Opinion
No. 15–P–1310.
06-07-2016
Arian GORDON v. Ronald J. GOODMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2007, after trial, the parties were divorced by a judgment nisi entered in the Probate and Family Court. The custody arrangement set forth in the 2007 judgment was modified after trial in 2015. On the father's appeal from the judgment dated June 30, 2015, on the complaint for modification, we affirm.
Background. The 2007 judgment. The trial judge found that the couple's two and one-half year old son would greatly benefit from significant parenting time with each parent. However, she also found that, as parents, the parties had exhibited “failed interactions and inability to communicate.” The judge principally blamed the mother (and her mother) for these problems. As the judge explained, the “mother fell into a pattern of repeatedly demonstrating her lack of appreciation for father's right, role and desire to bond with and nurture the children in a manner consistent with current shared parenting in this millen[n]ium.” The judge expressly found that the mother needed therapy to work out these issues, based on “the firm and clear recommendation of the guardian ad litem.”
With this as background, the trial judge established a somewhat unusual custody arrangement with respect to the couple's son. The judge gave the parties joint physical custody, with each parent getting equal time with the child. However, because of the mother's demonstrated inability to get along with the father, the judge gave the father sole legal custody, with two important qualifications. First, notwithstanding that the father had sole legal custody, the judgment required both parties to “communicate with each other in a good faith attempt to arrive at all major decisions affecting the emotional and physical well-being of the child.” By requiring the parties to engage in a joint decision-making process, this effectively meant that the parties largely had joint legal custody, but with the father possessing final say in the event of an impasse. Second, the judge gave the mother the sole authority to make decisions regarding the son's routine medical needs. As the judge explained:
The judgment also gave the parties various information-sharing responsibilities. In addition, with regard to the son's education, the judgment required the father to provide the mother notice “of any education issues that may arise so that she may attend and participate [and] to include [the mother] in discussions and his deliberations of issues relating to [the son's] education.”
“[T]he parenting terms of the judgment are designed to give [the mother] an opportunity to demonstrate that in truth her view of the importance of [the father's] role in the child's life and upbringing has evolved, without hamstringing any decisions that [the father] must make as sole legal custodian. That opportunity comes from permitting [the mother] to initiate the child's routine pediatric appointments and medical treatment, and then to follow through in the spirit of co-parenting by keeping [the father] informed [of] these appointments and the child's medical status” (emphasis original).
In response to the mother's protests at trial “that her thinking ha[d] evolved and that she is committed to encouraging and facilitating father's involvement in [the son's] life,” the judge observed that “[o]nly time will tell.” The trial judge also made clear that she hoped that the mother would be able to demonstrate that she could regain full joint legal custody. Specifically, the judge stated that “a concerted effort on [the mother's] part over the next year of [the son's] life could be deemed a change of circumstances as would warrant a reconsideration of the issue of shared custody.”
The 2015 modification judgment. Four years after the judgment nisi entered, the mother filed a complaint for modification through which she sought to regain joint custody. Four years after that, a different judge held a trial on the complaint for modification and ruled in the mother's favor. As the modification judge found, “[t]he mother has consistently engaged in individual counseling on a weekly basis for the last six years [which] is clearly illustrative of her desire to be a better divorced coparent with the father and a loving and equal parent to her son.” The judge also found that the mother “has changed and moved on, in the last eight years, from a divorced ex-wife who looked at her ex-husband as only that, and not the father of [her son].” According to the judge, both parents, “for the most part, [have] been civil and respectful to [the other] in front of [the son],” and “[a]lthough there ha[ve] been communication problems at time[s] ... both parties have comported themselves well and behaved practically in their role as divorced coparents.” The judge also found that while the mother and father will not always agree, “the parties do have the ability to communicate and make decisions that are in the best interests of [the son].” He also credited the mother's claim that the father's having “veto power” significantly diminished her self-worth and that this “also must [a]ffect [the son].”
Discussion. As noted, the original trial judge herself contemplated that the custody arrangement she established could be modified if the mother was able to demonstrate her improved ability to serve as a coparent. Following the framework that the original judge established, the modification judge found that the mother in fact had made the necessary strides to regain shared legal custody. Those findings, which are not clearly erroneous, satisfy the statutory requirement that custody be modified only where “a material and substantial change in the circumstances of the parties has occurred.” G.L. c. 208, § 28. See generally Rosenthal v. Maney, 51 Mass.App.Ct. 257, 262 (2001) (the existence of a material and substantial change in circumstances may be inferred from the findings of a judge modifying custody).
The other statutory prerequisite for modifying a custody judgment is that “the judgment of modification is necessary in the best interests of the children.” G.L. c. 208, § 28. In the face of the modification judge's express findings that modifying the original custody arrangement would further the son's best interests, the father argues that those findings are clearly erroneous. Specifically, the father argues that such findings ultimately are based on the negative impact that the mother's having a less-than-equal decision-making role had on the son, and that there was no evidence at trial of such negative impacts. We are not unsympathetic to the father's arguments on this point; certainly, it would have helped the mother's cause had she testified about how her being placed in a diminished decision-making role affected her son. However, in the circumstances of this case, we do not consider the absence of that specific evidence fatal. If giving the father the final say was no longer necessary to make coparenting work—as the modification judge found based on the trial evidence—then we think the judge reasonably could conclude that restoring the mother to full coparenting status, if anything, would be in the son's best interests (both by improving the mother's self-worth and providing a positive model of gender equality). In this regard, we note that the change in the custody arrangement here did not involve any uprooting of the son or other major disruptions to his life, which would have necessitated a more refined analysis of where his best interests lay. Compare Prenaveau v. Prenaveau, 75 Mass.App.Ct. 131, 141–142 (2009) (discussing the extent of findings necessary to justify removal of children from “the only community in which they had ever resided”).
For example, the father points out that there was no testimony about the son's being exposed to his mother's unhappiness regarding the custody arrangement.
Albeit in a different context, the case law recognizes that benefits to a parent's well-being can inure to the children. See Yannas v. Frondistou–Yannas, 395 Mass. 704, 710–711 (1985) quoting from Cooper v. Cooper, 99 N.J. 42, 54 (1984) (where parent with sole physical custody seeks to remove child from the Commonwealth, “[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent,” it can be presumed that improvements to the parent's well-being will inure to the child).
One final point bears noting. The workability of the modified custody arrangement obviously depends on the parents' ability to get along as coequal decision makers. See Mason v. Coleman, 447 Mass. 177, 182 (2006) (shared custody “is generally appropriate only if the parties demonstrate an ability and desire to cooperate amicably and communicate with one another to raise the children”). The father contends that the initial arrangement succeeded as well as it had precisely because one party held the tie-breaking vote. In the event that the new arrangement proves unworkable, either party can seek relief in the Probate and Family Court.
By the time of oral argument, the new arrangement had been in place for almost a year. The parties expressed different views on how well it was working. One encouraging sign is that the parties apparently have begun to make use of a parenting coordinator.
The father's appeal was hardly frivolous, and we deny the mother's request for appellate attorney's fees.
Judgment affirmed.