Opinion
21-P-709
05-03-2022
ODESSA[1] v. PAULO.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a custody modification trial in the Probate and Family Court, Paulo (father), the former husband of Odessa (mother), appeals from an amended judgment that awarded him two hours' weekly supervised parenting time with the parties' children, which would increase and become unsupervised if he met certain goals including undergoing therapy with a licensed clinician. The father argues that his due process rights were violated when, for reasons including his failure to comply with the judge's pretrial discovery order (discovery order), he was not permitted to call witnesses whose testimony he maintains would have contradicted the report of a guardian ad litem (GAL) that was admitted as a trial exhibit. Based on our review of the record including the discovery order and the GAL report, we discern no prejudice, and so we affirm.
Background.
In 2018, the judgment of divorce nisi entered incorporating the parties' separation agreement which, among other things, awarded the father visitation with the children, increasing the frequency and duration of visits on a set schedule, and entitled either party to have "direct access to all of the [c]hildren's . . . mental health records." All provisions relating to the children merged into the judgment.
On January 18, 2019, the mother filed a complaint for modification which alleged that the children had reported that the father had confronted each of them with notes from their respective therapists, causing the children concern that their therapy was not confidential. The judge temporarily suspended the father's visitation with the children. After a hearing, the judge entered an order that permitted the father two hours' supervised visitation with the children each week; precluded either parent from accessing the children's therapy records; and prevented either parent from discussing issues of custody, parenting time, the children's therapy disclosures, or their therapy records with or in front of the children.
The judge appointed the GAL to investigate and evaluate the parties' custody and parenting plan and assess issues of domestic violence and mental health. See G. L. c. 215, § 56A. As part of her assessment, the GAL interviewed fifteen witnesses, including the parties and the children; conducted parent-child observations; and considered results of psychological testing on both parties.
On May 15, 2019, the judge entered the discovery order requiring that at least three days before the July 19 pretrial conference, the parties file pretrial memoranda that set forth "[a] list of all people each party intends to call as witnesses at the trial, including for each person a brief statement identifying the person." On July 15, the father filed his pretrial memorandum, listing as witnesses the names of the children's two therapists and the therapists' supervisor, as well as "[a]ny people listed on the GAL interview list." The judge appointed another GAL (privilege GAL) for the purpose of determining whether it was in the children's best interests to waive or assert their therapeutic privileges.
About four weeks before trial, the mother's counsel moved to quash subpoenas for depositions by written questions, Mass. R. Dom. Rel. P. 31 (a), that the father had served on the therapists, their supervisor, and two persons who had monitored the children's transitions from the custody of one parent to the other (transition monitors). The judge postponed ruling on the motion as to the therapists and their supervisor until after the privilege GAL filed her report. The judge ruled that the father could depose the transition monitors, who "may respond in writing" by the previously set discovery deadline, October 16, 2019. However, the father never deposed the transition monitors; as he later explained, "[t]here was not enough time for me to send them the questions and have them send me back . . . by the time I mailed it to them." Instead, on October 16, the father sent the mother's counsel a revised witness list, again including the names of the therapists and their supervisor, and now including the names of the transition monitors and also two daycare providers, whom the father had never sought to depose.
Trial took place on October 30, 2019. The father represented himself; the mother was represented by counsel. On the mother's motion in limine, the judge precluded the father from calling as witnesses the therapists, their supervisor, the transition monitors, or the daycare providers. After the privilege GAL asserted the children's privileges, the judge allowed the mother's motion to quash trial subpoenas on the therapists and their supervisor. As to the transition monitors and daycare workers, the judge ruled that the father had not complied with the discovery order to include their names on the witness list in his pretrial memorandum, and so "it would be prejudicial to permit [their] testimony at this stage." Neither party called the GAL to testify, but the GAL report, which was eighty-five pages long, single-spaced, was admitted as an exhibit at trial.
The father does not argue that the GAL report was inadmissible, and so that claim is waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) . During trial, the father objected to admission of the GAL report, and the judge noted that in a pretrial order she had ruled it admissible and set forth the deadline for the father to object to it, which he had failed to do. See Guardianship of Pollard, 54 Mass.App.Ct. 318, 323 (2002) ("A GAL's report is ordinarily admissible and its use at trial should be anticipated"). See also Mass. G. Evid. § 1115(c) (2) (2022).
