Opinion
14-P-568
04-21-2015
J. MICHAEL MCCLOSKEY v. DEANNA CHANDONNET.
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
The plaintiff (father) appeals from the dismissal of his complaint for modification seeking increased visitation with the parties' two minor children. He also appeals the denial of his motion for a new trial. We affirm.
The complaint at issue was filed on April 5, 2013, and subsequently was amended on April 12, 2013, and January 13, 2014.
Background. Under the terms of a judgment of divorce dated March 19, 2010, the children have been in the sole legal and primary physical custody of the defendant (mother), and the father's visitation rights have been subject to conditions relating to his use of alcohol. Relevant here, the following provision, agreed upon by the parties in their separation agreement, was incorporated and merged into the divorce judgment:
"For so long as the Husband has visitation he agrees to the following:
"a. He shall not keep alcohol in his residence;
"b. He shall not consume any alcohol;
"c. There shall be no alcohol in the presence of the children."
Also incorporated into the divorce judgment were terms requiring the father to undergo a period of random ETG alcohol and breathalyzer screenings, to comply with the terms of his probation in a case out of the Lynn Division of the District Court Department, and to commence addiction counseling. It was further provided that if the father tested positive on any of the alcohol screens, his visitation would be changed automatically from unsupervised to supervised, subject to further review and order of the Probate and Family Court.
Five months after the entry of the divorce judgment, the father filed a complaint for modification, which was resolved by an agreement for judgment dated January 18, 2012 (modification judgment). The modification judgment provided, in relevant part:
"So long as all random ETG alcohol tests have been negative and administered consistent with the requests of the probation department and terms of the temporary order on such testing since September 8, 2011, Father's twice monthly random ETG alcohol testing shall cease upon the execution of this Agreement."
The modification judgment also provided that the father's next ten visits with the children would be supervised, and that he would test himself using a hand-held breathalyzer in the presence of the supervisor prior to each visit. If the results showed that the father had not consumed alcohol, the visit would proceed; if the breathalyzer screening showed that he had consumed alcohol, the visit would not go forward, and "all visits [would be] suspended per the terms of the divorce agreement." The modification judgment stated that "[a]ll other provisions of the Divorce Agreement not modified herein shall remain in full force and effect."
By means of the complaint now at issue, the father again sought modification, claiming that circumstances had changed because he had "met all benchmarks" provided for in the divorce and modification judgments. On January 23, 2014, following the father's most recent amendment to his complaint, the mother filed an emergency motion to dismiss, stating that she had subpoenaed the father's bank statements, which showed substantial evidence of the father's "continued purchase and consumption of alcohol," and that, recently, the father had stopped at a bar en route to his son's hockey game, and consumed two alcoholic drinks before continuing the drive to the game.
A hearing was held before the Probate and Family Court judge who had overseen the case from its inception. At the beginning of the hearing, the mother informed the judge that the bartender who served the father had been subpoenaed and would testify to his consumption of two alcoholic drinks. Receipt of the testimony remained in question, however, because the bartender's attorney had filed a motion to quash the subpoena, and the father had filed a motion in limine to exclude the evidence.
Ultimately, the bartender's testimony became unnecessary, as the father stipulated in writing that he had consumed alcohol before arriving at the hockey game. The father's position at the hearing was that he was only required to refrain from consuming alcohol when he had visitation with the children and, despite being in the presence of both his son and daughter, he was not having visitation when he attended the hockey game. The judge rejected the father's interpretation of the terms of the divorce and modification judgments, dismissed the complaint for modification, and reinstated supervised visitation.
The stipulation, which was signed by both parties, established that one Patricia Czernetzky was working as a bartender at the Center Cafe in Billerica on Saturday, January 18, 2014; that the father came into the Center Cafe in the early evening and remained there for just under one hour; and that during that period, Czernetzky served the father two single-pour alcoholic mixed drinks, which he sipped before leaving.
Discussion. The judge did not err in her interpretation of the divorce and modification judgments. Contrary to the father's argument, the words "for so long as [the father] has visitation." do not limit the alcohol abstinence requirement to times when the father was engaged in formal visitation; nor was that phrase extinguished by the modification judgment.
The judge also did not err in dismissing the father's complaint before he had presented his case. Once the father stipulated to having consumed alcohol, he could not demonstrate, as he had alleged in his complaint, that he had met all benchmarks entitling him to modification on the basis of changed circumstances. In any event, because any additional evidence that the father might have introduced would have been unavailing in light of the terms of the agreed upon judgments, he suffered no prejudice from the dismissal. See El Chaar v. Chehab, 78 Mass. App. Ct. 501, 508 n.14 (2010).
The reinstatement of supervised visits did not violate the father's fundamental right to visit with his children. A parent's interest in his relationship with his children is not absolute and is subject to the best interest of the children. See Opinion of the Justices, 427 Mass. 1201, 1203 (1998). Throughout these proceedings, it has been agreed by the parties and ordered by the judge that, until such time as the father is able to demonstrate his sobriety, the best interest of the children is served by the enforcement of conditions designed to protect them from the effects of the father's alcohol use.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 21, 2015.