Opinion
15-P-708
04-15-2016
THOMAS ESTRADA v. KATHLEEN ESTRADA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife appeals from the December 30, 2014, judgment on: the husband's divorce complaint; two contempt complaints; the wife's complaint for custody, and her contempt complaint against the husband., The wife makes eight challenges to the judge's rulings. First, the wife claims that the judge abused his discretion when determining the parenting plan. Second, the wife argues that the judge erred by modifying the current 209A restraining order. Third, the wife contends that the judge erred by allowing the husband to claim the child for income tax purposes in alternating years. Fourth, the wife maintains that the judge erred in not impounding her address. Fifth, the wife claims that the judge was extremely and unduly biased against her. Sixth, the wife claims that the judge erred by failing to appoint a guardian ad litem. Seventh, the wife argues that her Fifth Amendment rights were violated by the judge finding her guilty of contempt.
September 26, 2011, and January 27, 2012, complaints.
October 22, 2012, complaint.
While it does not appear from the record that the appeal from the judgment was assembled and transmitted to this court, the transcript was prepared and provided to us by the parties. In addition, the parties have presumed that the appeal from the judgment is before us and have argued the issues on the merits. Accordingly, we consolidate the appeal from the judgment with the pending appeal from the order of the single justice denying a stay without further necessity of assembly of the record by the Probate Court. We, therefore, address the substance of the appeal from the judgment.
Given our decision on the merits of the wife's appeal, we dismiss her appeal from the April 6, 2015, order of the single justice denying her motion for a stay as moot.
The wife claims that the judge incorrectly assessed her claims of domestic violence and did not give adequate consideration to the husband's mental health diagnosis.
The wife also maintains that permitting the husband to communicate with the child's providers violates the child's right to privileged communications.
Background. The parties were married on April 16, 2006. They had one child born on November 4, 2008. They last lived together on June 12, 2010. On April 19, 2011, the husband filed a complaint for divorce. The case was tried over four days on October 10, 17, 18, 2013, and June 19, 2014. Both parties were represented by counsel. The judgment, supported by findings, conclusions of law and rationale, issued on December 30, 2014.
Discussion. 1. Parenting plan. In his divorce complaint, the husband sought shared legal custody and reasonable visitation with the child. The judge granted the wife sole legal custody and primary physical custody of the child. He set out a detailed parenting plan which allowed the husband eight weekly supervised visits with gradual change to unsupervised visits of increasing duration. On appeal, rather than taking issue with any particular aspect of the parenting plan, the wife argues that the husband should not have been granted any parenting time with the child.
Record appendix. The wife included only sixteen pages of the 534 page transcript of a four-day trial in her record appendix. While she failed to include most of the sixty exhibits, she included pleadings and materials which were not introduced as exhibits at trial some of which were created after trial. For all of these reasons, her appendix fails to comply with Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). It was the husband who submitted a complete transcript.
Wife's brief. Many sections of the wife's brief are argumentative and do not constitute reasoned appellate argument supported by relevant legal authorities. Cameron v. Carelli, supra at 85-86. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Further, the brief is replete with allegations and factual assertions which are not supported by record cites and/or relate to post-judgment matters.
The fact that the plaintiff is proceeding pro se on appeal does not excuse these errors as a party proceeding pro se is held to the same standard as a party represented by counsel. Maza v. Commonwealth, 423 Mass. 1006 (1996).
A judge has broad discretion in determining which parenting plan will be in the child's best interests. Smith v. McDonald, 458 Mass. 540, 547 (2010). Here, in addition to the eight-page divorce judgment, the judge issued a forty-one page memorandum with fifty-two procedural findings, 207 findings of fact, conclusions of law and a rationale with a separate section on child custody and visitation. The judge's findings of fact must stand unless clearly erroneous. Ibid. The wife fails to specifically challenge any of the 207 numbered findings. Instead, she argues that the judge abused his discretion in making his credibility determinations. This argument is without merit because it is up to the judge to evaluate the credibility of witnesses and decide how much weight to give to their testimony. Gaw v. Sappett, 62 Mass. App. Ct. 405, 409 (2004). Goodman v. Atwood, 78 Mass. App. Ct. 655, 657-658 (2011).
