NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11945

                        C.E.   vs.   J.E.1



                       September 23, 2015.


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


     C.E. (wife) appeals from a judgment of a single justice of
this court denying her petition for relief under G. L. c. 211,
§ 3, specifically, a stay pending her appeal from a judgment of
divorce nisi. At trial, the wife alleged that the husband,
J.E., sexually abused one of the parties' two minor children.
The judge found, after a fourteen-day trial, that the alleged
abuse had not been proved by a preponderance of the evidence. A
judgment of divorce nisi issued, paragraphs 3 and 4 of which
grant the husband unsupervised parenting time with the children.
The wife moved in the Probate and Family Court and before a
single justice of the Appeals Court for a stay pending appeal of
these two paragraphs. Mass. R. A. P. 6, as appearing in 454
Mass. 1601 (2009). When those motions were unsuccessful, the
wife filed her petition pursuant to G. L. c. 211, § 3, seeking a
stay, which a single justice of this court denied without a
hearing. On the wife's emergency motion, we issued an interim
order staying paragraphs 3 and 4 pending further order of this




    1
       A single justice of this court allowed C.E.'s motion to
impound the case and to refer to the parties by their initials.
court. We now vacate our interim order and affirm the judgment
of the single justice.2

     "Relief pursuant to G. L. c. 211, § 3, is extraordinary.
We will not disturb the single justice's denial of relief absent
an abuse of discretion or other clear error of law. See, e.g.,
Matthews v. Appeals Court, 444 Mass. 1007, 1008 (2005). A
petitioner seeking relief under the statute 'must "demonstrate
both a substantial claim of violation of [her] substantive
rights and error that cannot be remedied under the ordinary
review process."' McGuinness v. Commonwealth, 420 Mass. 495,
497 (1995), quoting Planned Parenthood League of Mass., Inc. v.
Operation Rescue, 406 Mass. 701, 706 (1990)." Bledsoe v.
Commissioner of Correction, 470 Mass. 1017, 1017 (2014), quoting
Black v. Commonwealth, 459 Mass. 1003, 1003 (2011). Here, the
wife had an adequate remedy in the ordinary review process, as
she "had the opportunity to appeal from the order of the single
justice of the Appeals Court to a panel of that court" and "also
could have requested that the Appeals Court expedite such an
appeal." Blonde v. Antonelli, 463 Mass. 1002, 1002 (2012),
quoting Gifford v. Gifford, 451 Mass. 1012, 1013 (2008). She
did not exercise this opportunity. "The single justice was not
obligated to exercise this court's extraordinary power where
[the wife] did not attempt to pursue ordinary appellate
remedies." Blonde v. Antonelli, supra. We cannot assume that
an expedited appeal before the Appeals Court would have been
unavailable or inadequate.

     Moreover, on review of the materials that were before the
single justice and that have been submitted to the full court,
we agree that a stay was not warranted. "An appellant seeking a
stay pending appeal must ordinarily meet four tests: (1) the
likelihood of appellant's success on the merits; (2) the
likelihood of irreparable harm to appellant if the court denies
the stay; (3) the absence of substantial harm to other parties
if the stay issues; and (4) the absence of harm to the public
interest from granting the stay." J.W. Smith & H.B. Zobel,
Rules Practice § 62.3, at 409 (2d ed. 2007). The wife cannot
meet the first of these four tests, as she has not demonstrated
a likelihood of success on the merits of her appeal from the
underlying divorce judgment. While she challenges the exclusion
of certain out-of-court statements bearing on the alleged abuse,
she has not shown, for purposes of obtaining a stay, that the

     2
       In view of the wife's motion to expedite this appeal and
the voluminous papers filed by both parties, oral argument is
not necessary to decide the issues before us.
judge likely erred or abused her discretion in ruling that the
statements were hearsay not subject to any exception and that
there was adequate admissible evidence before her to evaluate
the abuse allegations.3 Accordingly, the single justice neither
erred nor abused his discretion by denying a stay pending
appeal.

     The judgment of this court's single justice denying a stay
is affirmed. The interim order issued by this court on
September 12, 2015, is vacated.

                                   So ordered.


     The case was submitted on briefs.
     Miriam G. Altman & Valerie E. Cooney for the wife.
     Peter J. Jamieson for the husband.




     3
       In so holding, we do not prejudge the merits of the wife's
appeal. We hold only that she has not made the required showing
at this juncture to demonstrate that she was entitled to a stay
pending appeal. The wife remains free to raise the same
arguments on a fully developed record in the Appeals Court, and
we trust that that court will consider her arguments with an
open mind.
