Opinion
14-P-1125
11-06-2015
JOHN NICOLETTI v. SANDRA BOLDUC.
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
This is an appeal from a modification judgment of the Probate and Family Court awarding sole legal and physical custody of the parties' daughter to the father. The mother contends that she is entitled to shared legal and primary physical custody because: (1) the judge ordered entry of the modification judgment 459 days after the last day of trial, and issued her findings of fact an additional 331 days thereafter, in violation of Standing Order 1-06 of the Probate and Family Court, (2) she was deprived of due process in violation of art. 11 of the Massachusetts Declaration of Rights (art. 11), and (3) the custody determination was not supported by the record. We affirm.
The mother's argument that the judge erred in denying a stay of judgment pending appeal is mooted by our decision. However, we direct the mother's attention to Mass.R.A.P. 6(a), as appearing in 454 Mass. 1601 (2009), which sets forth the procedure for obtaining a stay pending appeal in an appellate court.
Delay. The mother asserts that the delay in issuing the judgment and the findings violated time standards. Probate and Family Court Standing Order 1-06, with some exceptions not relevant here, provides that any judgment of the court "shall be issued" within ninety days of the conclusion of a trial of this length. The Preamble to the Standing Order acknowledges that the self-prescribed time standards are "intended to provide the Probate and Family Court with recognized goals for the timely disposition of cases." The time standards therefore are aspirational goals, not a source of vested rights. "We do not interpret such aspirational language as binding on the [court], or creating any rights enforceable by the parties to the [custody] action." Fisch v. Board of Registration in Med., 437 Mass. 128, 133 (2002).
The mother also looks to art. 11 as a basis for relief from the judgment. We need not decide whether art. 11 affords protection to parents in custody disputes, for even if it did, there has been no showing of a due process violation in this case. Clearly, delay of this type is to be avoided, although we recognize that the ninety-day goal can be particularly difficult to achieve in busy and overburdened Probate and Family Courts. More importantly, where there has been a change in custody, it is particularly important to issue findings and rulings contemporaneously with the modification judgment. See G. L. c. 208, § 28A. See also G. L. c. 209C, § 1. Compare Haas v. Puchalski, 9 Mass. App. Ct. 555, 556 n.5 (1980) ("We cannot stress too vigorously . . . that in custody cases it is imperative that the judge make findings showing that all the relevant factors in determining the best interests of the child have been weighed"); Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 741 (1996) (best interests analysis must include "specific or detailed findings based on evidence within the record"); Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010) (award of custody will not be sustained "unless all relevant factors in determining the best interests of the child have been weighed" [citation omitted]).
In pertinent part, art. 11 provides that justice shall be obtained "freely, . . . promptly, and without delay."
In order to sustain a due process claim, however, the mother must show that there was injury due to the delay in issuing the judgment and the findings. Cf. Adoption of Don, 435 Mass. 158, 170 (2001) (due process claim failed because parents did not demonstrate how more expeditious handling would have changed the outcome), and cases cited ; Commonwealth v. Pariseau, 466 Mass. 805, 810-812 (2014) (due process claim failed because defendant made no specific claim of prejudice). "The focus in a custody dispute between parents is not on their personal rights but on the welfare of the child." Schechter v. Schechter, 88 Mass. App. Ct. 239, 246 (2015) (citation omitted).
"The harm of that delay in this case, as in many others, is unfortunately suffered principally by the children." Adoption of Don, supra. To the extent that we consider the interests of the parents, the mother was not injured by the delay in the modification judgment; she retained custody of the child for longer than she otherwise would have been entitled. Finally, there are steps that may be taken by litigants to arrest delay. See Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 12-13 (1994). Cf. Skandha v. Clerk of the Superior Ct. for Civil Bus. in Suffolk County, 472 Mass. 1017, 1018 (2015). These remedies range from making an informal inquiry of the trial judge, see Zatsky, supra at 12, to filing an action for mandamus, see, e.g., Skandha, supra.
The mother also argues that she was injured because the case was stale at the time of disposition and/or that the facts changed on the ground. In that event, the appropriate remedy is to file a separate complaint for modification; the judge's disposition in this matter would not take into account events occurring after the close of the evidence.
There was also delay attributable to the mother's efforts to secure counsel and the failure to perfect the appeal. For some five months after trial, mother proceeded pro se. Counsel filed an appearance thereafter. There was considerable delay in ordering the transcript. The father moved to dismiss the appeal on this basis. The trial judge denied the motion.
Custody. The judge's findings concerning the mother's unbridled animus toward the father, her refusal to communicate with him, the impact of her negative attitudes on the child, and the need to remove the child from the conflict were fully supported by the evidence. For example, in an effort to improve communication between the parties, a motion judge ordered four face-to-face meetings. At the first meeting, the mother "sat in silence" for thirty minutes, and then "got up and walked away." At the second meeting, the mother again sat in silence, "kept checking her watch," and after thirty minutes "got up and left." At the third meeting she told the father that she was unwilling to forget the past and move forward. When further meetings were scheduled in the presence of a supervisor, the supervisor observed, and reported to the court, that the mother would never agree to anything proposed by the father. The judge credited the supervisor's testimony.
A parent's inability to place the welfare of her child above her own is an appropriate basis for a change in custody. Cf. Smith v McDonald, 458 Mass. 540, 554 (2010). See Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220-221 (2002) ("abject breakdown in communication" attributable to mother's defiance formed basis for award of custody to father). There was no error in the judge's decision to grant sole legal and physical custody to the father, subject to parenting time with the mother.
We reject the mother's contention that the judge improperly considered the previous contempt judgements and that the child ought not to be made to suffer for the misconduct of the mother. See, e.g., Tolos v. Tolos, 11 Mass. App. Ct. 708, 710 (1981). The judge looked to the mother's conduct in the context of its impact on the child, and based her decision explicitly on the best interests of the child.
We decline the father's request for appellate attorney's fees.
Judgment affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 6, 2015.