Home ANTHONY CLAYBORNE JONES, JR. vs. LORRAINE POWELL

451 Mass. 1012

June 4, 2008

Supreme Judicial Court, Appeal from order of single justice. Practice, Civil, Extraordinary review, Appeal, Bond.

Anthony Clayborne Jones, Jr., appeals from a judgment of a single justice of this court denying his petition, pursuant to G.L. c. 211, § 3, without a hearing. We affirm.

This court's discretionary power of review pursuant to G.L. c. 211, § 3, "has been recognized as 'extraordinary,' and will be exercised only in 'the most exceptional circumstances.' " Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701 , 706 (1990), quoting Costarelli v. Commonwealth, 374 Mass. 677 , 679 (1978). Jones's submissions to the single justice and to this court fail to establish a basis for relief. See Cooper v. CVS Pharmacy, 450 Mass. 1024 , 1025 (2008). He appears to be challenging the requirement of an appeal bond, or the assessment of some other type of fee, in connection with a summary process action in the Boston Division of the Housing Court Department, but he provides no details about the bond or fee, why it was assessed, or why he could not obtain relief by means other than G.L. c. 211, § 3.

Furthermore, in Jones's appeal from the denial of his G.L. c. 211, § 3, petition he does not challenge the action of the single justice. See Mass. R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). "We will not reverse an order of a single justice in a proceeding brought pursuant to G.L. c. 211, § 3, absent an abuse of discretion or other clear error of law." Youngworth v. Commonwealth, 436 Mass. 608 , 611 (2002). The single justice did not commit a clear error of law or abuse her discretion in denying relief. To the extent Jones is seeking relief from the imposition of an appeal bond, the correct procedure for challenging the bond requirement is set forth in Matter of an Appeal Bond (No. 1), 428 Mass. 1013 , 1013 (1998). [Note 1]

Judgment affirmed.

Anthony Clayborne Jones, Jr., pro se.


FOOTNOTES

[Note 1] We recognize that Jones filed additional documents on the day of oral argument. Those documents, which were not filed with the single justice, are not a part of the record before this court. Nonetheless, we have reviewed them. Nothing in them changes our conclusion that extraordinary relief pursuant to G.L. c. 211, § 3, is not appropriate in these circumstances.

Home PATRICIA GIFFORD vs. IAN GIFFORD

451 Mass. 1012

June 19, 2008

Supreme Judicial Court, Superintendence of inferior courts. Divorce and Separation, Stay of judgment. Practice, Civil, Stay of proceedings.

Page 1013

The case was submitted on the papers filed, accompanied by a memorandum of law.

Elizabeth M. Clague for Patricia Gifford.

Patricia Gifford (wife) appeals from a judgment of a single justice of this court denying her petition for relief under G.L. c. 211, § 3, in which she sought, along with other relief, a stay pending appeal of certain orders entered in the Probate and Family Court. [Note 1] We affirm.

The case arises from divorce proceedings between the wife and Ian Gifford (husband). After a trial, a judge in the Probate and Family Court made extensive findings of fact, entered a judgment of divorce nisi, and awarded sole legal and physical custody of the couple's three children to the husband, with visitation for the wife. The same day, the judge entered an emergency order authorizing the local police department to gain access to the marital home by force, if necessary, so that the husband could pick up the children, who had been living there with the wife during the divorce proceedings. The wife sought a stay pending appeal from a single justice of the Appeals Court. [Note 2] Mass. R.A.P. 6, as amended, 378 Mass. 930 (1979). The stay was denied. The wife then petitioned this court pursuant to G.L. c. 211, § 3, requesting, in addition to other relief, that the judgment and emergency order be stayed. The single justice denied relief without a hearing.

After reviewing the wife's submissions to this court and the record of proceedings in the county court, we conclude that the single justice neither erred nor abused his discretion. First, the wife had the opportunity to appeal from the order of the single justice of the Appeals Court to a panel of that court. See, e.g., Adoption of Duval, 46 Mass. App. Ct. 916 (1999); Mezoff v. Cudnohufsky, 5 Mass. App. Ct. 874 (1977). She did not do so. Second, on consideration of the record that is before us (which includes the wife's argument on the merits of her request for a stay), we agree with the conclusions of the single justices of the Appeals Court and this court that in light of the trial judge's exhaustive findings, reasoning, and rulings, a stay pending appeal is neither required nor appropriate. Mezoff v. Cudnohufsky, supra ("Rarely, if ever, can it be said that a single justice is in error in denying relief" under Mass. R.A.P. 6).

Judgment affirmed.


FOOTNOTES

[Note 1] In this appeal, the wife presses only the denial of a stay, and not the denial of other relief.

[Note 2] Ordinarily, a stay must be sought in the first instance in the trial court. Mass. R.A.P. 6(a), as amended, 378 Mass. 930 (1979). The wife argues that to do so was not practicable in the circumstances of this case. Given our disposition, we need not decide whether this was so.