Opinion
No. 12–P–190.
2013-02-5
Jane DOE v. John DOE.
By the Court (KAFKER, MILKEY, & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal pursuant to Mass.R.App.P. 6(a)(1), as appearing in 454 Mass. 1606 (2009), from an order by the single justice denying a motion for a partial stay of execution of a judgment of divorce nisi entered on December 5, 2011. It is important at the outset to note the limited nature of our review at this stage. It is not for us to resolve the merits; that is the responsibility of the panel which will hear the appeal. Here, we simply review the decision by the single justice who, after considering the likelihood of success and the balance of harms, including the effect of bringing the children back from their new home in California, see Cartledge v. Evans, 67 Mass.App.Ct. 577, 579–80 (2006), declined to exercise his discretion. At this stage, there is a heavy burden on the party who alleges that there was an abuse of that discretion. See Boulter–Hedley v. Boulter, 429 Mass. 808, 811 (1999). The motion was filed by the husband who alleges that he is entitled to relief because the judge abused his discretion in not granting his oral motion for a continuance, made on May 13, 2011, the day of trial. The husband left the courthouse following the denial of his motion and the trial proceeded in his absence to a conclusion that day. There was testimony from his wife, her boyfriend, and the director of the Middlesex County Probate Court Family Service Clinic. The portion of the judgment that is at issue concerns the provisions relating to the authorization to the wife to remove the four minor children from the Commonwealth to the State of California.
Background. The single justice was warranted in relying on the judge's findings, which are entitled to respect absent clear error. See Mason v. Coleman, 447 Mass. 177, 186 (2006) (citations omitted). The complaint for divorce was filed in the spring of 2009. Sometime in the spring or summer of the following year, the husband learned that he had cancer and that it was stage 3 melanoma. In December, 2010, the trial court scheduled the case for trial. In January, 2011, the husband's attorney withdrew from the case by motion. The motion for a continuance of the May 13, 2011, trial date was made orally, by the husband, on the day of trial without advance notice to the wife or the court. The judge heard argument from the husband on his oral motion. The judge's detailed findings address the husband's medical condition, assess the husband's performance during the hearing on his motion, note that the husband failed to read the report of the Family Service Clinic (even though it was available to him for his inspection for an extended period of time), found that it was undisputed that the husband has not seen the minor children since January 2 by his own choice and found that his adherence to the parenting schedule was poor. The judge also noted that after the motion was denied, the husband became upset at the result and exited the courtroom. Although the husband requested an ambulance, the judge found that there was nothing exhibited in the courtroom which would warrant calling an ambulance.
The judge's memorandum of decision also addresses the merits.
Discussion. 1. The judge's discretionary authority to grant a motion to continue. The husband, who is represented by counsel in this appeal, relies primarily on Botsaris v. Botsaris, 26 Mass.App.Ct. 254 (1988), a case in which this court applied the abuse of discretion standard to hold that a trial judge committed an error of law in denying a motion to continue a case for sixty days (barring a settlement) that was filed and heard on the date scheduled for a pretrial conference. The case is inapposite to the situation which confronted the judge in the present case.
In Botsaris, the motion was filed on June 19, 1986, and accompanied by documentation, including medical evaluations of the wife conducted on June 13 and June 16, 1986. The medical evaluations indicated that the wife was incapable of participating in the trial, and was borderline for hospitalization. Here, by contrast, the judge had an opportunity to observe the husband, a lawyer, on the day of trial. The judge acknowledged that the husband was suffering from a serious illness, but found that his performance, in presenting and arguing in support of his motion, was not impaired. This finding is entitled to great weight. See Commonwealth v. Kenney, 437 Mass. 141, 149 (2002). In Botsaris, by contrast, the judge was presented with timely medical documentation attesting to the party's debilitated condition and describing her as “incapable” of participating in a court proceeding. Also, the husband in this case, unlike in Botsaris, did not request any specific amount of time for the continuance other than to say it could be as long as six months after his chemotherapy was finished. No end date for this treatment was provided. Finally, it is significant that in the present case the judge noted a pattern of conduct that is suggestive of bad faith. Despite filing the emergency motion, the judge in this case noted that the husband did not visit with the children between the time of the contempt hearing and up to the time of the trial, and concluded that the complaint for contempt was not filed in good faith.
