text:
    Maureen A. MAESTRANZI v. Patricia H. AMBROSE, executrix, & another.
    17-P-889
    Appeals Court of Massachusetts.
    Entered: June 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the estate of Michael J. O'Brien.

      The Executive Office of Health and Human Services, intervener (hereinafter referred to as MassHealth).

   In 2002, the plaintiff filed a complaint in Superior Court against her brother, Michael J. O'Brien. The complaint alleged that O'Brien had failed to provide the plaintiff with her share of the income from a property they owned as tenants in common located at 44-46 Central Street in Manchester-by-the-Sea ("the property" or "their property"). The complaint also contained a chart with damage calculations. Twenty-three days after the plaintiff served the complaint on O'Brien, she requested a default judgment under Mass.R.Civ.P. 55(b)(1), as amended, 423 Mass. 1402 (1996). The judge instructed the clerk to schedule a damages hearing, ostensibly in accordance with Mass.R.Civ.P. 55(b)(2), as amended, 423 Mass. 1402 (1996), and the clerk sent the parties notices to appear for that hearing. However, before the hearing could be held, the clerk entered a default judgment against O'Brien in the amount of $283,226.96, representing the plaintiff's fifty per cent share of the sum total of eighteen specified amounts she alleged O'Brien owed her by withholding her share of the rental value for the house they owned (the 2003 judgment). The plaintiff obtained an execution and began the process of levying against the property, but she later ordered the sheriff to suspend the levy. However, she did subsequently carry forward the levy, and the letter doing so is recorded in the appropriate registry of deeds.

The plaintiff never executed the levy on the property during O'Brien's lifetime. According to an affidavit submitted in the later proceedings which are the subject of the present appeal, the substance of which was not materially challenged, there was no need to execute the levy because she and O'Brien had agreed that, if he did not contest the complaint, the plaintiff and her husband would care for him (providing food, lodging, transportation, and other expenses), using a series of loans made by the plaintiff's husband to the plaintiff and O'Brien. The plaintiff and O'Brien granted the plaintiff's husband mortgages on the property to secure repayment of two of these loans. The plaintiff further agreed that O'Brien, then in declining health, could continue to live at their property, which the plaintiff renovated, including making it handicapped accessible for him. O'Brien never contested the complaint or the judgment, and the plaintiff and her husband followed through with the loans, care, and house renovations, all to his benefit. O'Brien died in 2011 with only one significant potential asset: his one-half interest in the property. Two claims were made against the estate: the 2003 levied default judgment obtained by the plaintiff, and MassHealth's claim pursuant to G. L. c. 118E, §§ 31 & 32, to recover funds spent on O'Brien's care. The estate's assets are insufficient to satisfy both claims. In 2014, following a hearing in the Probate and Family Court (Probate Court) on the two claims, judgment entered declaring that the plaintiff's claim on her levied judgment held priority over MassHealth's claim. Neither MassHealth nor O'Brien's estate-which throughout the proceeding disavowed to the Probate Court judge and the plaintiff any intention to challenge the plaintiff's 2003 judgment-appealed from the Probate Court judgment. Several months prior to that judgment, O'Brien's executrix, joined by MassHealth as an intervener, had filed in the Superior Court a motion to vacate the 2003 default judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). The motion was stayed pending the Probate Court's resolution of the claim priority issue. After the Probate Court judgment was entered, a Superior Court judge vacated the stay and held a hearing on the motion to vacate the 2003 default judgment, in which no live testimony was permitted.

In his July 22, 2016, memorandum and order granting the motion to vacate, the judge, citing our earlier decision (see note 5, supra ), noted that rule 60(b)(4) imposes no hard time limit to vacate judgments that are "void." Citing Hermanson v. Szafarowicz, 457 Mass. 39 (2010), the judge stated that the plaintiff's calculation of damages "presented a number of substantial questions" concerning the damages being sought and ruled that it was error for the clerk to enter default judgment without a hearing. This error, the judge concluded, rendered the 2003 judgment void from its inception. Accordingly, the judge vacated the 2003 judgment. The plaintiff has appealed from that order. Because we conclude that the 2003 judgment was not void, we reverse and order it reinstated.

Discussion. A judgment is void under rule 60(b)(4) if "the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law." Harris v. Sannella, 400 Mass. 392, 395 (1987). However, a judgment issued erroneously does not necessarily render it "void" within the meaning of rule 60(b)(4). See Reporter's Notes to Mass.R.Civ.P. 60(b) ("An erroneous judgment is not a void judgment"). "[A] void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect. In the interest of finality, the concept of void judgments is narrowly construed." Harris, supra at 395, quoting from Lubben v. Selective Serv. Sys., 453 F.2d 645, 649 (1st Cir. 1972). Furthermore, " Rule 60 does not provide for general reconsideration of an order or a judgment.... Nor does it provide an avenue for challenging supposed legal errors, nor for obtaining relief from errors which are readily correctible on appeal." Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 236 (1985) (citations omitted). "Rule [60(b) ] may not be used as a substitute for a timely appeal." Harris, supra at 395, quoting from Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

In Hermanson, 479 Mass. at 49, on which the motion judge relied heavily, the Supreme Judicial Court explained that Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996), "should be construed to require findings of fact when a judge is determining damages in connection with a default judgment." While the court vacated the default judgment for failure to hold a hearing on damages or make factual findings, id. at 50, as the plaintiff correctly notes, it did not vacate the default judgment as "void" under rule 60(b)(4). See id. at 45 n.9. Thus, while the judge in the present case concluded that the Superior Court erred in failing to hold a hearing or make factual findings on the issue of damages, such a conclusion does not render the 2003 judgment void. See O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 455 (1991) (concept of void judgments is narrowly construed). Neither the defendant nor the intervener has cited to us any case law, and we are not aware of any, holding that failure to hold a hearing on damages prior to issuing a default judgment renders a judgment void. As such, it was error for the judge to vacate the 2003 judgment as void under rule 60(b)(4).

As rule 60(b)(4) is inapplicable here, the only other available method of attacking the judgment is through a rule 60(b)(6) motion. See Bromfield v. Commonwealth, 400 Mass. 254, 256 (1987) (relief under 60[b][6] only available when ground for relief does not fall under 60[b][1]-[5] ). A court may set aside a judgment for "any other reason justifying relief from the operation of the judgment" if a motion is brought "within a reasonable time." Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974). Here, the executrix did not file the motion to vacate the 2003 judgment until 2014, and then only at MassHealth's urging, roughly three years after O'Brien's death, an eleven-year delay. Such a delay is unreasonable "where [the defendant] was, or at least reasonably should have been, aware of the grounds on which [the motion to vacate] could have been brought long before bringing it." Owens v. Mukendi, 448 Mass. 66, 68 (2006). Furthermore, as noted, rule 60(b)(6) cannot be used as a substitute for a timely appeal. See Bromfield, supra at 257. Nor is this a case where "extraordinary circumstances" require us to set aside the 2003 judgment. Ibid. See Artco, Inc. v. DiFruscia, 5 Mass. App. Ct. 513, 517 (1977).

Under ordinary circumstances, we would likely remand this case back to the Superior Court for a hearing to assess damages. See Jones v. Boykan, 464 Mass. 285, 294 (2013), and Hermanson, supra. However, for three reasons, this case is markedly different from Jones and Hermanson. First, the aggrieved defendants in both Jones and Hermanson filed reasonably timely motions for relief from the default judgments entered against them, and then timely appealed from the denials of those motions-the proper avenue to challenge judgments thought to be erroneous. Second, in the present matter the Probate Court already determined in 2014 that the 2003 judgment in favor of the plaintiff enjoys priority over MassHealth's claim against O'Brien's estate. Not having appealed the Probate Court judgment, both MassHealth and the estate remain bound by it on the question of priority. Vacating the Superior Court judgment would necessarily vitiate the plaintiff's claim priority against the estate, thus rendering the Probate Court judgment of no effect. Third, as noted, in the present case the motion to vacate was not brought "within a reasonable time," as rule 60(b)(6) requires. O'Brien's executrix, who had been his life partner, knew of the 2003 judgment at least as early as July, 2006. See note 4, supra. Owing entirely to O'Brien's, and his estate's, protracted and purposeful inattention to this suit, and the motion to vacate the judgment having been brought only after MassHealth's defeat in the Probate Court in its quest for claim priority (during which the estate continued to disavow any intent to challenge the plaintiff's 2003 Superior Court judgment), the action now spans more than sixteen years. Over that period, the plaintiff-in reasonable reliance on her fulfilled agreements with her late brother concerning her care of him, and the property renovations accomplished with borrowed money-changed her position to her detriment. Given this substantial passage of time, it would be manifestly unfair and unjust to vacate the 2003 judgment and require the plaintiff to present, on remand, evidence necessarily stale, lost, or otherwise unavailable through no fault of her own. Here, the "balance between serving the ends of justice and preserving the finality of judgments," Harris, supra at 395, weighs heavily in favor of respecting the finality of the 2003 judgment.

Accordingly, the Superior Court's order of July 28, 2016, vacating the default judgment entered on February 21, 2003, is reversed. The 2003 judgment is reinstated in all respects, with all due ministerial modifications, including interest and costs.

