Nicoletti v. Bolduc 14-P-1125 (November 6, 2015) The November 2015 appeals decision of Nicoletti v. Bolduc 14-P-1125 provides perspective to those whom feel aggrieved by the excessive delays often associated with judgments from the Probate and Family Court.

Nicoletti was an appeal from a modification judgment of the Probate and Family Court (“the trial court”), at which time the trial court awarded sole legal and physical custody of the parties’ daughter to the father.

After the last day of trial, the trial judge did not issue her findings of fact for 331 days, and did not issue her final judgment until 459 days. Incensed by this delay, the mother appealed, arguing that the delay violated her due process rights and that the the custody determination was not supported by the evidence. The Massachusetts Court of Appeals affirmed the Judgment.

The Mother relied on Standing Order 1-06, which provides that while any judgment “shall be issued” within ninety days of the conclusion of trial, it is an aspirational goal, and not a source of vested rights. The Court recited Fisch v. Board of Registration in Med., 437 Mass. 128, 133 (2002), holding “We do not interpret such aspirational language as binding on the [court], or creating any rights enforceable by the parties to the [custody] action.”

The Appeals Court noted in their decision, that it was fatal to mother’s claim of due process violation that she failed to show evidence at (or after) trial that she was in fact injured by this delay; indeed, she did not take any steps, such as an informal inquiry or action for mandamus, to arrest delay. The Court succinctly reasoned: “the mother was not injured by the delay in the modification judgment; she retained custody of the child for longer than she otherwise would have been entitled.” (quoting Nicoletti v. Bolduc 14-P-1125).

Perhaps the most potent critique of the mother was her “unbridled animus” towards the father throughout the litigation. The Court recounted how the trial judge ordered four face-to-face meetings. At the first meeting, the mother “sat in silence” for thirty minutes, and then “got up and walked away.” At the second meeting, the mother again sat in silence, “kept checking her watch,” and after thirty minutes “got up and left.” At the third meeting she told the father that she was unwilling to forget the past and move forward. When further meetings were scheduled in the presence of a supervisor, the supervisor observed, and reported to the court, that the mother would never agree to anything proposed by the father. (quoting Nicoletti v. Bolduc 14-P-1125).

Ultimately, the Appeals Court concluded that the Mother was not prejudiced by the delay, and that the trial judge’s award of custody to the Father was not against the weight of the evidence. As reasoning, the Court relied upon, inter alia, Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220-221 (2002), in which the Court held that an abject breakdown in communication” attributable to mother’s defiance formed basis for award of custody to father.

The Appeals Court in Nicoletti issued this summary decision pursuant to rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), which is primarily directed to the parties, and therefore may not fully address panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

Summarily, litigants who feel aggrieved by an undue delay in time after the close of the evidence, are advised to take affirmative steps to arrest delay, a rule which Nicoletti has underscored with great detail and precision. Parties are also advised to heed the instructions of the trial judge, in making efforts to narrow the issues presented, in the spirit of amicability.

Source: Nicoletti v. Bolduc 14-P-1125 (November 6, 2015)

Anthony J. Low, Esq. is a Managing Partner at the Shapiro Law Group, who focuses his practice in highly charged custody disputes, complex divorce litigation, and general defense litigation. Anthony may be reached at alow@35.202.134.18.