Opinion
14-P-1378
03-10-2016
ANDREW BONVIE v. TARA A. BONVIE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Andrew Bonvie (husband), the former husband of Tara Bonvie (wife), appeals pro se from a judgment of divorce nisi of the Probate and Family Court that, among other things, divides the parties' property, and awards to the wife primary physical custody of the parties' two children. We affirm.
Background. The parties were married in 1996, and have two children -- a daughter born in 2001 and a son born in 2003. The couple last lived together in 2010. In 2012, the husband filed a complaint for divorce, alleging irretrievable breakdown of the marriage.
On October 18, 2013, the husband filed a motion for temporary orders seeking shared legal and physical custody of the children to "offset the damage" resulting from the wife's alleged alienation of the children. On October 21, 2013, the judge entered a temporary order awarding the parties shared legal custody of the children, with sole physical custody to the wife. In December, 2013, the husband again asserted parental alienation in a "motion for further temporary orders." The judge denied the motion.
The judge stated: "The parties have a difficult time communicating regarding their children. In the children's best interests, the parenting and custody arrangement shall remain as presently constituted resulting in the above Order. The children are familiar with this schedule and it shall remain so."
On January 2, 2014, the wife served notice on the husband for a deposition to be held on February 3, 2014. After the husband failed to appear at the deposition, the wife filed a motion to compel his attendance, which the judge allowed.
Thereafter, on March 1, 2014, the wife served a second notice on the husband for the taking of his deposition on March 13, 2014. The notice indicated that the husband was to bring with him those documents he believed "illustrate or tend to illustrate [the wife's] alienation of the children." The husband appeared for his March 13 deposition but he did not produce the requested documents.
A bench trial followed on April 18, 2014, where the physical custody of the children was the primary issue. On the day of trial, on the basis of the husband's failure to produce the requested documents, the wife filed a motion in limine to prohibit the husband from offering testimony pertaining to his allegation of parental alienation. The judge agreed to permit the husband to give testimony pertaining to his allegation of parental alienation but precluded the husband "from offering any documents in support of [these] allegations."
By a judgment of divorce nisi dated May 5, 2014, the judge ordered joint legal custody of the children to both parents. He ordered primary physical custody of the children to the wife, with substantial parenting time for the husband. As agreed to by the parties, he divided the retirement funds accumulated during the marriage equally. Each party was ordered to retain any contribution he or she made prior to the marriage. The husband filed a notice of appeal from the divorce nisi, which entered in this court in September, 2014. The judge issued his memorandum of decision and findings of fact on November 4, 2014.
The judgment provides that the husband shall have parenting time with the children "each Monday and Tuesday from after school (or 3:00 P.M. if school is not in session) until 8:00 P.M.," and "alternating weekends from Friday after school (or 3:00 P.M. if school is not in session) until Monday morning at school (or 8:00 A.M. if school is not in session)." The judgment further provides the husband with parenting time on certain holidays and during school vacations.
Discussion. 1. Motion in limine. The husband asserts the judge improperly sanctioned him for failing to produce the requested documents. He contends that he was under no court order to provide these documents and, therefore, he was not required to produce them. See Mass.R.Dom.Rel.P. 37(b)(2)(B). As the husband did not meaningfully raise this basis for his challenge before the lower court judge in either his opposition papers or at oral argument, we decline to reach it. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 93 (1984).
Rule 37(b)(2) provides in relevant part:
"If a party . . . wilfully fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: . . .
"(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence."
2. Property division. The husband asserts the judge failed to make the relevant findings pursuant to the mandatory factors set forth in G. L. c. 208, § 34, and, further, that he did not adequately articulate the rationale for his ruling. The husband contends the judge articulated only one finding when dividing the marital assets. We disagree.
General Laws c. 208, § 34, affords a judge broad discretion in arriving at an equitable distribution of the marital property. Brower v. Brower, 61 Mass. App. Ct. 216, 221 (2004). Where the judge has made findings consistent with the obligations imposed by § 34, a property division judgment will not be reversed unless "plainly wrong and excessive." Bowring v. Reid, 399 Mass. 265, 267 (1987), quoting from Redding v. Redding, 398 Mass. 102, 107 (1986). Contrary to the husband's claim, the judge here considered the relevant § 34 factors, and included within this consideration the parties' respective contributions to the marital estate and their stipulation to certain facts. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996) ("The parties' respective contributions to the marital partnership remain the touchstone of an equitable division of the marital estate").
The judge made findings concerning his consideration of the length of the marriage, the age of the parties, the husband's employment and income as an "IT Project Manager," the wife's occupation and income as a part-time dental assistant, and the wife's educational background. The judge also factored the wife's receipt of "rental assistance" and the husband's contribution to the wife's and the children's "health and dental insurance."
We also perceive no error in the judge's division of the parties' respective retirement accounts. The husband agreed to the wife's proposed disposition of the retirement funds, the only marital asset, noting that it was "fair." As a result, both the husband and the wife initialed the change in the statement of uncontested facts, which provided that the parties would "equally divide so much of the retirement accounts as were accrued during the marriage." In these circumstances, we do not agree that the property division was "plainly wrong and excessive." Bowring v. Reid, supra (citation omitted).
3. Physical custody. The husband also contends the judge's finding that he offered no credible evidence to support an order of shared physical custody was clearly erroneous, and, further, asserts the judge abused his discretion in awarding the wife primary physical custody. We perceive no abuse of discretion.
"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, 439 Mass. 834, 845 (2003), quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). When considering the happiness and welfare of the child, the judge shall consider "whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health." G. L. c. 208, § 31, as appearing in St. 1989, c. 689.
Here, the judge factored the husband's involvement with the children, and his contributions towards their parenting. The judge acknowledged that the husband had "regularly assisted the children in their school work" and had "consistently parented the children" since the parties' separation. The judge balanced these considerations with the children's need for stability and continuity, noting that the parties had been operating under essentially the same parenting plan (with the wife having primary physical custody) since their separation four years prior. See El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010) (in making best interests determination judge may consider the child's need for stability and continuity). The parties were consistent in their testimony that the children are healthy, doing well in school, participating in social activities, and, in the husband's words, "continuing to flourish and grow in wonderful ways." On this record, therefore, we see no plain error in the judge's custody determinations.
The husband notes, and we agree, that the judge was wrong in stating that the husband failed to establish for how long it was that he had the children for two days of each week while the wife worked. This misstatement, however, does not cause us to reach a different result.
Judgment of divorce nisi affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 10, 2016.