Opinion
13-P-1633
02-11-2015
DENISE MICHELLE BOUTIN v. JARROD LEE BOUTIN.
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
The husband, Jarrod Lee Boutin, appeals from an amended judgment of divorce nisi entered by a judge of the Probate and Family Court. As is relevant here, the amended judgment awarded sole legal and physical custody of the parties' only child to the wife, Denise Michelle Boutin, permitted the wife to remove the child to Connecticut, provided parenting time for the husband, and awarded the wife attorney's fees in the amount of $45,000. We affirm.
The husband filed his notices of appeal before the order on the mother's amended motion to alter or amend the amended judgment had entered the docket. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 779-780 (2008). The wife did not raise this procedural deficiency on appeal. We overlook that deficiency in the interest of bringing closure to this litigation.
1. Background. The parties were married on June 21, 2008, and have one child born on December 28, 2009. They separated in 2012 after a tumultuous relationship marked by violence and deception. For instance, the husband hit and swung at the wife, verbally threatened her, and, unbeknownst to her, equipped their house with sophisticated surveillance equipment. The husband was also believed to be responsible, in some way, for the shooting death of the family dog while the wife was away. Eventually the wife obtained a restraining order against him.
At trial, the husband admitted to lying under oath and purposefully destroying and concealing evidence. The lack of credibility on the part of the husband is the touchstone to the judge's ultimate findings, which are supported by the record. See Custody of Eleanor, 414 Mass. 795, 800 (1993).
2. Custody of the child. Throughout Cole's life, the wife has been his primary caretaker. Pursuant to temporary orders, the wife retained sole physical custody of Cole and the parties shared legal custody. The parties had considerable conflict over routine child rearing issues, including the child's daily care and hygiene, his medical care, his need for therapy, and his participation in extracurricular activities. The record supports the judge's findings that it is in the child's best interest to be in the sole physical and legal custody of the wife, and that as a result of the parties' inability to communicate, joint legal custody is impossible.
3. Removal. Where, as here, the party seeking removal is the sole physical custodian of the child, the judge appropriately considered the wife's request to relocate to Connecticut under the two-pronged test set out in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985). The familiar Yannas standard establishes a two-prong analysis: (1) whether there a real advantage to the parent seeking to remove, and (2) whether the move is in the best interests of the child. Ibid. Prior to their marriage, the wife lived, worked, and owned property in Colchester, Connecticut. After the marriage, she relocated to Massachusetts. The evidence supported the judge's findings that the proposed move poses a real advantage to the wife and is in her best interest, as well as that of the child. In Connecticut, the wife has family and a large network of friends, all of whom would be able to help her with the care of Cole if needed. The move would also reduce the wife's commuting time, thus allowing Cole to spend less time in child care and more time in the care of his mother. The judge was also entitled to find that due to the safety concerns presented by the husband, the wife has to cause to feel safer having family and friends close by. The evidence also supported the judge's finding that there will be little disruption to the father's parenting time since his time commuting to exercise his parenting time will remain roughly the same. The judge found the requested move was not designed to impede the husband's access to the child, and indeed, the amended judgment provides for continuing and active parenting time for the husband. The judge's findings are amply supported by the record.
The husband is incorrect that the judge should have applied the standard set forth in Mason v. Coleman, 447 Mass. 177 (2006). The Mason standard applies only when parties have joint physical and legal custody and one seeks to remove the child from this State. Id. at 178. Here, the judge's clear and detailed findings support the conclusion that the wife has been the child's primary caretaker and would continue to serve in this role following entry of the amended judgment.
The wife's sister runs a day care and the child will be placed there upon removal to Connecticut. This will be a cost saving measure for the wife.
4. Parenting time. The amended judgment provides parenting time for the husband every other weekend, in addition to weekly dinner visits. The husband argues the judge abused her discretion in requiring him to travel to Connecticut to exercise his parenting time. The evidence supports the judge's finding that the difference in travel time from the parenting time he now enjoys is not unreasonably more than it will be upon removal. The judge could permissibly find that the overall reduction in the husband's parenting time is de minimus. We accordingly discern no error.
5. Attorney's fees. "The judge has broad discretion concerning the award of attorney's fees in a divorce case, and '[s]uch an award is "presumed to be right and ordinarily ought not to be disturbed.'" Murphy v. Murphy, 82 Mass. App. Ct. 186, 195 (2012), quoting from Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996). The judge did not abuse her discretion given the husband's lack of candor at trial and during discovery, and the costs the wife incurred for an investigator and forensic expert as to the surreptitious surveillance equipment, all of which increased the wife's total fees and expenses. The award of $45,000 represents approximately one-half of the total fees charged to the wife and is not unreasonable, as found by the judge, under the unique circumstances of this case. The wife's request for appellate attorney's fees is denied.
In response to the judge's question why he did not produce his laptop pursuant to the issued subpoena, the husband claimed that it had been damaged by water or tea and that he had thrown it away. The next day at trial, the husband confessed to lying about the laptop and that after he received the subpoena, he installed data destruction programs to erase the computer's memory.
Amended judgment affirmed.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: February 11, 2015.