Opinion
20-P-413
05-20-2021
Jessica REA v. John MOLLICA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties divorced in 2011 but have been engaged in considerable litigation since. Recurrent disputes involve the couple's two daughters. Before us now is the father's appeal of a 2019 judgment that entered on a modification complaint he had filed. That judgment in pertinent part modified the father's parenting time slightly and recalibrated his child support obligation. Unpersuaded by the father's arguments, we affirm.
Background. The daughters were fifteen and nine years old at the time of the modification trial. As the judge found, the older daughter "has had a history of concerning behaviors such as cutting and threats of self-harm [and] has been hospitalized for pediatric mental health concerns on several occasions." In 2016, pursuant to stipulation, a modification judgment entered whereby the mother was awarded exclusive legal custody and primary physical custody; the father's parenting schedule was set; and the father was ordered to pay child support of $250 per week.
In November of 2017, the father filed a modification complaint that sought a reduction in his child support, shared or sole legal custody, and a change in physical custody so as to give him primary physical custody or, in the alternative, to "provide for a week-on-week-off schedule." As the basis for his complaint, the father alleged that he had become unemployed, that the mother had been undermining his relationship with the daughters and had interfered with his parenting time, and that the daughters generally were better off in his care. An attorney was appointed to represent the daughters, and a probation officer investigated their best interests.
Trial took place in the Probate and Family Court in February 2019. The judge issued "brief findings and rationale" in which she found that the older daughter had significant emotional problems and that the parents "have demonstrated an inability to communicate effectively and coordinate in ‘major decisions regarding the child's welfare including matters of education, medical care, and emotional, moral and religious development.’ G. L. c. c. 208, [§] 31." In particular, the judge found that the father had made no attempt to communicate with the older daughter's therapist or to stay informed regarding either daughter's medical or educational progress or development, and that he unreasonably blamed the mother for his "lack of information rather than acknowledging his own inaction and irresponsibility in this regard." Accordingly, the judge found "that [f]ather has failed to demonstrate that the parties now have an ability to engage in the coordination and accommodation necessary to co-parent effectively" and "has failed to demonstrate any material change in circumstances which would warrant modification as to the current [j]udgment as to the designation of legal custody of the children." On appeal, the father does not challenge the judge's decision not to change legal custody.
With respect to physical custody and the allocation of parenting time, the judge similarly found that the father had failed to show a material change in circumstances that warranted any significant reallocation. Although the older daughter had expressed a desire for more flexible scheduling of parenting time, the judge specifically found that such a schedule would lead to more family conflict given the father's availability and the parties' difficulties coordinating. Given that conflict between the parents was viewed by all as a source of the daughter's behavioral issues, the judge determined that in these circumstances a more flexible schedule would not be in her best interests. However, based on an acknowledgment by the father regarding complications raised by his own schedule, the judge made two minor changes to the existing parenting schedule. Specifically, with regard to the alternating weekends on which the father had the daughters, the judge required the father to return them on Sunday evening instead of Monday morning, and similarly required the father to return them from the weekly Wednesday visits on Wednesday night instead of Thursday morning.
The father's brief does not actually explain how the 2019 modification judgment curtailed his visitation rights, and he did not include the 2016 judgment in his record appendix. We have assumed for purposes of this appeal that his 2017 complaint for modification accurately recounts the specific terms of visitation set forth in the 2016 judgment and have derived the changes to those terms by comparing them to those in the 2019 judgment.
Prior to the current modification proceedings, the father's child support obligations had been set at $250 per week. This was based on the father's holding a fulltime teaching position while he obtained his PhD. With the father having lost that position and receiving unemployment benefits instead, the judge issued a temporary order reducing the father's child support obligations to $103 per week retroactive to December 21, 2017. However, for the fall semester of the 2018-2019 academic year, the father had secured three part-time teaching positions that netted approximately $850 per week in income. Using that figure and the Child Support Guidelines, the judge set the father's child support at $189 per week, retroactive to September 1, 2018.
The judge also ruled that the father -- who unsuccessfully had prosecuted his modification complaint -- would be required to pay the unpaid balance of the daughters' appointed counsel. The father does not challenge that aspect of the judgment.
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Discussion. 1. Physical custody and parenting time. The father has not demonstrated that any of the judge's subsidiary findings are clearly erroneous. At most, the father complains that the judge did not address certain "unrefuted" evidence that he had presented regarding the mother's conduct, but it was the father's burden to demonstrate that modification of the existing judgment was warranted, and nothing required the judge, as fact finder, to credit the father's testimony. We discern no abuse of discretion or other error in the judge's conclusion that the father had not demonstrated a material change in circumstances warranting implementation of the father's suggested one-week-on-one-week-off schedule.
The father additionally argues that once the judge decided that he had not met his burden of demonstrating a material change in circumstances, she was without authority to make the minor changes to the parenting schedule that she did. We disagree. Even where there is no evidence of changed circumstances that were "material" for one purpose, that hardly means that there could not be evidence of changes that were material for another. It is evident that the judge modified the parenting schedule to require the father to return the daughters at night because of problems that he acknowledged with the early morning transfers. We discern no error in the judge's determining that a material change in circumstances warranted a minor tweak to the parenting schedule.
2. Denial of continuance. The father had planned to call the mother of one of his older daughter's friends as a witness. However, when it came time to call her, the father's counsel reported that he "just got a message back ... that it's unfortunate she can't be here today." At the conclusion of the testimony of the available witnesses, the judge asked the father if he rested. Counsel responded that "given the fact that my witness as identified can't appear today, I would renew my request for additional time for the record to call her as a witness, but if she's not available today and I don't have any further time, then we rest." The trial thereafter promptly concluded without the judge expressly addressing counsel's request for a continuance.
The father argues that the judge abused her discretion by not extending the trial so that he could call his absent witness. Whether to allow a continuance is left to the sound discretion of a trial judge. See Commonwealth v. Miles, 420 Mass. 67, 85 (1995). The father offered no explanation for why his witness was absent. Nor did he present any proffer as to how the witness's anticipated testimony would have helped his case. In these circumstances, the father is not in a position to make even the barest of showings that the judge abused her discretion by declining to allow the father additional time to call his absent witness.
3. Child support. The father argues that the judge set child support at too high a level because she inappropriately "attributed" income to him of $850 per week. He maintains that the judge failed to make the findings necessary to support the attribution of income to him. See Macri v. Macri, 96 Mass. App. Ct. 362, 364 (2019). The father also contends that -- contrary to the judge's findings -- he did provide testimony at trial about his having made extensive efforts to secure more remunerative income. In the end, however, such arguments are beside the point for a simple reason. Despite the judge's statement that she was "attribut[ing]" income to the father, it is evident that she based the $850 per week figure on what father actually was making in his three part-time jobs, not on what he could be making if he were able to secure a higher paying job. In other words, the judge was not using the word "attribute" in the sense employed by the cases. There was ample evidentiary support for the judge's finding that the father was making $850 per week; indeed, father does not challenge the relevant factual findings. Further justification for that figure was not required.
Disposition. We affirm the 2019 modification judgment.
So ordered.
Affirmed