Opinion
16-P-409
05-04-2017
A.M.D. v. V.C.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The wife, A.M.D., appeals from a judgment nisi granting sole legal and physical custody of the child to the husband, V.C.D. She contends that the judge's findings were unsupported by the record, and that the judge relied on irrelevant considerations. We vacate and remand for further proceedings.
Background. We summarize the facts relevant to the issues presented as found by the judge, referring to the record as necessary to our analysis. The parties met in approximately October, 2008, when the wife was sixteen and the husband was twenty-one. Both parties lived in Alexandria, Virginia. Initially, the wife lived with her mother and the husband lived with both his parents. The wife's mother and stepfather disapproved of the relationship, and after an argument, they "kicked" the wife out of their home. She asked for permission to live with the husband and his parents, but the husband's parents declined. The husband's parents also disapproved of the relationship and encouraged the husband to end it.
The wife had been placed in the care of her sister at the age of eleven, but had returned to the mother's home, apparently as the result of a falling out with her sister.
The husband's father viewed her as her mother's responsibility.
In January, 2009, the wife discovered she was pregnant. The parties married on February 9, 2009. The husband did not tell his parents about the marriage or the pregnancy until after the ceremony.
On March 1, 2009, the wife moved from Virginia to Massachusetts, and where the parties had agreed to raise the child. The husband joined the wife about ten days later. However, after only ten days, the husband left his wife and child and returned to his parents in Virginia. The husband "lied" to his wife about his reason for leaving and said he had to return to Virginia because his grandmother was ill; the truth was that he was unprepared to be a husband and father at that time, and did not want to hurt her feelings.
The wife returned to Virginia in April, 2009, in an attempt to reunite with the husband. Rather than ask his parents if the wife could stay with them, the husband suggested that his pregnant wife sleep in the park or under some stairs in the neighborhood.
In May, 2009, the husband's father, who knew that the wife was pregnant, discovered the wife sleeping in the trunk of the husband's car, but did not offer to let the wife stay in their home. Ultimately, the wife became the subject of a care and protection petition in Virginia, as she was pregnant, had no place to live, and her petition for emancipation (filed at her mother's suggestion) was denied.
The judge found that the paternal grandfather still considered the wife to be her mother's responsibility. He testified that he considered the situation unworkable, and that the child should be given up for adoption. He anticipated that the couple would break up, and that the husband could then seek custody. The fact that the wife and baby were placed together in foster care "slowed things down."
The wife was in foster care in Virginia when the child, a boy, was born in September of 2009. The husband visited the wife and child in foster care frequently and helped change, feed, and bathe the child. The wife stayed in foster care until April, 2010, when she went to a group home for one or two days. A neglect petition was filed regarding the child; the wife agreed to place the child in foster care and resided with the child's foster mother. The wife started working at an accessory store. During this time, both the wife and the husband cared for child.
The wife, husband, and child then moved for approximately two months to the home of a couple who were friends of the wife. The wife worked long hours, so the husband usually fed and changed the child and took him to preschool. Due to disagreements about parenting, the parties were asked to leave the home in or around October, 2011.
The parties then moved to central Massachusetts, in October, 2011, and lived with the wife's aunt. Both parties worked as stock clerks at a grocery store in New Hampshire. The wife later got a job at a retail store and the husband got a job at a "big box" store, both in central Massachusetts. The husband worked fewer hours than the wife and often cared for the child during this period. Eventually, the wife's aunt moved out of the apartment, where the parties remained until their separation on December 14, 2012.
After the parties' separation the wife and child moved in with the wife's older sister. The husband moved to the child's godparents' home in central Massachusetts, where he remained for roughly six months. He moved back to his parents' home, now in Maryland, in April of 2014.
The wife moved in with her new fiancé in June, 2013. On August 30, 2013, the wife filed a complaint for divorce due to an irretrievable breakdown of marriage. On October 22, 2013, a Probate and Family Court judge issued a temporary order granting the wife sole physical and legal custody of the child. This order was based on the stipulation of the parties. Under the stipulation, the husband had two hours of parenting time per week on Sundays.
The husband missed many of his visits. He worked on Sundays, but did not try to change the schedule. He was arrested on four separate occasions on outstanding warrants and missed visits for that reason as well. From April of 2014, to the time of trial in March of 2015, the child lived with his mother, her fiancé, and his younger sister. The husband visited when he came to Massachusetts for court proceedings.
After trial in February and March of 2015, the judge found that the husband was the child's primary caregiver prior to their separation, that the husband was "completely dedicated" to the child, and that the husband "finds it difficult to be apart from him." On this basis, among others, the judge concluded that it was in the child's best interests for the husband to have sole physical and legal custody of the child, who would live in Maryland with the husband and the husband's parents.
Discussion. 1. Primary caretaker. "In custody matters, the touchstone inquiry [is] ... what is ‘best for the child.’ " Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). The inquiry into which parent is primary caregiver focuses on the division of caretaking responsibilities during marriage and the strength of each parent's bond with the child. See Murphy v. Murphy, 82 Mass. App. Ct. 186, 193-194 (2012). "The determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings ... ‘must stand unless they are plainly wrong.’ " Custody of Kali, supra at 845, quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). "[A]n ultimate conclusion needs a foundation in the record supported by 'ground-level facts.' " Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010), quoting from Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 142 (2009).