The judge found that, after the husband permanently left the marital home in June of 2010, the wife refused his repeated requests for parenting time with the child, and that between June of 2010 and the first day of trial on October 10, 2013, the husband had four visits with the child. While the judge found that the child refused to visit with the husband on a number of occasions, he also found that the child was only nineteen months old when the husband left the marital home; that since that time the husband had an opportunity to spend time with the child on very few occasions, and that it was unlikely that the child has developed any independent feelings about him. The judge discredited the wife's testimony that she did not discourage the child form vising with the husband, and found that the wife has consistently taken actions which frustrated the husband's ability to spend time with the child.
The wife testified that she would not support the husband having unsupervised contact with the child under any circumstances, the judge credited the husband's testimony that he wanted the child to have a positive relationship with both parents and that he was aware that the child needed to be gently reintegrated into his life. The judge found that the husband showed that he had the child's best interests in mind. In granting the husband parenting time, the judge considered the child's best interests. He provided the child with the continued stability of having the wife as the primary caretaker and with the benefit of having her father in her life.
The wife argues that the judge should not have ordered any visitation between the child and the husband in light of what she terms "extensive documented history of abuse." However, rather than finding a history of abuse, the judge found "a history of domestic abuse allegations made by [w]ife against [h]usband in this case." Not only did the judge make numerous findings about the wife's lack of credibility on different subjects, he also made numerous findings about the wife's accusations against the husband which he found not to be credible. Cf. Custody of Vaughn, 422 Mass. 590, 599-600 (1996). He concluded that "there was no credible evidence presented at trial which would indicate that [h]usband had either committed a pattern of abuse or a single serious incident of abuse against either [w]ife or [the child]." In addition, after making a number of subsidiary findings, the judge found that the wife had a pending lawsuit against her former employer on the ground that it violated its domestic violence policy and concluded that the "[w]ife's litigation against [her former employer] has created a significant financial incentive to portray the husband as abusive."
As to the two altercations that took place between the husband and the oldest of the wife's three children from previous relationships, who was twenty-one or twenty-two at the time of their occurrence and twenty-five and no longer living in the wife's household at the time of trial, in addition to making related findings, the judge performed the required analysis: "Under G.L. c.208, sec. 31A, the [c]ourt must consider evidence of past abuse of [w]ife or [the child] by [h]usband as a factor contrary to [child's] best interest. However, the [c]ourt finds that none of the allegations made by the [w]ife against [h]usband constituted credible evidence of a pattern of abuse or a serious incident of abuse. There was credible evidence that [h]usband had two separate altercations with [w]ife's eldest son, Christopher. The [c]ourt finds that, absent Christopher's involvement in the family dynamic, there is no credible evidence that [h]usband has ever acted inappropriately in [the] child's presence. Therefore, any negative impact that the two incidents involving Christopher may have had on [the child's] best interests are clearly outweighed by positive impact of [h]usband having a meaningful role in [the child's] life. The [c]ourt finds that there was no evidence presented which would indicate that a relationship with [h]usband would be contrary to [the child's] best interests. Husband's VA records indicate that his care providers do not believe that [h]usband presents any risk to [the child].
The wife also argues that the judge erred by failing to adequately consider the husband's mental health. In fact, the judge considered it at length. He found that the husband, an honorably discharged retired veteran of the United States Marine Corps who was diagnosed with posttraumatic stress, had been receiving individual treatment and participated in group therapy. The judge noted that hundreds of pages of his medical records were admitted at trial; that one of his health care providers testified at trial that the husband's treatment has been effective and that he made significant progress; and that other health care providers wrote letters to the court on behalf of the husband. The judge credited the husband's testimony that he was "in a better place" than he was before. See Adoption of Frederick, 405 Mass. 1, 9 (1989) ("Mental disorder is relevant only to the extent that it affects the parents' capacity to assume parental responsibility, and ability to deal with a child's special needs"). Cf. Adoption of Katherine, 42 Mass. App. Ct. 25, 34 (1997). He concluded that "[t]here was no credible evidence presented at trial which would indicate that [h]usband's health has a negative impact on either his ability to earn an income or his ability to care for [the child]." See Angelone v. Angelone, 9 Mass. App. Ct. 728, 729-730 (1980) (wife was dealing successfully with her emotional problems and was a fit parent).
The wife did not include them in her record appendix.
The judge found that in addition to his full-time employment, the "[h]usband is also the [e]xecutive [o]fficer of the unit of Young Marines in Shrewsbury where he acts as a mentor for children ages eight through high school."
2. Modification of the G. L. c. 209A restraining order. The wife argues that the judge should not have modified the c. 209A order to allow the husband to contact the child's providers and to receive information from them; to allow visitation between the husband and the child; to order each party to contact the other in the event of a serious medical problem with the child; and to order the wife to provide the husband with her e-mail to allow for contact regarding the child.
