Opinion
No. 15–P–1126.
07-14-2016
Jason GERVAIS v. Michelle DUNN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a judgment awarding primary physical custody and sole legal custody of the parties' child to the mother and establishing a parenting plan. We affirm.
Background. On December 28, 2012, the father filed a complaint for support, custody, and visitation pursuant to G.L. c. 209C. The mother filed her answer and counterclaim. The parties then entered into a stipulation, which became a temporary order of the court, providing that they would share physical and legal custody of the child pending the report of the guardian ad litem and further order of the court. The case was tried over three days between April and September of 2014. The judge heard from several witnesses, and various exhibits, including the guardian ad litem's fifty-five-page report, were entered in evidence. The judge granted the mother primary physical custody and sole legal custody of the child and granted the father parenting time. The judgment was supported by findings of fact.
Every other weekend from 7:00 P.M. on Friday to Monday morning, one afternoon per week until 7:00 P.M., various holidays, and four nonconsecutive weeks of the child's summer vacation.
Facts. We summarize the judge's findings, supplementing them with facts from the parties' stipulation of uncontested facts, and reserving some facts for later discussion. The parties, who never married, lived together from 2007 to 2012. Their child was born in 2008 and was six years old at the time of trial. The mother is also raising her own daughter, who is three years older than the child. The mother has a steady job, lives in Andover, does not do drugs, and has a stable family support system. At the time of trial, both of her children were attending the same school in Andover, the child having started kindergarten the previous year.
As to the father, the judge found that he had acted irresponsibly in the past and continued to be irresponsible. He poured gasoline on fires despite a serious accident and injuries therefrom in 2010, drove with the child in the front seat, posted her “likeness” on a Web site seeking public contributions toward his legal bills, failed to contribute to the child's kindergarten costs, used drugs, and inaccurately reported his financial and tax information. The judge also found that the father's extreme anger, volatile temper, constant irresponsibility, and drug use have continued and were likely to continue into the future. The judge found that when in the father's care, the child was at risk of being isolated from anybody who could protect her from his behaviors.
The guardian ad litem set out a list of behaviors that the father would need to change and a list of facts that he would need to come to terms with if a shared physical custody arrangement was going to work. The judge could conclude based on the evidence before him that the father has not made these changes and that his problematic behaviors have continued.
The judge also found that the father attempts to control every aspect of the child's life to the exclusion of the mother, arguing with the mother regarding (1) haircuts and painted fingernails, (2) where the child should attend school, and (3) whether the child should be allowed to go to counseling and who the counselor should be. He also changed doctor's appointments without notifying the mother, and changed contact information from the mother to the father.
The judge found that the father was unable to work with the mother and that it was extremely unlikely that the parties could coparent together. He concluded that the continuation of the temporary arrangement of having the child alternate houses each week would not be conducive to her well-being and that it would be in her best interest to be raised in the same house as her sister and to have the mother as her primary physical and sole legal custodian.
The mother testified that she entered into that stipulation because she was afraid of the father.
In Adoption of Hugo, 428 Mass. 219, 231 n. 21 (1998), the court stated: “In Ardizoni v. Raymond, 40 Mass.App.Ct. 734, 738 (1996), the Appeals Court said that ‘[t]he list of factors within the judge's purview in child custody matters includes a presumption generally favoring the placement of siblings under one roof.’ “
Discussion. The father challenges the custody award. “The best interests of the child is the ‘touchstone inquiry’ in child custody” and visitation cases. Smith v. McDonald, 458 Mass. 540, 544 (2010), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). “A custody determination ‘presents the trial judge “with a classic example of a discretionary decision.’ “ ... In view of the trial judge's superior position to observe witnesses and weigh evidence, we review only for abuse of discretion.” Murphy v. Murphy, 82 Mass.App.Ct. 186, 193 (2012).
“Joint custody is inappropriate for parents whose relationship to date has been ‘dysfunctional, virtually nonexistent, and one of continuous conflict.’ “ Smith v. McDonald, 458 Mass. at 553, quoting from Carr v. Carr, 44 Mass.App.Ct. 924, 925 (1998). Here, the judge found that “it is extremely unlikely that [the parties] can co-parent together.” See Custody of Zia, 50 Mass.App.Ct. 237, 243 (2000) (judge needs to consider child's welfare both in present and probable future).
