Opinion
10-P-1059
01-13-2012
MARY SMITH v. FAY WILLIAMS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mary Smith, and the defendant, Fay Williams, were same-sex partners who lived together and maintained a relationship from 1996 to 2004. During their relationship, Williams became pregnant through artificial insemination and, in April, 2000, gave birth to a boy, Thomas. After the parties separated in March, 2004, Smith brought in the Probate and Family Court a verified complaint in equity, later amended, seeking, in count I, joint legal and physical custody of Thomas and, in count III, visitation with Thomas. A 'judgment on motion for summary judgment' was entered for Williams on count I of the amended complaint in equity. Following a trial, Smith was found to be the de facto parent of Thomas. She was awarded visitation and ordered to pay $385 a week as child support. Smith challenges both the judgment on motion for summary judgment and the judgment on the complaint in equity, insofar as it orders her to pay child support for Thomas. Williams has appealed from an order of a probate judge vacating the dismissal of Smith's appeal.
In her remaining counts, Smith sought physical custody of or visitation with Sandra (see note 1, supra). Sandra, who is now an adult, is not a subject of these appeals.
We conclude that it was appropriate in the present case to allow Smith's appeal to proceed. We also affirm summary judgment in favor of Williams. We vacate, however, so much of the judgment on the complaint in equity as orders Smith to pay child support in the amount of $385 a week and remand the matter for further proceedings. In all other respects, we affirm the judgment on the complaint in equity.
1. Background. (a) Summary judgment. On September 29, 2006, Williams moved for summary judgment on count I of the first amended verified complaint in equity. In her opposition to the motion, Smith submitted an affidavit in which she described the history of the parties' relationship, their joint decision to have Williams become pregnant by artificial insemination, and her long-term involvement with and care of Thomas. Smith argued primarily that the probate judge could exercise her equity powers to award Smith shared physical and legal custody of Thomas as such an award was in Thomas's best interest. She also asserted that she should be afforded all of the privileges of a legal parent as she satisfied, essentially, the criteria of a parent by estoppel.
In granting the motion, the judge stated, among other things, that the comprehensive statutory framework in place to address the issue of child custody makes no reference to de facto parents, and that by virtue of that statutory framework, the court's equity powers could not provide a remedy in the case. The judge further opined that current case law does not support the claim that the Probate and Family Court may intrude on Williams's constitutionally protected parental rights by granting shared legal and physical custody of the child to Smith. Indeed, the judge determined that such an award of custody would violate Williams's constitutionally protected liberty interest in determining the best interests of her child. Finally, the judge stated that even putting to one side the statutory and constitutional justifications for granting summary judgment for Williams, the parties' affidavits demonstrate that there is a high degree of hostility between the parties and that they have significant difficulties communicating. The judge stated that in this situation she would not find shared legal custody to be in Thomas's best interest, even in the absence of the statutory and constitutional impediments to such a custodial award. The docket recites that a 'judgment on motion for summary judgment' was entered on November 3, 2006, and that Smith filed her notice of appeal therefrom on January 12, 2007.
The judge noted that both parties agreed that Smith was the de facto parent of Thomas. The judge also noted that Smith had not adopted Thomas and made no claim that Williams was an unfit parent.
There is some uncertainty as to when the judgment on motion for summary judgment was actually entered and when Smith's notice of appeal was actually filed. Smith states that the judgment was entered on November 16, 2006; Williams has represented that it was entered on November 6, 2006. Furthermore, although the docket recites that Smith's notice of appeal was filed on January 12, 2007, the notice of appeal bears a notation, as the judge noted in her procedural history of the case, that it was received by the Probate and Family Court on December 20, 2006.
(b) The trial on the complaint in equity. After a five-day trial, the judge, on the facts set out in the margin (and others), found that Smith was the de facto parent of Thomas and that the disruption of this relationship would cause measurable harm to the child. By a judgment that was entered on March 20, 2008, the judge awarded Smith parenting time with Thomas (including regular overnight parenting time) and ordered her to pay Williams child support in the amount of $385 a week. On September 24, 2008, both parties filed notices of appeal from the judgment.