So ordered.

Reversed.

      Subsequent amendments to rules 55(b)(1) and (2) are not material to our decision.

      One such loan, for $50,000, was memorialized in a June 26, 2006, promissory note signed on O'Brien's behalf by his life partner, Patricia Ambrose, who would later be appointed executrix of his estate. The note specifies that it is secured by a first mortgage on the property "and [is] subject to the [2003] judgment."

      The plaintiff appealed the judge's allowance of MassHealth's motion to intervene. On an interlocutory appeal allowed by the single justice, a panel of this court affirmed the lower court's ruling in an unpublished decision issued pursuant to Appeals Court rule 1:28. Maestranzi v. O'Brien, 88 Mass. App. Ct. 1109 (2015).

      In a footnote in our earlier decision, the panel stated that "the Superior Court judge has authority to consider the rule 60(b)(4) motion despite the lengthy period of time since the judgment entered. See Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29, 31 (1983) ('Notwithstanding the powerful interest in finality of judgments, a motion for relief from a judgment which was void from its inception lies without limitation of time')." The panel did not elaborate further on this point.

      The court in Harris noted that "[p]roperly applied[,] Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments." 400 Mass. at 395.

      The defendants in Jones filed a rule 60(b) motion approximately one week after receiving notice of the default judgment, Jones, supra at 287-288; the defendant in Hermanson filed his motion approximately seven months after the default judgment issued. Hermanson, supra at 42-43.

      Indeed, the motion judge rightly acknowledged the difficulties the plaintiff faced in supplying evidence corroborating her more than thirteen year old agreement with her brother, noting that her sole source of additional corroboration was her brother, who had died about three years before the filing of the motion to vacate the judgment.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Leonardo MENDOZA.
    17-P-178
    Appeals Court of Massachusetts.
    Entered: June 14, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Leonardo Mendoza, was convicted of assault and battery by means of a dangerous weapon. Subsequently, he moved for a new trial, alleging ineffective assistance by both trial counsel and former appellate counsel; he also contends that the prosecutor's comments during closing argument created prejudicial error. The new trial motion was denied, and the defendant appealed. We affirm, relying in substantial part on the motion judge's careful and thorough findings.

Background. The underlying facts are fairly straightforward. The victim testified that, on June 19, 2010, she and her fifteen year old daughter were returning to her New Bedford apartment from shopping; the victim was driving. When she could not find a parking space at her apartment, she parked in a nearby lot where, she said, the landlord had given her permission to park. As she did so, the defendant, who was in the parking lot, confronted her and told her that she could not park there. When she refused to move, he grabbed her, dragging her out of the car and calling her names; he pulled out a knife and, holding onto her blouse around the neck area, he put the knife to her throat and told her he would kill her if she yelled. In the meantime, the victim's fifteen year old daughter started screaming and telephoned the police; at trial she largely corroborated her mother's testimony. One of the daughter's three brothers arrived at the scene soon afterwards, just as the police were arriving.

A State police officer also testified that he received a call when he was a short distance away from the scene. When he arrived, he saw the defendant yelling at a woman who was "frozen" and "crying." "The young girl was screaming and crying on-appeared to be a cell phone." The defendant said to the trooper, "[T]hat fuckin' bitch doesn't live here, she can't park here, this is my parking space, this is America." The trooper saw red marks on the victim's upper chest, along with a straight-line cut. Photographs of the injuries were admitted in evidence. The trooper arrested the defendant and, in so doing, retrieved "a folded knife in a sheath on his belt of his pants."

Second motion for new trial. a. Trial counsel. The defendant first contends that trial counsel was ineffective because she did not investigate the defendant's allegation that he had earlier been involved in an altercation with one of the victim's three sons; the defendant argues that case provided a motive for the victim to lie about him. The earlier incident was first reported on June 6, 2010, by the defendant and his girl friend, Sara Fowle, allegedly a witness to that attack; at that time, the two said that they did not know the identity of the alleged attacker.

On July 14, 2010, the New Bedford police prepared a modified report reciting that William Gomez-Perez had committed an assault and battery by means of a dangerous weapon against the defendant on June 6, 2010. It appears from the modified report that, on July 14, 2010, the defendant and his girl friend returned to the police and identified William Gomez-Perez, who lived next door to the defendant-and who was the son of the victim in the case at issue-as the attacker. A criminal complaint issued against Gomez-Perez on the same day. On January 5, 2012, the charges against Gomez-Perez were dismissed without prejudice with a docket entry that said "wrong person charged." The case at issue here was tried on December 13, 2012, more than eleven months later.

The defendant agrees that Gomez-Perez was the wrong person, but argued to the motion judge that he was actually attacked by another of the victim's sons, Alvaro Gomez-Perez. Nothing in this record, apart from the defendant's affidavit, filed in support of that second motion for a new trial, corroborates his allegation that Alvaro Gomez-Perez was involved in, or ever charged with, the June 6, 2010, incident described by the defendant and his girl friend.

In reviewing the denial of a motion for a new trial, we apply the familiar test of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (whether counsel's performance falls below that of "an ordinary fallible lawyer" and, if so, has it "deprived the defendant of an otherwise available, substantial ground of defence"). "We also consider whether there is 'some showing that better work might have accomplished something material for the defense.' " Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272 (2009), quoting from Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting from Commonwealth v. Adams, 374 Mass. 722, 728 (1978). See Commonwealth v. Diaz, 448 Mass. 286, 288 (2007).

Here, the defendant in fact offered a defense at trial, presenting two witnesses who testified that the defendant did not assault the victim but, rather, that the victim's son assaulted the defendant, who then took the knife away from the attacker. In addition, because there is no affidavit from trial counsel, there is no way of knowing whether she did, in fact, investigate the earlier criminal case, but came to the conclusion that the June 6 incident was not relevant to this case. The defendant states in his supporting affidavit that he was not aware if trial counsel "investigated the matter further," although he emphatically claims on appeal that she pursued no investigation.

After careful review, we are satisfied that the defendant has failed to show that trial counsel was ineffective. The evidence against him at trial was overwhelming and the defense that he did offer-and that the jury rejected-was arguably more plausible than the one he now advances. In addition, as the motion judge observed, "trial counsel could reasonably have concluded that evidence about Mendoza's having been beaten in a fight with one of Perez's sons before the incident between Mendoza and Perez would be more harmful than helpful at trial," providing, as it did, a motive for the defendant to attack Perez. Finally, the judge was not required to take as true the statements contained in the defendant's self-serving affidavit filed in support of his motion. See Commonwealth v. Denis, 442 Mass. 617, 633 (2004).

b. Former appellate counsel. The defendant also alleges that former appellate counsel provided ineffective assistance in failing to raise on appeal the fact that trial counsel had failed to investigate the defendant's allegations about an altercation on June 6, 2010. This argument also fails. "The standard for determining ineffective assistance of appellate counsel is the same standard set forth in Saferian, [366 Mass. at 96 ]." Commonwealth v. Aspen, 85 Mass. App. Ct. 278, 281 (2014). However, "we focus on whether appellate counsel 'failed to raise a significant and obvious issue ... which ... may have resulted in a reversal of the conviction, or an order for a new trial.' " Id. at 282, quoting from Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993).

In this case, former appellate counsel raised three issues in the first motion for a new trial. As counsel stated in his supporting affidavit, "[b]ecause [he] felt, in [his] professional judgment, the [three issues] were sufficient to succeed in the [m]otion for a [n]ew [t]rial that [he] filed, [he] did not pursue other potential arguments by investigating other matters between parties central to this case including Mr. Mendoza and the complaining witness'[s] children." Counsel contends that pursuing the chosen issues, and not raising the June 6 incident, was "not a tactical or strategic choice." However, we conclude that, based on the circumstances surrounding the allegations against the victim's son, it would not have been "manifestly unreasonable" for appellate counsel to disregard that evidence, and to pursue the chosen issues instead, as reversal of the judgment or an order for new trial based solely on the alleged June 6, 2010, altercation was unlikely. See Aspen, supra. See also Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 432 (2005), quoting from Commonwealth v. Conley, 43 Mass. App. Ct. 385, 392 (1997) (attorney tactics or strategy "will not be considered ineffective assistance unless they were 'manifestly unreasonable' ").

Based on this record, we conclude that neither trial counsel's failure to investigate and present evidence about the June 6 incident, nor former appellate counsel's failure to argue that trial counsel's failure to do so, constitutes behavior "below the standard of an ordinary, fallible lawyer." Saferian, 366 Mass. at 96. Nor do we see any basis to conclude that counsel's failure to litigate that issue created a substantial risk of a miscarriage of justice. As a result, we discern no error, and certainly no abuse of discretion, in denying the defendant's second motion for a new trial.

Closing argument. The defendant argues for the first time on appeal that the portion of the prosecutor's argument that challenged the credibility of the defendant's former girl friend constituted prosecutorial misconduct. He contends that, by dismissing the witness's account of the June 6, 2010, incident, the prosecutor was presenting to the jury independent knowledge that the witness's report of the incident was fabricated. Because the defendant did not object at trial, "we review for a substantial risk of a miscarriage of justice." Commonwealth v. Pearce, 427 Mass. 642, 646 (1998).

