NISI PROBLEMS, PART I:
NEW TRIALS: AMENDMENT OF JUDGMENTS -- RULE 59
by Paula H. Noe, Esq.
Introduction: According to Black’s Law Dictionary
(With Pronunciations), “NISI” is derived from the Latin and means
“Unless”. In the Divorce context in
Massachusetts, we know that the Nisi Period is a creature of statute (M.G.L.
Ch. 208, §21) and rule (Mass.Rule Dom. Rel.P.58) and public policy and provides
a 90 day period after the entry of the Judgment Nisi to allow for the parties
to reconcile or otherwise object to the terms of the divorce. Problems can and do arise during this
“unless” time; this article will address
the Rule 59 potential problems and solutions - what if one of the parties seeks
a new trial or to modify or otherwise amend the agreement already approved by
the Family and Probate Court? As we
shall see, strict adherence to the strict requirements set forth by Rule 59 are
absolutely necessary.
I. Massachusetts
Rule of Civil Procedure 59 provides:
A. Text of Rule
59
NEW TRIALS: AMENDMENT OF JUDGMENTS
(a) Grounds.
A new trial may be granted to
all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial
by jury, for any of the reasons for which new trials have heretofore been
granted in actions at law in the courts of the Commonwealth; and (2) in an
action tried without a jury, for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the
Commonwealth. A new trial shall not be
granted solely on the ground that the damages are excessive until the
prevailing party has first been given an opportunity to remit so much thereof
as the court adjudges are excessive. A
new trial shall not be granted solely on the ground that the damages are
inadequate until the defendant has first been given the opportunity to accept
an addition to the verdict of such amount as the court adjudges
reasonable. On a Motion for a New Trial
in an action tried without a jury, the court may open the judgment if one has
been entered, take additional testimony, amend findings of fact and conclusions
of law or make new findings and conclusions, and direct the entry of a new
judgment.
(b) Time for Motion. A Motion for a New Trial shall be served not
later than 10 days after the entry of judgment.
(c) Time for Serving Affidavits. When a Motion for a New Trial is based upon
affidavits they shall be served with the motion. The opposing party has 10 days after such
service within which to serve opposing affidavits, which period may be extended
for an additional period not exceeding 20 days either by the court for good
cause shown or by the parties by written stipulation. The court may permit reply affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of judgment
the court of its own initiative may order a new trial for any reason which it
might have granted a new trial on motion of a party. After giving the parties notice and an
opportunity to be heard on the matter, the court may grant a Motion for a New
Trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in
the order the grounds therefor.
(e) Motion to Alter or Amend a Judgment. A Motion to Alter or Amend the judgment shall
be served not later than 10 days after the entry of judgment.
II. Massachusetts
Rule of Domestic Relations Procedure 59 differs from MRCP 59 only in section
(a). Mass. Rule Dom. Rel. P. 59 (a) provides:
(a) Grounds. A new trial may be granted to all or any of
the parties and on all or part of the issues for any of the reasons for which
rehearings have heretofore been granted in suits in equity in the courts of the
Commonwealth. On a Motion for a New
Trial, the court may open the judgment if one has been entered, take additional
testimony, amend findings of fact and conclusions of law or make new findings
and conclusions, and direct the entry of a new judgment.
Therefore, all reference to jury trials and inadequate or
excessive damages as grounds for a new trial are deleted as not applicable in
the Family and Probate Court context.
III. The grounds
for a Motion for a New Trial are “any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the
Commonwealth”. The Supreme Judicial
Court, in Davis v. Boston Elevated Railway Co., 235 Mass. 482,
486, 126 N.E. 841 (1920), defined the grounds available for a new trial to be
“accident, mistake, or misfortune in the conduct of the trial” so that a “new trial is necessary to prevent
a failure of justice.”
(See sample Motion for a New Trial in the Family and Probate
Court attached hereto as Appendix A.)
IV. Filing of a
Motion for a New Trial (Rule 59(a) or Motion to Alter or Amend a Judgment (Rule
59(e))
It is crucial that said motions must be SERVED (NOTE: filing said motion with the court is NOT
enough) “not later than 10 days after
the entry of judgment” (Rule 50(b)). You should note that the official Reporter’s
Notes to Rule 59 states that the 10 day period begins to run even though a
party has not received notice of the entry of Judgment. It has been held that the wording of Rule
59(b) could allow the filing of a Motion for a New Trial either before or after
the entry of judgment. Partridge
v. Presley, 189 F.2d 645 (D.C. Cir. 1951); McCulloch Motors Corp.
v. Oregon Saw Chain Corp., 245 F. Supp. 851 (S.D.Cal. 1965): however, some courts have held that Motion
for a New Trial filed before entry of judgment is deemed denied by subsequent
entry of said judgment. (Mosier
v. Federal Reserve Bank of New York, 132 F.2d 710 (2nd Cir.1942); Agostino v. Ellamer Packing Co.,
191 F.2d 576 (9th Cir.1951). It is
arguable, since the language of the rule is “not later than” instead of
“within” 10 days after the entry of judgment, that the Supreme Court intended
to allow the motion to be made either before or after the entry of
judgment. Also, Rule 59 (a) allows the
court to open judgment “if one has been entered”.