The judge's finding that the husband was the child's primary caregiver in the period before their separation is partially supported by the record, at least as to some periods of time. When the husband and wife were not on the same work schedule, the husband provided child care while the wife was at work. This occurred when the parties lived with the various foster families or family members. However, the husband was not the child's primary caregiver for significant portions of the child's life, and cannot be said to have been wholly devoted to the child's welfare.
The husband left the wife while she was pregnant, moving into his parents' home. He did so because, as he testified, he was not ready to be a father. When she followed him, he left her to sleep in the public park or the trunk of a car. Both her husband and the husband's parents refused her shelter, and the child was born after the wife was made the subject of a care and protection proceeding and placed in foster care. After the birth, the wife moved to a new foster home, where the husband became more actively involved. However, once the parents separated while in Massachusetts, he again made the decision to return to Maryland. The husband stipulated to a temporary custody order granting the wife full legal and physical custody. The child was in the care and custody of the wife and her fiancé, not the husband, for the year before the trial, when the child was three to four years old. The judge made no findings that the care provided by the wife was in any way inadequate.
The wife had a previous history of substance abuse starting at the age of twelve. She received no treatment during her teenage years. The wife was twenty-three at the time of trial and had not used drugs or alcohol during the two-year period before the trial. Her fiancé had a previous history of substance abuse but had not used drugs or alcohol for three years before the trial. The trial judge found the wife's decision to move in with her fiancé after knowing him for only one month to be indicative of the wife's poor judgment, but did not find that the wife's relationship or living situation was inconsistent with the child's best interests.
The finding that the husband was "completely dedicated" to the child is not supported by the evidence regarding the division of caretaking responsibilities and the child's relationships with the parties, and was clearly erroneous.
2. The wife's religion and sexual history. The trial judge made several factual findings regarding the wife's religion and sexual history. The judge devoted a paragraph of her decision to the details of the child's Catholic baptism, the husband's Catholic background, and the wife's lack of religious affiliation, even though religious upbringing was not an issue in the case. She also detailed the frequency of sexual relations during the parties' marriage, the wife's sexual activity and abortion before she met the husband (i.e. that the wife was "sexually active" and "terminated a pregnancy"), and the wife's sexual activity after the separation. None of these factual findings were linked in any way to the impact of her behavior on the child or the best interest of the child.
The judge's consideration of the wife's sexual history was irrelevant to the division of caretaking responsibilities and the warmth of the child's relationship with the parents. See Murphy, 82 Mass. App. Ct. at 193-194. The judge failed to make findings, and there is nothing in the remaining findings to suggest that the wife's religious beliefs or sexual history "adversely affect[ed] [the child's] physical, mental, moral or emotional health." Hunter, 463 Mass. at 494, quoting from G. L. c. 208, § 31. The judge's focus on these matters suggests " ‘a clear error of judgment in weighing’ the factors relevant to the decision." Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge also described in detail the advanced degrees of the husband's parents. She noted that they reside, with the husband, in a "custom built house" in Shadyside, Maryland, a community which she described as "a pleasant and safe community with a low crime rate." She found that this living situation was "more stable, comfortable, and advantageous" than residing with the wife, who lived in a "clean" apartment in a house owned by the municipal housing authority, together with her fiancé and their daughter. She also found that the husband and his parents had arranged for the child to attend private parochial school, and that this was preferable to the public schools in the town in which the wife resided.
The judge was permitted to consider the "living arrangements and lifestyles of each parent and how such circumstances may affect the child." El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010). "This is not to say that a parent who is financially better-off and thereby able to provide a more luxurious lifestyle for the child should have a substantial advantage in the custody dispute because of their financially superior situation." Kindregan et al., Family Law & Practice § 62.2 (4th ed. 2013).
The judge made no findings that the child's then-current living situation "adversely affect[ed] his physical, mental or moral health." G. L. c. 208, § 31, as amended by St. 1989, c. 689. Rather, the judge found that the physical amenities and education offered by the husband's parents were superior. However, the judge's focus on the grandparents, their education and advantages, and in particular the provision of a Catholic education, indicate that the same type of judgments explicitly expressed in other portions of her findings and rulings may have infected these portions of the decision-making process. The presence of unsupported factual findings and impermissible considerations also erodes the basis of the judge's credibility findings.
There were several credibility determinations on crucial issues, including findings that the wife interfered with the husband's visitation, and that the husband did not commit an assault and battery on the wife. The wife claims on appeal that the husband admitted to sufficient facts regarding the assault and battery, and has provided a copy of the docket in the criminal matter on appeal. A court may take judicial notice of the docket entries in another case, but it may not take notice of the "facts or evidence brought out in the prior" proceeding. Care and Protection of Zita, 455 Mass. 272, 282 (2009), quoting from Howe v. Prokop, 21 Mass. App. Ct. 919, 920 (1985). No transcript of the colloquy was provided to the trial judge. On appeal, we have not considered the bare docket.
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While we express no opinion on the merits of the case, we simply cannot determine whether the factors the judge considered in making the custody award were permissible and "we accordingly cannot sustain the award." Rosenberg, 428 Mass. at 191. The judgment is vacated and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.