Opinion
10-P-1800
02-24-2012
BRIEN C. BALLOU v. RENEE E. GARCIA.
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
This case arises from a dispute between Renee E. Garcia and Brien C. Ballou regarding custody of their nonmarital child. A Probate and Family Court judge awarded the father sole legal and primary physical custody of the child, subject to the mother's right of visitation. The mother appealed, arguing that the judge failed to properly consider the factors for an award of sole custody set out in G. L. c. 209C, § 10(a). She further contests an order forbidding her from having the child formally participate in nonCatholic religious services as well as an award of $22,500 in attorney's fees for Brien. We agree that a more searching analysis is necessary to support the custody order and fee award and, therefore, remand the case for reconsideration in light of the principles set out below. On this record, the order regarding religious upbringing is invalid and we vacate it.
A. Background. Renee E. Garcia and Brien C. Ballou began a relationship during high school which resulted, after their graduation, in the birth of the child on March 5, 2007. Renee was 18 and Brien was 19. The parents initially chose to raise the child jointly in Foxborough, where their families resided. Though Brien had consistent, near daily involvement with the child from her birth, conflict between Brien and Renee's parents strained their relationship and it eventually ended in late 2007 or early 2008. Thereafter, Brien continued to see the child two to four days per week. In May, 2008, however, Renee moved to California with the child without telling Brien.
On June 10, 2008, after learning of Renee's departure, Brien filed a complaint seeking custody of the child. Renee had filed for custody in California, but on July 10, 2008, agreed that she would return to Massachusetts with the child within two weeks. She did so on July 21.
In temporary orders dated July 23 and July 28, 2008, the judge awarded the parties shared legal and physical custody of the child. A third temporary order, dated December 4, gave Brien sole physical custody. After the ensuing trial, in a judgment dated August 7, 2009, the judge awarded Brien sole legal custody and primary physical custody of the child until the child's sixth birthday, at which point the parents would share legal custody. The judgment also outlined a visitation plan for Renee, permitting her to have the child on alternate weekends, for 2.5 hours each Wednesday, and during some holidays. The judgment further ordered that the child be raised in the Roman Catholic religion unless Brien and Renee otherwise agreed in writing. Finally, it awarded Brien $22,500 in attorney's fees.
B. The custody determination. Renee argues that the judge failed to properly consider the factors laid out in G. L. c. 209C, § 10(a), the statute governing custody of nonmarital children. Section 10(a) directs that, '[i]n awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent.' The court is also to consider 'where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter,' as well as 'whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.' Custody of Kali, 439 Mass. 834, 840, 843-844 (2003). In the end, though, a custody award must be based on 'the best interests of the child.' G. L. c. 209C, § 10(a). See, e.g., Custody of Kali, 439 Mass. at 840, 843-844 (2003); Adams v. Adams, 459 Mass. 361, 393 (2011); Custody of Zia, 50 Mass. App. Ct. 237, 243-244 (2000).
In particular, she asserts that the judge did not consider fully, if at all, her role as primary caretaker and the fact that the child primarily resided with her during the six months prior to the temporary orders awarding shared custody. See G. L. c. 209C, § 10(a). But see Custody of Kali, 439 Mass. 834, 840, 845-847 (2003) (if a temporary order alters the child's living arrangements such that there is no longer a primary caretaker, judge has discretion to proceed as if there was no primary caretaker); Custody of Zia, 50 Mass. App. Ct. 237, 242 (2000) (there is no 'presumption that custody should be awarded to the primary caretaking parent'). We need not resolve Renee's primary caretaker claim, as we proceed on other grounds.
We note that, absent an agreement between the parents, an award of joint custody requires an affirmative finding by the judge that the parents 'have the ability to communicate and plan with each other concerning the child's best interests.' G. L. c. 209C, § 10(a). See Smith v. McDonald, 458 Mass. 540, 553 (2010); Custody of Odette, 61 Mass. App. Ct. 904, 905 (2004). In light of our findings on the sole custody determination we need not reach the issue of joint custody here.
'The determination of which parent will promote a child's best interests rests within the discretion of the judge.' Custody of Kali, 439 Mass. at 845. The judge's findings on that score 'must stand unless they are plainly wrong.' Ibid., quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998) (citations omitted). 'However, we will not sustain an award of custody 'unless all relevant factors in determining the best interests of the child have been weighed." Ibid. Here, several aspects of the judgment and the basis for them are unclear.
First, the judgment itself provides a limited explanation for the award of custody to Brien, stating only that it was not intended to punish Renee for her 'inappropriate' move to California but instead 'to address what parenting arrangement is in [the child's] best interest given all attending circumstances.'
After Renee filed her notice of appeal and a motion for additional findings of fact, however, the judge did make additional findings that elaborated on his rationale. He found that both Renee and Brien 'reorganized their lives in order to parent [the child] effectively,' have 'good parenting skills,' and have 'an emotionally close, supportive parental relationship with [the child].' He added that the child 'is a happy, active, well-adjusted toddler who is very attached to each of [the] parents and is doing extremely well under the current parenting arrangement,' which gave the parents approximately equal time with the child.
