Opinion
10-P-1948
12-13-2011
CHRISTOPHER MEDEIROS v. PAULA COLEMAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Paula Coleman, appeals from a judgment of the Probate and Family Court modifying a divorce judgment and transferring legal and physical custody of the couple's two minor children to the plaintiff, Christopher Medeiros. The mother was also ordered to pay child support. We affirm.
Background. The parties were divorced on June 4, 2003, after entering into an agreement providing the mother with legal and physical custody of the parties' two minor children, nearly six and four years old at that time. During the divorce proceedings, the father alleged that the children were missing excessive amounts of school, that their mother was neglecting them, and that she was interfering with his visitation. However, he signed the agreement and the divorce was finalized in 2003. Shortly before that the mother obtained a G. L. c. 209A abuse prevention order against the father, ordering, among other things, no contact between the parties. The order was extended and made permanent one year later.
There is also a family history of involvement with the Department of Children and Families (DCF). A report pursuant to G. L. c. 119, § 51A (§ 51A report), was filed on December 26, 2003, and subsequently supported, alleging that the father abused the parties' son and that case was closed in March, 2004. DCF supported another § 51A report against both the father (for physical abuse of the parties' son) and the mother (for neglect of both children) in January, 2010. In addition, a child in need of services (CHINS) petition G. L. c. 119, § 39E, was filed on behalf of the son due to his excessive absences from school while in his mother's custody.
Extensive services were provided to the mother and the children; however, the children's school attendance and performance deteriorated. The son appeared to a student support worker from his school to be disorganized and disheveled, as well as frequently tardy and absent from school. Despite efforts by school officials to meet with the mother and to provide services to her and the children, the mother apparently failed to take any steps to improve the situation. The judge found that the son's 'teachers, counselors, and principal all expressed deep and growing concern over [the son's] lack of presence at school as well as his failure to complete homework and his substandard efforts at school.' 'While [the daughter] was described . . . as a bright, bubbly and happy child, her attendance/tardiness levels at school [were] not acceptable and not in her best interests.'
In addition to concerns from school authorities, the judge found that the mother's neighbors had telephoned the father in the time leading to the complaint for modification. 'The neighbors indicated that the parties' children were often seen playing outside, unsupervised, at inappropriate hours of the night, that they were often inappropriately dressed for the weather or walking around without shoes, or that the yard in which they were playing was unkempt, dirty, and an inappropriate environment for children.'
The father's circumstances also changed after the time of the divorce. Although he freely admitted, to DCF and the court appointed guardian ad litem (GAL), that he had a history of drug and alcohol abuse, the father apparently has been clean and sober for many years. He moved from his father's basement in Quincy after purchasing a two-family home in Taunton that has a large yard and swimming pool. He received a promotion and pay increase at work, and his new position, which permits him primarily to work from his home, allows great flexibility in his schedule. Aside from a period of approximately one year when the father did not see the children, he has had regular parenting time with them since the summer of 2005, including visits every other weekend and during academic and summer vacations. He also encourages the children's interests and communicates with school officials. On June 3, 2009, the father filed a complaint for modification of the divorce judgment seeking legal and physical custody of the children and child support. He asserted that a change in circumstances had occurred due to the fact that the children's physical and emotional needs were not being met, as evidenced at least in part by their excessive absences and tardiness from school, and the fact that they had witnessed arguments between their mother and other adults in her home. Asserting that he now lives in a stable home and can meet the children's needs, he asked that a GAL be appointed to investigate and make recommendations pertaining to custody.
After two days of trial, the judge awarded the father legal and physical custody of the children; they were to reside primarily with him in Taunton; the mother would have parenting time every other weekend and each Wednesday evening. She was also ordered to pay $105 per week in child support. The mother filed a timely appeal.
Change in custody. The trial court judge's findings pertaining to change of custody 'must stand unless they are plainly wrong, or clearly erroneous.' Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010)(Loebel), quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). See Mass.R.Dom.Rel.P. 52(a) (1986). The modification of a divorce judgment is permitted upon a finding that a 'material and substantial change in circumstances of the parties has occurred.' G. L. c. 208, § 28. If such a change has occurred, the judge must then determine the 'best interests of the children.' Loebel, supra. 'The decision of which parent will promote a child's best interests is a subject peculiarly within the discretion of the judge.' Ibid., quoting from Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996).
Unlike the sparse findings in Loebel, which prompted remand, here the trial judge prepared thoughtful findings based on the evidence and credible testimony presented to her during the trial. Loebel, supra. Specifically, the judge's rationale contained tangible examples of how the circumstances of both the mother and the father had changed since their 2003 divorce. The father showed an increase in income, an improved and stable living arrangement, and a flexible work schedule that will likely foster a 'more supervisory and disciplinary approach to the children's educational and behavioral needs.'
