Opinion
20-P-1006
02-09-2022
D.T. v. R.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The father appeals from the judgment of divorce nisi insofar as it granted the mother sole physical and legal custody of their two children, and limited the father's parenting time to four weeks a year, exclusively in California where the mother resides. On appeal, the father contends that the judge's custody decision is unsupported, that she abused her discretion with respect to various evidentiary matters, and that she improperly assisted the pro se mother at trial and demonstrated bias in favor of the mother. We affirm.
The father does not appeal from the division of the marital estate and debts or the allocation of child support.
The mother did not submit a brief on appeal.
Background. "We first summarize the judge's findings, setting forth other facts later in connection with the specific legal issues we address." Schechter v. Schechter, 88 Mass. App. Ct. 239, 241 (2015).
The parties were married in 2013, had two children (ages three and four at the time of trial), and last resided together in the marital home in Dorchester. The mother filed for divorce in December of 2016, and the father filed a counterclaim for divorce in 2017. Agreed upon temporary orders granted shared legal custody, primary physical custody to the mother, and authorized her move to southern California with the children to pursue a medical fellowship there.
The mother appeared pro se, and the father was represented by counsel at trial. At the time of trial, the father was working as a surgical resident in Boston. He had accepted a surgical fellowship in Baltimore, Maryland for the following year. While he had considered fellowships in California, he accepted a fellowship at a trauma and critical care center in Baltimore because it was the career opportunity that best trained him for his career in medicine and violence prevention. The judge found that this choice was not unusual for a medical professional and that taking the fellowship would increase the father's ability to find long-term employment in California near his children.
The father anticipated working a monthly average of eighty hours per week. He planned to schedule his hours in such a way as to maximize his time with the children, and the paternal grandmother (grandmother) would be available to help with the children when they were in Baltimore. The mother is also a doctor, and at the time of trial she was working as a fellow in southern California. She resided in California, with the children, and was planning to find a part-time position to spend more time with the children.
The judge found that the father was physically and mentally abusive to the mother during the marriage. On two occasions, while arguing, the father threw the mother's phone in the toilet to prevent her from contacting anyone. On the second occasion, the father also restrained her on the bed, screamed at her, and returned to the room with scissors in his hands. She was in fear and said, "don't hurt me." The judge credited her testimony, stating that "[the mother] was sobbing as she related this testimony, and her affect was not feigned."
The judge stated that the abuse sometimes occurred in the presence of the children, and reserved the right to supplement her findings in this regard in the event of an appeal. No supplemental findings were made. We are thus unable to and do not rely on the finding that the abuse occurred in the presence of the children. We urge trial judges not to defer findings on a matter so critical to the welfare of children. See Custody of Vaughn, 422 Mass. 590, 599-600 (1996).
The father called the grandmother as a witness. The judge found that the grandmother was of significant assistance during the marriage, provided child care for the children, and loved them very much. The judge did not credit the grandmother's testimony regarding the relationship between the mother and the father, finding that she minimized her son's behavior.
Relying on the father's testimony, the judge also found that the father suffered from depression, and, despite ongoing treatment, demonstrated difficulty handling periods of high stress. The judge found that the father "lost it" during the time when the father was struggling with depression, pressures from his career, and the mother's miscarriage. During this period he violated a protective order obtained by the mother by texting her 150 times in one day.
The father testified, and the judge was mindful of, the tremendous strides he had made in joining the medical profession. A high school dropout, the father obtained a GED, and was ultimately admitted to medical school. His goal is to serve his community, but that goal also came with extreme pressures based on "the implications of [failure] for myself and the people that came behind me."
In this respect, the judge did not credit the father's testimony, but instead relied on the chain of events and the father's personal history to conclude that he had become overwhelmed.
The judge also found that the mental and physical abuse and overall deterioration of the marriage made it difficult to coordinate decisions affecting the children and otherwise coparent. Communication difficulties led to delays in choosing the school, day care, and pediatrician for the children. Finding that the father often delayed making decisions and that the mother demonstrated a willingness to communicate decisions to the father, the judge granted the mother sole legal custody of the children.
