                                                                    Supreme Court

                                                                    No. 2017-157-Appeal.
                                                                    (N 2015-115)


            Raymond Boschetto                  :

                     v.                        :

             Cindy Boschetto.                  :


                                            ORDER

       The plaintiff, Raymond Boschetto (plaintiff), is before the Supreme Court on appeal from

a Family Court order granting a motion brought by the defendant, Cindy Boschetto (defendant),

seeking to dismiss the plaintiff’s appeal in this divorce action. Although the plaintiff timely

ordered the transcripts pertinent to his appeal, the appeal ultimately was dismissed by the Family

Court for failure to comply with Article I, Rule 10(b)(1) of the Supreme Court Rules of

Appellate Procedure, and final judgment entered. For the reasons discussed herein, we vacate

the judgment of the Family Court and reinstate the plaintiff’s appeal.

       This divorce action was filed by plaintiff in Family Court on June 24, 2015, and on

June 6, 2016, a lengthy trial ensued. On September 26, 2016, the trial justice issued a decision

granting the parties’ divorce on the grounds of irreconcilable differences that led to an

irremediable breakdown of the marriage. An amended decision pending entry of final judgment

was entered on November 15, 2016; plaintiff filed a timely notice of appeal on December 2,

2016. On December 20, 2016, the plaintiff, representing himself, ordered partial transcripts from

six separate trial dates and paid approximately $2,000 for them. However, pursuant to Rule

10(b)(1), plaintiff was required, within twenty days of filing his appeal, to




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               “order from the reporter a transcript of such parts of the
               proceedings not already on file as the appellant deems necessary
               for inclusion in the record. Unless the entire transcript is to be
               included, the appellant shall, within the time above provided, file
               and serve on the appellee a description of the parts of the
               transcript which the appellant intends to include in the record and
               a statement of the specific points upon which he or she intends to
               rely on the appeal.” (Emphasis added.)

       The plaintiff complied with the first requirement under Rule 10(b)(1) by timely ordering

parts of the transcripts that he deemed necessary for his appeal; however, because plaintiff

ordered only partial transcripts, he was required to provide defendant with a description of the

portions of the transcript that he intended to include in the record and a statement of the specific

portions of the record that he intended to rely upon on appeal. Upon becoming aware of the

second requirement under Rule 10(b)(1), on January 30, 2017, plaintiff filed a motion for an

extension of time to transmit the record to this Court. The defendant objected to plaintiff’s

motion for an extension of time, and also moved to dismiss plaintiff’s appeal for failure to timely

transmit the record. In response, on February 2, 2017, plaintiff provided the following notice to

defendant:

               “Now comes the [p]laintiff, Raymond Boschetto, Pro Se and
               notifies the [a]ppellee, Cindy Boschetto, that partial transcripts
               were ordered on December 20, 2016 as you are aware. The
               transcripts include hearing dates June 6, 7, 9, 23, 27, 28 and July
               1st of 2016. The points to be appealed are contained within the
               transcripts, which have not been provided as yet from the Court
               Stenographer, and will be determined based on attorney advice
               upon review.”

The defendant argued that this notice was not sufficient, as it did not provide the specific issues

that plaintiff intended to pursue on appeal.




                                               -2-
       On February 3, 2017, a justice of the Family Court held a hearing on defendant’s motion

to dismiss plaintiff’s appeal.1 The trial justice found that plaintiff did not timely comply with

Rule 10(b)(1). The trial justice noted that, because plaintiff did not order a complete transcript,

he was required to identify the specific points to be raised on appeal. The trial justice concluded

that plaintiff’s February 2, 2017, notice was insufficient and left everyone “in a quandary as to

exactly what the issues are that [plaintiff wanted] to litigate on appeal.”         The trial justice

dismissed plaintiff’s appeal. On March 1, 2017, plaintiff filed a timely notice of appeal.

       This Court reviews the dismissal of an appeal under the abuse-of-discretion standard.