The judgment provided, in part: "Husband shall have the right to consult and confer with all medical, mental health, educational, religious, and any other care providers for [the child] and shall receive the same documentation as does [w]ife." Rather than ordering the release of the child's confidential information, the judge merely provided the husband with the same access as the wife's. As to wife's claim under G. L. c. 71, § 34H, nothing in that section prevents the judge from allowing the husband access to the child's school information.
The Middlesex Probate court judge who issued the divorce judgment has been involved in this matter since August of 2010. In his decision, he noted that on September 26, 2011, the wife obtained a c. 209A restraining order against the husband in Middlesex Probate Court, which was not extended after a full evidentiary hearing, and that the day after the wife's request to extend the order was denied, the wife sought and obtained such an order from a different court -- the Woburn District Court -- which was extended several times thereafter.
"In deciding whether to modify or renew an abuse prevention order, a judge's discretion is broad." Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 777 (2005), quoting from Litchfield v. Litchfield, 55 Mass. App. Ct. 354, 356 (2002). The c. 209A order against the husband was modified several times in 2011, 2012 and 2013 to allow husband's visitation with the child and therapy sessions with the husband and the child, and to allow the husband to send birthday and holiday gifts to the child through counsel. For the reasons discussed above, the judge did not abuse his discretion in modifying the 209A order in accordance with provisions of the divorce judgment.
3. Income tax. The wife's one-paragraph claim that the judge erred in allowing the husband, who pays child support for the minor child, to claim her as an exemption in alternating years is not supported by a single cite to the case law and does not comply with Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Further, the judge has the authority to allocate dependency exemptions for divorced parents. Phalla Iv v. Samath Hang, 83 Mass. App. Ct. 598, 602-603 (2013).
4. Impoundment of address. The wife argues that the judge erred in not impounding her address. In fact, the judge allowed the wife's motion to impound her address on May 9, 2011. The address remained impounded pursuant to the 209A order.
5. Bias. The wife argues that "there has manifested an extreme bias within the Probate and Family Court." This argument, which relies primarily on contempt allegations which postdate the trial and are currently under advisement, are not properly before us. Moreover, the judge ruled in the wife's favor on custody which was the principle contested issue at trial and is therefore directly contrary to the wife's claim of extreme bias against her.
6. Guardian ad litem. The wife argues that the judge erred by not appointing a guardian ad litem for the child. First, the claim does not represent a reasoned appellate argument supported by relevant legal authorities. Mass.R.A.P. 16(a)(4). Second, it fails because the wife did not include her motion for appointment of the guardian ad litem in the record appendix. Moreover, while the docket shows that the wife filed a motion on May 9, 2011, she fails to point us to any part of the record appendix which would show that she raised the issue thereafter.
7. Contempt complaints. The wife argues that the husband filed frivolous contempt complaints against her. To the extent that she refers to complaints filed after the issuance of the judgment in this case, these matters are not before us. In the judgment before us, the judge found the wife in contempt of five court orders as a result of her failure to provide the husband with information about the child's surgical procedure, her obstruction of the implementation of the parenting plan, and her wilful disobedience of the court's order regarding the same. As to four of these orders, the judge's conclusions are supported by numerous findings of fact which, in turn, are supported by the trial evidence which the judge was entitled to credit.
As to the judge's finding that the wife was in contempt of the November 2, 2010, and the May 9, 2011, court orders, the wife argues that the judge violated her Fifth Amendment provisions against double jeopardy because the husband's May 9, 2011, complaint was dismissed with prejudice. First, the principles of double jeopardy do not apply to these civil proceedings. F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 600 n.11 (2015). Second, contrary to the wife's representations, the May 9, 2011, complaint alleged violation of the November 2, 2010, order only and the dismissal of that complaint related only to that order. The contempt orders against the wife are affirmed.
The wife also challenges the judge's finding that the husband was not in contempt on her contempt complaint against him. There was no error in this determination as the husband was current in his child support payments and therefore not in contempt.
8. Attorney's fees and costs. We decline to award the husband the appellate attorney's fees and costs he requested.
The judgment, dated December 30, 2014, is affirmed. The order denying the wife's motion to stay the December 30, 2014, judgment is affirmed. The wife's appeal from the order of the single justice, dated April 6, 2015, denying the wife's motion to stay the December 30, 2014, judgment is dismissed.
So ordered.
By the Court (Trainor, Meade & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 15, 2016.