Opinion
16-P-642
03-13-2017
Cassandra A. BROWNING v. Marsha K. FEARING.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Marsha K. Fearing, the former wife of Cassandra A. Browning, appeals from a supplemental amended judgment of the Probate and Family Court that, among other things, granted Browning permission to remove the parties' two children from the Commonwealth of Massachusetts. Fearing also contends that the Probate and Family Court judge erred by failing to retroactively modify the amount of her child support payments. We affirm the removal order and order that the judgment be modified to provide that the child support modification order is retroactive.
Fearing further asserts that the judge erred in ordering the parties to share the cost of trial transcripts. Because Fearing's prior counsel told the judge that the parties intended to share the cost of the transcripts equally and the judge granted Browning leave to file a motion to amend an earlier judgment which failed to address this issue, we see no error.
Background . The parties were married in May, 2004, and have two children, born in September, 2004 and September, 2006. In 2009, Browning filed a complaint for divorce. The Probate and Family Court entered a judgment of divorce nisi on January 19, 2011, incorporating a separation agreement which established that the parties would have joint legal custody of the children and that the children's primary residence would be with Browning. The separation agreement also provided Fearing with parenting time "on alternate weekends, and Wednesday afternoon through Friday morning following her designated weekend."
On March 1, 2011, Browning filed a complaint for modification, seeking sole legal custody and a reduction in Fearing's parenting time. Fearing filed a counterclaim for modification. In 2012, Browning amended her complaint and sought to remove the children from the Commonwealth due to an employment offer that she had received in Washington, D.C.
After six days of trial in February and March of 2013, the Probate and Family Court judge issued detailed findings of fact and conclusions of law. She determined that Browning "has been the primary caretaker of the children at all times since the parties' separation," and that it was in the best interests of the children to grant the removal request. Fearing's appeal followed.
Discussion . 1. Removal . Fearing contends that the judge abused her discretion in granting Browning leave to remove the children from the Commonwealth. Specifically, she argues that there was no compelling change of circumstances that would authorize a modification of custody, and that the judge erred by analyzing the removal request using the incorrect legal standard. We review a judge's determination of the best interests of a child for clear error of law and abuse of discretion. Prenaveau v. Prenaveau , 81 Mass. App. Ct. 479, 486 (2012). Based on the judge's detailed factual findings and conclusions of law, we see no abuse of discretion or error of law in the removal order.
"[A] request for modification is distinct from a request to relocate and must be based on a material and substantial change in circumstances other than the move...." Rosenthal v. Maney , 51 Mass. App. Ct. 257, 260 (2001). See G. L. c. 208, § 28. Removal alone does not constitute a change in circumstances requiring a custody modification. In this case, because the judge found that Browning "has been the primary caretaker of the children at all times since the parties' separation," the determination that she was the primary custodial parent was not a modification of custody pursuant to G. L. c. 208, § 28.
Rosenthal also stands for the proposition that when a custodial parent seeks to remove a child, the noncustodial parent cannot argue that this is a substantial change in circumstances necessitating a custody modification. Id . at 261. This is in fact the same argument that Fearing made when she unsuccessfully sought sole physical custody in response to Browning's request to remove the children.
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A minor child of divorced parents " ‘shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders.’ G. L. c. 208, § 30. The words ‘upon cause shown’ mean only that removal must be in the best interests of the child...." Yannas v. Frondistou-Yannas , 395 Mass. 704, 711 (1985).
