Opinion
16-P-1456
07-27-2017
Lauren BELANGER v. Scott BETTANO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
For two years during the pendency of this divorce case, the plaintiff, Lauren Belanger, had only supervised visitation with the parties' two minor children while the defendant, Scott Bettano, had full physical custody. Then, after trial on the limited issues of custody and visitation, a judge of the Probate and Family Court awarded physical custody of the children to Belanger and set a parenting schedule for Bettano. Bettano appeals, claiming that the judge abused his discretion in awarding physical custody to Belanger. Because we cannot ascertain whether the judge considered all of the relevant factors in awarding custody to Belanger, nor do we completely understand the judge's rationale, we vacate the judgment and remand for a new trial.
By agreement of the parties, the complaint for divorce was bifurcated and the parties resolved the issues of property division and dissolution of the marriage by stipulation, which was incorporated into a partial judgment of divorce nisi dated October 30, 2015.
Background. The parties were married on April 10, 2010, and lived together until February or March of 2014. During this time, Belanger was the children's primary, and sometimes sole, caretaker and Bettano was the primary income earner. The family experienced financial instability; they lived in several different places and were evicted on multiple occasions. In 2014, Bettano was incarcerated for ninety days. Shortly after Bettano went to prison, the family was evicted again. In addition, Belanger could not use her car, which Bettano had purchased for her, due to problems with its title. Upon his release from prison, Bettano assumed custody of the children. Belanger then filed a complaint for divorce on August 4, 2014, seeking custody of the children and child support.
Based on our review of the trial transcript, it appears that Bettano was first arrested in 2011 for theft by deception and was arrested again in 2012 after the police raided the marital home and found fifteen pounds of marijuana. Although the testimony is less than clear, it appears that having received a suspended sentence (ninety days) for the 2011 fraud charge, Bettano's subsequent arrest in 2012 triggered the imposition of the suspended sentence.
A temporary order regarding custody and visitation was issued on September 23, 2014. The judge, who later presided over the trial, awarded joint legal custody of the children to the parties and sole physical custody to Bettano. Belanger was granted supervised visitation with the children three times per week and was ordered to supply evidence of her current prescription medications and accompanying diagnoses. After two continuances, a trial on the issues of custody and support was held on August 11 and 23, 2016. In relevant part, the ensuing judgment awarded shared legal custody to the parties and physical custody of the children to Belanger. Bettano was given parenting time every Wednesday evening and alternating weekends.
The reasons for ordering supervised visitation are not clear from the record. Additionally, it appears that Belanger's visits may have occurred less frequently; however, the judge made no findings about Belanger's visits with the children.
The judge's decision to award physical custody to Belanger was based on his finding that Belanger was the primary caretaker of the children during the marriage and that Bettano's financial irresponsibility had resulted in multiple evictions and loss of Belanger's car. The judge also found that Bettano "regularly and consistently impeded [Belanger] in her attempts to visit with the children," and that he "appears less able to allow open access to [Belanger] for parenting time with the children than [Belanger] is to [Bettano]." The judge also determined that Bettano's criminal activity, lack of gainful employment, and support for the legalization of marijuana had an adverse impact on the family.
Bettano is self-employed as an owner of a startup marijuana information Internet business known as Weedshare, Inc. At the time of trial, Bettano did not earn any income from this business and he reported that his parents supported him and the children.
Discussion. We review the judge's findings for clear error and review "the ultimate determination on custody and visitation ... [for] an abuse of discretion in how the judge accounted for the child's best interests." Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision." Ibid., quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). There is not a "definitive list of criteria" that a judge must consider when making a custody determination. El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010), quoting from Charara v. Yatim, 78 Mass. App. Ct. 325, 334 (2010). However, relevant factors include:
"consideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child's life, the decision-making capabilities of each parent to address the child's needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child."
El Chaar v. Chehab, 78 Mass. App. Ct. at 506.
In this case, it does not appear that the judge considered all of the relevant factors when he awarded physical custody to Belanger. First, we cannot determine from the judge's findings whether he considered the recommendation of the court-appointed psychologist that Belanger should continue to have supervised visits with the children. While the judge was certainly not required to adopt the recommendation of the psychologist, see Mason v. Coleman, 447 Mass. 177, 186 (2006), the failure to address this evidence is problematic. See Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 260 (1978), quoting from Adoption of a Minor (No. 2), 367 Mass. 684, 688-689 (1975) ("Troublesome facts, pointing to a conclusion contrary to that reached by the department or the judge, are to be faced rather than ignored").
Bettano argues that, in making the decision to award physical custody to Belanger, the judge improperly considered Bettano's prior criminal conviction and his failure to provide a steady income. Although the judge was entitled to take these factors into consideration, he failed to make findings as to how these factors negatively impacted the children. See Adoption of Rhona, 57 Mass. App. Ct. 479, 483 (2003).
Second, the judge made only perfunctory findings regarding the children's bonds with each parent, and no findings regarding each parent's decision-making abilities or the parents' living arrangements. See El Chaar v. Chehab, supra. While some evidence was introduced about these subjects, there was sparse evidence about the children themselves. See Hunter v. Rose, 463 Mass. 488, 494 (2012) ("The best interests of the child standard is applied in the context of the particular needs and circumstances of the child in question"). Belanger requested the appointment of a guardian ad litem at the beginning of trial and the judge himself recognized that such input would have been beneficial.
Approximately one week before trial, Belanger retained new counsel who, on the first day of trial, requested the appointment of a guardian ad litem as well as a further continuance. It appears that this was the first request to appoint a guardian ad litem.
Third, the judge failed to address how a change in custody would affect the children. Typically, "it is in the ‘best interests of the child’ to preserve the current placement with a parent, if it is a satisfactory one, and ... stability and continuity with the child's primary caregiver is itself an important factor in a child's successful upbringing." Custody of Kali, 439 Mass. 834, 842 (2003). While we do not suggest that the award of custody to Belanger was contrary to the children's best interests, we are unable to conclude that the judge gave proper consideration to the impact of his decision on the children, especially in view of the magnitude of the change.
Findings serve important functions in the judicial resolution of custody disputes. They "(1) insure the quality of a judge's decision making process by requiring simultaneous articulation of the judge's underlying reasoning; (2) assure the parties that their claims have been fully and fairly considered; and (3) inform an appellate court of the basis on which a decision has been reached." Cormier v. Carty, 381 Mass. 234, 236 (1980). Accordingly, because we are unable to understand the judge's reasoning for the change in physical custody, additional explanation is needed.
Conclusion. While typically we would remand the matter for additional findings, see Bowring v. Reid, 399 Mass. 265, 267 (1987), here, because the judge has since retired, we vacate the judgment and remand for a new trial before a different judge. See Parrish v. Parrish, 30 Mass. App. Ct. 78, 88 (1991). Because almost a year has elapsed since the judgment was entered, the judge may, in his or her discretion, hear evidence about the children's current circumstances. See ibid. The judgment of divorce nisi dated September 15, 2016, is vacated, and the matter is remanded for further proceedings consistent with this decision. Pending such further proceedings, physical custody of the children shall remain with Belanger subject to the current parenting schedule.
We note that, although both parties were residing in New Hampshire at the time of trial, the Massachusetts trial court retains jurisdiction over this matter under G.L.c. 208, § 4, and G.L.c. 209B, § 2(a )(1). However, pursuant to G.L.c. 209B, § 7, the court may decline jurisdiction if it determines that it would be an inconvenient forum and another State would be more convenient. We leave it to the discretion of the judge on remand to determine whether such is the case in this matter.
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So ordered.
Vacated and remanded.