The prosecutor summarized Fowle's testimony-about a knife fight that Fowle said had taken place in the defendant's apartment building a few weeks before the incident at issue here. In sum, the prosecutor asked the jury to consider the details of the testimony: the witness testified that the defendant had telephoned her while he was in the middle of a fight, asking her to come over. When she arrived, "she rushes to the second floor and sees another person on top of Mr. Mendoza with a knife." Incredibly there are two other male friends of the defendant witnessing the fight, but Ms. Fowle "comes in, saves the day, kicks the knife out of [the attacker's] hand, gets a good look at that knife, knows exactly which knife that was. It just so happens to be the same knife that was found on Mr. Mendoza [the day he was arrested for this crime], and then they left the scene."

In making his closing argument, the prosecutor is entitled to "marshal the evidence" and to argue that the jury should disbelieve the testimony of a witness testifying on behalf of the defendant. Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). This argument was a fair analysis of the witness's testimony. It was not improper for the prosecutor to argue that the story Fowle told about the June 6, 2010, incident was improbable. See Commonwealth v. Celester, 473 Mass. 553, 575 (2016). In addition, the "judge instructed the jury that closing arguments were not evidence and only facts in evidence could be considered during deliberations." Id. at 577. We are satisfied that the prosecutor's statements did not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

Order denying second motion for new trial affirmed.

      The defendant was acquitted of the charge of threatening to commit a crime. His direct appeal was stayed pending the outcome of his first motion for a new trial.

      It appears from this record that the denial of the defendant's first motion for a new trial was not timely appealed by former appellate counsel, nor did subsequent appellate counsel attempt to rectify the untimeliness. Instead, subsequent appellate counsel filed a second motion, making a different argument. As a result, a challenge to the denial of the first motion for a new trial is not part of this appeal.

      The victim testified that she had never seen the defendant before.

      According to the defense witnesses, the defendant normally used the sheath from which the trooper later seized the knife to hold business cards.

      According to former appellate counsel's supporting affidavit, when preparing the first motion for a new trial he attempted to contact trial counsel to no avail. He concluded, after some investigation, that trial counsel no longer practices law in Massachusetts.

      Counsel claimed in his motion that trial counsel was ineffective (1) in preparing for trial, (2) for failing to notify the defendant of his right to testify, and (3) for failing to properly follow notification procedures in admitting evidence.

      Indeed, the hiring of an investigator by former appellate counsel to track down trial counsel is evidence of the extent of his efforts in representing the defendant in preparation of the first motion for a new trial.

      The defendant specifically challenges the following statements by the prosecutor: "Well, what I'm gonna suggest to you is [Ms. Fowle] gave you a version of events about a supposed knife fight that took place in an apartment and conveniently two weeks before this event. And what I'd like you to consider about that is whether that event even happened ..... It just so happens to be the same knife that was found on Mr. Mendoza in his sheath that day, and then they left the scene. Can't remember what police officers they talked to, but they know they reported it to the police. Folks, I'd suggest to you, again, that that story is equally unbelievable to you, and today should not be believed as a way to explain where that knife was seen before."

      Apparently, it is this same incident that the defendant argues trial counsel failed adequately to investigate.

      To the extent that we do not address the defendant's other arguments, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    ADOPTION OF SABRINA.
    17-P-1461
    Appeals Court of Massachusetts.
    Entered: June 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a decree of the Juvenile Court that terminated her parental rights and failed to grant her posttermination or postadoption visitation. She argues that many of the judge's findings of fact are clearly erroneous, that these errors warrant reversal, and that the judge abused her discretion by failing to grant visitation. Although we will assume the mother is correct in some instances, we nonetheless affirm.

Facts. The record reveals the following, with additional facts reserved for discussion. The Department of Children and Families (DCF or department) first became involved with the child in August, 2015, eight days after she was born, following the filing of a supported G. L. c. 119, § 51A, report (51A report) alleging neglect based on the mother's testing positive for marijuana during her pregnancy. Although there was no evidence that marijuana exposure had any adverse effects to the child, she was not a healthy baby, and was hospitalized for most of the first five months of her life as a result of two medical conditions. One condition was laryngomalacia, which caused her difficulty swallowing and breathing. She had surgery for this condition on September 14, 2015, but continued to experience difficulties. By December 5, 2015, the child still had a "significant airway issue" that required her to expend a large amount of energy on breathing, resulting in her "burning many more calories than she [was] taking in." As a result of this airway issue, she was diagnosed as a "failure to thrive" baby, and had surgery on December 23, 2015, to insert a feeding device known as a G-tube, off of which she was being weaned at the time of trial in March of 2017. The doctor who treated the child on December 5, 2015, had "no concerns" regarding the mother's care of the child and did not attribute the child's failure to thrive to any neglect on the mother's part.

Unlike her laryngomalacia diagnosis and related symptoms, the child's other medical condition raised concerns at the time regarding the mother's parental fitness. Shortly after birth, the child exhibited symptoms consistent with neonatal abstinence syndrome (NAS), a syndrome caused by opiate exposure during pregnancy. One of these symptoms was positive response to neonatal morphine. The child's symptoms were particularly concerning in light of the mother's history of opiate addiction and her use of opiates during a previous pregnancy. However, the mother denied using opiates during her pregnancy with the child, and the child's urine and meconium screens were negative. One neonatologist opined that, "absent any other medical information," he would explain the child's symptoms as being caused by the child's exposure to Effexor and Klonopin, medications that the mother was prescribed to treat her anxiety, depression, and obsessive-compulsive disorder. A few weeks later, though, a second neonatologist concluded that only NAS could explain the child's symptoms.

The record does not disclose how often the mother visited the child in the hospital during the first two months of the child's life, but both medical staff and DCF were concerned that she was not visiting enough. The mother attributed at least some of her absences to an illness and her distance from the hospital: the mother lived in Bridgewater, and the child spent time in both the South Shore Hospital in Weymouth and the Children's Hospital in Boston.

The child was first discharged from the hospital in mid-October, 2015, into the care of the mother and the father listed on the child's birth certificate, who did not establish paternity and is not part of this appeal. Around this time, on October 22, 2015, the Probate and Family Court granted temporary custody of the mother's other two children to their biological father.

In the couple of months after the child was first discharged, the mother caused the child to miss several pediatric appointments, purportedly due to transportation issues. The child was readmitted to the hospital November 20-25, 2015, for her inability to gain weight. The mother missed some feeds during this hospital stay, although a doctor noted that the mother was "very appropriate in her handling of the baby and knowledgeable about the directed caloric intake for the baby and her medical condition." On December 2, 2015, a pediatrician instructed the mother to bring the child to the hospital if she did not reach a certain weight by December 4. The child did not meet that weight target, and the mother brought the child to the hospital.

On December 7, 2015, while the child was in the hospital, the mother was evicted from her home. After her eviction, the mother was absent from the hospital. Social workers were concerned about the mother's absence because the child was not finishing her bottles and the mother was typically able to get her to finish them. At some point-the record does not disclose when-the mother and the putative father apparently moved in with the child's putative father's brother in Weymouth, but social workers were never able to enter the home because the brother locked the mother out when he was not there.

On December 11, 2015, DCF took emergency custody of the child because it was concerned that the mother might sign the child out of the hospital against medical advice. While the child was in the hospital, the mother visited the child infrequently despite being offered daily visits. As a result, DCF reduce the mother's visitation to one hour every three weeks. The child remained in the hospital until January 13, 2016, when she was transferred to New England Pediatric Care in North Billerica. The mother attended no visits with the child in North Billerica. On March 31, 2016, the child was placed in medical foster care in Orange. The mother visited the child twice after this placement, the last visit being in May of 2016. Although she had previously attributed her failure to visit the child to financial difficulties, the mother did not accept DCF's offer of public transportation vouchers. She also refused DCF's offer to instruct her on how to use the G-tube, claiming, apparently incorrectly, that she knew how to use one. The mother did not attend trial.

Termination of parental rights. The mother first argues that the judge erred in terminating her parental rights to the child. To terminate a parent's rights, a judge must find that the parent is unfit and that termination of the parent's rights is in the child's best interests. See Adoption of Nancy, 443 Mass. 512, 515 (2005). The mother challenges only the judge's finding of unfitness. Parental unfitness "means more than ineptitude, handicap, character flaw, conviction of a crime, unusual lifestyle, or inability to do as good a job as the child's foster parent. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the child's welfare much at hazard." Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997) (footnotes and quotation omitted). A judge must find unfitness by clear and convincing evidence, although he or she need only find subsidiary facts by a preponderance of the evidence. See Care & Protection of Laura, 414 Mass. 788, 793 (1993). A judge must base his or her determination of unfitness on an "even-handed, proper assessment of all the facts." Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 22 Mass. App. Ct. 62, 69 (1986). An appellate court will not disturb a judge's findings unless they are clearly erroneous. See Custody of Eleanor, 414 Mass. 795, 799 (1993).

