Opinion
No. 13–P–1263.
10-06-2014
Michelle Dawn PLESSNER v. Stanley Michael CIJKA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In a divorce proceeding in the Probate and Family Court, Michelle Dawn Plessner (mother) and Stanley Michael Cijka (father) each sought custody of their minor children. After a trial, the father won legal and physical custody of the children. The mother, appearing pro se, now appeals, seeking physical and legal custody of the children and a modification of the marital property distribution. We affirm.
We note that pro se litigants are “held to the same standards as litigants who are represented by counsel.” Maza v. Commonwealth, 423 Mass. 1006, 1006, 667 N.E.2d 1146 (1996).
1. Background. The parties were married on September 6, 1998. They had two children during the marriage (in June, 2001, and May, 2003).
The family has had a troubled history. The mother alleged that the father became abusive toward the children. The Department of Children and Families (DCF) became involved on multiple occasions. In 2009, there was a report that the children were abusive toward each other. That year there were also supported allegations of both the mother's neglect of the children and the father's neglect and abuse of the children. A DCF social worker assigned to the case observed that the father complied with DCF's attempts to intervene, whereas the mother was, at times, quite resistant to DCF's involvement.
On June 4, 2010, the mother filed a complaint for divorce on the grounds of irretrievable breakdown of the marriage. The father counterclaimed. The parties entered into a separation agreement, in which the parties agreed to the custody and parenting schedule of the children, and divided the marital assets and debts. A judgment of divorce nisi was entered on September 14, 2011. The judge granted the mother primary physical custody of the children and granted the father visitation rights; however, both parents retained joint legal custody over the children.
The mother was evicted from her home in October, 2011, and on November 1 she moved with the children from West Springfield to the Boston area to live in a temporary shelter for victims of domestic violence. During this move, the children were removed from school. The mother never sought permission from either the father or the court to remove the children, nor did she inform the father in advance of the move or speak to him once she relocated. As a result of the move, the father's scheduled parenting time with the children was interrupted.
The father successfully moved to vacate the September 14, 2011, judgment and strike the separation agreement. He was initially granted temporary custody of the children, and after a trial, he was granted legal and physical custody. In a decision entered on December 21, 2012, the judge found that the “[m]other's unilateral removal of the children to the eastern part of the Commonwealth without [f]ather's knowledge or consent demonstrates a complete and utter disregard for the best interests of the children.” Additionally, the judge found that the father “provide[d] a stable nurturing environment” that was in the best interests of the children. The judge also divided the parties' marital assets in accordance with the earlier separation agreement that had been struck. This appeal followed.
The question as to whether the notice of appeal was timely filed is a point of contention between the parties. The mother docketed her appeal late and had to file a motion before a single justice of this court to allow it. The motion was granted on August 8, 2013, but the single justice observed in a docket entry that the notice of appeal appeared to have been filed late. We disagree. Rule 4(a) of the Massachusetts Rules of Appellate Procedure, as amended, 430 Mass. 1603 (1999), provides that a notice of appeal is timely filed within thirty days of the entry of judgment in the lower court. Judgment was entered on December 21, 2012. The mother's notice of appeal was entered on Tuesday, January 22, 2013, thirty-two calendar days later. The thirtieth day, however, was on a Sunday, and Monday, January 21, 2013, was Martin Luther King Day. Rule 14(a) of the Massachusetts Rules of Appellate Procedure, 365 Mass. 859 (1974), provides that if the final day for timely filing is on a weekend or legal holiday, then the deadline is extended to the next business day, which was Tuesday, January 22, 2013. Thus the notice of appeal was timely filed.
2. Discussion. The mother alleges that the trial judge made a litany of legal errors. The mother claims that the judge did not consider the best interests of the children when issuing her custody decision. The best interests of the children is “[t]he governing principle by which the court must be guided in deciding” child custody cases. See Hersey v. Hersey, 271 Mass. 545, 555, 171 N.E. 815 (1930) ; Smith v. McDonald, 458 Mass. 540, 544, 941 N.E.2d 1 (2010).
