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Massachusetts Domestic Relations Procedure Rule 53: Masters

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(a) Definition. The following words, as used in this rule, shall mean:

(i) "master" shall mean any person, however designated, who is appointed by the court to hear evidence in connection with any action and report facts.

(ii) "stenographer" shall mean a stenographer appointed by the master before commencement of the hearing.

Identical to Mass.R.Civ.P 53(a)

(b) Appointment

(1) Member of Bar. The court in which an action is pending may appoint a master therein subject however, to a standing order, if any, of the Administrative Justice designating classes of cases not to be tried to a master, and provided further that in the District Court, no master may be appointed without the assent of all parties. No master shall be appointed who is not a member in good standing of the bar of one of the United States or of the District of Columbia.

(2) Selection by Appointment. Prior to the appointment of a master, the court may inquire whether the parties can agree upon a master. The court may appoint the person agreed upon or such other suitable person.

(3) Deleted.

(4) Objection to Master Selected. If an objection is made by any party to the appointment of a master selected by the court, whether from the official standing list, if any, or otherwise, the objecting party shall file with the court within five (5) days of notice of such appointment a written objection to such appointment, and notice of such filing shall be forwarded forthwith by the clerk of court to the referring justice. The grounds for such objection shall not be included within such written objection but shall be furnished to the referring justice upon his request and in the form that the referring justice shall order.

(5) Inability to Serve. Upon receipt of an order of reference as herein provided, a person appointed a master shall notify the referring justice immediately if he is unable or unwilling to serve as master in the case. No person shall accept appointment as master in any case in which he cannot be impartial. If there are circumstances known to the master, which may give the appearance of partiality, including the existence of any pending matter between the master and any party to the litigation or any party's counsel, the master must make full written disclosure to the referring justice and all parties immediately after receipt of the order of reference.

(c) Compensation. The compensation allowed to a master may be charged in whole or in part upon the parties, or out of any fund or subject matter of the action which is in the custody or control of the court, or, when authorized by law, upon the Commonwealth, as the court may direct. The rate of compensation to be paid by the parties or out of any fund or subject matter of the action shall be fixed by the court; the rate of compensation to be paid by the Commonwealth shall be fixed from time to time by rule of each department. Where compensation is to be paid by the Commonwealth, no additional compensation shall be accepted from the parties, unless approved by the court and stated in the order of reference. When a party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. Identical to Mass.R.Civ.P 53(c)

(d) Order of Reference. A master shall be appointed by a written order of reference. Said order: (i) shall either fix definite times for the hearings or fix the time when or before which hearings shall be begun and the time within which they shall be ended; (ii) shall fix the time for the filing of the master's report; (iii) may specify or limit the master's powers and may direct him to report only upon particular issues or to do or perform particular acts. Identical to Mass.R.Civ.P 53(d)

(e) Powers. Subject to the specifications and limitations stated in the order of reference, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and he shall have the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. Identical to Mass.R.Civ.P 53(e)

(f). Proceedings.

(1) Hearings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof the master shall forthwith notify the parties or their attorneys of the time, date and place of the first hearing. The order of reference may require that the hearings proceed from day to day, Saturdays, Sundays and holidays excepted, until completed. If the court does not order the master to proceed from day to day, nevertheless he shall proceed as nearly as possible on consecutive days, and shall grant no adjournment for a longer period than three (3) days except by order of the court. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make his report. The court may change or extend the time for hearings.

(2) Evidence. Rules 43(a), (b), (d) and (g) will govern hearings before masters. If an objection to a question propounded to a witness is sustained by the master, and there is a stenographer present, upon request the master shall take the proffered evidence as an offer of proof unless the master finds that the proffered evidence is privileged.

(3) Interpreters. The master may appoint an interpreter whose compensation shall be fixed by the court. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs in the discretion of the court.

(4) Stenographers. No master shall, without prior approval of the court, appoint a stenographer to be paid by the Commonwealth.

(5) Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.

(6) Failure to Appear. If all parties fail to appear at a hearing without showing good cause, the master shall report forthwith to the clerk of the court in which the action is pending, and the clerk shall bring such report forthwith to the attention of the referring justice, if practicable, otherwise to any justice of the court. If a party fails to appear at the time and place appointed, the master may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment, or apply to the court, with notice to the parties, for the imposition of sanctions

(7) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished by the court as for a contempt.

(g) Master's Report.

(1) Contents. The master shall prepare a report upon the matters submitted to him by the order of reference, and, if required by the order of reference to make findings of fact and conclusions of law, he shall set them forth in the report. The mater's report will contain the master's general findings upon each issues that is within the order of reference and will include and clearly identify the subsidiary findings upon which each general findings is based. No general findings will be presumed by the court to be supported by subsidiary findings which are not stated in the report as the basis therefor. Any party, at the conclusion of the evidence may file with the master requests for findings of fact and conclusions of law.

(2) Filing. At least ten (10) days before filing his report, the master shall submit a draft thereof to counsel for all parties. Counsel for any party may submit to the master suggested amendments in writing, copies of which must be contemporaneously submitted to counsel for all of the parties. The master may, in his discretion, allow a hearing on any suggested amendments. If any suggested amendment is adopted by the master, he shall furnish counsel for all parties with copies of said amendment contemporaneously with the filing of his report.. Within thirty (30) days after the close of the evidence, unless the court, on motion or otherwise, for good cause shown, shall alter the time, the master shall file his report and the original exhibits with the clerk of the court. The clerk shall forthwith mail to all parties notice of the filing.

(h) Master's Report in Non-Jury Cases.

(1) Status of Report. In an action to be tried without a jury, the court shall accept the master's subsidiary findings of fact unless they are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master as a matter of law or are otherwise tainted by error of law. Any party who contends that the master's subsidiary findings are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master or are otherwise tainted by error of law must make such contentions by objection as hereinafter provided. The court may draw its own inferences from the master's subsidiary findings. The court may make findings in accordance with Rule 52, which are in addition to the master's findings and not inconsistent therewith, based either on evidence presented to the court or evidence before the master which was recorded by means approved by the master before commencement of the hearing.

(2) Objections to Report. Within ten (10) days after service of notice of the filing of the report or such other time as the court may allow, any party may serve written objections thereto upon every other party making any of the contentions referred to in paragraph (1) of this section, clearly stating the grounds for each objection and the relief sought. At any time after the filing of objections or the expiration of the time therefor, any party may move the court, with notice to all to other parties, to act upon the report and upon any objections thereto, provided however, the court may so act upon its own motion after notice to all parties.

(3) Limitations on Review. The court will not review a question of law dependent upon evidence before the master unless the evidence was recorded by a stenographer and a transcript of so much of the proceedings before the master as is necessary to dispose of the objections adequately is served, together with the objections, upon every other party. Any party may designate additional portions of the transcript for submission to the court by the service of notice within 10 days after service of the objections. The objecting party shall serve such additional portions upon every other party; but if the objecting party shall refuse to do so, the party designating such additional portions shall either serve them upon every other party or shall move the court to require the objecting party to do so. At the time of ordering a transcript from the stenographer, a party shall make satisfactory arrangements with the reporter for payment of the cost of any transcript ordered. The parties are encouraged to agree as to the portions of the transcript that will accompany the objections.

(4) Action on Report. The court may adopt the report, strike it in whole or in part, modify it, recommit it to the master with instructions or take any other action that justice requires. Any motion to adopt a report shall be deemed to include a motion to enter judgment and shall be accompanied by a proposed form of judgment.