Opinion
15-P-789
07-29-2016
RUSSELL P. SCHWARTZ v. ANGELA R. SCHWARTZ.
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
Angela R. Schwartz (mother) appeals from an amended judgment of divorce nisi entered by a judge of the Probate and Family Court which provides, among other things, that Russell P. Schwartz (father) shall have parenting time with the parties' minor child "on all Jewish holidays." On appeal, the mother contends that the judgment is ambiguous because the parenting schedule fails to set forth the specific Jewish holidays that the child shall spend with the father. She also asserts that the parenting schedule constitutes an abuse of discretion because it is inconsistent with the judge's subsidiary findings. For the reasons that follow, we vacate the portion of the amended divorce judgment that awards the father parenting time "on all Jewish holidays," and remand for further proceedings.
The mother has primary physical custody of the child. The parties share legal custody.
We need not reach, on this record, the issues raised by the mother calling into question the constitutionality of an order giving one parent exclusive parenting time "on all Jewish holidays."
As an initial matter, we agree with the mother that the award of parenting time to the father "on all Jewish holidays" is ambiguous. The father maintains that he "believe[s] that the Jewish holidays that he was awarded by the lower court's judgment are: Rosh Hashanah (two nights), Yom Kippur (one night), Simcha Torah, Hanukah, Purim and Passover." However, the judge's order does not enumerate these or any other Jewish holidays with such specificity. To the extent that the provision leaves room for differing interpretations, remand is necessary. On remand, a different judge of the Probate and Family Court shall identify which parent shall have parenting time with the child during each specified Jewish holiday. That judge will also resolve which event or holiday will control in the event of a conflict in dates.
The original judge has retired.
The mother further contends the judge erred in determining on this record that the child should spend "all Jewish holidays" with the father. The best interests of the child is the "touchstone inquiry" in child custody matters. Custody of Kali, 439 Mass. 834, 840 (2003). "The judge's findings of fact will be left undisturbed unless clearly erroneous. Absent clear error, we review the judge's determination of the child's best interests only for abuse of discretion." Smith v. McDonald, 458 Mass. 540, 547 (2010) (citation omitted). The judge's findings here do not support the ultimate conclusion that the child's best interests favor granting the father parenting time with the child "on all Jewish holidays."
The judge found that "each party has demonstrated an active interest and involvement in the major . . . religious . . . decisions of [the child's] life." She further found that the child "has been raised in the Jewish faith and it is in his best interests for both parties to continue his faith." The judge determined that the mother had converted to Judaism and, more significantly, that the child's best interests favored his being "exposed to and attend services of the particular worship of each parent at his/her respective temple." Having made those findings, it appears incongruent to then award to the father exclusive parenting time "on all Jewish holidays."
In reviewing the parenting schedule, we cannot ascertain how the judge determined that the child's best interests will be served by celebrating Jewish holidays only with the father, especially in light of her finding that the family celebrated Jewish holidays together during the marriage, and that the mother has supported the child's involvement in Judaism since his birth. "[T]he judge's findings do not add up to sufficient support for [her] . . . order" awarding the father parenting time with the child "on all Jewish holidays." Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 493 (2012).
However, we need not delve any further into the judge's rationale for the sweeping allocation to the father of parenting time with the child during all Jewish holidays, as we anticipate any confusion and error in the parenting schedule will be resolved on remand when the newly assigned judge, see note 3, supra, holds a hearing, consistent with our decision, to determine with specificity the Jewish holidays for which each parent has parenting time.
We do not intend to require that the parents have equal parenting time for the Jewish holidays.
The portion of the amended judgment nisi ordering that the father shall have parenting time with the child "on all Jewish holidays" is vacated. The matter is remanded to the Probate and Family Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: July 29, 2016.