NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-356

CAROLYN S. ELMORE

vs.

JAMES F. ELMORE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2021 James Elmore (father) filed a complaint for 

modification of a 2015 divorce judgment, seeking to reduce or 

terminate his child support obligation to Carolyn S. Elmore 

(mother) on the ground that the parties' two grown daughters 

were emancipated. The mother counterclaimed, seeking to reduce 

or terminate her obligation to pay alimony and provide life 

insurance for the father. Following a three-day trial in the 

Probate and Family Court, the judge issued a modification 

judgment in favor of the father, reducing his child support 

obligation and leaving the mother's alimony and life insurance 

obligations undisturbed. The mother timely filed a motion for a 

new trial under Mass. R. Dom. Rel. P. 59, which was denied, an

order from which the mother also timely appealed. On appeal the 

mother claims that the judge violated her procedural due process 
2

rights by adhering to a previously-issued temporary order, 

quashing her discovery requests, and denying her motion to 

present expert testimony and related documents at trial. We 

affirm.

Background. The parties were involved in contentious 

divorce proceedings, which resulted in the entry of a judgment 

of divorce in 2015. Shortly thereafter, the parties filed 

complaints for contempt and modification, with numerous 

associated motions, prompting the judge assigned to hear those 

matters to enter a temporary order dated September 20, 2016, 

requiring the parties to seek permission of the court before 

filing additional pleadings or motions. About one month later 

the parties jointly moved to dismiss the pending claims. 

Although the temporary order was addressed to the anticipated 

trial on the matters then pending, neither party moved to vacate 

it, and both parties continued to abide by its terms in 

subsequent proceedings.

Thus, when the father filed his current complaint for 

modification, he also filed a motion for permission to file it, 

which was granted. The mother responded by filing an answer and

her counterclaim, without first seeking permission. At the same 

time, the mother served the father with twenty-six 

interrogatories and sixty-one requests for production of 

documents with respect to the years 2016 through 2021. In 
3

addition, she served seven recordkeeper deposition notices (on 

the husband's bank, employer, accountant, and mortgage lenders) 

seeking documents for the same five-year period, and a notice of 

deposition on the father's girlfriend. The father asked the 

court's permission to file a motion to dismiss the mother's 

counterclaim and to file a motion to quash and for a protective 

order. The judge granted the father permission to file his 

motions and scheduled them for hearing on the date of the 

already-scheduled pretrial conference.1

The father's motions were addressed at the pretrial 

conference. The father argued that his complaint for 

modification was very simple, that the matters before the court 

could be decided on the financial documents already available to 

the mother, and that the mother's discovery requests were part 

of a recurring pattern of over-litigating. The mother argued 

that the discovery was relevant to the father's request to 

terminate his child support obligation -- which turned primarily 

on whether the parties' younger daughter, who was twenty years 

old, had the ability to work full-time.2 The judge allowed the 

1 In response to the father's motion to quash, the mother filed a 

motion for permission to file a dueling motion to compel. On 

the same day that the judge scheduled the father's motions for 

hearing, she denied the mother permission to file the motion to 

compel. The mother did, however, file a comprehensive 

opposition to the motion to quash.

2 The judge ultimately ruled that the daughter would be 

considered emancipated on her twenty-first birthday, and that 
4

motion to quash, noting that the parties' financial statements

were "signed under pains and penalties of perjury" and that the 

mother had more financial resources available than the father.

As to the father's motion to dismiss the mother's 

counterclaim, the father argued, among other things, that the 

mother had failed to seek permission to file it. The mother 

argued that the temporary order requiring permission for filing 

dissolved when the parties' 2016 complaints were dismissed. The 

judge disagreed, stating that such orders remain in effect once 

they are issued, as the parties' subsequent conduct confirmed. 

The judge nonetheless denied the father's motion to dismiss and 

allowed the mother to proceed on her counterclaim. Noting that 

the father had estimated the trial would take thirty minutes, 

the judge asked the mother's counsel how long she anticipated 

the trial would last. When mother's counsel answered "two 

days," the judge responded, "No. It's not going to take two 

days to try this case." The judge ordered the parties to return 

at 3 P.M. for trial.

The mother filed an emergency motion to continue the trial

(accompanied by a motion for permission to file the motion). 

