Opinion
18-P-1492
01-22-2020
Kathy A. SHOTTES v. Dennis R. REGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant father in this divorce case appeals from a Probate and Family Court modification judgment that ordered him and each of the parties' two children to "engage in at least ten ... joint therapy sessions in an attempt to heal their fractured relationship," pending the completion of which the father would have no scheduled parenting time, and upon the completion of which the father could "file appropriate pleadings seeking to establish a parenting plan." The father also appeals from the judgment that dismissed his amended counterclaim to the modification complaint. That amended counterclaim had sought sole legal and physical custody of the children and an order that the mother and the children attend therapy focused on what the father asserted was the mother's attempt to alienate the children from him. We affirm.
The modification judgment also ordered an increase in child support, but on appeal the father makes no challenge to that aspect of the order and, thus, we do not discuss it further.
Background. The parties were married in 1991, have two children (born in 2001 and 2003), and were divorced in 2013. Under their separation agreement (agreement), which insofar as it addressed the children was merged into the divorce judgment, the parties shared legal custody of the children, who were to reside primarily with the mother and to spend time with the father under a parenting plan set forth in the agreement.
Although the divorce judgment is not in the record, the parties agreed at oral argument that the agreement merged at least to this extent, and the agreement itself so provided.
In late 2016 the mother filed a complaint for modification (later amended), alleging insofar as relevant here that (1) a domestic violence incident had occurred involving the father and the children, (2) the children had expressed their desire to alter the parenting plan, (3) the children were at an age where their preference should be considered, (4) the parties had not abided by the parenting plan for more than one year, and (5) the relationship between the father and the children had broken down to the point that therapeutic intervention might be appropriate. The father counterclaimed (later amended). After a three-day trial, the judge issued findings of fact, the modification judgment, and the judgment dismissing the father's amended counterclaim. The father appealed.
Discussion. 1. Judge's alleged predisposition. The father argues that the judge was unfairly predisposed against his amended counterclaim seeking sole physical and legal custody, thus violating his procedural due process rights. The father bases this claim on the judge's statement, toward the end of the first day of trial, that "this is more a situation now for the mental health experts, not a court of law." He notes that the judge expressed the same view in her final decision, where she stated, "Unfortunately, this case cannot be resolved in a Courtroom but will be resolved, if at all, in a therapist's office."
Assuming without deciding that this claim is preserved for appeal, we think the father reads too much into the judge's earlier comment. It in no way indicated that the judge had already made up her mind to reject the father's request for sole physical and legal custody, any more than it indicated that the judge had made up her mind to reject the mother's request for a change in the parenting plan. Both the mother's amended complaint for modification and the father's amended counterclaim requested, or at least suggested, that the judge order therapy involving the children and the other parent. The judge appears to have been expressing her view that such therapy was more likely to produce positive results than a change in the parenting plan or in custody. In the end, the judge ordered not only therapy but also a change in the parenting plan, and she explained why, based on the evidence at trial, she did not order a change in custody as the father had requested.
The father did not ask the judge to recuse herself, let alone make such a request as soon as the claimed ground for recusal became apparent to him. See Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 547-549 (1998), S.C., 432 Mass. 43 (2000) ; Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013).
This case is unlike Adoption of Tia, 73 Mass. App. Ct. 115 (2008), relied upon by the father. There, early in a lengthy trial, a judge inappropriately made extensive comments containing her "weighted assessments of evidence" and thereby "departed from her appropriate role, both in assessing the strength of the evidence well before the evidence had closed and in trying to urge consideration of a settlement in a case where she was the ultimate fact finder." Id. at 121.
In these circumstances, we are unpersuaded that the judge approached the case with any unfair or impermissible predisposition. Nor did she abuse her considerable discretion to "settle custody in a manner that advances the best interests of the children," Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987) ; we recognize that "[t]he opportunity which [she] had to observe and appraise both parents is particularly important." Id., quoting Stevens v. Stevens, 337 Mass. 625, 627 (1958).
We also note that the judge had prior involvement in the parties' parenting dispute, having ruled on the father's late 2016 motion for temporary orders (pending trial on the merits of the modification requests) regarding therapy and parenting time. Thus, even if the judge had formed some view of the dispute, there was no showing of "bias or prejudice arising from an extrajudicial source" (citation omitted). Erickson v. Commonwealth, 462 Mass. 1006, 1007 (2012).
2. Mother's statements in 2016 affidavits. The father next asserts that the judge abused her discretion in excluding certain documentary evidence, and in limiting the father's cross-examination of the mother, aimed at impeaching the mother's statements in two 2016 affidavits. Those affidavits stated that the father had hurt the son on a previous occasion, in 2012, before the divorce. Before trial, the father filed a memorandum arguing that 2012 records of the court and the Department of Children and Families (department) should be admitted in evidence because they cast doubt on the mother's 2016 affidavits. The mother filed an opposition, and at the outset of trial the judge indicated that she would rule on the records' admissibility "when they're offered." At no time thereafter, however, did the father attempt to offer the records in evidence, nor did the judge say that she would exclude them if offered. The father cannot challenge a ruling that the judge never made.
Nor does the record support the father's claim that the judge improperly restricted his cross-examination of the mother regarding the 2016 affidavits. To the contrary, cross-examination on that subject ranged over approximately forty transcript pages on the first day of trial. The judge sustained the mother's objections to certain questions, largely because they were argumentative or otherwise in improper form, but we see no unreasonable restriction of the subjects that the father was allowed to explore.