A. Challenged findings. The mother challenges a number of the judge's findings of fact as either clearly erroneous or not even-handed assessments of the evidence. We analyze the challenged findings by category.

1. The mother's care for the child. The judge made a number of findings that painted the mother's ability to care for the child in a negative light. First, the judge found that "Mother has failed to monitor the child's weight," that "Mother lacks insight into [the child's] needs," and that "[w]hen she did visit, Mother did not assist with [the child's] care."

The finding that "Mother has failed to monitor the child's weight" is unsupported to the extent it means that she was unconcerned about the child's weight. The only evidence in the record regarding the mother's monitoring of the child's weight is a comment from Dr. Michael Piccioli, who examined the child when she was admitted to the hospital on December 4 or 5 for her weight problems. Dr. Piccioli said that the mother was "very appropriate and knowledgeable about [the child]'s feedings and caloric intake," and noted that she fed the baby "using a sideline feed which is often how parents are taught to feed baby's [sic ] with feeding issues." While the child did lose weight after being discharged to the mother's care, Dr. Piccioli attributed this to the child's medical condition alone. The evidence thus contradicts the judge's finding. Similarly, the judge's finding that the mother lacked insight into the child's needs is at least arguably misleading because it ignores Dr. Piccioli's observation that the mother was "very ... knowledgeable" about some of those needs. It does not rise to the level of clear error, though, because the mother's inattentiveness to the child, as demonstrated by her causing the child to miss three pediatric appointments and her occasional failure to feed and console the child when they were in the hospital, could have resulted from a lack of appreciation of the child's needs.

Next, there was evidence that the mother missed feedings during visits, so the judge was entitled to conclude that, during some visits, the mother did not assist with the child's care. However, the judge's finding that the mother "did not assist" with the care is also at least arguably misleading because it suggests that the mother never assisted with the child's care. And this the judge was not entitled to conclude. In addition to Dr. Piccioli's comment about the mother capably feeding the baby, one social worker was concerned that the mother was missing feeds in part because only the mother (and the child's putative father) was able to ensure that the child ate all her food. This presupposes that the mother did assist with the child's care on at least some occasions, and was an important part of it.

In addition to these findings, the judge made several references to the child's weight problems and her diagnosis of failure to thrive. The judge also compared the child's progress in the mother's care with her progress while in DCF's custody in the following way: "In the short period of time that [the child] was in Mother's home she did not fare well. She has made physical and developmental strides in the Department's temporary custody." The mother argues that these references and comparisons are not even-handed assessments of the evidence because they suggest, incorrectly, that the mother's alleged neglect was responsible for the child's weight problems.

As our recitation of the facts shows, there is no evidence that the mother was responsible for the child's weight problems, and we agree that the findings as presented may reasonably appear to mischaracterize the evidence. Although the judge elsewhere noted that "Dr. Piccioli raised no concerns regarding Mother," the judge's findings concerning the child's ill health might reasonably be interpreted as implicit imputations of responsibility, especially when combined with the finding that the mother did not monitor the child's weight. Furthermore, the judge's comparison of the child's health while in the mother's and DCF's care is at least arguably unfair because it does not mention the G-tube surgery, which took place after DCF obtained custody and presumably accounted for much of the child's physical improvement.

2. The mother's substance use and mental health issues. The judge found that the mother's mental health treatment and treatment for substance use were "inconsistent," that she did not participate in mental health counseling, and that she stopped attending outpatient treatment for her opiate addiction. The judge also found that she rejected DCF's offer for a mental health referral, and concluded that "Mother fails to recognize and attend to her own needs." The mother challenges these findings as either clearly erroneous or not even-handed assessments of the evidence.

The evidence supports the judge's finding that the mother had stopped attending treatment for substance use, which itself supports the conclusion that her treatment for substance use was inconsistent. The evidence also supports the judge's finding that the mother rejected DCF's offers for referrals and did not attend mental health counseling. However, there is nothing in the record to suggest that the mother was experiencing symptoms relating to her mental health issues that required treatment on top of the medication she was already taking. The judge's conclusion that the mother "fails to recognize and attend to her own needs" therefore can at least be argued to be misleading, at least insofar as it refers to her mental health issues. The same can perhaps be said about the finding that the mother's mental health treatment was "inconsistent": the record reveals no lapses in her mental health treatment apart from two isolated incidents in which she ran out of Klonopin, one of which was immediately before giving birth to the child, and the other of which she had already taken steps to rectify before the social worker discovered it.

The judge also found that the mother "used opiates during her pregnancy with [the child]," that the child "suffers from neonatal abstinence syndrome," and that the child's symptoms "squared with opiate withdrawal." The mother argues that the evidence in the record, including her statements and the child's negative screens, shows that the mother did not use opiates during her pregnancy with the child. However, the supported 51A report dated September 16, 2015, indicates that one of the neonatologists opined that negative screens were consistent with NAS, and diagnosed the child with NAS several weeks after a different neonatologist had opined that her symptoms were caused by exposure to Klonopin and Effexor. The judge reasonably could have credited the opinion of the second neonatologist because he had more information, including the child's continued positive response to morphine. The judge's findings concerning the mother's opiate use during pregnancy were not clearly erroneous.

The mother also challenges the finding that one of her older children suffered opiate withdrawal symptoms shortly after birth, arguing that the evidence shows that he was born addicted to Suboxone. Suboxone is an opiate, so the finding was adequately supported.

3. Housing. The mother challenges the judge's finding that the mother "claimed to be living" at the putative father's brother's house as misleading because it suggests that she might not have been living there. Regardless whether this finding implicitly suggests that the mother might not have been living where she said she was, that suggestion would be appropriate because DCF was never able to corroborate her living situation. The mother also challenges the judge's finding that she "did not invite [the social worker] into the home because [she was] locked out" as misleading because it suggests that the mother wilfully excluded the social worker from the home. The judge's finding does not suggest this and is proper.

The mother next challenges the judge's finding that, by December 11, 2015, she had not sought housing assistance. She argues that this is clearly erroneous because she had sought shelter with the putative father's brother. There is no evidence about when the mother moved in with the putative father's brother, and the social worker noted that, on December 23, the mother was "gather[ing] more paperwork that was needed by [the Department of Transitional Assistance]," which suggests that she had not obtained it by this point. This finding therefore was not clearly erroneous.

4. Interactions with DCF. The mother challenges the judge's finding that she is "an inaccurate reporter." While vague, we take this to mean that the mother has lied to or misled providers. This finding is supported by evidence in the record that the mother had lied to medical providers in connection with her previous pregnancy. She initially denied using Suboxone during that pregnancy, then later admitted to using it. The judge's adequately-supported finding that she used opiates during her pregnancy with the child also supports the finding that she is an inaccurate reporter.

The mother next challenges as misleading the finding that she "has a history with the Department." This finding is not misleading because she does have a history with DCF: DCF supported a 51A report concerning her drug use during a previous pregnancy.

The mother further challenges the judge's findings that she was late to a hospital appointment on December 4, 2015, which resulted in the filing of a 51A report. She argues that the judge erroneously found that she had no plans to take the child to the hospital and that the judge erroneously omitted the fact that the 51A report was unsupported. But the judge did not make such a finding, and did note the fact that the 51A report was unsupported. See note 4, supra.

The mother also challenges as misleading the judge's finding that she did not attend a foster care review on November 2, 2016, because, while she was not there in person, she was represented by counsel. This finding correctly states the evidence.

The mother next challenges the judge's finding that she did not contact DCF after October 7, 2016. This finding is clearly erroneous-a social worker testified at trial that the mother called her in February of 2017-but this error is inconsequential.

Finally, the mother argues that the judge erred in finding that she did not comply with any tasks on her service plan or "utilize the assistance offered by the Department." The service plan required her to perform ten tasks. First, the mother was required to meet with the social worker once per month, which she admits she did not do. Second, she was to sign all releases. Although the mother signed some releases before DCF created the service plan, she signed none afterwards. Third, she was to take all medication as prescribed and have all medication available during the home visits. There was no evidence that the mother failed to take her prescribed medication after the service plan was instituted, but the social worker was unable to conduct home visits to verify her medications. Fourth, she was required to update DCF of all medication changes within forty-eight hours. There is no evidence that her medication changed. Fifth, she was to engage in an evaluation for substance use. The mother told the social worker that she was on a waiting list for an evaluation but did not provide the social worker with the appropriate release; thus, the social worker was unable to verify that the mother was complying with this task. The judge reasonably could have drawn a negative inference from the failure to sign the release, particularly since the mother had a history of lying about her substance use. Sixth, the mother was to continue to meet with providers regarding her mental health diagnosis and engage in therapy. There is no evidence that she failed to continue to meet with existing providers, but neither is there evidence that she engaged in therapy. Seventh, the mother was to obtain stable housing adequate for an infant. This she did not do: even assuming she was living where she said she was, by her own admission she did not have reliable access to the house. Eighth, she was to give DCF a budget of how she would provide for the child's needs. There is no evidence as to whether she submitted the budget. Ninth, she was required to call before visits, arrive on time, and bring snacks. The mother missed many visits and was late for others. Tenth, and finally, the mother was required to attend all court dates and case reviews. She failed at this task. Indeed, she did not even attend trial.