The judge denied the mother's motion, stating that "this seems 

like a very simple complaint for modification and simple issues, 

the father's child support obligation would be reduced to $74 

per week until then.
5

and for Court's efficiency and time I believe that all parties 

are better served to have this trial today." Before the second 

day of trial, the mother sought permission to file an emergency 

motion in limine to be permitted to call two expert witnesses, a 

vocational expert and an accounting expert, to establish that 

the father's income was higher than he represented in his 

financial statement. The judge denied the motion on the ground 

that the presentation of previously-undisclosed expert testimony 

would be prejudicial to the father and because the judge did not 

believe the mother "need[ed] to over litigate this with 

experts." On the third day of trial the mother discussed 

presenting a third expert to rebut the husband's testimony about 

the state of the real estate market, and she filed an offer of 

proof regarding the proposed testimony of all three experts. 

She also sought to introduce documents concerning the value of 

the properties that the father had sold as a real estate agent, 

which the judge excluded, partly on hearsay grounds.

Discussion. 1. The temporary order. The mother argues on 

appeal that the judge erred by enforcing the temporary order

because it had expired by its own terms and, if it was still in 

effect, the order deprived her of access to the courts. Putting 

aside the fact that the mother never moved to vacate the 

temporary order, she has not shown prejudice, or any due process

violation, arising from the temporary order. See Mass. R. Dom. 
6

Rel. P. 61 (identical to Mass. R. Civ. P. 61, 365 Mass. 829 

[1974]). In the only context in which the mother questioned the 

order's continuing validity -- her opposition to the father's 

motion to dismiss the counterclaim -- she prevailed. Although 

she was not permitted to file her motion to compel discovery, 

she had a full and fair opportunity to oppose the father's 

motion to quash, see note 1 supra, which raised identical 

issues. Similarly, although she was not given permission to 

file her motion to present expert testimony, as discussed below, 

the judge denied that motion on grounds unrelated to the 

temporary order. The existence of the temporary order did not 

interfere with the mother's ability to litigate the father's 

complaint or her counterclaim, or in any way deprive her of 

meaningful access to the court.

2. Discovery. As noted, the mother made sixty-one 

requests for production of documents and propounded twenty-six 

interrogatories on the father, sought to obtain records from 

seven business entities, and also sought to depose the father's 

girlfriend about details of the father's finances since the 

entry of the divorce judgment. These requests were made in the 

context of divorce proceedings that had already been so 

contentious that the parties were required to obtain leave of 

the court before filing papers.
7

Under Mass. R. Dom. Rel. P. 26 (c) (identical to Mass. R. 

Civ. P. 26 [c], as amended, 474 Mass. 1401 [2016]), "Upon motion 

by a party or by the person from whom discovery is sought, and 

for good cause shown, the court . . . may make any order which 

justice requires to protect a party or person from annoyance, 

embarrassment, oppression, or undue burden or expense, including 

. . . that the discovery not be had" or limiting the scope of 

discovery. Likewise, under Mass. R. Dom. Rel. P. 45 (b)

(identical to Mass. R. Civ. P 45 [b], as appearing in 470 Mass. 

1402 [2015]), the court may, upon motion, quash or modify a 

request for documents from a third party if the request is 

"unreasonable and oppressive." "Trial judges have broad 

discretion to make discovery and evidentiary rulings conducive 

to the conduct of a fair and orderly trial" (quotation and 

citation omitted). Mattoon v. Pittsfield, 56 Mass. App. Ct. 

124, 131 (2002).

Faced with the mother's argument that the discovery she 

requested was necessary to address the question of child 

support, the judge reasonably concluded that the matter could be 

decided based on the parties' financial statements. As the 

judge noted, the trial presented "simple issues," and she was 

"not going to let this get out of hand and make it something 

bigger than it actually is." The mother did not respond by 

proposing more reasonable, targeted, or limited discovery. In 
8

these circumstances, in a case in which the mother undeniably 

had more financial resources available than the father and was 

using those resources in a manner that the judge found to be 

unreasonable and oppressive, we discern no abuse of discretion 

in the allowance of the father's motion to quash and for a 

protective order.

3. Expert testimony. The mother argues that the judge 

abused her discretion by precluding the mother from calling 

expert witnesses to testify at trial. "The decision to exclude 

expert testimony rests in the broad discretion of the judge and 

will not be disturbed unless the exercise of that discretion 

constitutes an abuse of discretion or other error of law." 