The 10 day time frame for filing these motions under Rule 59
is absolute and it has been held that the trial judge is “powerless” to
act on a motion served too late. Dalessio
v. Dalessio 409 Mass. 821, 570
N.E.2d 139 (1991). in Dalessio,
as in many other cases, the filing party brought motions under both Rule 59 and
Rule 60. Thus, when the court denied the
Motion to Alter or Amend Judgment, it could direct its attention to the Motion
for Relief for Judgment under Rule 60 because the 10 day time frame demanded by
Rule 59 is not applicable to Rule 60.
There is a little leeway in filing the motion with the court within the
10 day period, although it must be filed either before service or within “a
reasonable time” thereafter. Albano
v. Bonanza Intern. Development Co., 5 Mass. App. 692, 369 N.E.2d 473
(1977). And courts have refused to allow
a motion to waive the 10 day requirement.
Wilmington Fabricators, Inc. v. Jackson Millwork, 1987
Mass. App. Div. 134. In addition, it is important to note that
under Mass. R. Civ. P. 6(b) (which provision is, or course, identical in
Domestic Relations Procedure) Rule 59(b), (d) and (e) are specifically
mentioned in that “the court...may not extend the time for taking any
action.” Also, the Reporter’s Notes to
Rule 59 actually state: “Because a
motion under Rule 59 (b) affects the finality of judgment and tolls the time or
taking an appeal, the 10-day limit may not be enlarged by the court.” As always the burden of establishing on the
record that service was made in a timely fashion falls squarely on the filing party. Albano, supra. Depositing a copy of the motion in the mail
has been held to be sufficient service to adverse counsel. Gloucester Mut. Fishing Ins. Co. v. Hall,
210 Mass. 332, 96 N.E. 679 (1911).
Certified mail is, of course, always safer.
V. Distinction
Between Rule 59 and Rule 60 Motions
Since a motion under Rule 59 tolls the appeal period (an
important distinction from Rule 60), it is vitally important that the filing
party make clear to the court that the motion being filed comes squarely under
Rule 59. In the worst possible scenario,
when a Motion for a New Trial was filed BUT NOT SERVED within the 10 day time
frame, said motion did not stay the running of time for the filing of the
appeal and, therefore, the appeal was dismissed if not filed within the 30 days
after the entry of judgment, Albano, id.
The courts have on occasion read motions titled other than Motions to
Alter or Amend (i.e., Motions to Vacate
Judgment or Motions for Reconsideration) as Rule 59 Motions to Alter or Amend
in order to toll the appeal period. Locke
v. Slater, 387 Mass. 682, 442 N.E.2d 732 (1982), Pentucket Manor
Chronic Hospital, Inc. v. Rate Setting Commission, 394 Mass. 233,
475 N.E.2d 1201 (1985). “Where doubt
exists as to the proper characterization of a postjudgment motion, some courts
simply treat all timely-filed motions which call into question the correctness
of a judgment as rule 59(e) motions.” Pentucket,
supra. Counsel would be well advised, however, to take pains to title Rule 59
motions correctly in order to assure correct consideration by the court. In addition, the courts have held that a
Motion to Amend or Alter Judgment can be treated as a Rule 60 Motion for Relief
from Judgment if, indeed, the motion is not served and/or filed within the 10
days mandated under Rule 59. King
v. Allen, 9 Mass. App. 821, 398 N.E.2d 510 (1980). It is well settled that a motion under Rule
59 must be filed in the court where the case was tried. Lambert v. Cheney, 221 Mass.
37B, 108 N.E. 1078 (1915). And if the
judge who heard the case dies while a Rule 59 motion is pending, the motion can
be heard by another member of the court.
Mass. R. Dom. Rel. P. 63 (attached as Appendix B - note the discretion
of the new judge to order a new trial.)
VI. Affidavit
Under Rule 59(c)
When a Rule 59 motion is supported by an affidavit, said
affidavit must be filed with the motion, not at a later hearing. Although the wording of the rule seems to
suggest that affidavits are discretionary, sound legal practice would mandate
that the filing party not miss this sole opportunity to clarify his/her
position, especially since it has been held that the details in an affidavit
can cure a failure to describe “with particularity the error of law” in the Motion for a New Trial. Leary v. Yacht Leasing Corp., 6
Mass. App. 961, 383 N.E.2d 861 (1978).
