Opinion
16-P-811
04-13-2017
R.E.C. v. A.B.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the plaintiff (father) from a judgment in the Probate and Family Court dismissing his complaint for modification, and granting the relief requested by the defendant (mother) in her counterclaim. At the outset, it must be noted that our ability to conduct meaningful appellate review of the issues raised by the father is hampered by his failure to produce an adequate record appendix. For example, the record before us consists of the docket entries, the pretrial conference report filed by the mother's attorney, the judgment, and the transcript of a brief hearing that took place on January 21, 2015. The record appendix does not include the father's modification complaint, the mother's answer and counterclaim, nor any other papers relating to events occurring prior to the hearing on January 21. "It is the obligation of the appellant[ ] to include in the appendix those [materials] which are essential for review of the issues raised on appeal." Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). As the appealing party, the father's duty to provide this panel with a record adequate to review his claims of error is not diminished because he is self-represented. See Davis v. Tabachnick, 425 Mass. 1010, 1010 (1997). Although the father filed a brief that contains a procedural history of the case and a statement of the facts, that is not a substitute for a record that contains support for the facts set forth in his brief. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). However, because this case involves not only the rights of parents, but the welfare of their child, we will address the merits to the extent permitted by the limited record before us to ensure that the best interests of the child remain paramount. See Custody of Kali, 439 Mass. 834, 840-841 (2003), and cases cited.
The docket indicates that on July 3, 2014, the father filed a complaint for modification to permit him to have unsupervised visits with the child. The mother filed an answer and a counterclaim in which she sought to terminate the father's visitation rights. The mother's attorney reported to the judge that the father was not incarcerated when he filed his complaint for modification, but then became incarcerated sometime thereafter in 2014. The mother's attorney also reported that she served the father with the mother's pretrial conference report on January 16, 2015, while the father was incarcerated at a Connecticut correction facility. The report indicates that the pretrial conference was scheduled for January 21, 2015. A hearing was held on that day. The mother was present and represented by counsel. The father was not present. The mother's attorney reported to the judge that the father failed to appear in court for prior hearings in the case. She also reported that none of the notices issued by the court to the father were returned, and that the father had notice of the hearing scheduled for January 21, 2015, but that he had not responded or made arrangements to be present. The judge took no evidence and made no findings of fact. However, the judge ordered that (1) the father's complaint seeking unsupervised visitation was to be dismissed, (2) the father's right to supervised visitation was terminated, (3) the father was limited to a single monthly contact with the child's therapist to ascertain the child's progress, and (4) the father was required to obtain the therapist's approval before filing another complaint for modification seeking contact with the child.
Discussion. 1. The father's complaint for modification. In order to obtain the modification of a judgment regarding visitation with a minor child, the burden is on the moving party, here the father, to provide the judge with evidence that there has been a material change in circumstances since the entry of the judgment that is to be modified, and that the modification is in the best interests of the child. G. L. c. 208, § 28. See Hinds v. Hinds, 329 Mass. 190, 191 (1952) ; Felton v. Felton, 383 Mass. 232, 239 (1981) ; Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 289 n.1 (1996). The father does not challenge the court's jurisdiction or the adequacy of service. There is nothing in the record before us that would support the factual findings required for the modification of the terms of visitation requested by the father. Accordingly, we discern no error of law or abuse of discretion with regard to the dismissal of the father's complaint.
2. The mother's counterclaim. In the absence of a stipulation or an evidentiary hearing, and without findings of fact, we are unable to determine what facts and factors the judge considered in deciding to modify the judgment as noted supra, and thus are unable to conclude that the judge complied with G. L. c. 208, § 28. See Rosenberg v. Merida, 428 Mass. 182, 191 (1998). In the absence of factual findings that address the relevant factors under § 28, paragraphs 2, 3, and 4 of the modification judgment cannot be supported as a valid exercise of the judge's discretion, and must be vacated.
In light of this decision, it is unnecessary for us to consider the father's argument that the judge engaged in an unlawful delegation of authority to the therapist. See Bower v. Bourney-Bower, 469 Mass. 690, 705-707 (2014) ; Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 192-194 (2015).
Conclusion. For the within reasons, so much of the judgment entered on January 26, 2015, as dismissed the father's complaint for modification is affirmed. Paragraphs 2 through 4 of said judgment are vacated, and we remand for further findings not inconsistent with this memorandum and order. The judge may, in his discretion, hear additional arguments or consider additional evidence.
We are mindful that there is a history of domestic violence perpetrated by the father against the mother. We are entitled to take judicial notice of those published and unpublished cases affirming the extensions of the mother's abuse prevention orders. See, e.g., Mass. G. Evid. § 201(b) (2017); Jarosz v. Palmer, 436 Mass. 526, 530 (2002) ; Adoption of Simone, 427 Mass. 34, 43-44 (1998). At the hearing on January 21, the mother's counsel reported that the child "continued to be traumatized from witnessing the serious domestic violence upon his mother in his presence." These are at least two reasons why in the absence of a stipulation, an evidentiary hearing was essential to ensure that any modification of the judgment was centered on the best interests of the child.
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So ordered.
Affirmed in part, vacated in part, and remanded.