The judge found, inter alia, that the parties mutually decided to have a child together (with Williams to be the biological mother), that the parties agreed that the parenting of the child would be shared, that when Thomas was born Smith was introduced as his 'parent,' and that Smith and Williams have held themselves out as a family to their neighbors, friends, and day care providers. The judge further found that from the time of Thomas's birth, Smith was an active participant in his life and, indeed, coparented the child for about four years with Williams's assent. The judge stated that although Smith wanted to adopt Thomas, Williams would not allow her to do so. Williams also would not agree to execute a formal coparenting agreement.
The question of de facto parenthood was litigated at the trial notwithstanding the parties' 'agreement' in the summary judgment proceedings that Smith was Thomas's de facto parent.
On June 19, 2008, Smith filed a motion to enlarge the time for filing notice of appeal stating that she had recently learned by accident that the judgment had entered, but that the judgment, apparently, had not been forwarded and noticed to either of the parties. The motion was allowed on September 17, 2008. Although the parties do not raise it as an issue on the appeal (and, indeed, treat the notices of appeal as timely), Mass.R.A.P. 4(c), as amended, 378 Mass. 928 (1979), permits the lower court to 'extend the time for filing the notice of appeal . . . for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this rule.' Accordingly, the judge lacked authority to extend the time for filing a notice of appeal beyond sixty days after the judgment was entered. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 780 (2008). This court, however, maintains independent authority to extend the appellate time table under Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979). Id. at 781. In the circumstances presented here we have chosen to exercise our discretion to enlarge the time for filing the notice of appeal, nunc pro tunc, to September 24, 2008, rendering the notices of appeal, docketed that day, timely. Ibid.
(d) Postjudgment events and proceedings. Following the entry of judgment each party took additional actions. Williams filed a complaint for contempt alleging that Smith was in arrears in her child support payments. (The contempt proceedings were ultimately stayed.) Smith moved pursuant to Mass.R.Dom.Rel.P. 60(b) to set aside portions of the judgment on the complaint in equity (particularly the order for child support). Her motion was denied, the judge stating, inter alia, that she had continued the same amount of support that had been ordered temporarily and that 'Mass. case law has implied that the designation of de facto parent may support a child support obligation.'
On February 3, 2010, Williams filed a 'motion for dismissal of abandoned appeal pursuant to Mass. Probate Court Rule 30 and Mass.R.A.P. 10(c)' alleging that Smith had failed to comply with Mass.R.A.P. 9(c), as amended, 437 Mass. 1602 (2002), based on her inexcusable neglect and had failed to prosecute her appeal. After a hearing before a second judge of the Probate and Family Court on February 3, 2010, and while the matter was under advisement, the Appeals Department of the Middlesex Probate and Family Court Department, unbeknownst to the second judge, issued a notice of intent to dismiss appeal for lack of prosecution pursuant to rule 30 of the General Rules of the Probate Court. Thereafter, Smith filed a motion to enlarge time for complying with the rules up to and including April 19, 2010.
On March 17, 2010, the trial transcript was filed in the Probate and Family Court. That same day the second judge allowed Williams's motion for dismissal of abandoned appeal as of February 3, 2010, 'based on failure to comply with Rules.'
The order allowing the motion to dismiss was not entered on the docket until March 24, 2010.
On April 9, 2010, Smith filed a 'motion for reconsideration/motion for relief [from] judgment and/or motion to vacate order [dated] March 17, 2010.' After a hearing, the second judge allowed the motion. She also denied Williams's motion to vacate the stay and Williams appealed from both orders on April 28, 2010.
