Opinion
No. 15–P–939.
05-31-2016
Orlando RODRIGUES v. Christine M. FELIX.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Christine M. Felix (mother), the custodial parent, appeals from a judgment of the Probate and Family Court increasing visitation between Orlando Rodrigues (father) and the child. The mother argues that the trial judge abused his discretion by (1) modifying the father's visitation schedule without sufficient evidence of a material and substantial change in circumstances, (2) failing to make findings of fact concerning allegations of past and present physical abuse, and (3) denying the mother's motion to amend her counterclaim to strip the father of any visitation rights. Because the judge did not make adequate findings to support his decision regarding visitation and failed to address the allegations of abuse, we vacate part of the judgment and remand for further proceedings.
The judge also increased the father's child support payment obligations. Neither party challenges this aspect of the judgment.
Discussion. Following a party's complaint for modification after a divorce, a judge may modify a judgment concerning the care and custody of a minor child “provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the child[ ]. “ G.L.c. 208, § 28, as appearing in St.1985, c. 490, § 1. Although “[t]he decision of which parent will promote the child's best interests is a subject peculiarly within the discretion of the judge,” Ardizoni v. Raymond, 40 Mass.App.Ct. 734, 738 (1996) (quotation omitted), “[a]n award of custody will not be sustained ‘unless all relevant factors in determining the best interests of the child have been weighed,” ’ J.F. v. J.F., 72 Mass.App.Ct. 782, 790 (2008), quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). Thus, “[a] judgment modifying custody must be based on findings grounded in the evidence.” Rosenthal v. Maney, 51 Mass.App.Ct. 257, 261–262 (2001).
Here, the judge made no findings in support of the judgment. Because we “cannot determine what factors the judge considered in making the custody award, ... we accordingly cannot sustain the award.” Rosenberg, supra. Though we recognize that the increased age of the child, as well as the then emerging behavioral and academic struggles, could have provided sufficient justification for a changed visitation arrangement, the record does not permit us to determine what evidence of changed circumstances the judge relied on in making the modification.
The need for specific findings is acute here, given the fact that at least two prior modifications increasing the father's visitation had been made in the previous five years.
In addition, “General Laws c. 208, § 31A, requires the Probate and Family Court judge to ‘consider evidence of past or present abuse towards a parent or child as a factor contrary to the best interest of the child’ when issuing any temporary or permanent custody order.” Maalouf v. Saliba, 54 Mass.App.Ct. 547, 549 (2002). Here, the mother presented evidence regarding protection orders that may have been entered against the father with respect to both the mother and the child. The judge did not make explicit findings, and we are unable to discern whether he intentionally rejected the evidence as lacking credibility or inadvertently ignored it. On the record before us, we are not able to “conclude that the judge made implicit findings sufficient to satisfy the statute.” Id. at 550. Thus, the judgment may not stand.
Conclusion. So much of the May 27, 2014, judgment as concerns the father's visitation schedule is vacated, and the case is remanded for explicit findings of fact and a statement of rationale on this issue. Given the passage of time, the judge may elect to consider new evidence to determine whether to maintain the current arrangement or, if the facts and circumstances so warrant, to modify the arrangement as appropriate. In the interim, the current visitation order remains in effect. The remainder of the judgment is affirmed.
So ordered.