While there was insufficient evidence in the record to support the judge's conclusion that the mother complied with no tasks on the service plan, the mother did not comply with some of the most significant ones, such as attending visitation and court dates and finding stable housing. We find no error in the judge's conclusion that the mother refused DCF's services. The mother did not accept DCF's referrals and, significantly, did not take advantage of DCF's transportation vouchers despite claiming that she was not attending visitation due to her indigence.

B. Analysis. A few of the judge's findings on trivial matters were clearly erroneous, but we will also assume there was clear error in the finding that the mother failed to monitor the child's weight. As discussed above, it might well be reasonable to read the judge to have mischaracterized some of the evidence concerning both the mother's ability to care for the child and her mental health status. For present purposes, we will also assume that the judge's decision contains the negative mischaracterizations we have identified.

These errors alone, however, are not enough to warrant reversal because "we need not disturb a judgment when error did not affect the outcome." Adoption of Sherry, 435 Mass. 331, 336 (2001). It is important to note here that the mother does not challenge, as either clearly erroneous or misleading, the most important fact underlying the judge's finding of unfitness: her total absence throughout most of the child's life, from May of 2016 to the time of trial in March of 2017. Although visiting the child would have entailed a substantial commute, DCF gave the mother opportunities to visit by offering her free transportation vouchers, which she did not accept. Indeed, she did not even attend trial, from which the judge was entitled to draw a negative inference. See Adoption of Talik, 92 Mass. App. Ct. 367, 371 (2017). The mother's actions manifested a profound indifference toward her relationship with the child.

The judge also appropriately considered the mother's lack of suitable housing. By her own admission, the mother could not enter her residence when the putative father's brother was not there. The judge was warranted in concluding that this was not a suitable arrangement for the child, particularly one with the child's health issues, and the mother stated in August of 2016 that she was not pursuing other housing options. Further, the judge was justified in concluding that the mother consumed opiates during her pregnancy with the child and that this indicated both a lack of concern for the child's well-being and ongoing difficulties with substance use. The mother could have addressed the latter inference with evidence that she underwent an evaluation for substance use, but she did not sign the appropriate release. Thus, even assuming the flaws we have described in the judge's findings, we are confident that they did not affect the outcome.

The mother also argues that we should reverse because DCF failed in its responsibility to provide her with services, which can be relevant to a judge's determination of unfitness. See Adoption of Ilona, 459 Mass. 53, 61 (2011). The mother claims that "all DCF did was mail Mother third-party information from DCF's Housing Specialist and direct her to seek housing assistance from the [Department of Transitional Assistance]." But this is not all DCF did: most notably, DCF actively attempted to facilitate visitation by offering the mother transportation assistance. Further, the mother does not explain how DCF could have done more in helping her to find appropriate housing when the evidence shows that she was not attempting to pursue it. The mother relies on Care & Protection of Elaine, 54 Mass. App. Ct. 266 (2002), but that case is very different from this one. In Elaine, we reversed an order granting DCF permanent custody that was based largely on a father's failure to find housing, where DCF admitted that the father was complying with most of the service plan but "refused assistance to the father in obtaining housing on the ground that its plan is adoption." Id. at 274. Here, the mother demonstrated very little initiative in complying with the service plan and DCF did not refuse her assistance. The finding of unfitness was therefore adequately supported.

Posttermination and postadoption visitation. The mother argues in the alternative, for the first time on appeal, that the judge should have ordered posttermination and postadoption visitation. A judge has discretion to grant such visitation when it is in the child's best interests. See Adoption of Douglas, 473 Mass. 1024, 1027 (2016). The mother argues that the judge's lack of an explicit finding that visitation would not be in the child's best interests, in light of DCF's statement that it would "consider recruiting a pre-adoptive family that is receptive to an open adoption agreement," amounts to an implicit finding that visitation would be in the child's best interests. We disagree. The judge found that the mother and the child had no bond, which is one of the central factors in determining whether visitation is in the child's best interests. See Adoption of Ilona, supra at 63-64. The mother did not request visitation. The absence of an order granting posttermination or postadoption visitation was not an abuse of discretion.

Decree affirmed.

      Because the mother challenges a number of the judge's findings of fact, we draw from the record directly.

      DCF gave the mother a transportation pass to visit the child shortly before the child's initial discharge. It is unclear whether she visited more often in the next few days after she received the pass.

      A 51A report was filed because the mother was a few hours late in arriving at the hospital with the child. This report was unsupported.

      The judge found that the home belonged to the putative father's brother, although the record suggests that it belonged to either the putative father's sister or both his brother and sister, not his brother alone. Because this fact is inconsequential and not challenged by the mother, we will refer to the home's ownership in accordance with the judge's finding.

      The mother also challenges the judge's finding that the mother refused training for the G-tube because Dr. Piccioli noted her ability to care for the child. This finding was adequately supported. There was evidence that the G-tube requires special training that the mother did not have. The mother also challenges the judge's finding that this was the child's second G-tube surgery. The mother is correct, but this error is inconsequential.

      The judge found that the mother "had been terminated from a clinic due to cancellation of appointments." The mother challenges this finding because there was evidence in the record that she left a "Clean Slate" program because it relocated, not due to cancellation issues. It is unclear whether the Clean Slate program is the same clinic to which the judge is referring. Regardless, there is also evidence that the mother admitted to being "terminated from her clinic due to her cancelling visit." The judge's finding is not clearly erroneous.

      As of the time of trial, DCF's adoption plan was one of recruitment.

      The mother challenges this finding as clearly erroneous, which it was not. The mother's total absence for most of the child's short life is evidence of the lack of a bond.


text:
    COMMONWEALTH v. Fernan STYLIANOPOLOUS.
    17-P-833
    Appeals Court of Massachusetts.
    Entered: June 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Twelve years after pleading guilty to one count of indecent assault and battery on a child under age fourteen and one count of assault and battery, and after being found to be a sexually dangerous person, the defendant moved for a new trial and to withdraw his guilty pleas. The motion was denied and the defendant appeals. We affirm.

"Due process requires that a plea of guilty be accepted only where 'the contemporaneous record contains an affirmative showing that the defendant's plea was intelligently and voluntarily made.' " Commonwealth v. Scott, 467 Mass. 336, 345 (2014), quoting from Commonwealth v. Furr, 454 Mass. 101, 106 (2009). Because the waiver of rights inherent in the tender of a guilty plea must be knowing and voluntary, "a defendant must possess a certain degree of competence to plead guilty. 'The test of competence to plead is similar to that for standing trial.' " Commonwealth v. Robbins, 431 Mass. 442, 445 (2000), quoting from Commonwealth v. Russin, 420 Mass. 309, 316 (1995). That test "requires that the defendant have '[1] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and ... [2] a rational as well as factual understanding of the proceedings against him.' " Commonwealth v. Lyons, 426 Mass. 466, 468-469 (1998), quoting from Commonwealth v. Vailes, 360 Mass. 522, 524 (1971). See Dusky v. United States, 362 U.S. 402, 403 (1960).

The defendant claims that his guilty pleas were not intelligent and voluntary because he was not competent at the time. We disagree. He claims that the finding of competence during the plea colloquy was faulty because it was based on nothing more than the plea judge "eyeballing" him during the colloquy. However, the plea judge was aware of the finding of incompetence seven months prior. The plea judge observed and interacted with the defendant during the forty-five-minute colloquy, tailored the colloquy to account for the defendant's limitations, consulted with plea counsel, and asked if counsel was aware of any reason that the plea should not be accepted. Plea counsel told the plea judge that he believed that the defendant's competency issues were properly addressed during the colloquy and the plea judge determined that there was no basis for questioning the defendant's competence.

The defendant failed to raise a "substantial question of possible doubt" so as to require a further competency hearing. Commonwealth v. Field, 477 Mass. 553, 561 (2017). See Commonwealth v. Wentworth, 53 Mass. App. Ct. 82, 89 (2001). Moreover, the defendant has identified no case in which such a hearing has been required in these circumstances, in order for a guilty plea to be accepted.

Contrary to the defendant's claim, his statements during the plea colloquy did not establish his incompetence, let alone did they require the plea judge to so find. In fact, the defendant maintained that "the victim lied about her age," but he did not challenge that she was a minor or that he touched her in an indecent manner. In that posture, the defendant demonstrated his understanding of the offenses to which he was pleading guilty. To the extent the defendant claimed that the touching was consensual, the assertion is not relevant. See Commonwealth v. Suero, 465 Mass. 215, 220 n.5 (2013). The motion judge did not abuse his discretion by denying the motion without a hearing.

Order denying motion for new trial affirmed.

      The defendant was indicted for rape of a child, but the Commonwealth reduced the charge.

      The defendant's motion for new trial was not supported by an affidavit from plea counsel. Such an omission is significant. See Commonwealth v. Lynch, 439 Mass. 532, 539 n.2 (2003). Indeed, at the plea hearing, counsel stated that he was aware of the competency issue and, at the conclusion of the hearing, he said that the colloquy was "very appropriately done" and that he had no "problem" with the manner in which it was conducted.