The judge also granted sole physical custody to the mother, taking into consideration the father's highly demanding work schedule, the large geographical distance between the parents, and the young age of the children. She ruled that the father's parenting time should take place in California where the mother resided. In this respect the judge considered the difficulties of cross-country travel for young children, the father's ability to cope under stress, his limited parenting time with the children in recent months, and instances of controlling behavior, such as denying the mother's request to FaceTime with the children during the father's parenting time and withdrawing his agreement to the mother's planned vacation with the children. The judge indicated that her order extended for the foreseeable future, but that "[i]n a couple of years, the children will be older and [the father] will hopefully have a long stretch of good health and parenting behavior that will permit [a] court to reevaluate the parenting plan."
As of the time of the trial in January 2019, the father had seen the children for two and one-half weeks since they moved to California in June 2018.
The judge indicated that this reevaluation would take place in the courts of California.
Discussion. 1. Legal custody and parenting time. The father contends that the judge abused her discretion in awarding sole legal custody to the mother and limiting his parenting time to visits in California. Our touchstone is the best interests of the children. We review the judge's custody determination for an abuse of discretion. See Schechter, 88 Mass. App. Ct. at 245. "The judge's factual findings must be left undisturbed absent a showing that they are plainly wrong or clearly erroneous." Id.
"A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Schechter, 88 Mass. App. Ct. at 245, quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).
Contrary to the father's suggestion in his brief, there is no presumption of joint custody in a divorce proceeding. See G. L. c. 208, § 31, sixth par. ("There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A"). The judge's decision was fully supported by the evidence. Although the parties’ versions of events regarding abuse in the marriage diverged at trial, determinations of credibility properly rested with the judge. See Schechter, 88 Mass. App. Ct. at 245. A finding of past or present abuse toward a parent is "a factor contrary to the best interest of the child." See id. at 246, quoting G. L. c. 208, § 31A. Having found that the grandmother minimized the father's behavior, see note 5, supra, the judge could permissibly conclude that parenting time where the mother lived was in the best interests of the children. There is no challenge on appeal to the evidence of the father's limited efforts to visit his children, the young age of the children, or the difficulties posed by cross country travel for young children. "The task of the Probate Court judge is not to find the perfect custody solution but to devise one that best accommodates to the difficulties and the child's interest." Freedman v. Freedman, 49 Mass. App. Ct. 519, 522 (2000).
The father further contends that he was not dilatory in making decisions about the children, that he did not obstruct the selection of medical providers or interfere with parent child conferences, and that he did not attempt to control the mother. It was for the judge to weigh the conflicting evidence on these points. Again, credibility determinations were for the trial judge. Schechter, 88 Mass. App. Ct. at 245.
2. Evidentiary challenges. "We review a trial judge's evidentiary decisions under an abuse of discretion standard." N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013). We review any preserved error for prejudice. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 680 (2019).
An abuse of discretion occurs where "the judge [has] made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
a. Mental health. The father asserts that the judge abused her discretion by allowing the mother to testify as a lay witness regarding the father's mental health. A lay witness may not testify as an expert or give an opinion that is "based on scientific, technical, or other specialized knowledge." See Mass. G. Evid. § 701(c) (2021). However, "[a] non-expert is competent to testify to the physical appearance and condition and acts of a person both for their probative value for the [fact finder] and for the purpose of furnishing facts as the basis of hypothetical questions for experts" (citation omitted). Sparrow v. Demonico, 461 Mass. 322, 333 (2012).
Referring to the father, the mother said, "So there's a background history of like depression and suicidal ideation –-." The father objected, but only as to the use of the term "suicidal ideation." The judge sustained that objection. The father later testified that he had been diagnosed with depression. He took four months off from work and saw his psychiatrist weekly. The evidence regarding depression was properly admitted, and any challenge to the mother's testimony regarding depression is waived for lack of objection. See Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013).
While the judge's findings did reference the father's "paranoia," as described by the mother, the father did not object to this testimony at trial and any argument is therefore waived.
The mother also testified that the father had a "mental breakdown," testimony which the father moved to strike. The judge sustained the objection, and did not rely on this testimony in her findings. While she did make a finding that the father "lost it," this finding was permissibly based on the father's testimony and the admissible testimony of the mother. Therefore, there was no error and no prejudice.
Similarly, the mother testified that after an incident with the father, she e-mailed his psychiatrist because she thought the father was "acting crazy." The father objected to the use of the word "crazy" but the judge allowed it. This was not error, as the testimony was not allowed as expert testimony but to explain the mother's observations and state of mind, her reasons for e-mailing the psychiatrist, and for changing the locks on the doors to the marital home. See Mass. G. Evid. § 701. Regardless, the judge did not rely on this characterization in her findings, and the father was not prejudiced.
b. Reliance on excluded evidence. The father objected to the mother's testimony regarding statements made to her by the father in text messages. The text messages were not in evidence and the objection was sustained. In her findings and rationale, the judge relied on the excluded statement that the father withheld money from the mother until she would "do as [he] say[s]." This was error.