The second judge endorsed the motion as follows: 'The order to dismiss appeal is vacated. The motion was heard by the Court and taken under advisement. Prior to receiving or docketing of order dismissing appeal the Appeals Dept. of the Middlesex Court sent notice of intent to dismiss unless transcripts were filed within 14 days. Appellant filed the requested transcripts [and] the matter [is] ready to be sent to the Appeals Court. Thereafter, the parties received the Court's dismissal of the Appeal. Since the notice of intent to dismiss was sent to the Appellant prior to the actual dismissal and since Appellant cured the appeal by filing the transcripts, the Appellant should be able to pursue her appeal. All outstanding orders are stayed pending appeal.' Williams represents in her brief that the second judge later clarified her endorsement, stating that the court only stayed the child support order pending appeal, not the visitation order.
2. Williams's appeal. Williams argues that once the probate judge dismissed Smith's appeal, the Probate and Family Court had no authority to consider Smith's motion for reconsideration. See Maciuca v. Papit, 31 Mass. App. Ct. 540, 544-545 (1991). While acknowledging that this court, in certain circumstances, may consider 'whether equity requires that procedural flaws be overlooked,' see Doten v. Doten, 395 Mass. 135, 140 (1985); Hawkins v. Hawkins, 397 Mass. 401, 409 (1986); Maciuca v. Papit, supra at 545, she argues that the appeal still must be dismissed as Smith has made no showing that her procedural missteps were the product of 'excusable neglect.'
While it is apparent from the record that Smith could have been more diligent in moving her appeal along, we exercise our independent judgment in allowing her appeal to proceed, see Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979); Tammaro v. Colarusso, 11 Mass. App. Ct. 44, 48-49 (1980); Patten v. Mayo, 23 Mass. App. Ct. 657, 660 (1987); Caccia v. Caccia, 40 Mass. App. Ct. 376, 379 (1996), without addressing Williams's contentions concerning the propriety of the probate judge's decision. We do so for reasons that include the following: in general, judicial policy favors affording every reasonable opportunity to a party to have her appeal considered on the merits, Patten v. Mayo, 23 Mass. App. Ct. at 660; it is apparent that Smith made at least some meaningful attempts to perfect her appeal by ordering the cassette prior to the hearing on February 3, 2010, and, in fact, filed the trial transcript prior to the hearing on motion for reconsideration (and before the entry of the dismissal of her appeal); there is indication, as the second judge noted and as we shall discuss, that Smith has raised at least some meritorious issues on the appeal, see Russell v. McOwen-Hanelt, 413 Mass. 106, 111 (1992), cert. denied, 506 U.S. 1051 (1993); and Smith's appeal implicates the custody and support of a child.
We note in passing that the case upon which Williams places primary reliance, Maciuca v. Papit, supra, involves (unlike the present case) a dismissal of an appeal pursuant to rule 30 of the General Rules of the Probate and Family Court. Williams also makes no reference in her brief to cases such as Caccia v. Caccia, 40 Mass. App. Ct. at 378-379, where the probate judge considered on the merits a motion to reinstate an appeal subsequent to the dismissal of the appeal.
At the hearing on motion for reconsideration Williams did not object specifically to the judge considering the 'state of facts' as they existed on that date. Cf. Springfield Young Women's Christian Assn. v. Evers, 30 Mass. App. Ct. 921, 922 (1991). Indeed, Williams argued, among other things, that Smith still had failed to comply with the rules of appellate procedure and thus had not 'cured' the procedural deficiencies.
Williams's claim that she has been so prejudiced by Smith's procedural missteps and the delays attendant thereto so that it would be inappropriate to allow the appeal to proceed is also less than compelling.
Williams's additional argument that the judge's failure to stay the visitation order in addition to the support order violates G. L. c. 215, § 23, also fails. Williams's motion to vacate stay, which was denied on April 14, 2010, and is presumably the subject of her notice of appeal filed on April 28, 2010, is grounded in the second judge's initial dismissal of Smith's appeal. That motion makes no reference to G. L. c. 215, § 23. Moreover, Smith points to nothing in her brief that demonstrates that that issue was raised below. See Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976).
There is nothing in Williams's remaining arguments that would cause us to disturb the judgment.