      We note that most of the concerns raised by the judge (not the plea judge) during the defendant's competency hearing related to trial-based concerns, and not those that arise during a guilty plea. For example, the judge was concerned about the defendant's ability to withstand cross-examination.

      To the extent we do not address other issues raised by the defendant, "they 'have not been overlooked. We find nothing in them that requires discussion.' " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    Robert L. MUELLNER v. Joan L. MUELLNER.
    17-P-306
    Appeals Court of Massachusetts.
    Entered: June 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Joan L. Muellner (wife) appeals from two modification judgments of the Probate and Family Court reducing the amount of alimony paid by her former husband, Robert L. Muellner (husband). We vacate both modification judgments and remand for further proceedings consistent with this memorandum and order.

Background. The parties divorced after nearly forty-two years of marriage in 2004, when the husband was sixty-five and the wife was sixty-one years old. During the marriage, the wife was a homemaker and the husband worked as a self-employed psychiatrist, operating his business within the marital home. The husband's significant income allowed the parties to enjoy an upper middle-class lifestyle during the marriage. However, by the time the parties divorced, they were left with only modest assets and significant debts. Pursuant to the parties' separation agreement, which was incorporated and merged with the judgment of divorce nisi (divorce judgment), the marital estate was divided relatively equally, and the husband was required to pay alimony of approximately $3,192 per week until either party's death or the wife's remarriage. The husband's alimony obligation amounted to approximately forty-eight percent of his gross income at the time of the divorce.

In February of 2014, the husband filed a complaint for modification (first modification complaint), seeking to reduce or terminate his alimony obligation. A trial was held in November of 2014. On April 20, 2015, a modification judgment (first modification judgment) entered reducing the husband's weekly alimony obligation from $3,192 to $1,548, based on the judge's finding that the husband's weekly income had decreased by $930 (from $6,599 to $5,669) since the time of the divorce. In other words, the judge reduced the wife's alimony by almost twice the amount that the husband's income had decreased.

In May of 2015, less than one month after the first modification judgement entered, the husband filed a second complaint for modification (second modification complaint), once again seeking to terminate or reduce his alimony obligation. A trial on this second modification complaint was held before the same judge in February of 2016. On May 3, 2016, a modification judgment (second modification judgment) entered reducing the husband's weekly alimony obligation to $634, based on the judge's finding that the husband's weekly income had decreased by $2,576 (from $5,669 to $3,093) since the first modification trial. The present appeal by the wife followed.

Discussion. "In reviewing a modification judgment, we examine whether the factual and legal bases for the decision are in error, or whether the judge otherwise abused his discretion." Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017), citing Pierce v. Pierce, 455 Mass. 286, 293 (2009). " 'When parties to a divorce negotiate an agreement for alimony that is incorporated and merged into' a judgment of divorce, 'the judgment ... is subject to modification based on a material change in circumstances.' " Rosenwasser v. Rosenwasser, 89 Mass. App. Ct. 577, 590 (2016), quoting from Chin v. Merriot, 470 Mass. 527, 534-535 (2015). In "determining whether the amount of alimony should be modified based on a change of circumstances," the judge "must weigh all the statutory factors [under G. L. c. 208, § 34 ] in light of the facts of the particular case," while "keep[ing] in mind that 'the statutory authority of a court to award alimony continues to be grounded in the recipient spouse's need for support and the supporting spouse's ability to pay.' " Pierce, supra at 295-296, quoting from Gottsegen v. Gottsegen, 397 Mass. 617, 623, 624 (1986). Moreover, "[e]ven where provisions regarding alimony in a separation agreement are merged and do not survive the divorce judgment, it is nevertheless appropriate for a judge to take heed of the parties' own attempts to negotiate terms mutually acceptable to them when determining whether to modify ... alimony." Rosenwasser, supra, quoting from Chin, supra at 535.

Here, we conclude the judge's findings fail to demonstrate "appropriate consideration" of the husband's ability to pay, the wife's need for alimony, and the parties' intentions regarding alimony as expressed in their separation agreement. Rosenwasser, supra, quoting from Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004).

1. The husband's ability to pay. "A substantial and permanent decrease in the income of the support provider is one of the material circumstances to be considered in a request for reduction of a support [obligation];" however, "such a decrease does not alone compel a modification." Schuler v. Schuler, 382 Mass. 366, 370-371 (1981). Rather, the totality of the payor's financial circumstances must be considered when determining his ability to pay. See Emery v. Sturtevant, 91 Mass. App. Ct. 502, 508-509 (2017). "[I]n determining income from self-employment, a judge must determine whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes." Whelan v. Whelan, 74 Mass. App. Ct. 616, 626-627 (2009). Here, the judge's findings do not reflect such a determination.

With respect to the first modification judgment, the judge acknowledged the $51,977 home office deduction claimed by the husband in the prior year, but did not indicate whether that deduction, or any of the other deductions, claimed by the husband, were "reasonable and necessary." In connection with the second modification judgment, the judge simply found the husband's business expenses to be "credible," with no "commingl[ing] [of] his personal and business expenses." The judge should have considered whether the expansion of the husband's home office after the divorce increased his business expenses, and if so, whether that expansion was "reasonable and necessary." Whelan, supra. Certain other business expenses also required greater scrutiny by the judge, including (1) the husband's deductions related to self-employment taxes, and (2) the twelve percent increase in the husband's business deductions for 2016, at a time when he reported a thirty-seven percent decrease in his gross receipts. Accordingly, both modification judgments must be vacated and remanded for the judge to review the husband's business expenses and determine whether they are "reasonable and necessary to [his] production of income." Id. at 627.

2. The wife's need for alimony. The wife contends the judge failed to adequately consider her needs when reducing alimony by eighty percent between the time of the divorce and the second modification judgment. We agree. "The standard of need is measured by the 'station' of the parties-by what is required to maintain a standard of living comparable to the one enjoyed during the marriage." Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985), and cases cited. Here, the judge found the wife had "a continued need for alimony ... to maintain the standard of living she enjoyed during the marriage." However, neither modification judgment permitted the wife to maintain the former marital lifestyle. Following the divorce, the wife made considerable efforts to downsize her lifestyle, reducing her weekly expenses by forty-eight percent by the time of the second modification trial. Despite these efforts, the wife was left with a shortfall of $354 per week as a result of the first modification judgment, and an even greater shortfall of $744 per week as a result of the second modification judgment. The wife's inability to meet even her reduced expenses is reflected in the sharp decline in her assets following the first reduction in alimony. Between the time of the first and second modification trials, the wife's assets decreased by forty-three percent, leaving her with sixteen percent less in assets than she had at the time of the divorce. In contrast, the judge's findings and the record demonstrate that, since the divorce, the husband has been able to increase his assets by forty-six percent and maintain the marital lifestyle, even with his reduced 2016 income.

"Absent good reason, in a long term marriage, there is no justification for the life-style of one spouse to go down while the other remains high." Goldman v. Goldman, 28 Mass. App. Ct. 603, 611 (1990). "Where," as here, "the couple's collective income is inadequate to allow both spouses to maintain the lifestyle they enjoyed during the [long-term] marriage after their household is divided in two through divorce," neither spouse has "an absolute right to live a lifestyle to which he or she has been accustomed in a marriage to the detriment of the [other] spouse.' " Young v. Young, 478 Mass. 1, 7 (2017), quoting from Pierce, 455 Mass. at 296. A judge modifying alimony must "reach a fair balance of sacrifice between the former spouses when financial resources are inadequate to maintain the marital standard of living." Ibid., quoting from Pierce, supra. Here, we cannot say the judge reached a fair balance of sacrifice by leaving the wife unable to maintain her more frugal postdivorce lifestyle, while the husband continues to enjoy the former marital lifestyle.

3. The parties' intentions. In addition to failing to appropriately consider the wife's need for alimony, the judge did not appear to consider the parties' intentions when he substantially reduced the husband's alimony obligation. In determining the parties' intentions, we look to the language of the separation agreement. See Colorio v. Marx, 72 Mass. App. Ct. 382, 388 (2008). Here, "a fair reading" of the parties' separation agreement demonstrates they intended to share equally in the economic fruits of their long-term marriage-namely, the husband's self-employment income. Id. at 388-389. It is also apparent the parties intended for this equal-sharing arrangement to continue, notwithstanding the husband's advancing age, given that the separation agreement was executed after the husband had already attained retirement age. See Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 805 (2016), quoting from Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006) ("[T]he objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose"). Despite the husband's agreement to pay alimony equivalent to forty-eight percent of his income, the judge ultimately reduced the husband's alimony obligation to only twenty percent of his income. While we do not suggest the judge was prohibited from adjusting the alimony percentage implicitly agreed upon by the parties, "we cannot discern from the judge's analysis whether [he] gave appropriate consideration to the parties' intentions" to share equally in the husband's postdivorce income. Mandel v. Mandel, 74 Mass. App. Ct. 348, 355-356 (2009). Accordingly, the judge "should take into account the earlier, expressed desires of the parties" when reconsidering the husband's requests for modification on remand. Bercume v. Bercume, 428 Mass. 635, 644 (1999).