However, there was ample other admissible evidence supporting the judge's findings of the father's attempts to control the mother's behavior. This evidence included the previously described effort of the father to physically restrain the mother, throwing her cell phone in water to prevent her from communicating with others, violating the restraining order, and emptying the joint bank accounts when the mother obtained the restraining order. The improperly considered evidence was cumulative of other admissible evidence considered by the judge, evidence which supported her ultimate findings. See Police Dep't of Boston v. Kavaleski, 463 Mass. 680, 681 (2012).
The father next contends that the judge improperly relied on the mother's testimony that the father "sent me text messages about wanting to kill himself." Again, this testimony was excluded. The judge did not rely on it in her findings. While she referenced the father's mental health generally, this reference was supported elsewhere in the record and the judge at no point referred to suicidal thoughts or actions.
The father also objected to the mother's testimony that "[the father] would text me up to 150 times a day.... There were several vulgar text messages." The judge sustained this objection but only as to the contents of the text messages, not as to the number. While the judge did discuss these text messages in her findings, she limited that discussion to the number of messages, not their contents. As the judge only relied on the portion of the testimony that was not excluded, there was no error.
The father claims that there were multiple other instances when the judge relied on excluded evidence. Having carefully reviewed the record, we can say that in each instance the judge took into account evidence that was admitted, or to which there was no objection, and did not rely on evidence that was excluded in her findings and rationale.
c. Hearsay. Hearsay is generally inadmissible unless an exception applies. See Mass. G. Evid. § 802 (2021). Statements made, adopted, or authorized by a party opponent are, by definition, not hearsay. See Mass. G. Evid. § 801(d)(2) (2021). The father contends that the judge improperly allowed the mother's testimony about statements he made over his hearsay objection. However, the father was a party opponent, and the statements were not hearsay.
d. Spousal disqualification. With some exceptions, spouses are prohibited from testifying as to private conversations that occurred during the marriage. See G. L. c. 233, § 20, First; Mass. G. Evid. § 504(b) (2021). The father contends that the mother testified in violation of the spousal disqualification statute, and that the judge improperly admitted this testimony over objection.
In one instance argued on appeal there was no objection. "[I]f no objection is made when such testimony is introduced, then the testimony may be admitted for its full probative value." Miller v. Miller, 448 Mass. 320, 326 (2007). In two other instances, counsel objected solely on hearsay grounds. Having stated the specific grounds for objection (hearsay), other grounds of objection, such as the spousal disqualification argument made here, are waived and may not be argued on appeal. See CBI Partners Ltd. Partnership v. Chatham, 41 Mass. App. Ct. 923, 926 n.6 (1996). We therefore do not consider them. With respect to the stated grounds of objection, as discussed above, the statements of the father were statements of a party opponent and were not hearsay.
e. Refreshing recollection. While cross-examining the grandmother, the mother asked, "So do you [grandmother] recall me texting you, telling you that --." The father objected, and the judge allowed the question for purposes of attempting to refresh the grandmother's memory, not for its hearsay purpose. The mother eventually asked the grandmother, "Do you remember me telling you that I feared that he was going to hurt me?" When the grandmother answered in the negative, the mother asked if she could show the grandmother the text messages, and the judge allowed her to do so.
A witness's memory may be refreshed with any writing when the witness's memory is exhausted. See Mass. G. Evid. § 612(a)(1) (2021). See Commonwealth v. O'Brien, 419 Mass. 470, 478-480 (1995). We agree that the question in the form presented should not have been asked. Rather, the witness should have been asked if her memory had been exhausted.
The mother attempted to refresh the grandmother's recollection with the text messages. When a writing is used to refresh a witness's memory, the adverse party is entitled to review the writing. See Mass. G. Evid. § 612(a)(2) (2021). The father's counsel reviewed the text messages before they were presented to the witness. However, because the text messages were partly in Spanish, translation was required to permit the judge to rule on any evidentiary challenges. At this juncture the judge had the interpreter read the translated messages into the record, over objection. The judge clearly stated that the translation was not being used as evidence, but merely for verification for the record. Therefore, while perhaps not the optimum solution, in this nonjury trial the judge's request to have the text messages translated for purposes of preserving the record was an understandable response to a unique situation.