So long as the judge bases her decision on the best interests of the children, she is allowed substantial deference in weighing relevant elements that might impact the children's welfare. See Smith, supra at 547, 941 N.E.2d 1. We will not disturb the judge's findings unless they are clearly erroneous. See ibid. On appeal, the burden is on the appellant to establish that a particular finding is clearly erroneous. Adoption of Ramon, 41 Mass.App.Ct. 709, 713, 672 N.E.2d 574 (1996). Where the findings are not clearly erroneous, “we review the judge's determination of the child's best interests only for abuse of discretion.” Smith, supra at 547, 941 N.E.2d 1.
Here, the judge made “specific and detailed” findings to support her conclusion that it was in the best interests of the children to award custody to the father. Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 (1993). In her decision, the judge gave weight to the father's “ability to provide a stable[,] nurturing environment for the children” to which they “have responded positively.” The judge contrasted this with the mother's decision to withdraw the children from school and separate them “from familiar friends and teachers” even though one of the children needed special academic services under an individualized education program. The judge could reasonably have concluded that awarding custody of the children to the father was in the best interests of the children. We discern no abuse of discretion or other error of law in this conclusion.
We acknowledge that removal of the children to another part of Massachusetts without the father's consent would be, without more, “insufficient to warrant modification of the custody order.” Hernandez v. Branciforte, 55 Mass.App.Ct. 212, 220, 770 N.E.2d 41 (2002). The instant case is distinguishable from a mere relocation. The mother relocated without initially notifying the father that his children would be moving, and she interrupted his scheduled visitation with the children. Additionally, the mother withdrew the children from school for a time, and offered no documentary evidence at trial that she had enrolled the children in school elsewhere. The judge found that the mother's behavior was, in this instance, “erratic” and not in the best interests of the children.
The mother next argues that she was not required to notify the court or the father when she moved to the Boston area. Court approval for removal is appropriate when a custodial parent's relocation within the State “involve[s] significant disruption of the noncustodial parent's visitation rights and the parents cannot agree” about the relocation. D.C. v. J.S., 58 Mass.App.Ct. 351, 356, 790 N.E.2d 686 (2003). Cf. G.L. c. 208, § 30 (moving a minor child of divorced parents outside of Massachusetts may require leave of court). Here, there was evidence that the mother's relocation disrupted the father's visitation schedule with the children, supporting the judge's finding that the mother's relocation disregarded the best interests of the children.
The mother also argues that the judge erred in not awarding her custody of the children because she was their primary caretaker. This argument has no merit. The statute dealing with custody of children of divorced parents is G.L. c. 208, § 31, as amended by St.1989, c. 689. This statute does not, on its face, favor the primary caretaker over the other parent in custody determinations. Rather, it states that “the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody.” G.L. c. 208, § 31. The mother's argument on this point is thus unavailing.
The mother additionally argues that the judge erred by awarding custody to the father who, the mother alleges, repeatedly abused the children. Even if the judge found that the father engaged in “a pattern or serious incident of abuse,” the father may be given custody over the children where “a preponderance of the evidence [suggests] that such custody award is in the best interests of the child[ren].” G.L. c. 208, § 31A, inserted by St.1998, c. 179, § 3. Here, the judge never found that the father engaged in abusive behavior. To the contrary, the judge found that the “[f]ather has demonstrated a continuing pattern in acting in accordance with the best interests of the children.” The judge did not err in awarding the father custody of the children.
The mother raises a variety of other alleged errors, including a claim that the judge erroneously and inequitably distributed the marital property. None of these other arguments, however, is properly supported by relevant citations. As such, they do not rise to the level of appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Consequently, we deem them waived. See Selmark Assocs. v. Ehrlich, 467 Mass. 525, 540 (2014).
That rule provides, in relevant part, that appellate arguments “shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.”
Judgment of divorce nisi entered on December 21, 2012, affirmed.