Conclusion. In light of the foregoing, we conclude that the judge abused his discretion by failing to (1) appropriately scrutinize the husband's business expenses, (2) consider the wife's need for alimony, and (3) consider the parties' intentions with regard to alimony, as expressed in their separation agreement. Accordingly, we vacate the modification judgments entered on April 20, 2015, and May 3, 2016, and remand for further proceedings consistent with this memorandum and order. In accordance with this memorandum and order, upon making the appropriate considerations on remand, the judge shall enter a judgment revising the amounts of alimony to be paid by the husband as of April 20, 2015 (the date of the first modified judgment), and as of May 3, 2016 (the date of the second modification judgment). If there is an arrearage, the judge shall determine, in his discretion, the manner in which the husband shall pay any alimony arrearage owed to the wife as a result of the revised alimony amounts. The judge may take additional evidence on remand as he deems necessary. The temporary order dated June 12, 2014, requiring the husband to pay temporary alimony of $1,548 per week and to continue paying for the existing insurance obligations, shall be reinstated during the pendency of the remand unless the judge determines that amount is no longer appropriate and enters a new temporary alimony order.

So ordered.

Vacated and remanded.

      We draw the background facts from the judge's findings and from the undisputed facts in the record.

      The separation agreement further required the husband to secure his alimony obligation with a life insurance policy benefitting the wife, and to pay for health insurance, long-term care insurance, gap insurance, and disability insurance on behalf of the wife (insurance obligations).

      For both modification trials the parties submitted a stipulation of facts in lieu of testimony.

      The husband also appealed from the first modification judgment; however, in his brief he requested the affirmance of both judgments.

      "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude 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." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

      A judgment for alimony "may be modified only under the terms and standards of modification existing at the time the judgment entered." Chin, supra at 536.

      During the marriage, the husband saw both child and adult patients in one room in his basement office, and would sometimes complete administrative work in the living room. The husband's new home office consists of the entire third floor (where he sees child and adult patients in separate rooms), one-half of the second floor (where he performs administrative work), and a portion of the first floor (which serves as a waiting area for patients).

      When calculating a support obligation, "it [i]s error to deduct from the [payor's] gross income amounts for ... taxes." Whelan, 74 Mass. App. Ct. at 626.

      Between 2014 and 2016, the husband's gross monthly business receipts decreased from $28,381.50 to $17,894.75, yet his total monthly business expenses increased from $6,794.43 to $7,590.75.

      Because the matter is being remanded for a redetermination of the husband's ability to pay in connection with his business expenses, we need not decide the question raised by the wife as to whether the fourteen percent decrease in the husband's income at the time of the first modification trial was too small to constitute a material change in circumstances. We nevertheless observe that maintaining the original alimony obligation while earning fourteen percent less income would result in an annual shortfall to the husband of over $60,000, requiring him to deplete his assets in a few years and be left with little for his possible retirement.

      Between the time of the divorce and the second modification trial, the wife reduced her weekly expenses (excluding insurance obligations paid by the husband) from $3,219 to $1,683.

      Between the time of the divorce and the second modification trial, the husband's weekly expenses (excluding temporary expenses associated with the former marital home and expenses related to the wife) increased from $2,968 to $3,531.

      "The interpretation of the separation agreement is a question of law, and is therefore 'afforded plenary review.' " Colorio, supra at 386, quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997).

      The separation agreement required the husband to pay alimony equivalent to nearly one-half of his income at the time of the divorce. The separation agreement further provided that, once the wife became eligible for Social Security, the husband's alimony payments would be reduced by one-half of the wife's Social Security income. The division of the marital estate was also relatively equal.

      By the time of the second modification judgment, the husband was seventy-seven years old and the wife was seventy-three years old.

      To the extent that we do not address the wife's other contentions, "they have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. John POWELL.
    14-P-121
    Appeals Court of Massachusetts.
    Entered: June 21, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion for a new trial, in which he primarily claimed that his trial counsel was ineffective. The defendant conceded at oral argument, and we agree, that waiver or direct estoppel bars each of his claims. And to the extent any survive, we conclude that trial counsel was not ineffective for substantially the same reasons cited in the motion judge's thoughtful and comprehensive decision.

Order denying motion for new trial affirmed.


text:
    COMMMONWEALTH v. Louis CARPINTO.
    17-P-176
    Appeals Court of Massachusetts.
    Entered: June 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from an order of the District Court allowing the defendant's motion to dismiss a criminal complaint charging him with violating G. L. c. 90, § 24(1)(a )(1), by operating a motor vehicle while under the influence of drugs, as defined in G. L. c. 94C, or the vapors of glue. Because we conclude that there was probable cause for the complaint to issue, we vacate the order dismissing the complaint.

Background. The application for the criminal complaint was submitted with a "case/incident report" from the Salem police department. The report stated that Officer Max Zirin responded to a report of a motor vehicle accident on March 19, 2016. When he arrived, he saw a motor vehicle "off of the road, up on the sidewalk, and crashed into a tree." The defendant was seated in the driver's seat. Zirin asked the defendant if he was okay; the defendant responded that he was fine. Zirin asked the defendant if he knew what had happened; the defendant responded that he did not. During this initial exchange, Zirin noted that the defendant appeared "confused and disoriented." Zirin reported that the defendant's speech was "slurred," and that his eyes were "pinpointed and constricted." When Zirin asked the defendant to exit the vehicle, Zirin noticed that the defendant was slow in complying and that he needed assistance "getting onto his feet." The defendant was unsteady, lost his balance, and "almost fell over [three] times."

Zirin informed the defendant that he suspected that the defendant was impaired and that Zirin would be asking the defendant to perform field sobriety tests. The defendant appeared to nod off two times while Zirin explained the tests to him.

Zirin left the defendant with another officer while he continued his investigation by interviewing the witness who had telephoned the police about the defendant's driving. The witness stated that he had been behind the defendant's vehicle and noted that it was "all over the road" and had a flat tire. When the witness's vehicle and the defendant's vehicle stopped at an intersection, the defendant remained stopped for so long that the witness "got worried." The witness exited his car to see if the defendant was all right. The witness thought that he must have startled the defendant because, when approached, the defendant " 'gunned' [his vehicle] right off the road, onto the sidewalk, and into a tree."

When Zirin returned to the defendant, he had fallen asleep while leaning on his vehicle. Zirin then placed him in custody, and the defendant was transported to Salem Hospital. Zirin requested a drug evaluation expert to assist in the postarrest evaluation. Zirin's drug influence report indicates that he perceived the effects of the drug to be "[e]xtreme."

Discussion. The motion judge allowed the defendant's motion to dismiss the complaint with a margin endorsement indicating that he (the judge) made his decision after having reviewed the complaint and the police report. The sole issue before us is whether the judge erred in determining that there was not probable cause to support the complaint. "[P]robable cause exists where ... the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Stewart, 469 Mass. 257, 262 (2014), quoting from Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992). It is well settled that "[a] motion to dismiss for lack of probable cause 'is decided from the four corners of the complaint application, without evidentiary hearing.' " Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 190 (2016), quoting from Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). "Because it is a question of law, 'we review the motion judge's probable cause determination de novo.' " Humberto H., supra at 566, quoting from Commonwealth v. Long, 454 Mass. 542, 555 (2009). See Commonwealth v. Orbin O., 478 Mass. 759, 762 (2018). Additionally, we review what has been presented in support of the complaint in the light most favorable to the Commonwealth. See, e.g., Leonard, supra at 191.

While the Commonwealth contends that there was enough evidence presented in the police report submitted in support of the complaint to establish probable cause, the defendant argues that the motion judge was correct in dismissing the complaint because the complaint does not specify that the defendant was under the influence of a specific drug that is prohibited by G. L. c. 94C, § 1. At the probable cause stage, this level of specificity is not required. "Probable cause [to arrest] does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Commonwealth v. Jones, 77 Mass. App. Ct. 53, 59 (2010), quoting from Commonwealth v. Gallant, 453 Mass. 535, 541 (2009). See Orbin O., supra; Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013). Viewed in the light most favorable to the Commonwealth, the allegations in the police report in support of the application for the complaint were sufficient to establish probable cause that the defendant was operating a motor vehicle while under the influence of a drug. The defendant's driving was clearly impaired; his car was "all over the road," and he was driving with a flat tire. He fell asleep while Zirin instructed him about the field sobriety tests. The defendant's eyes were "pinpointed and constricted." Zirin thought the effects of the drugs were extreme. "Probable cause does not require a showing that the police resolved all their doubts. What had to be shown was more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt." Commonwealth v. Rogers, 38 Mass. App. Ct. 395, 402 (1995) (quotation omitted). The requisite showing was made here.

Order allowing motion to dismiss vacated.

      It appears that the application for the complaint was also accompanied by a drug influence report (labeled as an "[a]lcohol [i]nfluence [r]eport"), although the judge made no reference to it in his margin endorsement.

