Opinion
12-P-716
05-03-2013
ELIZABETH JANEL COLE v. STEVEN BUCKOWSKI (and a companion case ).
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 former wife (wife) appeals from the amended judgment of divorce, arguing that the judge improperly relied on the guardian ad litem (GAL) report that was not in evidence. She also appeals from the November 30, 2011, order vacating an abuse prevention order against the former husband (husband), contending that the issue of continued validity of this order was not before the judge during the divorce trial.
This is a consolidated appeal. While the wife does not state which provisions of the divorce judgment she is challenging on appeal, it would appear, in light of her focus on the GAL report, that her challenge is to the children-related provisions of the judgment. In the judgment, the judge awarded the parties joint physical custody and the husband sole legal custody of the children.
1. Divorce judgment. On July 7, 2011, the husband filed a 'motion in limine requesting that the court accept the partial stipulation of the parties and enter same as an order of the court.' In the motion, the husband represented that on June 28, 2011, counsel for both parties entered into and signed a stipulation which was attached to the motion. The motion stated, in part, that '[a]s [g]rounds for this request, paragraph two (2) of said stipulation recites an agreement of the parties that the [GAL] Report be admitted to [sic] evidence without the need of the [GAL] to testify.' The proposed order stated, in part, 'The [GAL] Report shall be admitted into evidence without the need of the [GAL] to testify.' The judge allowed the motion. The wife argues that the parties' stipulation relieved the parties from calling the GAL, but not from moving to enter the report in evidence. As noted, the language of the order, which incorporates portions of the stipulation, states that the '[GAL] Report shall be admitted into evidence without the need of the [GAL] to testify.' The parties thus agreed to waive the prerequisite for the admission of the report in evidence, see Adoption of Georgia, 433 Mass. 62, 68-69 & n.6 (2000), and agreed to have the report admitted. Not only does the proposed order use the word 'shall' as opposed to 'may,' it also uses the word 'admitted,' not 'admissible.' The proposed order is plain and unambiguous. See Whelan v. Whelan, 74 Mass. App. Ct. 616, 627 (2009). Once the motion was allowed, the previously submitted report became part of the record before the judge.
This argument fails for the reason, if no other, that the wife did not include the stipulation in the record appendix. See Mass.R.A.P. 18(a)-(b), as amended, 425 Mass. 1602 (1997); Kunen v. First Agric. Natl. Bank of Berkshire County, 6 Mass. App. Ct. 684, 689 (1978) ('The burden is on the appellant to provide [the appellate] court with an appendix sufficient to support its points on appeal' [citation omitted]); Powers v. Leno, 24 Mass. App. Ct. 381, 385 (1987); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). Because the order mirrors the stipulation, however, we reach the merits of the argument.
Contrary to the wife's claim that the order was a preliminary one, the above language is dispositive.
The wife's contention that a GAL report is not automatically part of the record is therefore inapplicable in this case.
The wife also argues that the judge's ruling that only exhibits listed on both parties' exhibit lists could be admitted excludes the GAL report, which did not appear on her exhibit list. This argument is without merit, as the issue of the GAL report was addressed and resolved prior to and separately from the issue of other exhibits.
The wife's argument that she was denied an opportunity to object to the GAL report is further foreclosed by her repeated references to the report at trial. For these reasons, we also conclude that the judge properly relied on the GAL report in issuing findings and rulings. Moreover, the judge found the wife not credible, and found the husband to be 'very credible.' The judge's determination of witness credibility, or lack of credibility as was the case with the wife, was a matter within her discretion. See Custody of Eleanor, 414 Mass. 795, 800 (1993); Guardianship of a Minor, 1 Mass. App. Ct. 392, 398 (1973). The judge's findings are grounded in the evidence; the wife has failed to show that any of them are clearly erroneous. See Mason v. Coleman, 447 Mass. 177, 186 (2006).
In arguing against the husband's motion to exclude evidence of the child's hearsay statements of alleged sexual abuse, the wife relied on the GAL report, stating that '[o]ne of the exhibits that's been offered by the [husband] is the [GAL] report,' told the judge that her witness's 'report is in as part of the [GAL] report,' and stated that her witness 'would be talking about what the [GAL] herself put in her report,' causing the judge to rule on the motion 'that no testimony or evidence can be submitted that says anything more than what the [GAL] report says.'
The wife questioned witnesses on direct and redirect examination about statements they made to the GAL, and about statements appearing in the GAL report; did not object to this line of questioning by the husband; and did not object to the husband's testimony on the subject.
2. Order vacating the abuse prevention order. On December 28, 2009, the wife obtained a G. L. c. 209A abuse prevention order, which was subsequently extended on several occasions. The divorce trial took place in July of 2011. During the divorce trial, the parties introduced evidence about the incident which resulted in the original abuse prevention order, and their subsequent conduct and relationship. On September 29, 2011, a judge other than the trial judge extended the c. 209A order to September 27, 2012. The husband did not appeal from either the original order or any of the extension orders. On November 28, 2011, the trial judge issued the judgment of divorce and findings, which included findings as to the facts related to the c. 209A order. On November 30, 2011, she vacated the abuse prevention order then in effect. Where the husband did not ask the trial judge to vacate the abuse prevention order, and where the judge did not advise the parties that she would be considering and ruling on the issue of the continued validity of the order, the order should not have been vacated. Cf. Iamele v. Asselin, 444 Mass. 734, 741-742 (2005) (holding judge erred in sua sponte vacating c. 209A order at extension hearing).
In her factual findings on the judgment of divorce nisi, the judge found that there was not 'a pattern or serious incident of abuse.' Instead, she found that the underlying incident was 'isolated' and occurred 'when tensions were running particularly high.' The judge also found that the wife 'continued to take advantage of the [c. 209A order] and has exploited it for tactical purposes during this litigation. Based on her demeanor and testimony during the trial, I find that she has no fear of physical, emotional, or any other harm from the Husband.' The wife does not argue that the judge's c. 209A findings were not supported by the evidence.
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The amended divorce judgment is affirmed. The November 30, 2011, order is vacated without retroactive reinstatement of the September 29, 2011, order. The husband's request for appellate costs is denied.
So ordered.
By the Court (Katzmann, Meade & Sullivan, JJ.),