Opinion
15-P-324
10-28-2015
MICHAEL MARCOU v. LISA ZAGAMI.
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
After a brief marriage, the parties were divorced pursuant to a 2008 Connecticut divorce decree. They were assigned joint legal and physical custody of their daughter (born March 28, 2007), with primary physical custody assigned to the mother. After the divorce became final, the parties fought over parenting time, day care, and each other's compliance with court decrees. Such disputes continued after the parties moved to Massachusetts in or about 2012. In 2014, the father filed a complaint to modify the Connecticut decree, requesting that he be given sole legal and physical custody of the daughter. The mother filed a counterclaim, requesting that full legal and physical custody be assigned to her. In the interim, the father moved to Florida.
Following trial, a Probate and Family Court judge entered a judgment modifying the Connecticut decree, largely as requested by the mother. Although the modification judgment gave sole legal and physical custody to the mother, it provided that the father could have visits with the daughter in Massachusetts (supervised by his mother) and that the father could speak with the daughter by telephone on odd days of the month. The judge subsequently issued a detailed memorandum of decision that explained her reasons for modifying the Connecticut decree. That memorandum included factual findings and rulings of law.
Representing himself, the father has appealed from the modification judgment. His appellate brief fails to comply with the Massachusetts Rules of Appellate Procedure in significant respects. For example, the argument section of the brief does not include any "citations to the authorities, statutes[, or] parts of the record relied on." Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Passing over such deficiencies, which alone provide reason to dismiss his appeal, we discern no merit in the arguments he makes. It is the trial judge's role to find the facts based on the testimony and other evidence admitted at trial, and the father has not demonstrated that any of the judge's findings is "clearly erroneous." Custody of Eleanor, 414 Mass. 795, 799 (1993). In fact, the father is not even in a position to argue that the findings are clearly erroneous given that he has not provided to us a copy of the trial transcript. See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1601 (1999).
The fact that the father's noncomplying brief was allowed to be filed does not mean that any substantive deficiencies in the brief are to be overlooked.
Given that appellate review is confined to the record before the trial court, we deny the father's motion seeking to testify before this court.
In addition, the judge made well-supported rulings that various substantial and material changes in circumstances had occurred that justified the modifications to the Connecticut decree, and that these modifications were in the best interests of the daughter. See G. L. c. 208, § 28. The father has not demonstrated that any of the judge's rulings constitutes an abuse of discretion, or is otherwise erroneous. See Freedman v. Freedman, 49 Mass. App. Ct. 519, 521-522 (2000).
With regard to potential further modification requests, it bears noting that the judge specifically found that the mother "is open to the eventual possibility of [the father's] parenting time occurring in Florida, once there is a little more clarity around the circumstances of [his] residence there."
Judgment affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 28, 2015.