Pelosi v. Pelosi, 50 A.3d 795, 798 (R.I. 2012); see also Sentas v. Sentas, 911 A.2d 266, 269 (R.I.

2006); Small Business Loan Fund Corporation v. Gallant, 795 A.2d 531, 532 (R.I. 2002). In this

case, the trial justice found that plaintiff violated Rule 10(b)(1) because he did not provide

adequate notice to defendant specifying the issues to be raised on appeal. Although this Court

has long adhered to a strict interpretation of Rule 10(b)(1), we acknowledge that there are

circumstances that permit a trial justice to exercise his or her discretion under this rule. See In re

Kimberly and James, 583 A.2d 877, 879 (R.I. 1990) (trial justice afforded appellant time to

provide a statement of the points she intended to rely on in her appeal before appeal was

dismissed). We conclude that such a circumstance exists in the case at bar.

       A review of the record evinces that plaintiff, a pro se litigant, timely appealed a decision

pending entry of a final judgment in this divorce action, that he timely ordered partial transcripts,

and that he timely paid approximately $2,000 for the transcripts. When plaintiff became aware

of the second requirement under Rule 10(b)(1)—which mandates that he serve defendant with a

statement specifying the issues to be raised on appeal—he immediately filed a notice informing

1
  The hearing justice also heard plaintiff’s motion to stay the entry of final judgment pending
appeal, as well as defendant’s motion to enter a final judgment of divorce out of time.


                                              -3-
defendant of the partial transcripts he had ordered. The plaintiff also filed a motion for an

extension of time to transmit the record, which was denied.

        The trial justice found plaintiff’s notice to defendant insufficient and not in compliance

with Rule 10(b)(1). We are of the opinion that such a finding in the circumstance at bar should

not have been fatal to plaintiff’s appeal. See Armstrong v. Polaski, 116 R.I. 661, 662, 360 A.2d

558, 559 (1976) (holding that “the general rule that failure to designate for inclusion in the

record portions of the transcript that are material to the points intended to be raised on appeal is

not necessarily fatal to a later filing of a complete transcript”).       We are satisfied that the

plaintiff’s situation is clearly distinguishable from prior cases in which we held that there was a

violation of Rule 10(b)(1). See In re Kyla C., 79 A.3d 846, 847 (R.I. 2013) (mem.) (respondent

never ordered transcripts and did not file for an extension of time); Sentas, 911 A.2d at 271 (no

evidence that defendant ordered transcripts); Stepp v. Stepp, 898 A.2d 724, 725 (R.I. 2006)

(mem.) (plaintiff failed to order any transcripts until four months after filing an appeal).

        The dismissal of an appeal is a harsh remedy; and, in the case before this Court, the

dismissal imposed a significant hardship on the plaintiff by depriving him of appellate review of

his claims. We conclude that the plaintiff’s first request for an extension of time to transmit the

record should have been granted, especially considering that there was no showing of prejudice

to the defendant. The plaintiff should have been afforded the opportunity to supplement the

record in order to specify the points he planned to raise on appeal. Accordingly, we vacate the

judgment of the Family Court. The papers may be remanded to the Family Court with directions

to reinstate the plaintiff’s appeal.




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Entered as an Order of this Court this ____
                                        9th day of May, 2018.

                                    By Order,


                                                  /s/
                                    _________________________________
                                                Clerk




                                    -5-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                        SUPREME COURT – CLERK’S OFFICE

                                 ORDER COVER SHEET

Title of Case                        Raymond Boschetto v. Cindy Boschetto.
                                     No. 2017-157-Appeal.
Case Number
                                     (N 2015-115)
                                     May 9, 2018
Date Order Filed
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
                                     Newport County Family Court
Source of Appeal
                                     Chief Judge Michael B. Forte
Judicial Officer From Lower Court
                                     For Plaintiff:

                                     Raymond Boschetto, Pro Se
Attorney(s) on Appeal
                                     For Defendant:

                                     Thomas M. Dickinson, Esq.




SU-CMS-02B (revised November 2016)
