Opinion
10-P-2216
11-29-2011
JENNIFER COALTER v. CHRISTOPHER COALTER.
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
The wife appeals from a modification judgment entered in the Probate and Family Court awarding sole legal custody of the parties' two children to the husband. The wife also challenges the judgment provision giving the husband the authority to object to the children attending the wife's religious services.
Background. The parties' marriage ended by a judgment of divorce nisi entered on July 27, 2005, granting the parties shared legal custody of their two children and granting primary physical custody to the husband. On February 12, 2010, the husband filed a complaint for modification alleging changes in circumstance regarding the mother's employment and her parenting of the children. The husband's specific concerns centered around the wife's employment at a church, and her spending 'the vast majority of her parenting time with the children at her place of employment[,] [i]ncluding staying overnight with the children in a communal setting at the [c]hurch.' As relief, the husband sought changes in the wife's parenting to address his safety concerns relating to the church setting.
Although the original judgment of divorce does not appear in the record appendix, the parties do not dispute that they shared legal custody of the children prior to the entry of the modification judgment at issue.
The husband also sought a guardian ad litem investigation and child support. According to the parties' representations at oral argument, no investigation occurred. The child support issue is not before us on appeal.
At a hearing on the matter, both the husband and the wife testified. The husband expressed concerns about coordinating the wife's parenting schedule and about the wife's having taken up residence at the church. As to the schedule, the husband testified that he kept the wife up to date on the children's activities, but that the wife did not make an effort to attend or bring the children to those activities during her parenting weekends. The parenting time at the church was problematic, in the husband's opinion, because of physical safety issues with the building and the poor hygiene of the children upon their return to the father's residence. The husband also touched on his older child's discomfort with attending the wife's religious services.
In her testimony, the wife related her duties as a secretary and assistant pastor of her church, and how they affected her ability to schedule time with the children. She then described her communal living situation at the church, and the services that the children had been attending. When questioned about her relationship with the husband, the wife acknowledged that they had a 'terrible relationship,' and that she thought that there was 'a severe lack of communication.'
In his modification judgment, the judge ordered in part as follows:
'Father shall have sole legal and physical custody of the minor children. The evidence was clear that the parties are unable to communicate effectively. . . . The minor children may be with the Mother during her weekly religious services. However, they may only attend the religious services itself [sic] if they wish to attend and the Father, as sole legal custodian, does not object.'
The judge made no further findings of fact on those issues.
The judgment also ordered that the wife's parenting time take place at a location other than the wife's residence, presumably at the maternal grandmother's house. The wife does not challenge this order on appeal.
Discussion. On appeal, the wife claims that the judge erroneously awarded legal custody to the husband, as the complaint for modification did not raise the issue of custody, and no showing was made warranting a change in custody. The wife also challenges the judge's order allowing the husband 'veto power' over the children's attendance at the wife's religious services.
Determinations of custody and visitation are subject to modification and change if the court finds that a material and substantial change in the circumstances of the parties has occurred, and the modification is in the best interests of the child. See G. L. c. 208, § 28; Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 289 n.1 (1996). Where an existing arrangement has failed to function effectively, a judge has authority to resolve an ongoing dispute. See O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 155 (2003) ('[O]rders for joint custody, physical or legal, cannot succeed without a true commitment to collaboration'). 'Shared legal custody carries 'mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.' G. L. c. 208, § 31. This contrasts to sole legal custody, which gives to only one parent these rights and responsibilities.' Mason v. Coleman, 447 Mass. 177, 181-182 (2006). We review an order for modification under the familiar abuse of discretion standard. See Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004).
To begin, we acknowledge that the evidence before the judge likely supports his custody order on the stated grounds that the parties could no longer effectively communicate, as the wife explicitly admitted. See Mason v. Coleman, supra; Rolde v. Rolde, 12 Mass. App. Ct. 398, 404-405 (1981). But see Doe v. Doe, 16 Mass. App. Ct. 499, 502-503 (1983). Nevertheless, on the record before us, and limited to the facts of this case, we conclude that a change of legal custody should not have been made without first bringing the issue to the attention of the parties. The issue of legal custody is nowhere to be found in the record, save for the judge's order. The complaint for modification does not raise the issue, the parties did not raise it at the hearing or argue it in their closing arguments, and the judge never informed the parties during the proceedings that legal custody was at stake. See Adoption of Reid, 39 Mass. App. Ct. 338, 342 (1995) ('[A] decree or judgment should decide only those issues or matters that are before the court'), citing Messina v. Scheft, 20 Mass. App. Ct. 945, 946 (1985). We accordingly conclude that the matter must be remanded.
It also cannot be determined if the wife would have offered additional testimony on the issue of legal custody if she had known it was subject to change based on the evidence presented at the hearing.
Conclusion. So much of the May 17, 2010, judgment as modifies legal custody and governs the children's attendance at the wife's religious services is vacated, and these matters are remanded to the Probate and Family Court for a new hearing. In all other respects, the modification judgment is affirmed.
As the judge's order regarding the children's attendance at the wife's religious services is dependent on the order granting legal custody to the husband, it must also be revisited on remand.
So ordered.
By the Court (Vuono, Brown & Smith, JJ.),