In making a removal determination, the judge's analysis depends upon whether the parent seeking removal has joint or sole physical custody. When two parents share joint physical custody, a child cannot be removed unless it is in the best interests of the child; however the "calculus pertaining to removal is appreciably different" in situations where one parent has primary physical custody. Mason v. Coleman , 447 Mass 177, 184 (2006). "Where, as here, the parties have eschewed traditional custodial terminology, the judge must make ‘a factual inquiry’ to determine the approximate custodial arrangement and then apply" the Mason test in cases where there is joint custody, or the Yannas test in cases where one party has sole custody. Woodside v. Woodside , 79 Mass. App. Ct. 713, 717 (2011) (citation omitted). See also Rosenthal at 260. Here, the separation agreement did not contain the phrase "physical custody," but the judge found that Browning had had primary physical custody of the children since the separation. This was based on the finding that the children were in Browning's care for "approximately two-thirds of the time" and that she was primarily responsible for their financial needs. According to the parenting schedule at the time of trial, over a fourteen-day period, the children stayed with Browning for fourteen nights, and she was responsible for seven out of ten school pick-ups and drop-offs. Additionally, Fearing paid child support in accordance with the Massachusetts Child Support Guidelines for cases where one parent has sole physical custody. Once the judge determined that Browning had sole physical custody, she properly applied the Yannas test. See Mason , 447 Mass. at 184-185.
Under Yannas , the judge first considers whether the custodial parent has a sincere reason for the move. Yannas , 395 Mass. at 711. Considerations may include "[t]he relative advantages to the custodial parent from the move, the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation." Ibid . If there is a "real advantage" for the move, the judge then considers whether it will be in the best interests of the child. Id . at 711-712. Whether removal is in the best interests of the child depends on factors such as:
"whether the quality of the child's life may be improved by the change (including any improvement flowing from an improvement in the quality of the custodial parent's life), the possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent, and the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child." Id . at 711.
The interests of the noncustodial parent must also be taken into consideration. Ibid .
In this case, the judge determined that the move to Washington, D.C. would be a real advantage to Browning. There was evidence that Browning was under financial stress and that she applied for over one hundred jobs, both in Massachusetts and around the country; her job search spanned a period of approximately one and one-half years. Browning was finally offered and accepted a position in Washington, D.C. There was no evidence that she sought to remove the children for a "malevolent purpose." Browning initially telecommuted for work and only sought the children's removal after six months of out-of-State employment.
The judge also factored that the move would serve the children's best interests in that their quality of life would improve because their custodial parent would no longer face the same financial pressures. To this end, for example, the children's medical needs would be "more than adequately" met by medical providers in Washington, D.C.
Another consideration for the judge was the steps Browning had taken "to minimize the disruption to [the children's]" developmental and emotional needs. Browning had researched and reported the resources that would be available in a new school system. Finally, the judge also factored that Fearing, who had ample financial resources and a flexible work schedule—she only worked part-time—would still be able to visit with the children regularly, as provided for in the parenting plan. We see no error.
2. Retroactive effect of the support order modification. On June 20, 2012, Fearing filed a motion for the reduction of child support and on August 7, 2012, the judge reduced her child support obligation from $460 per week to $191 per week. The judge held that the order was "subject to a possible retroactive modification," but never ruled on the issue of retroactivity.
During the pendency of a complaint for child support modification, a party is entitled to the retroactive modification of the support order where the parties' circumstances have changed materially and the retroactive modification is in the best interests of the child. Whelan v. Whelan , 74 Mass. App. Ct. 616, 627 (2009) ; G. L. c. 119A, § 13(a ). "[T]he decision whether to give retroactive effect to such orders rests in the sound discretion of the judge." Boulter-Hedley v. Boulter , 429 Mass. 808, 809 (1999). Here, however, the judge did not exercise such discretion. From all that appears on the record, the judge tabled the issue with an intent to return to it later but did not do so. See generally Boulter-Hedley v. Boulter , supra at 812. A judge is not required to make an order of child support modification retroactive, but "absent a specific finding that retroactivity would be contrary to the child's best interest, unjust, or inappropriate" such orders shall be retroactive. See generally Whelan v. Whelan , 74 Mass. App. at 627. Where the judge here failed to make such a finding as to the modification reducing the child support order, we conclude the child support modification order is retroactive to June 20, 2012, the date that the motion to establish a revised child support order was filed.
The judgment is to be modified to include a provision that the child support order dated August 7, 2012, is retroactive to June 20, 2012. As so modified, the supplemental amended judgment is affirmed.
So ordered .
Affirmed as modified.