In fact, the judge, adopting many of the guardian ad litem's recommendations, set out detailed provisions regarding what the parties should do and not do with respect to the child. The inclusion of these provisions and of a provision for a parenting coordinator reflects the judge's conclusion that the parents have not been able to agree on these issues.
The judge found some of the guardian ad litem's recommendations to be well founded, but reserved the ultimate issues of physical and legal custody to himself as the trier of fact. See Mason v. Coleman, 447 Mass. 177, 186 (2006) (judge did not have to follow all recommendations of guardian ad litem).
The judgment contains provisions regarding school activities, visitation schedule, parties' presence at the child's events, review of the child's records, disparaging remarks, telephone contact with the child, methods of communication between the parties and the purposes for which such communication could be used, exchange of information between the parties, use of the child as an information messenger, and medical and dental appointments. The judge also adopted the guardian ad litem's recommendation for the appointment of a parenting coordinator and set out his or her role and powers.
The father argues that the judge erred in determining that the temporary alternating week arrangement could not successfully continue. However, the guardian ad litem questioned whether “[g]iven the parties' inability to communicate, ... shared physical custody can/should be continued at all.” The judge found that the father could not control his anger and his temper and that the child should not be raised in a house where anger was so prevalent. The father argues that the judge did not connect the father's anger to his ability to share physical custody of the child. However, it is well settled that the “the best interests of a child are ... interwoven with the well-being of the custodial parent.” Smith v. McDonald, 458 Mass. at 547 (citation omitted) . Here, there was ample evidence, including in the guardian ad litem's report, of “the intensely negative impact [the father's] anger” had on the mother.
She pointed out that at the time of her report, the child was not yet in school, and expressed her significant concerns about whether a shared parenting plan could be sustained in the future for parents who show no indication that they can work together. She recommended that the child go to school in Andover and that the mother be the primary parent.
The father's suggestion that the conflicts between the parties related to the divorce trial and that now that the trial had been completed they could cooperate amicably is pure speculation. The docket sheets in the record appendix do not support his assertion.
The father challenges the judge's findings regarding the father's use of marijuana. In light of his varying testimony about drug use, the circumstances of his taking the court-ordered drug tests and their results, and the circumstances and the timing of obtaining a medical marijuana certificate, the judge could question the father's credibility on the subject. A “judge's assessment of the quality of the testimony is entitled to considerable weight because he or she is in the best position to judge the weight and credibility of the evidence.” Wakefield v. Hegarty, 67 Mass.App.Ct. 772, 774 (2006). Even if any part of the judge's findings on the father's marijuana use was clearly erroneous, this would not affect the custody determination which was based largely on the father's anger and his inability to communicate with the mother.
The father testified variously that he smoked marijuana every day with the mother, that he stopped smoking for one year, that how often he smoked marijuana varied, that he used it for his sleep and back problems and his posttraumatic stress disorder, the latter being the diagnosis given to him by a doctor the father saw on one occasion in January of 2014 (two days after the judge ordered him to take a drug test), who issued him a medical marijuana certificate and whom the father has not seen since. The father testified that he got the certificate to “protect” himself. There was also evidence that the father did not comply with the January 14, 2014, order to take a drug test until February 3, 2014, and that he used marijuana four to six weeks prior to the test. When he went in for the drug test, less than .25 inches in length of his hair could be collected.
In sum, the judge did not abuse his discretion in finding that it was in the child's best interest that the mother have primary physical and sole legal custody of her.
The father states that if the custody award is reversed, the case should be remanded for recalculation of child support. Because we affirm the judgment, a remand is not warranted.
The father's challenge to the parenting schedule does not constitute reasoned appellate argument supported by relevant legal authorities. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86 (1995). The judge has discretion in creating a parenting schedule and the father has not demonstrated that he abused his discretion in doing so. See Austin v. Austin, 62 Mass.App.Ct. 719, 722 (2004), S.C., 445 Mass. 601 (2005) (judge has broad discretion in formulating parenting plan).
We decline the mother's request for appellate attorney's fees.
Judgment affirmed.