"Although some leniency is appropriate in determining whether pro se litigants have complied with rules of procedure, the rules nevertheless bind pro se litigants as all other litigants"
How later courts described this case
- "Although some leniency is appropriate in determining whether pro se litigants have complied with rules of procedure, the rules nevertheless bind pro se litigants as all other litigants"
Written by the judges who cited it.
The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-338
ASIA DENISE THOMPSON
vs.
JOEY DWAYNE THOMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After approximately two years of marriage, Asia Denise
Thompson (wife) filed a complaint for divorce from Joey Dwayne
Thompson (husband). Following a trial, a judge of the Probate
and Family Court issued a judgment of divorce nisi. The husband
appeals, claiming lack of subject matter jurisdiction and
numerous errors in the judgment. We affirm.
The husband and the wife were married in Tennessee in 2018
and have one minor child together. On or around August 31,
2019, the wife and the minor child left Tennessee and moved to
Massachusetts. In June 2020, the wife filed a complaint for
divorce, alleging that an irretrievable breakdown of their
marriage occurred on August 31, 2019. The wife filed a motion
to amend the complaint, which was allowed on February 24, 2022,
claiming that the irretrievable breakdown of the marriage
occurred on May 28, 2020. On appeal, the husband claims that
judge erred in (1) denying his motion to dismiss the complaint
for lack of subject matter jurisdiction because the wife had not
resided in Massachusetts for one year at the time she filed for
divorce and (2) permitting the wife to amend her complaint to
meet the alternative jurisdictional requirements of G. L.
c. 208, § 5. The husband also claims error in the amount of
child support and the division of assets provided for in the
divorce judgment, as well as the timing of his receipt of that
judgment and its form.
An appellant (in this case the husband) bears the burden of
presenting appellate arguments and producing a record appendix
that are adequate for appellate review. See Mass. R. A. P.
16 (a) (9), as appearing in 481 Mass. 1628 (2019); Mass.
R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). The
rule "is more than a 'mere technicality. It is founded on the
sound principle that the right of a party to have this court
consider a point entails a duty; that duty is to assist the
court with argument and appropriate citation of authority.'"
Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995), quoting
Lolos v. Berlin, 338 Mass. 10, 14 (1958).
2
Here, the husband's appellate arguments lack support of any
case law or reference to any standard of review. He failed to
provide the court with citations to the record and, more
problematically, he failed to provide the court with pertinent
portions of the hearing transcripts. See Mass. R. A. P.
18 (b) (4). See also Everett v. 357 Corp., 453 Mass. 585, 604
n.26 (2009). For example, in his informal brief, the husband
claims the judge erred in denying his motion to dismiss the
complaint for lack of subject matter jurisdiction. He cites no
legal authority to support his contention. However, even if the
court were inclined to overlook this fact and consider the
merits of the husband's claim, we are unable to do so because
the husband has failed to provide the court with the transcript
of the hearing or the wife's opposition to the motion to dismiss
and has only included the first page of his motion to dismiss.
Likewise, we are unable to review the substance of the divorce
judgment without the transcript of the trial.
In sum, the record does not provide us with any basis to
conduct a meaningful review of the judge's decisions. See Davis
v. Tabachnick, 425 Mass. 1010, 1010 (1997) (appellant not
entitled to review on claims where brief lacked citations to
support factual allegations, appendix lacked transcript or tape
recording of proceedings in court, and appellant provided no
3
other documents in support of his claims other than his
unsubstantiated assertions in his brief). While we recognize
the inherent challenges in proceeding pro se, parties
represented by counsel and pro se litigants are required to
present materials necessary for appellate review. See Brown v.
Chicopee Fire Fighters Ass'n, Local 1710, IAFF, 408 Mass. 1003,
1004 n.4 (1990) ("Although some leniency is appropriate in
determining whether pro se litigants have complied with rules of
procedure, the rules nevertheless bind pro se litigants as all
other litigants").1
Judgment affirmed.
By the Court (Massing,
Walsh & Brennan, JJ.2),
Clerk
Entered: February 4, 2025.
1 The wife, claiming that the husband's appellate argument
is frivolous, has requested appellate attorney's fees. While
the wife's argument has some force, we decline to award
attorney's fees.
2 The panelists are listed in order of seniority.
4