Opinion
20-P-1168
12-14-2022
Andrew BENNETT v. Kelsi NELSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Andrew Bennett (father) and Kelsi Nelson (mother) are the parents of one minor child. The father appeals from a judgment of the Probate and Family Court ordering that the child remain in the mother's primary custody. On appeal, the father claims the judgment lacked factual basis and was not in the child's best interests. We affirm.
Discussion. We review a custody modification judgment for "abuse of discretion or other error of law." See E.K. v. S.C., 97 Mass. App. Ct. 403, 409 (2020), quoting Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." E.K., supra, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The father claims that the judge abused his discretion by making factual findings that were inconsistent with the evidence at trial. The record before us on appeal is incomplete, but even with a complete record, "[a] trial judge's findings of fact will not be set aside unless clearly erroneous." E.K., 97 Mass. App. Ct. at 409, quoting Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). "A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation and citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). We give deference to "the judge's assessment of the weight of the evidence and the credibility of the witnesses." Id.
Here, the judge held a two-day trial in November 2019 on several modification and contempt complaints the parties filed during 2018. After trial, the judge ordered the continuation of shared legal custody; the continuation of the mother's primary physical custody; and unsupervised visitation by the father at least twice per week. The judge's findings of fact included the child's history of developmental delays while living with the father and his progress at school after transferring to the mother's custody. The judge noted the child's behavioral problems but attributed them to the changes occurring in his life, including the transfer of custody from the father to the mother. The judge further found that while both parents had difficulty co-parenting, the mother had more consistently attempted to co-parent. The father's behavior, on the other hand, indicated efforts to alienate the child from the mother.
Examples of this behavior included refusing parenting time with the mother, defying court orders, refusing to inform the mother of the child's providers, and failing to inform the child's school of the mother's existence. The father also made allegations against the mother to the Department of Children and Families (DCF), which DCF found unsupported.
The judge's factual findings were not clearly erroneous. The findings were based on two days of testimony from the parties and their witnesses. The judge also reviewed multiple trial exhibits including state agencies' records of their interactions with the parties. The record before us, although incomplete, contains nothing to suggest that the judge overlooked or improperly weighed any critical fact. See E.K., 97 Mass. App. Ct. at 409 ; L.L., 470 Mass. at 185 n.27. Moreover, the judge was best positioned to assess the witnesses' credibility and evaluate the evidence. See Custody of Eleanor, 414 Mass. at 800. Given the deference we owe to the judge, we find no error in the factual basis underlying the judgment. See E.K., 97 Mass. App. Ct. at 409 (no clear error where judge issued detailed findings of fact supported by the record and facts supported legal conclusions).
The father also claims that the modification judgment was not in the child's best interests. "[T]he determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings ... must stand unless they are plainly wrong." E.K., 97 Mass. App. Ct. at 408, quoting Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019). Because the factual findings here were not clearly erroneous, the determination of the child's best interests was within the judge's discretion. See E.K., supra. The custody decision did not fall outside the range of reasonable alternatives and there was no abuse of discretion. See L.L., 470 Mass. at 185 n.27.
Judgment affirmed.