In her memorandum of decision and findings of fact, the judge credited the GAL report. The judge awarded joint legal custody of the children to both parents, and primary physical custody to the mother. The judge ordered that the father was to continue with two hours' supervised parenting time weekly and also to undergo therapy with a licensed clinician to address certain issues; once he had satisfactorily completed five supervised visits with the children and at least five sessions with a licensed clinician, the father would have unsupervised parenting time with the children for up to six hours per week. Now represented by counsel, the father appeals.
Discussion.
1. Due process.
The father argues that his due process rights were violated when the judge prevented him from obtaining pretrial discovery from the therapists, their supervisor, and the transition monitors, and then precluded him from calling them and the daycare providers to testify at trial.
He also argues that his due process rights were violated when the judge cut short his direct testimony and allocated only one day for trial although he had requested three.
a. Preclusion of testimony from therapists, transition monitors, and daycare providers.
The father claims that the judge improperly prevented him from obtaining discovery from the therapists, their supervisor, and the transition monitors, and precluded him from calling them and the daycare providers to testify at trial. The father argues that it was necessary for him to call those persons as witnesses to question them about "what they may or may not have said to a GAL." Because the modification judgment and findings of fact were based on ample evidence, including the testimony of both parties and the thorough and detailed GAL report, the father was not prejudiced by the lack of trial testimony from collateral sources.
As to the therapists, the judge acted within her discretion in excluding their testimony on privilege grounds based on the privilege GAL's report. The father had no standing to challenge the recommendation of the privilege GAL. "General Laws c. 233, § 20B, makes clear that the privilege may be asserted only by the patient, or, if the patient is incompetent, by a guardian appointed to act on his or her behalf." Adoption of Diane, 400 Mass. 196, 201 (1987). "In a case such as this, where the parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent's ability to further the child's best interests, it would be anomalous to allow the parent to exercise the privilege on the child's behalf." Id. at 202.
In ruling that the children's assertion of privilege precluded the father from calling the therapists and their supervisor to testify at trial, the judge implicitly denied the father's pretrial motion to depose them by written questions.
As to the therapists' supervisor, the father told the judge that she would testify about "the nature of the therapy" and that it is "harmful what they do to kids." That testimony would have been cumulative of the GAL report, which included the supervisor's description of the therapists' trauma-based treatment modality. Based on evidence including the father's beliefs that the therapists focused the children too much on a single incident of domestic violence between the parties, the GAL recommended that the children transition to therapists specializing in a different treatment modality, one for children in families experiencing high-conflict divorce. The judge adopted that recommendation, which was based on ample evidence. See D.B. v. J.B., 97 Mass.App.Ct. 170, 182 (2020).
The father agreed to "stipulate" to the therapists' supervisor's statement to the GAL, which was already in evidence in the GAL report.
As to the transition monitors and daycare providers, the judge acted within her discretion in precluding the father from calling them as witnesses because he had not complied with the discovery order to include their names in his pretrial memorandum. See Hernandez v. Branciforte, 55 Mass.App.Ct. 212, 222 (2002). "Trial judges have broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial" (quotation and citation omitted). Mattoon v. Pittsfield, 56 Mass.App.Ct. 124, 131 (2002). See Morgan v. Jozus, 67 Mass.App.Ct. 17, 24 (2006). Where a party fails to comply with an order to provide discovery, the judge may impose just sanctions, including "prohibiting [the disobedient party] from introducing designated matters in evidence." Mass. R. Civ. P. 37 (b) (2) (B), as amended, 390 Mass. 1208 (1984) .
Moreover, the father has not shown that he was prejudiced by the lack of testimony from the transition monitors and daycare providers. The father told the judge that their testimony would show that they had made "false statements" to the GAL, without any further specificity. The GAL report shows that the GAL conducted brief telephone interviews with the transition monitors and daycare workers, and relied on them mainly to corroborate information she had gleaned from her interviews with the parties and the children. The judge noted that the testimony of the daycare workers was not "particularly relevant." We discern no error, let alone a violation of the father's due process rights.
b. Duration of father's testimony and length of trial.
The father argues that his due process rights were violated when the judge "stopped" his direct examination before he considered himself finished and scheduled only one day for trial even though he had requested three. "A judge, as the guiding spirit and controlling mind of the trial, should be able to set reasonable limits on the length of a trial. This includes the right to set reasonable limits on the length of the direct and cross-examination of witnesses." Clark v. Clark, 47 Mass.App.Ct. 737, 746 (1999) .
