This case is before us for further appellate review. The Appeals Court, in a divided decision, vacated a judgment of the Probate and Family Court denying a divorced mother's request that she be permitted to remove her son from Newton to Tucson, Arizona. Abbott v. Virusso, 68 Mass. App. Ct. 326 (2007). The relevant facts and procedural background are set forth in the Appeals Court's opinion. The court held, among other things, that the record did not reflect whether the probate judge had given adequate consideration to the mother's interests, as custodial parent, when determining whether the proposed move would be in the best interests of the child. Id. at 332-334, quoting Yannas v. Frondistou-Yannas, 395 Mass. 704 , 710 (1985) ("[B]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account"). The court remanded the case to the Probate and Family Court "for further hearing so that findings may be made . . . as to all of the relevant interests," adding that "[i]t is within the judge's discretion to consider evidence regarding the current circumstances of the parties and the son." Abbott v. Virusso, supra at 339.
Upon careful review of the record and consideration of the parties' briefs and oral arguments, we conclude, as did the Appeals Court, that the judgment must be vacated and the case remanded for further proceedings at which all of the relevant interests are to be considered and weighed. We reach this result for essentially the same reasons articulated by the Appeals Court. Further, as the Appeals Court directed, any in camera interviews of the child or his sibling on remand must be recorded. Finally, and again for the reasons correctly stated by the Appeals Court, the separate report of the probate judge must be discharged as improper.
Thomas Paul Gorman for the plaintiff.
India L. Minchoff (Stephen J. Kuzma with her) for the defendant.
[Note 1] Also known as Rosalee A. Virusso.
George Nassar appeals from the denials, by a single justice of this court, of his motion to reopen proceedings on his motion for leave to appeal from the denial of his postconviction motion for a new trial, and of his motion for reconsideration. We affirm the judgment.
In 1967, Nassar was convicted of murder in the first degree. This court affirmed the conviction after plenary review. Commonwealth v. Nassar, 354 Mass. 249 (1968), cert. denied, 393 U.S. 1039 (1969). In 1982, Nassar filed a pro se motion for a new trial, which was denied by a judge in the Superior Court. He filed in the county court a one-sentence "motion for leave to appeal," which indicated that Nassar intended to appeal but did not state any grounds for doing so or identify any "new and substantial question" warranting
this court's attention. G. L. c. 278, § 33E (gatekeeper provision). He also requested appointment of counsel, but no counsel was appointed at that time. On November 1, 1983, there having been no activity in the case for over six months, the county court issued a notice that the matter would be dismissed unless good cause was shown not to do so. Nassar did not respond, and so the matter was dismissed on November 22, 1983.
There was no further activity for over twenty years, until 2006, when Nassar filed his motion to reopen the proceedings. [Note 1] The single justice did not err or abuse his discretion by denying that motion or the subsequent motion for reconsideration. Nassar claimed in his motion that he was unable, in 1983, to show good cause not to dismiss the matter because at that time, he was incarcerated in the Federal prison in Leavenworth, Kansas, without access to Massachusetts legal materials. [Note 2] However, he was returned to Massachusetts in December, 1983, [Note 3] but did not seek to reopen the matter or inquire as to its status at that time, or at any time thereafter for over twenty years. We perceive no error or abuse of discretion in declining to reopen the proceedings after such a long period of inaction.
Claudia Leis Bolgen for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
[Note 1] Also in 2006, Nassar filed a second motion for a new trial in the Superior Court. That motion is still pending.
[Note 2] Nassar also claims, for the first time on appeal, that he did not receive the 1983 notice that the matter was to be dismissed. That claim, which is inconsistent with the arguments presented to the single justice, is not properly before us. In any event, even if he did not receive the notice, he did nothing for over twenty years to pursue his proposed appeal or to inquire as to the status of his motion. In these circumstances, Nassar was not entitled to have the proceedings reopened.
[Note 3] Nassar and other inmates successfully challenged their transfer to the Federal prison system in a civil action commenced in 1981. See Blake v. Commissioner of Correction, 390 Mass. 537 (1983), S.C., 403 Mass. 764 (1989).