It may have been more appropriate for the judge to have had the interpreter review the text messages with the father, off the record, and to place the translation on the record for identification only if they were objected to or the document was offered in evidence.
The father objected, and the judge responded, "It's not for evidence, it's not for evidence, I just want to make sure that there -- You said you had difficulty reading it. I want to know whether this witness could use it for the purposes that it's offered."
Even assuming this was error, any error was not prejudicial. We may assume that a judge acting as fact finder will properly refrain from considering nonhearsay evidence for a hearsay purpose, or from being influenced by a document that was used to refresh a witness's recollection. The judge is "presumed to know and correctly apply the law." Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005). Moreover, the judge did not rely on these text messages in her findings, nor did she rely on the incident discussed in the text messages. Thus, any error was not prejudicial.
4. Interference and bias. The father next contends that the judge improperly assisted the mother, a pro se litigant, in presenting her case. He contends for the first time on appeal that the judge's questioning of the mother and other witnesses was improper and excessive. However, the father only objected to the judge's questions once, and this objection was made to the question asked. There was no claim at trial that the questioning was excessive or improper. Although the father now argues that the judge treated questions asked by his counsel differently, he did not object or move to strike, or seek reconsideration on this basis. "Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances." Adoption of Norbert, 83 Mass. App. Ct. at 545, quoting Adoption of Mary, 414 Mass. 705, 712 (1993). We view the current challenge to the judge's questioning as waived.
Even if there were no waiver, "[o]ur cases permit a judge, who ... is the fact finder, to question witnesses in order to obtain clarification or eliminate confusion. ‘In exercising their duty to direct and clarify the evidence, judges may not, however, weigh in, or appear to do so, on one side or the other; the judge must avoid the appearance of partisanship.... The rule is one of reason.’ " Adoption of Norbert, 83 Mass. App. Ct. at 547, quoting Commonwealth v. Hassey, 40 Mass. App. Ct. 806, 810 (1996). See Mass. G. Evid. § 614(b) (2021).
The judge's questioning was reasonable. The judge did not question any witnesses excessively, demonstrate bias, or weigh in on one side or the other. When asking a question, she sometimes invited the opposing party to object. The judge's questions clarified issues and were not excessive in number or tone. We are mindful of the challenges posed by a pro se litigant, particularly in a contested custody matter involving young children. The judge acted within her discretion to question witnesses to establish a clear and trustworthy record.
The father also claims that the judge abused her discretion by acting as the mother's attorney. While a pro se litigant is generally bound to the same rules of procedure as other litigants, the judge is permitted to afford pro se litigants some latitude. See Wilbur v. Tunnell, 98 Mass. App. Ct. 19, 25 n.10 (2020). The father offers as an example the judge's assistance in describing to the mother the process for refreshing a witness's memory. The judge did not suggest the mother refresh the witness's memory, but merely explained the proper procedure once the mother expressed her desire to do so. This explanation did not constitute bias or improper assistance, but an effort to maintain an adequate record while also ensuring the pro se litigant had a fair opportunity to be heard.
See also S.J.C. Rule 3:09, Canon 2, Rule 2.6 (A) (2016).
The father maintains that the judge's admission or exclusion of certain testimony demonstrated a bias toward the mother. We discern no such bias. The judge sustained many of the father's objections. She struck, sua sponte, the answers of both the father and the mother without objection from either party. The judge acted within her discretion. See Commonwealth v. Haley, 363 Mass. 513, 518 (1973). Cf. M.G. v. G.A., 94 Mass. App. Ct. 139, 149 n.11 (2018), quoting Commonwealth v. Lucien, 440 Mass. 658, 664 (2004) ("The judge thus has discretion to exclude irrelevant evidence, sua sponte, provided he does not exhibit bias in the process").
Conclusion. The judge's decision balanced many factors -- the age of the children, temporary geographic limitations posed by the parents’ respective career paths, the history of the relationship between the parents, the father's angry and abusive outbursts, and the difficulties encountered in joint decision making -- together with a measured understanding of the long- and short-term stressors that had contributed to the father's depression and behavior. The judge prioritized the best interests of the children, but also left the door open for a revision to the parenting plan when the children got older and the father's circumstances had changed. We discern no abuse of discretion.
Judgment affirmed.