Opinion
No. 12–P–840.
2013-09-16
Ginger A. RUDDY v. Raymond J. RUDDY.
By the Court (BERRY, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal involves a dispute between the plaintiff (mother) and the defendant (father), who are divorced, over the appointment of a parenting coordinator to assist the parties in resolving issues pertaining to the shared legal custody of their two children. For the reasons that follow, we vacate the order dismissing the father's complaint for appointment of an alternate parenting coordinator. We remand for further proceedings consistent with this memorandum and order.
The parties were divorced by a judgment of divorce nisi entered in March, 2010. Pursuant to a separation agreement, relevant provisions of which were merged in the divorce judgment, one Dr. Cavallaro was to serve as the parenting coordinator for at least one year after entry of the divorce judgment. This arrangement proved successful until November, 2011, when the mother took issue with one or more of Dr. Cavallero's recommendations and consequently refused to acknowledge Dr. Cavallaro as the parenting coordinator. The father filed a complaint in the Probate and Family Court seeking appointment of a new parenting coordinator. The probate judge dismissed the father's complaint, seemingly on the sole basis that he did not subscribe to the notion of appointing parenting coordinators. This appeal resulted. At the heart of this appeal is the mother's contention the separation agreement required the use of a parenting coordinator for only one year. The father, in contrast, argues that the use of a parenting coordinator was intended to continue until the children reach the age of majority or, otherwise, until the separation agreement is modified by the court. Each party contends that the language of the separation agreement unambiguously supports their respective position. The disputed provisions state as follows:
All told, the father filed three documents pertaining to the appointment of a new parenting coordinator. The first was framed as a “Complaint for Appointment of Parent Coordinator Per Separation Agreement,” which was dismissed; the second was a “Motion for Court to Determine and Designate Successor Parent Coordinator,” which was denied; and the third was a motion to reconsider both of the foregoing, which was denied.
At the hearing on the father's motions, the judge stated, “I'm not appointing a parenting coordinator. I don't ever appoint them and I'm not going to start today.”
“Linda Cavallero, PhD ... shall serve as the parties' parent coordinator (the ‘Parent Coordinator’) to put helpful co-parenting parameters in place and serve as a neutral resource when the parties reach an impasse around a given issue.
“...
“The Parent Coordinator will serve a term of one (1) year, which shall be renewable for successive periods by agreement of the parties, or, if the parties are unable to reach agreement, the Parent Coordinator will be determined by the Probate & Family Court.”
“The interpretation of the separation agreement is a question of law, and is therefore ‘afforded plenary review.’ “ Colorio v. Marx, 72 Mass.App.Ct. 382, 386 (2008), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). “Free from ambiguity, the words of the agreement, like any other contract, must be given their usual and ordinary meaning.” American Venture 594 Corp. v. A. Russo & Sons, Inc., 79 Mass.App.Ct. 770, 775 (2011). And, while the parties here stand in sharp disagreement as to the meaning of the parenting coordinator provisions, “[t]he mere existence of a disputed interpretation by the parties does not create an ambiguity.” Suffolk Constr. Co. v. Illinois Union Ins. Co., 80 Mass.App.Ct. 90, 94 (2011).
After reviewing the language of the disputed provisions, we think it reasonably clear that the use of a parenting coordinator was intended to continue beyond the term of one year. The separation agreement expressly contemplates a situation, as we have here, where the father and mother “are unable to reach agreement” with regard to the renewal of a parent coordinator. In such cases, the agreement instructs that “the Parent Coordinator will be determined by the Probate & Family Court” (emphasis added). Significantly, the agreement does not leave to judicial discretion the issue of whether a parent coordinator will be appointed. We can therefore infer, based on the conspicuous absence of such “whether” or “if” language, that the continued use of a parenting coordinator is an integral part of the agreement. The only issue that requires mutual agreement between the parties is the identity of such parenting coordinator. Accordingly, we reject the mother's urged interpretation.
We note that the purpose of the parenting coordinator is to avoid potential deadlock between the parties and the court intervention that inevitably results from such deadlock. If, as the mother contends, the continued use of a parenting coordinator depends on the mutual agreement of the parties, this would only invite the exact type of impasse that both the parent coordinator, and the separation agreement as a whole, intend to avoid. This, again, is not a plausible reading of the separation agreement.
Finally, we also note that, contrary to the judge's statement, the practice of requiring parenting coordinators in a divorce proceeding is established in the Commonwealth. See, e.g., Katzman v. Healy, 77 Mass.App.Ct. 589, 594 n.6 (2010) (affirming “judgment requiring the parents to select and utilize a parenting coordinator,” when, among other difficulties, there was conflict between parents that impeded children's ability to transition between parents' homes). Simply put, parenting coordinators may be extremely helpful for parents and children alike in avoiding unnecessary litigation. Children's needs and schedules change over time, in turn necessitating changes in custody arrangements. Thus, the use of a parenting coordinator over time may serve to maximize efficacy in child custody and parent dispute resolution, addressing the changing dilemmas that may arise postdivorce.
We also note that the practice of employing parenting coordinators furthers the goals of the Supreme Judicial Court's Uniform Rules on Dispute Resolution, which aim to “increase access to court-connected dispute resolution services” and “foster innovation in the delivery of these services.” See S.J.C. Rule 1:18, as amended, 442 Mass. 1301 (2004).
One commentator has noted the “poor fit between the legal-adversarial system and high-conflict co-parents. Frequent filer litigants are generally not competent co-parents, and the litigation training that these co-parents received during their repeated exposure to the legal-adversarial system compounded their co-parenting dysfunction to the detriment of their children. Similarly, already resource-strapped court systems were devoting disproportionate court resources to adjudicating holiday schedules, telephone access to children in the other parent's home, and other day-to-day details of parenting plan implementation.” Sullivan, Perspectives on the Past: Parenting Coordination: Coming of Age? 51 Fam. Ct. Rev. 56, 56 (2013).
Based on the foregoing, we vacate the order dismissing the father's complaint for appointment of a parenting coordinator. Having determined that the separation agreement requires the continuing use of a parenting coordinator, we turn now to the issue of remand. As noted, the separation agreement clearly states that if the father and mother cannot agree on the continued use of particular parenting coordinator, the court shall appoint a new parenting coordinator. In light of the current state of disagreement between the parties, we remand this matter to the Probate and Family Court, where a different judge can appoint an alternate parenting coordinator.
The parties' requests for appellate attorneys' fees are denied.
Finally, while we endorse an appointment of an alternate parenting coordinator, this, of course, is not necessarily permanent. A judge may reconsider the advisability of a parenting coordinator if a party has demonstrated a material change in circumstances. See Pierce v. Pierce, 455 Mass. 286, 293 (2009).
So ordered.