Opinion
15-P-449
03-08-2016
VIVIANE PEIXOTO v. SIMON FURTADO.
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, Viviane Peixoto (mother), appeals from a judgment of dismissal issued by a judge of the Probate and Family Court. The mother sought an order compelling the defendant, Simon Furtado (father), to sign a document to enable their child, who now resides in Brazil, to return to live with the mother in the United States. The judge found, and it appears undisputed, that the parties are the biological parents of the female child who is a citizen of the United States and who, by agreement of the parties, was removed to Brazil in 2002 when she was about eleven months old to live with the maternal grandmother. At the time of her removal, the child had a United States passport, which has since expired. The judge found that during that time, the mother was struggling financially. In her complaint, the mother alleges that she has regained financial stability. However, she further alleges that she cannot afford to pay the costs of medical care for her child in Brazil.
The record indicates that the parties were represented by counsel in the Probate and Family Court. There is no question whether the court below has personal jurisdiction over the parties. See G. L. c. 223A, § 3(g). However, after a hearing on the motion to dismiss, the judge concluded that she lacked subject matter jurisdiction. It appears that the judge, who inquired at length of the attorneys at the hearing, reasoned that there were adequate remedies at law -- the mother could return to Brazil and seek an order of guardianship or custody, or the child could apply for a passport in Brazil -- and that, as a result, she lacked the power to grant relief.
The existence of an adequate remedy at law is not a bar to the exercise of subject matter jurisdiction. See, e.g., Ross v. Friedman, 22 Mass. App. Ct. 513, 515-516 (1986). We express no opinion on the merits of the relief requested, but simply note that the Probate and Family Court has the power to order persons under its jurisdiction to sign documents. See Cox v. Cox, 56 Mass. App. Ct. 864, 869 (2002). We cannot say on the record before us that the judge exercised her discretion and declined to grant relief. See, e.g., S.W. v. D.P., 68 Mass. App. Ct. 901, 903 (2007). See also Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748-749 (2003).
Conclusion. For the foregoing reasons, the judgment of dismissal is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Grainger, Hanlon & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 8, 2016.