The husband waited until the very end of the nisi period to bring forward any medical documentation about his state of health on May 13, 2011. The judge found that the financial statement filed by the husband on the day of trial (which was not received as an exhibit at trial) lists no assets, no income, and no expenses save for a student loan. The judge also found that although the husband was not complying with scheduled visitation per the parenting plan from December, 2010, through February, 2011, he sought an emergency order and alleged that his wife was in contempt for not following the visitation schedule when she took the children to California over school vacation in February, 2011. As a result of an order issued by another judge, the wife had to return abruptly to Massachusetts for a contempt hearing. The judge in the present case heard the motion for contempt and dismissed it.
The person who is in the best position to assess the merits of a motion to continue a trial is the judge. See Strothers v. Strothers, 30 Mass.App.Ct. 188, 191 (1991). We cannot say that the single justice abused his discretion in concluding that the judge properly considered the interests of not only the husband, but the wife and their children. See Commonwealth v. Binkiewitz, 342 Mass. 740, 745 (1961).
2. The likelihood of success on appeal. The husband argues that the single justice also abused his discretion in denying relief because the trial judge did not adhere to the requirements of Yannas v. Froudistou–Yannas, 395 Mass. 704 (1985), in allowing the wife's request to remove the children to California. The record supports the single justice's denial of relief on this basis as well. The judge explained that the wife has been the primary caretaker of the four children since their birth, and “virtually their sole caretaker since the parties separation in 2009.” Considering the husband's illness and erratic visitation pattern, it was logical to assign physical custody to the wife. In assessing the best interests of the children, the judge properly considered the needs and circumstances of the custodial parent in keeping with Yannas. Id. at 710 (“[T]he best interests of a child are ... interwoven with the well-being of the custodial parent”). The judge found that the mother is not capable of being the sole financial support the family. The husband though a lawyer had never been able to pay more than eighty dollars per month in child support. The family's source of support is the mother's boyfriend who resides in Folsom, California, and who testified at the trial. The mother and children plan to live with the boyfriend. The financial support he provides not only benefits the wife, but is of vital importance to the children. See Murphy v. Murphy, 82 Mass.App.Ct. 186, 191–192 (2012) ( Murphy ). The judge was warranted in finding that over the course of the more than two years that the case was pending, the husband's contact with his children has been “sporadic or non-existent,” and that his failure to visit “is a result of more than just his medical issues.” The judgment in this case specifically provides for up to four weeks per year of visitation between the husband and the children in Massachusetts. See Yannas, supra at 711–712.
In determining whether to allow the motion for a partial stay, the single justice was warranted in not only considering the merits of the appeal, but also was warranted in considering the detrimental effect on the children and mother, their primary caretaker, both in terms of the financial and social burdens, if they were required to return from their new home in California. See Murphy, supra. If as in this case, the judge applies the correct legal standard, the decision about whether to allow removal turns on the findings of fact made by the judge, and only when they are clearly erroneous is an appellate judge or court permitted to take a contrary view of the case. See Pizzino v. Miller, 67 Mass.App.Ct. 865, 871–872 (2006). Here the judge engaged sensitively in the required “collective balancing of interests,” Dickinson v. Cogswell, 66 Mass.App.Ct. 442, 449 (2006), and concluded that removal was in the best interests of the children. On the basis of the limited record that is before us, the husband has failed to establish that the single justice committed an error of law or abused his discretion in denying the motion for a partial stay of execution. See Cartledge v. Evans, 67 Mass.App.Ct. at 578.
Order of the single justice affirmed.