Opinion
20-P-516
03-22-2022
T.M. v. J.P.K.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a three day trial in 2019, a judge of the Probate and Family Court modified the terms of the parties’ divorce judgment to grant the father sole physical and legal custody of the parties’ minor children. The judge also dismissed the mother's counterclaim, filed in 2017, and separate complaint for modification, which the mother had filed in 2016. The mother appealed the modification judgment and dismissal of her 2016 complaint for modification. We discern no error in the judge's assessment of the evidence presented at trial or, on the facts of this case, in the passage of time between the filing of the mother's complaint for modification and the trial. Although we agree with the mother that the judge erred in finding that the mother failed before trial to ask for an increase in her parenting time, we conclude that the judge's decision did not depend on that finding. Accordingly, we affirm.
The judge also ruled in favor of the father on the mother's complaint for contempt. The mother does not challenge that aspect of the judge's decision in this appeal.
Background. With the exception noted above, and which we discuss, infra, the mother does not claim error in the judge's thorough findings of fact.
The parties married in 1997 and had four children. In 2014, the court entered a judgment of divorce, "which provided that the parties shall share legal and physical custody of their four children," and included a parenting plan that provided the parties with approximately equal time with the children. Nonetheless, the mother continued to seek primary custody of one or more of the children; as relevant to this appeal, on March 30, 2016, the mother sought sole custody of the parties’ daughter by filing both a complaint for modification and a motion for sole custody. As the basis for both the motion and the complaint for modification, the mother alleged, inter alia, that the father had promised to seek anger management treatment but had not done so. The motion was set down for hearing on April 11, 2016, but, four days before the motion date, the mother successfully moved to withdraw the motion from active consideration on the ground that the father had scheduled counseling. Although the docket reflects that a summons was issued on the mother's complaint for modification, there is no indication in the record that the complaint for modification was served on the father.
Custody of the parties’ eldest child, who turned eighteen years old during trial, is not at issue.
On August 23, 2017, the father filed a complaint for modification, citing material changes in circumstances -- namely, instability in the mother's housing, the mother's substance use, and the mother's poor mental health -- and requested that the court grant him sole legal and physical custody of the children. The father sought and obtained temporary orders granting him sole custody. In October 2017, the mother answered and counterclaimed for modification; she, too, sought sole custody of the parties’ children.
The father's complaint, the mother's counterclaim, and the mother's 2016 complaint for modification were tried over three nonconsecutive days between April and August 2019. After trial, the judge issued a judgment (1) in favor of the father on the father's complaint for modification, and (2) dismissing the mother's counterclaim and 2016 complaint. This appeal followed.
Discussion. To obtain a custody modification, the requesting party "must first establish that a material and substantial change in circumstance has occurred to warrant a change in custody, and that the change is in the child's best interests." E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020), citing Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 777-778 (2005). "[T]he best interest analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met." E.K., supra, quoting Charara v. Yatim, 78 Mass. App. Ct. 325, 336 (2010). "The determination of which parent will promote a child's best interests rests within the discretion of the judge" (citation omitted). J.S. v. C.C. 454 Mass. 652, 656 (2009). "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses" (citation omitted). Id. at 657.
1. Allegations of domestic abuse. We are not persuaded by the mother's argument that the judge failed to consider evidence of domestic abuse in the parties’ relationship, see Custody of Vaughn, 422 Mass. 590, 599 (1996) (error when judge below fails to make detailed and comprehensive findings of fact on issue of domestic violence), and discern no error or abuse of discretion in the judge's treatment of the evidence of domestic violence in this case. See J.S., 454 Mass. at 653.
The judge's findings reflect his consideration of all evidence relating to allegations of domestic violence in the family, including evidence that, in 2017, the mother obtained a G. L. c. 209A abuse prevention order against the father. The judge also noted the guardian ad litem's (GAL) account of the mother's complaints to the police that the father violated the abuse prevention order. On the other hand, the judge also found that the police did not credit the mother's complaints to them of the father's violence, and took into consideration the children's accounts of violence in the household -- notably, reports by two of the children refuting the mother's claims that the father abused her and stating that the abuse was actually "the other way around."
Having given proper consideration to the evidence, the judge could, and did, then "credit the father's or the mother's versions of events, in whole or part, over the other." Care & Protection of Lillith, 61 Mass. App. Ct. 132, 141 (2004). The judge found credible the father's testimony that the mother's allegations were false and that those "false allegations," along with the mother's behavior in making them, "traumatized" the children. We defer to the trial judge's assessment of credibility. Adoption of Ramon, 41 Mass. App. Ct. 709, 713 (1996). See Care & Protection of Three Minors, 392 Mass. 704, 711 (1984) (judge "was not obliged to believe the mother's testimony"). In light of the judge's clear and specific findings, we reject the mother's argument that he failed to give the required "express consideration" to the evidence in the case concerning "domestic violence, its effects on the child[ren], and its relationship to the father's ability to parent." Care & Protection of Lillith, supra at 142.