The judge's supplementary findings of fact were made in support of the judgment dated August 7, 2009, as amended, and without any additional evidence. We infer, therefore, that the judge was referring to the parenting arrangement in existence on August 7, not the altered arrangement the judgment required.
On the other hand, the judge also found that Renee's family acts to disrupt her parenting relationship with Brien. In addition, he cited four instances in which Renee had failed to communicate or co-parent well with Brien. Referring to those instances of noncooperation, the judge concluded that 'given . . . inter-parental tension and lack of cooperation, joint legal custody is not in the best interests of [the child] at this time.' Finally, he stated, '[t]he parents are not able to make joint parenting decisions at this time,' and the '[f]ather should have sole legal custody of [the child].'
Specifically, despite stating that she wanted the child to have a relationship with Brien, Renee did not notify Brien when she took the child to California or that the child participates in the daycare program where Renee works. She has not always informed Brien promptly of the child's medical issues, and in July of 2008, she presented herself to Caritas Norwood Hospital with the child as a single mother visiting from California.
Though he found that difficulties in parental cooperation precluded joint custody, the judge did not state why Brien, not Renee, should be the custodian. His references to Renee's behavior support an inference that the judge believed that Brien will be more successful at fostering a cooperative parenting relationship than Renee will be and, thus, that it is in the child's best interest for Brien to have custody. Even if that inference is correct, however, clarification regarding the judge's view of other factors bearing on custody is required.
One of the judge's findings was that Brien 'always put [the child] on the telephone' when Renee called and 'testified, credibly, that he would like a normal parenting relationship with Renee . . . .'
There is, for example, a long history of the child residing with Renee. Then, following Renee's return from her unilateral trip to California, the judge entered temporary orders giving the parents joint custody. Five months later, on December 4, 2008, the same day that the parties stipulated that Renee could take the child on a short trip to California, the judge issued a temporary order granting Brien sole physical custody. Although Renee and the child returned from the trip without incident, the judge fashioned a final custody order that significantly reduced Renee's time with the child and gave Brien sole legal custody. That alteration occurred despite his findings that Renee is a fit parent and that the child was doing well under approximately equal custody.
To be sure, the residential arrangements do not diminish Brien's involvement with the child. The judge found that, from the date of birth, Brien had consistent, near daily activity with the child from the time of birth in March, 2007, until Renee left for California in May, 2008. He attended doctor's appointments and helped to feed, clothe, and care for the child.
Renee asserts that the sole physical custody order was entered in order to secure her compliance with the terms of the stipulation, and the judge promised to revoke it upon her prompt return to Massachusetts with the child but later failed to do so. The transcript reveals that Renee testified to this effect, but the judge did not recall such a promise and struck her testimony, providing that he would review tapes of such an agreement if she produced them. She does not appear to have done so.
Although he found that Renee has 'good parenting skills,' he awarded her only alternate weekends, a few hours on Wednesdays, and some holidays.
Notably, the judgment also provides that joint legal custody will resume upon the child's sixth birthday. Apart from stating that at this time the child will 'be enrolled in school,' the judge provided neither findings nor an explanation as to why joint legal custody, though not in the child's best interests at the time of judgment, will become so on the day it turns six.
We think that, on this record and without a clearer explanation as to why it was included as part of the judgment, the 'sixth birthday' clause constitutes an abuse of discretion. It also raises significant questions about the judge's underlying rationale for Brien's sole custody in the interim. Accordingly, we remand for reconsideration of the custody issue in light of the child's best interests. In that regard, given that the best interests of young children may change rapidly, the court should consider whether an evidentiary hearing regarding the parties' current status and interaction would be the most appropriate basis for the further order the remand contemplates.
C. The religious order. Renee also challenges the order requiring the child to be raised in the Roman Catholic faith. Renee was raised in a Christian tradition and Brien is Roman Catholic. Though the judge's order permits Renee to attend some nonCatholic religious services with the child, it prohibits her from having the child 'formally participate' in nonCatholic 'religious training, indoctrination, education, ritual or rite.' Renee argues that it unconstitutionally limits her right to practice her religion and her liberty to raise her child. We need not reach constitutional issues to agree that, on this record, the judge's order cannot stand.
The judge found that both parents had agreed to raise the child as a Roman Catholic but that Renee subsequently refused to agree to the child's Catholic baptism. Renee disputes the existence of an agreement but there is evidence to support the judge's finding, which we accept. Regardless, whether Renee previously agreed to a particular religious upbringing is not determinative. See Felton v. Felton, 383 Mass. 232, 234 n.1 (1981) ('Indeed there are situations where even the joint wishes of the parents are disregarded by the courts in order to avert threatened or real harm to the child').