The father's testimony took up over one hundred transcript pages, of which sixty-two pages set forth his direct testimony given in narrative form. Toward the end of his direct examination, his testimony became repetitive. The judge suggested, "[j]ust a few minutes now, sir," and the father agreed, "Yeah, let's wrap it up." Then the father began to argue about an anticipated post-trial motion for attorney's fees, and to describe exhibits already in evidence. At that point the judge said that she would hear from the mother's counsel on cross-examination.
The judge acted within her broad discretion to determine the scope of the evidence at the modification trial. See G. L. c. 208, § 31A ("Nothing in this section shall be construed . . . to affect the discretion of the probate and family court in the conduct of [a hearing under the rules of domestic relations procedure]"). Cf. Malachi M. v. Quintina Q., 483 Mass. 725, 735-736 (2019) (discussing modification judge's discretion regarding "nature and scope" of evidence of domestic violence).
As to the duration of the trial, that too was within the judge's discretion. She could properly determine that additional testimony would not be helpful to her and instead rely on the exhibits before her, including the GAL report. See Malachi M., 483 Mass. at 735 ("the judge did not err in limiting the hearing portion of the modification proceeding to testimony regarding postdivorce events, and allowing other evidence . . . to be admitted through exhibits").
2. Mother's testimony about children's demeanor.
The father argues that the judge erred in permitting the mother to testify to her perceptions of the children's moods. After supervised visitation with the father began, the mother testified, both children were "happier" and "calmer," and "show[ed] less signs of anxiety." Based on that testimony, the judge found that the mother "has credibly noticed" that since the father's parenting time became supervised, the children were "happier and calmer," less anxious about seeing the father, and more open and willing to talk about their feelings. The mother's testimony was a permissible description of the children's moods. See Commonwealth v. Bonomi, 335 Mass. 327, 339 (1957) (witness may testify to another's condition of nervousness or happiness). See also Mass. G. Evid. § 701(a) (2022) (witness may offer lay opinion based on witness's perception). Cf. Commonwealth v. Bonds, 445 Mass. 821, 830 (2006) (mother properly testified that victim's disability made her "overly trusting"). Moreover, "[i]n custody matters, the touchstone inquiry [is] . . . what is 'best for the child.'" Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208, § 28.
The judge struck the mother's testimony that the children "express their frustration about their dad's behavior and what he says to them."
3. Supervised visitation.
Finally, the father argues that the judge abused her discretion in ordering that his visitation be supervised.
A judge has broad discretion in formulating a parenting plan, and we will not disturb an order concerning custody or visitation absent an abuse of discretion. See E.K. v. S.C., 97 Mass.App.Ct. 403, 408-409 (2020). A judge may modify a judgment relating to custody and a parenting plan where a material and substantial change of circumstances has occurred and a judgment of modification is necessary in the best interests of the children. See Bower v. Bournay-Bower, 469 Mass. 690, 706 (2014), citing G. L. c. 208, § 28. "The determination of the extent and palpability of such change" lies in the discretion of the trial judge. Heistand v. Heistand, 384 Mass. 20, 26 (1981). "Absent clear error, we review the judge's determination of the child[ren]'s best interests only for abuse of discretion." Smith v. McDonald, 458 Mass. 540, 547 (2010).
"The governing principle by which the court must be guided in deciding [custody and visitation] is the welfare of the child." Vilakazi v. Maxie, 371 Mass. 406, 409 (1976), quoting Hersey v. Hersey, 271 Mass. 545, 555 (1930). "To change visitation [a party] must . . . demonstrate that a material and substantial change [of circumstances] has occurred and that a change in visitation would be in the best interest of the children." Flaherty v. Flaherty, 40 Mass.App.Ct. 289, 289 n.1 (1996), citing G. L. c. 208, § 28. The promotion of a child's best interests "may involve some limitation of the liberties of one or other of the parents." DiRusso v. DiRusso, 12 Mass.App.Ct. 892, 893 (1981), quoting Felton v. Felton, 383 Mass. 232, 233 (1981). Furthermore, supervised visitation may "be required by the court to protect the child's welfare," Harvey, Moriarty & Ryan, Massachusetts Domestic Relations 2d § 8-95 (2003), and "much must be left by necessity to the discretion of the trial judge." Petruzziello v. Newman, 8 Mass.App.Ct. 896, 897 (1979) .
Based on the evidence before her, including the GAL report, the judge found that the father "used extremely poor judgment by disclosing the contents of the children's therapy records [to] the children, which was not developmentally appropriate and had a chilling effect on their progress in therapy." She did not abuse her discretion.
Amended judgment affirmed.
By the Court
The panelists are listed in order of seniority.