As with all other aspects of Rule 59, the presiding judge
has absolute discretion to reject an affidavit not properly sworn and/or signed
or filed too late or to refuse to allow a Motion for a New Trial to be amended
to include an affidavit. Hopcraft
v. Kittredge, 162 Mass. 14, 37 N.E. 768 (1894).
Be aware of the provision in the rule which allows opposing
affidavits within 10 days after service or extension up to 20 days “for good
cause” or by written stipulation by the parties. In addition, the court “may permit” reply
affidavits by the filing party.
VII. Discretion of
the Judge
The court’s power to grant a new
trial as to any or all of the issues or parties is “entirely
discretionary”. Yates v. Dann,
11 F.R.D. 386 (D.Del. 1951). Thus, the
trial judge is not required to hear a Motion for a New Trial on grounds that
the finding was against or against the weight of the evidence, McElwain
v. Capotosto, 332 Mass. 1, 122 N.E.2d 901 (1955), or on grounds of the
insufficiency of the evidence to support the judge’s finding. Devore v. Good, 321 Mass. 84, 72 N.E.2d 405 (1947). In addition, even a Motion for New Trial
brought by a successor counsel on a basis of “faulty preparation” for trial by
the preceding counsel is “addressed solely to the sound judicial discretion of
the trial judge and will not be reversed by the appellate division, except upon
a clear showing that the disposition of the motion resulted from an abuse of
that discretion. Mills v. Bell,
33 Mass. App. Dec. 167 (1965).
The grounds for a Motion for a New Trial in a non-jury case
are most commonly a mistake of law or newly discovered evidence, Fitch
v. Harris, 6 Mass. App. Dec. 14 (1953), Gilman v. Brown,
45 Mass. App. Dec. 184 (1970). If there
is an indication that the judge is not impartial during a trial, an objection
must be taken at the trial, “if then known to the counsel who conducts the
case” in order to use the lack of impartiality as a basis for a Motion for a
New Trial. Crosby v. Blanchard,
89 Mass. 385, 7 Allen 385 (1863).
A judge may grant a new trial on “all or part of the issues”
(Rule 59(a)) which were “not properly adjudicated” unless the issues and/or
parties are “interwoven with the remaining issues”. Gasoline Products Co.,
Inc. v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed.
1188 (1931). and new trials are not
permitted for “trivial reasons”, Farrell v. Matchett, 310 Mass.
87, 37 N.E.2d 247 (1941) or if a new trial cannot produce a different
result. Eastman v. Steadman,
273 Mass. 364, 173 N.E. 519(1930). A
Motion for a New Trial on the basis of newly discovered evidence will be denied
unless it is shown that the evidence was not available and could not have been
discovered prior to the divorce trial. Mailer
v. Mailer, 387 Mass. 401, 439 N.E.2d 811 (1982), appeal after remand 390
Mass. 371, 455 N.E.2d 1211 (1983).
Furthermore, “questions of law which might have been raised at the trial
on the merits, or which were raised and then abandoned and not preserved,
cannot be raised as of right on a Motion for a New Trial.” The Haines Corporation v. Winthrop
Square Cafe, Inc. 335 Mass. 152, 138 N.E.2d 759, (1956).
The general rule is that a motion for new trial is directed
to the “sound discretion” of the trial judge.
Eva-Lee, Inc. v. Thomson General Corp., 5 Mass. App. 823,
362 N.E.2d 935 (1977) and only rarely has there been found an abuse of said
discretion. Barnett v. Loud,
243 Mass 510, 137 N.E. 740 (1923). Only
upon finding of “clear abuse” of discretion by the judge will a decision
denying a Motion for a New Trial be reversed.
Coyle v. Cliff Compton, Inc. 31 Mass. App. Ct. 744, 583
N.E.2d 875, review denied 412 Mass 1102, 588 N.E.2d 691 (1992); Webster
v. Johnson, 342 Mass. 455, 174 N.E.2d 40 (1961). The Supreme Court will find abuse of
discretion only where “no conscientious judge acting intelligently could
honestly have taken the view expressed by him.”
Moran v. Pieroni, Inc., 326 Mass. 516, 95 N.E.2d. 296
(1950) or when in an “extraordinary case” an excess of jurisdiction or similar
error is found. Cohen v. Peterson,
320 Mass. App. Dec. 164, affirmed 360 Mass. 872, 277 N.E.2d. 694 (1970). Obviously these burdens are difficult, at
best, to meet.
