Opinion
15-P-235
02-29-2016
TAMMIE L. GANNON v. COREY J. GANNON.
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
Corey Gannon (father) appeals from a modification judgment establishing a new parenting schedule. We affirm.
Background. The parties divorced on April 2, 2010. They have three daughters. During the marriage the family lived in Uxbridge. By the time of the divorce the father had moved to Litchfield, New Hampshire, sixty-seven miles away. The normal driving time from Uxbridge to Litchfield is ninety minutes.
The parties' separation agreement, which was incorporated and merged into the judgment of divorce, provided for shared legal custody, with the mother having physical custody. The father's parenting schedule included one Thursday evening visit per week and alternating weekends from Friday to Sunday. It also provided, "Due to the geographic distances between the Husband and Wife's residences, the Husband will agree to transport the children during one weekend day of one of his weekend parenting times to any extracurricular activity of the children agreed upon in advance by the parties."
Implementing this provision proved problematic. The parties could not agree on which activities the children would pursue, who was entitled to make these decisions, or to which particular activities the father would take the children during his weekends. On February 3, 2011, the mother filed a complaint for modification on the ground that the father was failing to comply with the extracurricular activity provision. The mother asked that the judgment be modified in part by "reducing the Father's parenting time to a weekend per month."
The father counterclaimed, alleging numerous "changes in circumstances," including the mother's failure to comply with the provision by signing up the children for activities without his consent and intentionally scheduling the children's activities to reduce his parenting time. The father requested additional holiday and vacation time and proposed that the mother could decide which activities the children would participate in, but that he would be required to take each child to only one activity per month.
In the modification judgment, a judge of the Probate and Family Court reduced the father's visitation to Thursday evenings, one weekend per month, including some long holiday weekends, February or April vacation in alternating years, one week in July, one week in August, and Christmas vacation from December 25 to December 30. The judgment relieved the father of his obligation to take the children to their extracurricular activities during his weekends except for several enumerated religious observations and future middle and high school sports practices and games.
Discussion. Under G. L. c. 208, § 28, a judge "may modify an earlier divorce judgment concerning the custody of a minor child on finding that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children." J.F. v. J.F., 72 Mass. App. Ct. 782, 790 (2008) (quotation omitted). The father argues that the judge erred in finding a material and substantial change in circumstances.
Having himself filed a counterclaim for modification based on changed circumstances, the father is barred by judicial estoppel from now arguing that there was no such change. "The application of judicial estoppel requires both that 'the position being asserted . . . [is] directly contrary to the position previously asserted,' and that 'the party must have succeeded in convincing the court to accept its prior position.'" Sandman v. McGrath, 78 Mass. App. Ct. 800, 801-802 (2011), quoting from Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 640-641 (2005). Unable to resolve their dispute with the services of both a parenting coordinator and a conciliator, the father and the mother asked the judge to settle the matter for them. The father cannot now be heard to argue that the judge erred in doing just that.
The father also argues that the judge abused her discretion by issuing a judgment, findings of fact, and rationale that adopted the mother's proposed judgment word-for-word. We have consistently criticized this practice. "[S]imply adopting what one side has proposed may lead all parties at least to wonder whether the arguments they made and the evidence they offered were considered before the final decision was reached and may lead an appellate court to question whether deference to the imported findings respects the trial judge's weighing and sifting or simply glorifies an illusion." Care & Protection of Olga, 57 Mass. App. Ct. 821, 823 (2003). That said, "even findings lifted wholesale from those a party proposes 'are not to be rejected out-of-hand, and they will stand if supported by evidence.'" Id. at 823-824, quoting from First Pa. Mort. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n.12 (1985).
Our review of the trial transcript shows that the judge was actively involved in the proceedings and exercised independent judgment in considering a parenting plan that would be in the best interests of the children. She stated at the outset of the trial, "My focus is the children. If you have gifted academic children, gifted athletes, let's encourage it." Later she reiterated, "What I really want is a set schedule for these girls so that they're not going to be having any angst over am I going to be able to attend this, can I do this. They shouldn't have that kind of anxiety. They're young girls. They should be able to grow up, and if they are gifted in any way to develop that." The adopted findings are consistent with the judge's stated goal.
The father further contends that the modification judgment is not in the children's best interests. The judge's adopted rationale exhibited concern for the children to have meaningful time with their father and for them to be able "to participate to a reasonable degree in age and developmentally appropriate activities." The father has not identified, nor have we discovered, any clearly erroneous factual findings or any legal error. We acknowledge that the modification judgment reduces the father's parenting time, but it is supported by the record and is not arbitrary or capricious. We conclude that the judge did not abuse her discretion in modifying the parenting plan. See Pierce v. Pierce, 455 Mass. 286, 293 (2009).
Judgment of modification dated October 17, 2014, affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 29, 2016.