3. Smith's appeal. (a) Summary judgment (shared legal and physical custody). In challenging the grant of summary judgment, Smith's primary contentions involve principles of estoppel. While Smith's initial argument is not a paradigm of clarity she asserts, inter alia, that '[t]he judge on summary judgment had the ability to consider alternate criteria for parental status recognized by the [American Law Institute's (ALI) Principles of the Law of Family Dissolution: Analysis and Recommendations (2002)],' and more particularly the concept of 'parent by estoppel.' However, as the Supreme Judicial Court has declined at this juncture to adopt or to recognize the theory of parentage by estoppel, see A.H. v. M.P., 447 Mass. 828, 842-844 (2006), there was no error.
There is no merit in Williams's argument that Smith waived her right to appeal the summary judgment by failing to file a timely notice of appeal from that 'judgment.' Williams's argument appears to be grounded in her belief that the summary judgment, which disposed of only one count of Smith's first amended complaint in equity, is a final judgment. It is not. See Mass.R.Civ.P. 54(b), 365 Mass. 820 (1975). Cf. Bragdon v. Bradford O. Emerson, Inc., 19 Mass. App. Ct. 420, 422 (1985).
Neither party raises any issue as to the use of summary judgment per se in the circumstances presented here. See and compare J.F. v. J.F., 72 Mass. App. Ct. 782, 789-792 (2008) (decided under the then applicable provisions of Mass.R.Dom.Rel. 56).
Smith also asserts that the judge erred in granting summary judgment based upon the doctrine of equitable estoppel. While Smith made passing reference to this doctrine in her opposition to Williams's motion, it was not raised or argued in any meaningful way. That aside, 'general estoppel principles, while appropriate for commercial transactions, [are] an unwieldy and inappropriate tool by which a judge may probe into the intimate, private realm of family life.' Id. at 846.
Similarly, to the extent Smith asserts that Williams is judicially estopped from denying that she (Smith) is Thomas's parent (presumably with full parental rights) based on several earlier 'admissions' that the parties 'lived together as if in a marriage,' there is no indication that the issue of judicial estoppel was raised or pressed in the summary judgment proceedings. Furthermore, '[j]udicial estoppel . . . precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.' Id. at 845, quoting from Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639-640 (2005). Such is not the case here. In any event, we perceive nothing here that demonstrates that Williams was using the 'judicial process in an inconsistent way that courts should not tolerate.' Otis v. Arbella Mut. Ins. Co., supra at 640, quoting from East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623 (1996).
There is nothing in Smith's remaining arguments which would cause us to disturb the judgment with respect to the legal and physical custody of Thomas.
Noting that a de facto parent, in appropriate circumstances, may be awarded visitation with a child when it is in the child's best interests, see, e.g., E.N.O. v. L.M.M., 429 Mass. 824, 828-832, cert. denied, 529 U.S. 1005 (1999), Smith asserts briefly that the rationale in E.N.O. should, in logic, apply to 'custody' as well. She points to certain cases from other jurisdictions which, she asserts, support her view. We need not and do not consider Smith's cursory argument on this difficult and complex question. Among other things, Smith fails to respond in any meaningful way (if at all) to the alternative rationales proffered by the probate judge in granting summary judgment, including questions of constitutional import. See Lolos v. Berlin, 338 Mass. 10, 13-14 (1958); Poras v. Pauling, 70 Mass. App. Ct. 535, 546 (2007); Martins v. University of Mass. Med. Sch., 75 Mass. App. Ct. 623, 633 (2009).
While the forgoing discussion disposes of the issues raised by Smith on the appeal concerning shared legal and physical custody of Thomas, we add the following. Smith suggests in her reply brief that a primary goal of her complaint in equity was to achieve shared legal custody of Thomas. She does not challenge or dispute, however, the judge's statement in her rationale on the judgment on motion for summary judgment that '[t]he affidavits provided by the parties demonstrate that there is a high degree of hostility between [the parties] and that they have significant difficulties communicating.'
