 1011 (1995) ("The fact that the plaintiff is pro se does not excuse him from compliance with relevant rules of substantive and procedural law").
3 1. Motion for continuance. The husband argues that the
judge abused her discretion in denying his motion to continue
the trial date. We disagree.
"Whether a case shall be continued or proceed to trial is
within the sound discretion of the judge." Beninati v.
Beninati, 18 Mass. App. Ct. 529, 534 (1984). Trial judges abuse
their discretion when committing "a clear error of judgment in
weighing the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable alternatives"
(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014).
Here, the husband filed his motion for a continuance one
week before the trial date and over four months after the judge
set the trial date. The primary reason for the husband's motion
was a spinal cord injury that required "extended medical
treatment" and rendered him unable to attend the trial. The
ongoing medical treatment. Because the wife presented unopposed
evidence -- in the form of a photograph depicting the husband
lifting a trailer -- undermining the husband's claim of
significant physical limitation, a denial of the husband's last-
minute motion was not "outside the range of reasonable
alternatives." L.L., 470 Mass. at 185 n.27. See Commonwealth
4 v. Werner, 81 Mass. App. Ct. 689, 698 (2012) ("We are in no
position to substitute our judgment for that of the judge on
credibility questions"). See also Beninati, 18 Mass. App. Ct.
at 535 ("The orderly management of the trial list is a
legitimate concern of a judge and, while not necessarily a
determinative consideration, ought not to be belittled").
2. Request to vacate. The husband argues that the
judgment of divorce should be vacated because the judge's
rulings -- particularly those regarding the division of property
-- were unsupported by the evidence presented at trial. The
husband contends further that his ability to challenge the
judgment was unfairly inhibited by the judge's decision not to
issue findings of fact and conclusions of law following the
trial.
"General Laws c. 208, § 34, confers broad discretion on a judge in . . . making an equitable property division. The judge's order must be accompanied by express findings which indicate that all relevant factors under § 34 have been fairly considered. 'The weight to be accorded each of the § 34 factors in a particular case is committed to the judge.' If the reasons for the judge's conclusions are apparent in [her] decision, [her] determinations as to . . . property division may not be reversed unless 'plainly wrong and excessive.'" (Citations omitted.)
Early v. Early, 413 Mass. 720, 727 (1992).
The judgment states that "[a]ll property has already been
divided, and the Court credits that it has been divided evenly,
with a 50-50 distribution." Pursuant to the judgment, each
5 party also was entitled to retain his or her own motor vehicle,
retirement accounts, and bank accounts. The judge was required
to issue findings of fact and conclusions of law on the issue of
the property division within sixty days of the filing of the
notice of appeal. See Mass. R. Dom. Rel. P. 52 (a). The
findings are necessary to determine whether the judge properly
considered the factors pursuant to G. L. c. 208, § 34. See
Drapek v. Drapek, 399 Mass. 240, 243 (1987) ("The judge's
findings must indicate that he or she has weighed all the
statutory factors" [emphasis added]). Because the judge failed
to issue findings of fact and conclusions of law, we cannot
determine whether she properly weighed all the statutory
requirements when she made equitable property divisions as
required under G. L. c. 208, § 34. We therefore vacate the
portion of the judgment on the issue of property division and
remand for findings on the § 34 factors.
As to the husband's argument that the divorce judgment was
otherwise unsupported by the evidence at trial, the husband has
the burden of presenting an appellate argument and producing a
record appendix that are adequate for appellate review. See
Mass. R. A. P. 16 (a) (9); Mass. R. A. P. 18 (a), as appearing
in 481 Mass. 1637 (2019). The rule "is more than a 'mere
technicality. It is founded on the sound principle that the
6 right of a party to have this court consider a point entails a
duty; that duty is to assist the court with argument and
appropriate citation of authority.'" Cameron v. Carelli, 39
Mass. App. Ct. 81, 85-86 (1995), quoting Lolos v. Berlin, 338
Mass. 10, 14 (1958). Here, the husband's failure to present the
transcript of the divorce trial -- a critical portion of the
factual record -- precludes our review of his request to vacate
the divorce judgment based on insufficient evidence.
3. Child Support. The husband argues that the judge erred
in awarding the wife child support because one of the parties'
children -- an adult at the time of judgment -- lives with him.
We disagree.3
As an initial matter, the husband's assertions concerning
child support are unsupported by adequate legal argument or a
record that supports his claim.4 In any event, even if we were
to consider the husband's arguments, G. L. c. 208 § 28, dictates
that "[t]he court may make appropriate orders of maintenance,
3 The husband also argues that the child support awarded by the judge exceeded the amount allowed by law. This claim, unsupported by legal authority or citation to the record, does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9).
4 In addition to the trial transcript, the husband also did not provide the parties' financial statements or the child support guidelines worksheets.
7 support and education of any child who has attained age eighteen
but who has not attained age twenty-one and who is domiciled in
the home of a parent, and is principally dependent upon said
parent for maintenance." Here, to the extent that the judge
declined to award support to the husband for the adult child,
this action was permissible. The child support statute, permits
-- not requires -- a judge to award child support for an adult
child between the ages of eighteen and twenty-one years old.5
Conclusion. So much of the judgment of divorce nisi as
pertains to property division is vacated, and the case is
remanded for the judge to make findings required by G. L.
c. 208, § 34, and issue an amended judgment of divorce,
5 With regard to additional claims raised by the husband, we conclude that they do not merit further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954) ("Other points, relied on by the [husband] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion").
8 consistent with this memorandum and order. The judgment of
divorce nisi is affirmed in all other respects.
So ordered.
By the Court (Rubin, Neyman & Tan, JJ.6),
Clerk
Entered: August 22, 2025.
6 The panelists are listed in order of seniority.