2. Mother's complaint for modification. The mother argues that the court erred in delaying decision on her 2016 complaint for modification until November 25, 2019. Reviewing the judge's handling of the complaint in the context provided by the record, we discern no abuse of discretion.
First, although the father does not argue the point, the record does not reflect that the mother served her complaint for modification on the father. Dismissal was proper on this basis alone. See Mass. R. Dom. Rel. P. 4 (j), Mass. Ann. Laws Court Rules, at 235 (LexisNexis 2021).
Second, even if we assume that service was properly made, the mother asked that the motion be removed from consideration and indicated to the court that she would "remark [the motion for consideration] ... another day if necessary." Where she never asked the court to resume consideration of her motion, we discern no error in the judge's failure to act immediately on the complaint. When the issue of custody was joined again after the father's filing of his complaint for modification in August 2017, the mother counterclaimed, and both parties’ positions were fully litigated. The judge acted deliberately, and, on this record, without undue delay, by entering a temporary order for custody, appointing an attorney for the children, and taking steps to appoint a GAL in September and October 2017. In this circumstance, we discern no abuse of discretion simply by virtue of the mother's complaint not having been fully resolved until 2019.
The argument that the judge "deci[ded] not to conduct a thorough or careful examination of the evidence of [the father's] domestic abuse" before dismissing the mother's request for modification is belied by the judge's comprehensive findings on credibility and domestic violence, as we have discussed supra, and we are satisfied that the abuse allegations were properly considered.
Finally, we conclude that the multiday trial on the issue of custody was an adequate "hearing" on the mother's 2016 complaint for modification of custody. The mother requested sole custody of the children in her counterclaim, thus subsuming her prior request. Where the mother then litigated this counterclaim –- which included and expanded upon her original request –- and where she had the opportunity to address at least the same anger management concerns she raised in her 2016 complaint for modification, we are satisfied that the mother received the hearing to which she was entitled.
3. Denial of mother's request for court file. The mother was acting pro se on May 21, 2018, when she filed a motion seeking "a full copy of all court paperwork pertaining to [the] child custody case." The motion was denied the following day, after a hearing. The mother argues that her due process rights were violated when the court declined to issue her a copy of her court file. Reviewing the judge's denial for an abuse of discretion, see generally Chin v. Merriot, 470 Mass. 527, 538 (2015), we discern none.
The mother has failed to include a transcript of the hearing, see Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019), and alleges that no hearing took place.
Passing over the question of whether the mother's conditions, financial or otherwise, required the judge to order the court to provide the mother with a copy of its file in this case, we discern no prejudice to the mother as a consequence of the judge's denial of her request here. See Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 537 (2014), citing Commonwealth v. Pariseau, 466 Mass. 805, 810-812 (2014) (showing of prejudice required to support due process claim). Indeed, the mother identifies none. She does not allege that she was unable to view her file or that her past or future counsel did not have access to it, does not contend that she would have had greater opportunity to support her case with a copy of the file, and does not articulate how the disposition of the case would otherwise have been different had the copy been provided. In this circumstance, we discern no abuse of discretion.
4. Mother's request for more parenting time. We agree with the mother that the evidence does not support the judge's finding that the mother "ha[d] not asked the Court to expand her parenting time with the children since the commencement of this matter in August 2017." The father concedes this point, and argues that the error was harmless. We agree with the father; nothing in the judge's ruling appears to have turned on the erroneous finding.
The judge's ultimate ruling was based on the material changes in circumstances of the mother engaging in abusive behavior, failing to support the children's relationships with the father, and experiencing mental health issues that left her unable to act in the children's best interests or to put their interests ahead of her own. Conversely, the children had lived with the father since August 2017 (and requested to continue to do so); the father provided "a structured and safe home environment"; the father provided the children with consistent care; and he supported their relationships with the mother. The evidence supports the judge's reasoned weighing of the relevant factors and his ultimate determination. See Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003) (decision affirmed where erroneous findings not central to ultimate conclusion). Irrespective of that finding, the record supported the judge's determination that the father had successfully demonstrated both a material change in circumstance since the entry of the divorce judgment and that the custody award would serve the best interests of the children. See Adoption of Helen, 429 Mass. 856, 860 (1999) (ultimate conclusion thoroughly supported by record regardless of errors).
We decline the father's request to award attorney's fees.
Judgment affirmed.