Opinion
No. 11–P–1556.
2013-07-26
Mont Andrew PHELPS v. Jill S. BECKER.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from the “Supplemental Judgment on Complaint for Divorce” dated February 10, 2011 (supplemental judgment), the order dated March 16, 2011, denying her motion to amend the supplemental judgment, the order dated March 16, 2011, adopting the father's proposed rationale, and the order dated March 17, 2011, denying her motion to strike. The father appeals from the order dated August 12, 2011, allowing in part the mother's second motion to amend the supplemental judgment. Essentially what is at issue are the terms of custody over the parents' two children. We affirm.
Father's appeal. Relying on Mass.R.Dom.Rel.P. 59(e), the father argues that the mother's second motion to amend the supplemental judgment was untimely because it was filed more than ten days after entry of the supplemental judgment, and therefore the judge lacked authority to alter the judgment. However, “[r]ule 59(e) motions filed more than ten days after entry of judgment are ‘considered to fall within [ Mass.R.Civ.P.] 60(b),’ “ Piedra v. Mercy Hosp., Inc., 39 Mass.App.Ct. 184, 188 n. 4 (1995), quoting from Reporters' Notes to Mass.R.Civ.P. 59(e), and therefore must be made within a reasonable time, or in some instances not more than one year after the judgment. Mass.R.Civ.P. 60(b). The father has made no argument, let alone shown, that the motion was not filed within a reasonable time, and it was filed well within one year of the supplemental judgment. The judge had the authority to amend the supplemental judgment. The father also argues that the order allowing the mother's second motion to amend the supplemental judgment must be vacated because (a) the judge did not make any factual findings in support of the order, and (b) the order was not supported by the evidence at trial. The father cites no authority requiring a judge to make additional findings in connection with a motion to alter judgment, and we decline to create such a rule here. The father's second argument is defeated by the trial judge's findings. For example, the judge expressly found that it is in the best interests of the children for the off-duty parent to have “the right to have contact with the children from the time the on-duty parent is at work until 5:30 P. M.,” as long as the off-duty parent “encourages the children to complete their parenting with the” on-duty parent. In light of the judge's findings, the father has failed to establish that the judge abused her discretion in allowing the motion to alter the judgment. See Gannett v. Shulman, 74 Mass.App.Ct. 606, 615 (2009) (“A motion brought under rule 59[e] is addressed to the judge's sound discretion”).
The rule is identical to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974).
The judge also had jurisdiction to amend the supplemental judgment because the mother's appeal had not yet been entered in this court. M.B. Claff, Inc. v. Massachusetts Bay Transp. Authy., 441 Mass. 596, 598–599 & n. 4 (2004) (trial judge retained jurisdiction to amend judgment when appeal from judgment not yet entered in Appeals Court).
This finding was reaffirmed in the decision after remand issued on May 15, 2013, nunc pro tunc to February 10, 2011.
2. Mother's appeal. The mother makes three arguments: (1) first, she argues that inconsistencies between the judge's various findings of fact, conclusions of law, and rationales require reversal; (2) second, she argues that the judge failed to give adequate weight to the mother's role as primary caregiver; and (3) third, she argues that the judge misconstrued the guardian ad litem's (GAL) report.
The mother also argues, in response to the father's appeal, that the motion to amend judgment was properly allowed. Given our disposition of the father's appeal, we do not separately address the mother's argument.
As reflected in our previous order of May 3, 2013, we agreed with the mother that inconsistencies between the judge's findings, conclusions, and rationales—together with the wholesale adoption of one of the father's submissions—made it difficult to discern the judge's independent analysis. See Cormier v. Carty, 381 Mass. 234, 236–237 (1980). However, the infirmities did not require reversal, even though they impeded appellate review. For that reason, we remanded in order for the judge to issue a consolidated decision reflecting her independent analysis. Our review of the judge's decision after remand convinces us that the judge made the requisite independent evaluation and analysis, and that the findings and rationale support the judgment. None of the shortcomings identified in the mother's brief remain in the judge's decision after remand.
Contrary to the mother's second argument, the judge found and acknowledged that the mother was the primary caretaker of the children and also the primary psychological parent at the time the parents separated. The weight to be given this finding was the exclusive province of the trial judge, and we will not second guess the judge's assessment. Thurlow v. Shaw's Supermarkets, Inc., 49 Mass.App.Ct. 175, 177 (2000) (“Appellate review of the facts found at a bench trial does not permit the weighing of the evidence anew”). Moreover, when crafting the custody arrangement, the judge was not limited to considering who was the primary caretaker at the time of the parties' separation. The situation was not static. The judge did not err in considering also whether the mother remained the primary caretaker or primary psychological parent of the children at the time of trial, and to weigh the father's increased time with the children after the parties' separation.
Finally, we see no material mischaracterization of the GAL's report. The judge found that the 2–2–3 parenting schedule was in the children's best interests, and that the children had adjusted to it. The GAL did not offer an opinion to the contrary. Further, we disagree with the mother's contention that the judge provided an inadequate explanation of her decision to maintain the 2–2–3 parenting schedule. The judge found that the schedule maintained regular contact with both parents, and that it furthered the GAL's opinion that regular contact with both parents was optimum for the children.
For these reasons, the supplemental judgment, as amended, and the postjudgment orders appealed from are affirmed.
So ordered.