      At oral argument, the Commonwealth acknowledged that at trial it will need to establish that the defendant was under the influence of one of the drugs enumerated in G. L. c. 94C, § 1, to prove its case beyond a reasonable doubt. See Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 174 (2008) ("Proof of violation of the statutory prohibition against operating a motor vehicle while under the influence of drugs requires ... proof that the [drug] is one defined in G. L. c. 94C, § 1").


text:
    COMMONWEALTH v. Donald R. MASON.
    17-P-183
    Appeals Court of Massachusetts.
    Entered: June 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Donald R. Mason, was convicted of resisting arrest and acquitted of assault and battery on a police officer. On appeal, he contends that (1) the evidence was insufficient, (2) the Commonwealth's closing argument was improper, (3) the failure to admit the recording of two 911 telephone calls was error, (4) the failure to take judicial notice of a ruling on a motion to suppress was error, and (5) the verdicts were inconsistent. We affirm.

Background. Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), the jury could have found the following facts. On March 3, 2014, the defendant made a 911 telephone call to the Agawam police department reporting an unwanted guest at his home. Shortly thereafter, the defendant called back reporting that the person had left and that he no longer needed police assistance. Notwithstanding the second call, the shift supervisor ordered police officers to respond to the scene. The defendant refused to answer the police officers' questions or allow them to enter his home to look for the unwanted guest. The defendant pushed Officer Larry Hoague in the chest and a struggle ensued. Hoague told Officer John Stone to employ pepper spray to subdue the defendant. Hoague then told Stone to place handcuffs on the defendant, as the defendant had struck him. The defendant continued to struggle and pull his arms so that Stone could not get his arms behind his back to handcuff him. Stone ordered the defendant to "stop resisting." The defendant was eventually handcuffed and placed under arrest.

Discussion. a. Sufficiency of the evidence. Viewing the evidence in the light most favorable to the Commonwealth as we must, see ibid., the evidence sufficed to convict the defendant of resisting arrest. General Laws c. 268, § 32B(a ), inserted by St. 1995, c. 276, defines resisting arrest as

"knowingly prevent[ing] or attempt[ing] to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another."

The crime is committed at the time of the effecting of the arrest. See Commonwealth v. Grandison, 433 Mass. 135, 145 (2001). "An arrest is effected when there is (1) an actual or constructive seizure or detention of the person, [2] performed with the intent to effect an arrest and [3] so understood by the person detained." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008) (quotation omitted). Whether the defendant understood he was being arrested is measured by the standard of an objective, reasonable person. See ibid.

Here, the defendant was being arrested for assault and battery on a police officer because he "thumped" Hoague on the chest. While the defendant was not specifically told that he was under arrest, a reasonable person would have understood that he was being arrested for the assault, where the defendant continued to struggle and resist the police officers despite being pepper-sprayed, ordered to "stop resisting," and handcuffed. See Commonwealth v. Soun, 82 Mass. App. Ct. 32, 33, 37 (2012). Moreover, police officers are not required to use the word "arrest" when taking someone into custody. See Commonwealth v. Quintos Q., 457 Mass. 107, 111 (2010).

Additionally, the Commonwealth's case did not deteriorate once the defendant presented his case. See Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017). Rather, the defendant's testimony created a credibility issue to be resolved by the jury. See ibid. (defendant's evidence "negated no element of the crime and ... could have been disbelieved by the jury"). The jury were not required to credit the defendant's testimony that the police used excessive force and that he was merely defending himself. See Commonwealth v. Gomez, 450 Mass. 704, 710-711 (2008). See also Ross, supra ("Deterioration does not occur merely because the defendant contradicted the Commonwealth's evidence").

b. Closing argument. The defendant claims two errors in the Commonwealth's closing argument. First, he contends that the prosecutor referred to evidence that had been struck from the record, and by so doing, vouched for the police officers. Specifically, the defendant claims that the prosecutor "improperly vouched for the dangers of [sic ] officers faced in a domestic situation" and "described the situation as volatile." We review these remarks in light of the entire argument, the judge's instructions to the jury, and the strength of the Commonwealth's case. See Commonwealth v. Philbrook, 475 Mass. 20, 28 (2016). As the defendant objected at trial, we review to determine whether, if there was error, it was prejudicial. See Commonwealth v. Sullivan, 478 Mass. 369, 375-376 (2017).

The Commonwealth did refer to the situation as a "domestic call," but did not refer to the situation as "volatile." When taken in context, the statement called upon the jury's common knowledge of domestic violence interactions and offered an explanation as to why the police officers responded despite the second 911 call. See Commonwealth v. Ridge, 455 Mass. 307, 330-331 (2009) (counsel may refer to jury's common knowledge in closing argument). However, even if there was error, the judge's instructions that closing arguments are not evidence cured the problem. Indeed, due to remarks in both closing arguments, the judge gave a curative instruction in addition to the standard instructions, which the jury are presumed to follow. See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012).

The defendant also argues that the prosecutor made two additional improper statements that were based on evidence that had been struck. The jury were instructed to disregard these statements and, as discussed supra, were properly instructed on closing arguments. The defendant did not request a mistrial, nor did he object to the jury instructions. Thus we review to determine whether this error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). On this record, we cannot say that it did; however, the prosecutor is cautioned to confine closing arguments to the admissible evidence.

c. The 911 telephone calls. The defendant claims error in the judge's refusal to admit the recording of the 911 calls. Although he agrees that the recording could be hearsay, he contends that it was not being offered for the truth of any statements contained in it, but rather to show his mental or emotional condition when the calls were made. See Mass. G. Evid. § 803(3)(B)(i) (2018). He argued that the admission of the calls would allow the jury to hear his tone of voice and demeanor, and that these were relevant to support his testimony as to how events occurred once the police arrived. The defendant also wanted to use the calls to rehabilitate his testimony following cross-examination by the Commonwealth, in which it was suggested that he had a drink at the time the woman was still in the home. In closing argument, the Commonwealth also argued that alcohol was "involved."

Here, the judge determined that the defendant's demeanor and state of mind at the time he made the two 911 calls were not at issue, and accordingly that the recording should be excluded. We discern no error in the judge's exercise of discretion in this regard. The critical facts in this case occurred once the police arrived at the defendant's residence. The 911 calls, however, were made prior to the arrival of the police, at least twenty-five minutes prior to the critical incident. Moreover, the uncontroverted evidence was that the incident escalated quickly, after the police had arrived. Although the defendant's tone of voice and demeanor may have been marginally relevant, the key factual determinations in this case did not turn on the defendant's state of mind when he placed the two 911 calls. See Commonwealth v. Gardner, 30 Mass. App. Ct. 515, 528 (1991). Furthermore, the defendant was permitted to testify regarding what he said in the 911 calls, and as to his state of mind at the time of those calls. The 911 recording thus was not only of questionable relevance, but in large part, cumulative.

The defendant points to the prosecutor's closing argument to suggest that she improperly seized upon the evidence that had been excluded-the 911 recording. The judge struck portions of both closing arguments; however, the remaining portion of the prosecutor's closing argument was proper as it referred to the evidence adduced at trial and the reasonable inferences to be drawn therefrom. See Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015).

While the better course of action may have been to admit the recording, on this record, we cannot say the judge abused his discretion or that even if he did, the defendant was prejudiced thereby. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Our conclusion is supported by the verdicts of this sophisticated jury which parsed an abundance of conflicting evidence and acquitted the defendant on one of the two charges.

d. Judicial notice. The defendant next claims error in the judge's refusal to take judicial notice of the allowance of his motion to suppress evidence and refusal to instruct the jury regarding same. The defendant does not cite to any authority in support of this claim and therefore this claim does not rise to the level of appropriate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Notwithstanding, a court may take judicial notice of court records and docket entries within the same case. See Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 39 n.3 (2015). See also Mass. G. Evid. § 201(b)(2) (2018). Here, the judge was concerned that the proffered instruction would lead to confusion as the search occurred after the arrest and had only slight relevance in supporting the defendant's theory of excessive force. The judge did not abuse his discretion. See L.L., supra.

e. Inconsistent verdicts. The defendant claims that the verdicts were legally inconsistent because he was convicted of resisting arrest and acquitted of assault and battery on a police officer, and thus that his conviction cannot stand. We disagree. The general rule in our courts is that inconsistent verdicts in criminal cases, one of which is an acquittal, "will not render the verdict of guilty erroneous." Commonwealth v. Medeiros, 456 Mass. 52, 57-58 (2010) (quotation omitted). But in any event, here the two verdicts are not inconsistent in fact. Unlike the crime of assault and battery on a police officer, the elements of resisting arrest do not require the touching of a police officer. Here, the judge properly instructed the jury that the Commonwealth must prove that the defendant intentionally struck or pushed Hoague in order to meet the burden for assault and battery on a police officer. The acquittal on this charge thus is not factually inconsistent with a conviction of resisting arrest.

Judgment affirmed.

      The Commonwealth filed a nolle prosequi on a charge of improper storage of a firearm.

      Officer Hoague described this as a "thump" against his body armor.

      He also claimed that the 911 recording was impeachment evidence but does not raise that contention on appeal.

      We have examined all of the points and arguments of the defendant. That we have not discussed some of them means simply that "[w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).