In her brief, Smith asserts that difficulties between the parties were caused by Williams. The judge also stated that it is difficult to understand how joint physical custody would practically be in Thomas's best interests. 'It is not clear that splitting [Thomas's] time equally between two homes would represent a positive improvement for [Thomas], especially given that he would likely have less time with his sister [Sandra] who spends time with her adoptive mother who is [Williams's] former partner.'
An award of shared custody is 'generally appropriate only if the parties demonstrate an ability and desire to cooperate amicably and communicate with one another to raise the children.' Mason v. Coleman, 447 Mass. 177, 182 (2006). See Custody of Kali, 439 Mass. 834, 837 n.5 (2003); Rolde v. Rolde, 12 Mass. App. Ct. 398, 404-405 (1981). While we recognize that in deciding a motion for summary judgment a judge does not 'weigh evidence,' Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007), and questions implicating a child's best interests will often render inappropriate summary judgment, see J.F. v. J.F., 72 Mass. App. Ct. 782, 791-792 (2008), in the absence of a challenge either to the use of the summary judgment procedure or the judge's statement concerning the hostility between the parties and their inability to communicate, it is difficult to perceive error in the judge's determination that she would not find shared legal custody to be in Thomas's best interest, even in the absence of the statutory and constitutional impediments to such a custodial award.
(b) Child support. Smith's primary argument in support of her position that the order requiring her to pay $385 a week as child support for Thomas must be vacated is that there was no claim for child support before the judge. The record supports Smith's contention. As Williams acknowledges, she voluntarily dismissed her counterclaim for child support prior to trial. Furthermore, in her findings of fact the judge confirmed that the 'sole remaining issue for trial was parenting time for [Smith] with [Thomas].' Neither the findings nor the judge's rationale make reference to child support.
Counsel for Williams informed the judge that '[u]ltimately . . . the final result of the trial will be whether visitation between [Thomas] and [Smith] will be ordered over the objection of his fit parent. That's it, Your Honor.'
Passing the question left open by the Supreme Judicial Court in T.F. v. B.L., 442 Mass. 522, 533 n.12 (2004), whether a de facto parent may be obligated to pay child support, here, the issue of child support was not actively litigated by the parties at trial. Rather, it appears that the judge 'raised' the issue sua sponte, without informing the parties. Notwithstanding any implicit determination by the judge that an award of child support for Thomas was appropriate, the judge erred by failing to apprise the parties that she was considering the issue of child support and by failing to afford the parties the opportunity to litigate fully that issue.
What remains is our determination of the appropriate remedy. As the best interests of Thomas arguably may be implicated in the child support dispute, simply vacating the child support order, without more, is not appropriate in this case. Rather, we think that the better course is to vacate the child support award and remand the matter to the Probate and Family Court to provide the parties the 'opportunity to litigate' the question of child support. See Harrington-McGill v. Old Mother Hubbard Dog Food Co., 22 Mass. App. Ct. 966, 968-969 (1986) (remanding matter to give the parties an opportunity to litigate the two theories posited by the judge).
The parties may also raise on remand any question concerning the authority of the Probate and Family Court to order a de facto parent to pay child support. This issue has not been adequately developed in the parties' briefs -- Smith has devoted approximately one page to the question, Williams, approximately two pages. Moreover, it cannot be determined at this juncture whether the parties will avail themselves of the opportunity to litigate on remand the issue of child support.
(c) Visitation. The judge acted well within her discretion in fashioning the schedule for parenting time. Her rationale is set out in her findings. That the orders for parenting time may differ in some respects from the earlier provisions of a temporary order does not constitute error.
3. Conclusion. The 'judgment' on motion for summary judgment is affirmed. That portion of the judgment on the amended complaint in equity ordering Smith to pay Williams $385 a week is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects the equity judgment is affirmed. Williams's request for double costs and counsel fees for 'frivolous appeal' is denied.
We are aware that the judge who presided at the trial on the complaint in equity has retired.
So ordered.
By the Court (Berry, Trainor & Vuono, JJ.),