NORRIS R. KARP, special administrator,v. ALFRED L. AMENDOLA Of the estate of Marion L. Amendola. Appeals Court of Massachusetts Argued December 12, 1989 January 22, 1990 A probate judge (first judge) on July 14, 1986 entered a judgment of divorce nisi. The husband appealed. His appeal was dismissed on October 28, 1986 by the first judge on the ground of inexcusable neglect. On October 25, 1986, the wife was murdered. On motion of the husband, another probate judge (second judge), on November 25, dismissed the divorce action because the divorce had not become absolute at the time of the wife's death. After the wife's counsel filed a notice of appeal from that dismissal, the husband moved to dismiss the wife's appeal on the ground that her counsel had no client. At a hearing on the husband's motion, arguments were made as to whether the second judge's order should be vacated, and, on September 3, 1987, the order of dismissal of the divorce complaint was vacated by the first judge. On July 6, 1988, at the request of the special administrator of the wife's estate, the first judge entered a judgment of divorce absolute nunc pro tunc as of October 13, 1986.The husband sought review. Issue: Whether the first judge erred in vacating the order of dismissal entered by the second judge and in entering a divorce absolute nunc pro tunc? Discussion: This court held that at the time the second judge allowed the motion to dismiss the action, the first judge had already dismissed the husband's appeal from the judgment nisi.. The dismissal of the husband's appeal resulted in the judgment becoming absolute ninety days from the date of the judgment nisi. The plain implication is that the dismissal of objections to the judgment nisi or the dismissal of an appeal, whether by the Probate Court or an appellate court, results in the entry of a retroactive judgment absolute The defendant should not be entitled to take advantage of this circumstance to argue now that, the running of the nisi period was stayed by his appeal. This court also held that where the dissolution of the marriage remained uncontested throughout the trial, the husband's appeal from the divorce portion of the judgment should be dismissed. Upon dismissal of that aspect of the appeal, the retroactive provision of rule 62(g) took effect, and the judgment became absolute as of ninety days from the date of the judgment nisi. The death of the wife did not prevent the first "judge from ordering to be done retroactively both what ought to have been done and what the rules of court direct be done with retroactive effect." The vacating of the order of the second judge by the first judge was appropriate. Conclusion: This court hence affirmed the order vacating the dismissal of the wife's divorce complaint, and affirmed the order entering a judgment absolute as of October 13, 90 days from the date of the judgment of divorce nisi. Disclaimer: These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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