Opinion
No. 12–P–828.
2013-05-7
Kimberly A. KOZLOSKI v. Stephen J. KOZLOSKI.
By the Court (RUBIN, FECTEAU, & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (wife) appeals from a divorce judgment of the Probate and Family Court in which a judge awarded physical custody of the minor children of the parties to the defendant (husband),
with liberal visitation allowed for the wife.
The judge awarded joint legal custody to the parties.
She claims that this custody decision was an abuse of discretion, and that the judge's findings are inadequate to demonstrate that it was in the best interests of the children to change their custody arrangement from the wife, which had been the status quo prior thereto.
The judge declined to award child support to either parent and, noting the wife's limited employment skills and disinterest in obtaining employment, awarded the wife $300 per week in alimony.
She also contends that the judge improperly admitted or considered certain evidence beyond the purpose offered or permitted by law. We affirm.
The wife's appeal concerns only the custody of the two children born of the marriage, not the husband's son whom the wife adopted after the parties' marriage.
The parties were married in May, 2000; they separated in 2009, and the wife filed for divorce in 2010. The couple has two daughters, aged eight and eleven, respectively, who lived with the wife at the time of the divorce hearing, and the husband has a child from his first marriage, adopted by the wife but who lived with the husband at the time of hearing. The husband is Monson's chief of police; the wife is a homemaker with a GED but little practical experience in the work force.
The couple had few assets; the family home in Monson had no equity at the time; in addition, the home was damaged in the 2011 tornado.
When determining the custody of minor children, the overriding concern for the judge must be the best interests of said children. See Blixt v. Blixt, 437 Mass. 649, 657 (2002), cert. denied, 537 U.S. 1189 (2003); Custody of Kali, 439 Mass. 834, 840–843 (2003). On review, we examine whether the trial judge's determination of a child's best interests is an abuse of discretion. See Rosenberg v. Merida, 428 Mass. 182, 191 (1998); Mason v. Coleman, 447 Mass. 177, 184 (2006).
The wife first contends error in the judge's custody determination, on the ground that he gave insufficient explanation as to why the children's best interests are served by this custody order. The wife also complains that the judge's prejudgment comments made at the conclusion of testimony—to the effect that he would probably maintain the then-existing temporary order for physical custody of the daughters with the wife—are so contrary to the judgment as entered that the judge must be presumed to have acted arbitrarily. We disagree.
“The 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.’ “ Custody of Kali, 439 Mass. at 845, quoting from Rosenberg v. Merida, 428 Mass. at 191. After trial, the judge found the wife to be generally not credible, and implicit in this determination was his concern that it was not in the best interests of the children to remain in the wife's custody. The rationale of the judge's decision is, in essence, that the wife attempted to poison the children's relationship with the husband, demonstrated angry and inappropriate behavior toward the children, was either disinterested in or incapable of maintaining a proper living environment for the children, and was either disinterested in or incapable of ensuring that the children attended school regularly. While the judge's findings might have been more explicit in relating that it was the welfare of the children which was the reason he discontinued the wife's physical custody of the children, nonetheless, it is clear that his decision was driven by the overriding concern regarding the best interests of the children, a ruling amply supported by the judge's findings, which are well supported by the evidence.
As noted above, the wife also complains that the judge should not have admitted certain photographs and tape recordings in evidence, or at least should not have considered these materials for impeachment purposes, because (i) the husband took the photographs while he was under a G.L. c. 209A “stay away” order and the photographs were neither inconsistent with her testimony nor otherwise relevant;
and (ii) the audio recordings were taken in violation of G.L. c. 272, § 99(C)(1), (3). As to the wife's claim that the photographs were improperly admitted or considered, we discern no basis to conclude that the judge abused his discretion in this case (if indeed the judge even based his findings on the photographs). The judge heard testimony from various witnesses, including the wife's longtime friend, concerning the condition of the household, and the judge's conclusion that the house suffered from an “out of the ordinary uncleanliness” is supported by the evidence.
The husband was asked on cross-examination if he had taken any photographs of the interior of the family home to memorialize his observations that the home was in an unsanitary condition. Although the wife now complains that these photographs were improperly admitted and considered by the judge beyond impeachment purposes, we note that copies of the photographs have not been reproduced in the record.
As to the audiotape recordings, the husband asserts that there is no evidence in the record that any of these recordings were obtained, as G.L. c. 272, § 99, specifies, “secretly” or otherwise in violation of § 99. There is considerable evidence in the record generally suggesting that the wife knew of the children's recording of her statements and that her testimony on this point was not credible.
In any event, the particular items at issue here appear to be merely cumulative, with little basis to conclude that the judge relied on this evidence to the wife's prejudice.
Also, one of the children, apparently on more than one occasion, audiotaped the wife when she was alone with the children, and she was apparently aware of that child making these recordings. At least some of the recordings, admitted at trial, suggest that the wife said such things as that children should be disciplined “just like you would a dog” and that the wife on at least one occasion told one of the children “get your ass into the shower so I can drown you.” The wife denied making such statements and complains that the recordings should not have been admitted in evidence or used to impeach her credibility. Copies of these recordings (or transcripts thereof) are not reproduced in the record.
Judgment affirmed.