Palandjian v. Foster, 446 Mass. 100, 104 (2006). In denying the 

mother's requests, the judge explained that allowing the mother 

to present expert testimony not previously provided to the 

father and designated in her pretrial memorandum only as "expert 

witnesses as needed" would be "highly prejudicial to him, 

because he can't counter any experts, because he doesn't have 

time." See Elias v. Suran, 35 Mass. App. Ct. 7, 10 (1993) ("a

trial judge has broad discretion in deciding whether to permit 

expert testimony when the proponent has not given proper notice 

of the identity of the expert or the subject matter of the 

expert's anticipated testimony"). We discern no abuse of 

discretion.
9

4. Prejudice. Even if we were to conclude that the judge

abused her discretion in quashing the mother's discovery 

requests and excluding her proffered expert testimony, the 

mother is unable to show that her inability to minutely

challenge the father's financial statement caused her prejudice. 

See Solimene v. B. Grauel & Co., 399 Mass. 790, 799 (1987) (in 

reviewing discovery orders "we do not interfere with the judge's 

exercise of discretion in the absence of a showing of 

prejudicial error resulting from an abuse of discretion"); 

Fourth St. Pub, Inc. v. National Union Fire Ins. Co., 28 Mass. 

App. Ct. 157, 163 (1989) ("The erroneous exclusion of expert 

testimony does not warrant a new trial unless the substantial 

rights of a party are adversely affected").

"To be successful in an action to modify a judgment for 

alimony . . . the petitioner must demonstrate a material change 

of circumstances since the entry of the earlier judgment"

(citation omitted). Vedensky v. Vedensky, 86 Mass. App. Ct. 

768, 772 (2014). "In determining whether a payor has met his or 

her burden of demonstrating a material change in circumstances 

warranting a downward modification of alimony, it is well 

settled that a judge must consider the totality of the payor's 

financial circumstances, including his or her income and 

available assets." Dolan v. Dolan, 99 Mass. App. Ct. 284, 289 

(2021).
10

Here, based on the financial statements, the judge found no 

material change since the entry of the divorce judgment, in the 

father's income or in the mother's ability to pay, that would 

warrant a reduction of alimony. The judge found the father's 

income to be $22,054.24 annually, not including alimony, which 

was less than the income of $27,000 imputed to him at the time 

of the divorce judgment. According to the mother's offer of 

proof, her vocational expert would testify that the father's 

earning capacity as a real estate agent was from $80,000 to 

$87,000 annually, about $50,000 more than the father claimed he 

earned. Her proffered real estate agent testimony and proffered 

documents concerning the properties the father sold as an agent 

would presumably support her claim that the father's financial 

statements understated his earnings.3

The judge found the mother's income to be $935,054.12 

annually, a sum far greater than the income of $350,000 used to 

calculate her alimony obligation.4 The judge found that "there 

3 The mother also proffered accounting expert testimony that, 

based on the tax payments reported in the father's financial 

statement, his gross earnings in 2020 were at least $175,000, 

including alimony received. As the father received alimony 

payments of $106,590.12 in 2020, this would result in earnings 

of less than $70,000.

4 In a footnote, the mother argues that the judge's focus on the 

mother's increased income was misplaced because the father had 

been receiving equalizing payments based on the value of the 

mother's law practice. We disagree. The equalizing payments 

were based on the division of the parties' assets, not on the 

mother's income from her law practice.
11

was a disparity in the parties' income" at the time of the 

divorce judgment, and that "there continues to be a disparity in 

the parties' current income." Even if we assume that the 

father's income had increased to as much as $87,000, the gross 

disparity in the parties' relative resources remained. We are 

confident that even if the mother had been permitted to present 

expert testimony and evidence concerning the father's earnings, 

it would not have made a material difference in the outcome of 

the trial.

Conclusion. We recognize that the trial judge placed 

rather extreme limits on the mother's ability to conduct 

discovery and present evidence at the trial. However, the judge 

acted in the context of a protracted divorce contest that had, 

over the course of many years, burdened the Probate and Family 

Court and several of its judges. In such circumstances, we 

accord substantial deference to the trial judge's decisions 

concerning how to manage the docket and control the proceedings, 

and based on the record as a whole, the judge's restrictions 

appear commensurate with the nature and complexity of the issues 

before her. Moreover, even as restricted, the modification 

trial carried over three days, and the mother had ample 

opportunity to cross-examine the father and present her own 
12

testimony. We discern no abuse of discretion affecting the 

mother's substantial rights or requiring a new trial. 

Modification judgment 

affirmed.

Order denying motion for new 

trial affirmed.

By the Court (Massing, 

Sacks & Walsh, JJ.5),

Clerk

Entered: March 24, 2023.

5 The panelists are listed in order of seniority.