Silva v. Silva

Massachusetts Supreme Judicial Court

Silva v. Silva

2 N.E.3d 188, 466 Mass. 1037, 2014 WL 68060, 2014 Mass. LEXIS 5

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 10, 2014

StatusPublished

This text of 2 N.E.3d 188 (Silva v. Silva) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Silva v. Silva, 2 N.E.3d 188, 466 Mass. 1037, 2014 WL 68060, 2014 Mass. LEXIS 5 (Mass. 2014).

Pincite

Opinion

Robert Silva¹ appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.

In connection with divorce proceedings, Robert filed a complaint for contempt against his wife, Heather Silva, alleging that she disobeyed an order of the Probate and Family Court concerning visitation with the parties’ child. After a hearing, a judge in that court found that Heather was not guilty of contempt and entered judgment accordingly. Robert’s G. L. c. 211, § 3, petition sought relief from that judgment.

Robert has filed, in the full court, a motion to reconsider, which appears intended as a memorandum and appendix pursuant to SJ.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule does not apply, as Robert is challenging a final judgment of contempt, not any “interlocutory ruling in the trial court” (emphasis added). SJ.C. Rule 2:21 (1). “Regardless whether rule 2:21 applies, however, ‘[rjelief pursuant to G. L. c. 211, § 3, is not available where the alleged error or abuse can be adequately and effectively remedied through the normal appellate process or through some other available method of review.’ ” DeFeudis v. DeFeudis, 449 Mass. 1030, 1031 (2007), quoting Hines v. Superior Court, 423 Mass. 1005, cert. denied, 519 U.S. 984 (1996). It is clear on the record before us that Robert had an adequate remedy in the ordinary appellate process, as he could have taken a direct appeal from the judgment on his complaint for contempt. See, e.g., Freudis v. Hartwell, 80 Mass. App. Ct. 496, 501 (2011) (appeal from judgment that former spouse not guilty of contempt); Ainslie v. Ainslie, 6 Mass. App. Ct. 692, 693 (1978) (immediate appeal, during pendency of divorce proceedings, from judgment of contempt). The fact that Robert claims that he is being prevented from visiting with his child does not mean that the Appeals Court could not resolve the matter fairly and expeditiously. Accordingly, he was not entitled to extraordinary relief.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Robert Silva¹ appeals from a judgment of a single justice of this court denying, without a hearing, his petition for relief under G. L. c. 211, § 3. We affirm.

In connection with divorce proceedings, Robert filed a complaint for contempt against his wife, Heather Silva, alleging that she disobeyed an order of the Probate and Family Court concerning visitation with the parties’ child. After a hearing, a judge in that court found that Heather was not guilty of contempt and entered judgment accordingly. Robert’s G. L. c. 211, § 3, petition sought relief from that judgment.

Robert has filed, in the full court, a motion to reconsider, which appears intended as a memorandum and appendix pursuant to SJ.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule does not apply, as Robert is challenging a final judgment of contempt, not any “interlocutory ruling in the trial court” (emphasis added). SJ.C. Rule 2:21 (1). “Regardless whether rule 2:21 applies, however, ‘[rjelief pursuant to G. L. c. 211, § 3, is not available where the alleged error or abuse can be adequately and effectively remedied through the normal appellate process or through some other available method of review.’ ” DeFeudis v. DeFeudis, 449 Mass. 1030, 1031 (2007), quoting Hines v. Superior Court, 423 Mass. 1005, cert. denied, 519 U.S. 984 (1996). It is clear on the record before us that Robert had an adequate remedy in the ordinary appellate process, as he could have taken a direct appeal from the judgment on his complaint for contempt. See, e.g., Freudis v. Hartwell, 80 Mass. App. Ct. 496, 501 (2011) (appeal from judgment that former spouse not guilty of contempt); Ainslie v. Ainslie, 6 Mass. App. Ct. 692, 693 (1978) (immediate appeal, during pendency of divorce proceedings, from judgment of contempt). The fact that Robert claims that he is being prevented from visiting with his child does not mean that the Appeals Court could not resolve the matter fairly and expeditiously. Accordingly, he was not entitled to extraordinary relief.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

2 N.E.3d 188, 466 Mass. 1037, 2014 WL 68060, 2014 Mass. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-silva-mass-2014.

Opinion

Related

Cite This Page — Counsel Stack