The mother's circumstances had also changed, as shown by the children's increased absences and tardiness from school; the initiation of a CHINS case on behalf of the parties' son; the mother's failure to rectify the children's educational issues despite services and assistance received; and, finally, the mother's tendency to provide the children with details of the parents' disputes and her practice of making disparaging remarks about the father. We agree that, taken as a whole, the evidence presented at trial clearly supported the trial judge's finding that a material change in circumstances had occurred and that modification was warranted.
Each of the children expressed to the GAL a wish to stay with the mother. The judge acknowledged this in her findings and noted her conclusion that the children's preference was due in part to the mother's efforts to alienate the children from their father. 'A judge should consider the wishes of the children in making custodial determinations, and those wishes 'are entitled to weight in custody proceedings.' Care & Protection of Georgette, 439 Mass. 28, 36 (2003). Their views, however are neither decisive, . . . nor outcome determinative.' Adoption of Nancy, 443 Mass. 512, 518 (2005).
Domestic violence. As described above, the mother had several times sought and obtained orders of protection under G. L. c. 209A. At the time of the modification hearing, a permanent order was still in place. The mother argues that the judge erroneously failed to issue detailed findings regarding the presence of domestic violence in the family and its effect on the children.
'In issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child.' G. L. c. 208, § 31A. 'If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child.' Ibid. See Custody of Vaughn, 422 Mass. 590, 600 (1996). No findings on the impact of domestic violence are required if the factfinder determines from all of the evidence that no 'pattern of domestic violence [existed] that would preclude an award of custody to the father.' Custody of Zia, 50 Mass. App. Ct. 237, 246 (2000). In addition, 'the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse.' G. L. c. 208, § 31A.
More detailed findings about the behavior underlying the issuance of the G. L. c. 209A restraining orders and about subsequent behavior and interaction between the parties would have been preferable. However, from the trial judge's acknowledgment of the parties' 'highly contentious' relationship, the permanent restraining order against the father and the supported § 51A reports against both parents, it is obvious that the judge considered the history of domestic violence in her analysis of the children's 'best interest.'
In addition, the record simply fails to establish a serious incident or a pattern of abuse. There is no copy of the affidavit that accompanied the mother's request for a restraining order in 2003. The mother told the GAL that she sought the restraining order after the father refused to let her leave to see her sister by keeping the car keys. When she tried to take them from him, he 'became irrationally angry and threw her down, physically hurting her.' The GAL report states, '[The mother] claims that [in the 1990's], following a heated argument, [the father] tore down a shower curtain while she was in the shower and spoke about murdering her.' On the other hand, a Department of Social Services (now Department of Children and Families) report from 2003 contains the statement that the mother 'states that [the father] never physically assaulted her but was verbally abusive and demeaning.' In addition, the mother did not testify at trial about domestic violence during the marriage.
The mother's argument that the judge did not permit her to testify about domestic violence is not persuasive. In the two instances that she offers as examples, the judge sustained an objections to the questions, 'And why did you decide to get a divorce from [the father]?' and 'And what led you to get a permanent restraining order?' In the first instance, the judge invited counsel to lay a foundation and to rephrase the question. Counsel did neither. Nor did she attempt, after either question, to ask another, more direct question about domestic violence in the marriage, make an offer of proof about what the testimony would have shown, or argue to the judge the relevance and significance of the testimony about the history of domestic violence in the relationship.
For these reasons, we disagree with the mother's argument that specific and detailed findings were required regarding the impact of domestic violence on the children.
One part of the judge's modification judgment is concerning: under the heading, 'Legal Custody,' the judge ordered that, '[i]f Mother intends to attend the children's extra-curricular activities, school functions, and family counseling sessions, she may do so, but the existing Restraining Order must be modified to provide [] for such contact.' Normally, the burden of complying with a G. L. c. 209A falls on the defendant, here the father. It is troubling that the plaintiff mother, previously found to require the court's order of protection, must nonetheless seek to modify that order to attend her children's activities. However, at least in the circumstances of this case, where substantial evidence supports the judge's decision giving legal custody to the father, we cannot say that she abused her discretion when she conditioned the mother's participation in the children's activities on a modification of the c. 209A order. Without a modification, the mother could subject the father, the legal custodian, to possible arrest whenever she chose to attend an activity where he was present.
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Child support. A modification in custody justifies a change in a child support obligation between the parties. The amount of support ($105.00 per week) was in accordance with an application of the Child Support Guidelines based on the parties' gross weekly income. We see no error.
Judgment affirmed.
By the Court (Vouno, Sikora & Hanlon, JJ.),