Parents 'together have freedom of religious expression and practice which enters into their liberty to manage the familial relationships.' Felton v. Felton, 383 Mass. 232, 233 (1981). Although the promotion of a child's 'best interests' may require curtailment of this liberty, it is well settled that limitations must be justified by 'clear evidence of substantial harm' to the child. Kendall v. Kendall, 426 Mass. 238, 244 (1997). See Felton, 383 Mass. at 234. Proof of such harm '[can] be derived from testimony as to the child's general demeanor, attitude, school work, appetite, health or outlook.' Kendall, 426 Mass. at 243-244, citing Felton, 383 Mass. at 242. 'In all events, the question that comes to the courts is whether, in particular circumstances, [exposure to the religious influences of both parents is] disturbing a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future.' Felton, supra, at 235.
The judgment, as amended, states that the order is intended 'to avoid the child being confused about [its] religious upbringing and training.' 'The law, however, tolerates and even encourages up to a point the child's exposure to the religious influences of both parents although they are divided in their faiths. This, we think, is because the law sees a value in 'frequent and continuing contact' of the child with both its parents . . . and thus contact with the parents' separate religious preferences. . . . There may also be a value in letting the child see, even at an early age, the religious models between which it is likely to be led to choose in later life.' Felton, supra, at 234-235. In any event, the record before us is devoid of evidence that nonCatholic religious training by Renee will cause the child substantial harm. The record, therefore, cannot support the judge's order.
D. The award of attorney's fees. Finally, the judge ordered Renee to pay $22,500 of Brien's requested $48,742.05 in attorneys fees. Renee argues that there was insufficient evidence to support the judge's award. We agree.
Although the affidavits on record only request $46,742.05, Brien's brief and a footnote to the order dated October 28, 2009, confirm that an additional $2,000 was requested at some point.
To be sure, an award of attorneys fees 'rests in the sound discretion of the trial judge.' Howe v. Tarvezian, 73 Mass. App. Ct. 10, 13 (2008). See J.S. v. C.C., 454 Mass. 652, 665-666 (2009); Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996). But this discretion is not unlimited. Under the 'lodestar' approach to fee awards approved by the Supreme Judicial Court, reasonable attorney's fees are calculated by multiplying 'a fair market hourly rate by the amount of reasonably spent time.' Howe, 73 Mass. App. Ct. at 13, citing Stratos v. Department of Pub. Welfare, 387 Mass. 312, 321-322 (1982). See also Fontaine v. Ebtec Corp., 415 Mass. 309, 325-326 (1993) ('A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney's fee under State law as well as Federal law'). This computation should govern 'unless special reasons call for a departure.' Howe, 73 Mass. App. Ct. at 13, citing Stratos, 387 Mass. at 322. See Fontaine, 415 Mass. at 325 ('The lodestar approach has the advantage of producing generally consistent results from case to case'). 'The trial judge 'is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney's services." Howe, 73 Mass. App. Ct. at 13, quoting from Fontaine, 415 Mass. at 324.
In this case, the record does not show that the judge considered the fair market rate for the services rendered by Brien's attorney or the amount of time she reasonably spent on the case. Although the attorney submitted an affidavit listing the various services she provided, such as court appearances, depositions, document review, meetings and emails, she did not specify the amount of time she spent on each of those services. Instead, she multiplied her total hours by her billing rate of $250 per hour and then added the plaintiff's costs.
Moreover, the judge stated in his order that his award of $22,500 was warranted 'principally' by Brien's expenses 'incurred during the initial phases of this action while attempting to secure the return' of the child to Massachusetts. The judge issued an amended judgment on September 22, 2009, which, responding to Renee's request to alter the fee award, set a hearing on the fees for October 7. After the hearing and at the request of the court, Brien's attorney submitted an expanded affidavit that identified the specific services and fees charged during the initial phase of the litigation. That affidavit also identified, for the first time, services performed by a different attorney at a slightly different rate. Once again the affidavit did not itemize the services and hours. In a final order dated October 28, 2009, the judge nevertheless reaffirmed the fee award without any additional explanation.
The expanded affidavit, dated October 15, 2009, covered services rendered between June 18 and September 22, 2008.
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Without itemization in the affidavits, there is no way to determine whether the attorneys' total hours were spent in useful and reasonable efforts. Contrast Howe, 73 Mass. App. Ct. at 15 (trial judge's partial award based on fourteen instances of useful service selected from fifteen itemized pages covering nearly five years of attorney's service 'shows deliberative examination of the [fee] request'). We recognize that the judge has significant discretion to determine a reasonable fee award, and we do not substitute our judgment in this case.
Paragraphs numbered 3, 4 and 18 of the judgment (as amended) are vacated. The award of legal custody to Brien and the other provisions of the judgment regarding custody shall remain in place pending further order of the Probate and Family Court. The case is remanded to that court for further proceedings in accordance with this memorandum and order.
So ordered.
By the Court (Rapoza, C.J., McHugh & Cohen, JJ.),