VIII. Attorney Fees
During Rule 59 Proceedings
An interesting case on this point is Hager v. Hager,
12 Mass. App. 887, 421 N.E.2d 1261 (1981), which stands for the propositions
that, although it was not within the power of the divorce court to modify the
judgment to increase the attorney’s fee while the appeal from the judgment
modifying the divorce decree was pending, nonetheless, the court did have
jurisdiction to award attorney fees and costs to the plaintiff for those
proceedings which were subsidiary to the divorce. In other words, the court held that the
“power to award costs and fees of appeal during pendency of the appeal is a
different matter from the power to modify a judgment on appeal.”
IX. Delay and
Rule 59 Motions
It has recently been decided by the Appeals Court in Zatsky
v. Zatsky, Lawyers Weekly No. 11-026-94 (February 7, 1994) that, even in
the face of 27 months of delays in the entering of a judgment and in the
hearing of postjudgment Motion for a New Trial, the “unpardonable delay” does
not violate the party’s due process right.
Although, “the tortuous progress of this case casts no luster on the
judicial system”, the Court decided that the existing judgment should stand
although the husband (moving party) could now petition for a modification of
the divorce judgment. The case is also
interesting in that the court suggested practical tips for expediting the
judicial process.
Conclusion: As we see clearly spelled out in the case
law surrounding Rule 59, time and precision are controlling factors in a
situation where judicial discretion reigns supreme. Therefore, the practicing divorce attorney
must provide necessary affidavits, particularity and exact adherence to the
rules when seeking either a new trial or an amendment of the judgment during
the “Unless” period known as NISI.
Appendix A
Motion for a New Trial Under
Massachusetts Rules of Domestic Relations Procedure 59 - Sample
COMMONWEALTH
OF MASSACHUSETTS
TRIAL
COURT
______________________, s.s. PROBATE
AND FAMILY COURT CIVIL
ACTION (DIVORCE) DOCKET
NO. __________________
___________________________ }
Plaintiff }
}
v. }
}
___________________________ }
Defendant }
MOTION FOR A NEW
TRIAL
The
__________________in the above captioned action for divorce moves that,
plaintiff/defendant
pursuant to Mass. R. Dom.Rel. P. 59, the court open the
judgment of divorce nisi entered herein on _____________, 19____, award a new
trial to take additional testimony herein, amend findings of fact and
conclusions of law, and direct a new judgment nisi in accord therewith.
In support
hereof the _________________states that [new and material evidence
plaintiff/defendant
has been discovered since the hearing herein which could not
have been discovered by due diligence prior to or during the said hearing,
which evidence directly and substantially affects the rights and liabilities of
the parties] [the findings herein are contrary to the weight of the evidence in
that ________________] [the said judgment reflects a substantial error of law
in that the court _________________, and that pursuant to Mass. R. Dom.Rel. P.
61 the failure to grant the relief sought by this motion would be inconsistent
with substantial justice] [other: _________________].
In further
support hereof the _________________has attached hereto an affidavit as
plaintiff/defendant
Exhibit ___, which affidavit is incorporated herein by
reference.
WHEREFORE, THE ________________ MOVES PURSUANT TO MASS. R.
DOM.
plaintiff/defendant
REL. P 59 THAT THE COURT CONDUCT A HEARING HEREON AND GRANT
THE RELIEF REQUESTED HEREIN.
RESPECTFULLY SUBMITTED FOR
____________________ BY ____ ATTORNEY
_______________________________,_________________, and ______________________
Ave. ____________________, MA ___________ Telephone (____) _______________
B.B.O Registration No.
_____________
Dated: _____________, 19____
[Insert Affidavit]
CERTIFICATE OF SERVICE
A copy of the aforesaid Motion and Affidavit has this day
been served on the ___________________, [by mailing a copy thereof postage
prepaid] [by delivering a copy thereof] to _______________, the attorney of
record for the ________________, at _______________, _____________________, MA,
_________, together with notice that the Motion has been marked for hearing on
______________, 19___, at ______a.m. in the forenoon in the
_________________Division of the Probate and Family Court at ________________.
Dated: ______________, 19____
___________________________________
ATTORNEY FOR THE _______________
Appendix B
Massachusetts Rules of Domestic Relations Procedure
Rule 63, Disability of a Judge
If by
reason of death, sickness, resignation, removal or other disability, a judge
before whom an action has been tried is unable to perform the duties to be
performed by the court under these rules after findings of facts and
conclusions of law are filed, then any other judge regularly sitting in or
assigned to the court in which the action was tried may, on assignment by the
Chief Justice, or in the case disability of such Chief Justice, by the senior
judge of the Administrative Committed present and qualified to act, perform
those duties; but if such other judge is satisfied that he cannot perform those
duties because he did not preside at that trial or for any other reason, he may
in his discretion grant a new trial.
