Opinion
14-P-429
06-08-2015
AMY DASILVA v. MARIO DASILVA.
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 plaintiff and custodial parent, Amy Silva, appeals from a judgment denying her request to remove her child from Massachusetts to North Carolina. She argues that the judge erred in 1) finding that she failed to establish the move results in a "real advantage" to the child and 2) in refusing to admit in evidence portions of the defendant, Mario DaSilva's, deposition. We affirm.
The caption on the complaint for modification lists her name as Amy DaSilva, however, she used the surname Silva at trial and before us. To draw a distinction between the parties, we will also employ the name "Silva" when referring to the plaintiff and "DaSilva" when referring to the defendant.
At the conclusion of the plaintiff's testimony, the judge allowed the defendant's "motion for directed verdict." Such a motion is more appropriately styled a motion for involuntary dismissal. See Mass.R.Dom.Rel.P. 41(b)(2).,
"After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief."
Rule 50 of the Massachusetts Rules of Civil Procedure, 365 Mass. 814 (1974), which allows motions for directed verdicts, does not have a counterpart in the Rules of Domestic Relations Procedure, as directed verdicts are "inappropriate in a nonjury case." Wire & Textile Machinery, Inc. v. Robinson, 332 Mass. 417, 418 (1955).
"[I]n passing upon a motion under the second sentence of rule 41(b)(2) a trial judge is not limited to that standard of proof required for a directed verdict . . . [;] rather, the judge is free to weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision." El Chaar v. Chebab, 78 Mass. App. Ct. 501, 507 n.12 (2010), quoting from Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 139 (2002). "Findings of fact shall not be set aside unless clearly erroneous . . . ." Mass.R.Dom.Rel.P. 52(a). We review the judge's ultimate decision regarding the removal of the child for an abuse of discretion or other error of law. Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015).
To remove a child from the Commonwealth, a custodial parent must establish (1) that "there is a good reason for the move, a 'real advantage,'" and if so, (2) whether the move is in the best interests of the child. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985). See Murray v. Super, supra at 148-149.
Although neither party raises the matter, Silva brought the action as a complaint for modification rather than a petition for removal under G. L. c. 208, § 30. However, "[a]s long as the complaint for modification provides notice to the opposing party of the relief sought, it is an appropriate vehicle for requesting removal of children from Massachusetts." Tammaro v. O'Brien, 76 Mass. App. Ct. 254, 258-259 (2010). In such circumstances, "there is no merit in the . . . contention that . . . the judge was bound to apply in the present case the standard applicable to a complaint for modification," and "a judge is not necessarily precluded from considering matters prior to the [divorce] judgment." Id. at 259 n.8.
In concluding that Silva had failed to meet her burden of establishing a "real advantage," the judge found that Silva had not engaged in a "meaningful job search." This finding is not without record support. Silva testified at trial that she had no specific job prospects. While Silva did attest to meeting with several recruiters, she had not made contact with any employers. Contrast Cartledge v. Evans, 67 Mass. App. Ct. 577, 580 (2006) ("As of the time of trial, [the mother] had accepted a three-day per week job" in Connecticut); Woodside v. Woodside, 79 Mass. App. Ct. 713, 718 (2011) ("the mother's job prospects in Maine 'were speculative at best,' but . . . she would benefit from the opportunity for accelerated job training opportunities and the potential for higher future earnings").
Silva contends that the judge made various erroneous evidentiary rulings during trial, but does not specifically point to which rulings should be considered. Accordingly, we conclude that this contention does not rise to the level of appellate argument and do not consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Zisk v. Quincy Hosp., 64 Mass. App. Ct. 517, 527 n.9 (2005) ("the plaintiff does not point to any specific ruling . . . that prejudiced him").
The judge did not credit Silva's claim that the "move will reduce her stress," with the exception of a small financial benefit. The judge also discredited Silva's assertions that she had better support systems in place in North Carolina because "she never described what support she was seeking -- financial, child related or emotional . . . [and] [t]he Court [was] unclear as to what support [Silva] would be hoping for in North Carolina and how it differed from the support she was receiving in her present circumstances." Silva testified simply about a group of college friends in North Carolina that she had maintained contact with over the years. Meanwhile, Silva has family in Massachusetts and the support of DaSilva, who assists with child care.
The judge did recognize that the move would provide some financial relief in the way of reduced housing and after-school costs.
The court noted that Silva "has a boyfriend in North Carolina but f[ound] that while this is relevant [Silva] has not offered any evidence that this is a reason for her proposed relocation." Contrast Pizzino v. Miller, 67 Mass. App. Ct. at 873 ("a sincere desire to be with a spouse is, per se, a good and sufficient reason that requires a finding that there is a real advantage"); Murray, supra at 149 (judge considered "emotional difficulty and sadness [mother] experiences from being separated from her new husband"). There is record support for each of the judge's findings; therefore, we conclude they are not clearly erroneous and, further, that the judge properly determined that Silva did not meet her burden in demonstrating a real advantage. Because we conclude that the judge did not err in finding no real advantage, we need not, and do not, address the additional prong of whether the move to North Carolina favored the child's and parent's best interests and, relatedly, whether DaSilva's deposition testimony -- which was only offered to establish that removal was in the child's best interests -- was improperly excluded. See Yannas, supra (requiring both prongs for removal).
In so concluding, we do not rely on that portion of the judge's finding that required Silva to demonstrate an inability to seek more advantageous housing here in Massachusetts.
The judge appears to have excluded the deposition transcript because "the witness [DaSilva] is here to testify." Furthermore, contrary to the defendant's contention, Silva need not have first fully established a real advantage before presenting evidence on the question of the child's best interests.
Judgment affirmed.
By the Court (Rapoza, C.J., Berry & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 8, 2015