The judge also expressed the view that events occurring prior to the 2013 divorce judgment were not particularly relevant to the issue at hand. The trial concerned the parties' claims for modification of the parenting aspects of that judgment, and such a modification must be predicated on findings "that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children" (emphasis added). G. L. c. 208, § 28. "Changed circumstances are those that occur subsequent to the judgment of divorce or subsequent to a prior modification." Pizzino v. Miller, 67 Mass. App. Ct. 865, 872 (2006). The judge would thus have been well within her discretion in limiting the admission of evidence of and cross-examination about parenting-related events occurring before the divorce judgment. Such limits would be permissible even where the father's purpose was impeachment. But we are not persuaded that she imposed such limits to any significant degree. Rather, after questioning the relevance of events before the divorce judgment, she told the father that she was "not saying that [he] can't address it," and that he should "go ahead with [his] questioning."
The right of impeachment is not absolute. Cf. Commonwealth v. Mott, 5 Mass. App. Ct. 811, 812 (1977) (judge did not abuse discretion in excluding impeachment evidence that was "collateral and would have served only to obfuscate the issue").
On the second day of trial, toward the end of the father's lengthy cross-examination of the mother, the judge did sustain an objection to a single question regarding what injury the son had allegedly sustained in 2012.
3. Exclusion of parties' e-mails. The father also argues that the judge abused her discretion in excluding from evidence certain e-mails between the parties during the nisi period that ended on May 31, 2013. The father asserted that the e-mails contained the mother's admissions to having alienated the children from him during their marriage, and thus suggested that, despite her denials, she had continued to do so since that time. The mother objected on relevance grounds.
The judge then read all of the e-mails, heard argument from the father, and sustained the relevance objection. The judge reasoned that the e-mails primarily addressed problems that existed during the marriage. She also suggested that, having read the e-mails, she did not share the father's perception of their import. In light of the fact that the judge actually reviewed the e-mails and found them unpersuasive, we see no prejudice from their formal exclusion from evidence.
4. Cross-examination on 2016 incident. The father argues that the judge unduly restricted his ability to cross-examine the mother about the 2016 incident, thus violating his procedural due process rights. What we discern in the relevant portion of the transcript is the judge (1) sustaining an objection on the ground that a text about the incident from the parties' daughter was in evidence and spoke for itself, (2) sustaining a hearsay objection, and (3) sustaining objections to two questions that improperly asked the mother to speculate. None of these rulings was legally erroneous or an abuse of discretion.
5. Absence of expert testimony. The father claims that the judge decided she was "unable to find for [him] because he did not provide an expert to support his [parental] alienation claim." Toward the end of trial, the judge warned the father that, although he clearly believed that parental alienation had occurred, he had not yet proven that to be true. In her written decision, she said:
"Although the Father seeks custody of the parties' children based on what he perceives as the Mother's engaging in parental alienation, he failed to offer any expert witness to support his contention. As a result, this Court is unable to make the finding requested by the Father. Moreover, at this point in time, the children don't even want to see their father.
"Unfortunately, at this point, all the Court can do is order the Father and the children to attend therapy in the hope that their relationship will begin to heal. Since the Court cannot make a finding with respect to parental alienation, the Court can similarly not order that the therapist be well-versed in parental alienation."
We do not understand the judge to have ruled that expert testimony is always required to prove parental alienation. Rather, she appears to have concluded that, in this particular case, the father's own testimony did not by itself persuade her that parental alienation was occurring, and he had offered no expert evidence to bolster his case. This was a credibility determination the judge was entitled to make. See Okoli v. Okoli (No. 1), 81 Mass. App. Ct. 371, 379 (2012). It in no way indicates, as the father claims on appeal, that the judge "completely ignored [his] case." Moreover, the judge's rejection of the father's request for sole physical and legal custody was based not simply on the absence of a finding of parental alienation by the mother, but also on the fact that "at this point in time, the children don't even want to see their father," so that the most that could be done in the circumstances was to order therapy to attempt to heal the father's relationship with the children.
The father points out that although a younger child's preference as to custody is "one of the many permissible factors to be considered, [it] ‘is not given decisive weight.’ " Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996), quoting Bak, 24 Mass. App. Ct. at 617. This may be particularly so where "custody is hotly disputed." Ardizoni, supra. Here, however, the children were fourteen and almost seventeen years old at the time of the May 2018 trial. And the judge was called on not to decide the custody question de novo but instead to decide whether to modify the existing custody arrangement (joint legal custody and primary physical custody in the mother) dramatically in favor of the father (who sought sole legal and physical custody) or slightly in favor of the mother (who sought to change the parenting plan "consistent with the children's age and preference," coupled with an order for father-children therapy). The judge did not abuse her discretion in giving the children's preference nondispositive weight: she did not transfer custody to the father, but she did order joint therapy despite the children's preference not to see him. We note that although the daughter is now eighteen years old, the parties have not addressed how this affects the issues to be decided on appeal, and so we do not discuss it.
6. Adequacy of findings. We reject the father's argument that the judge took away his parental rights without making adequate findings. First, we do not agree with the father's premise that he has been deprived of his parental rights. The judge did not disturb the divorce judgment giving the father joint legal custody; she merely terminated his planned parenting time until he completed ten therapy sessions with each of the children. Although the father asserts that he has no recourse if the children refuse to attend these sessions, we see nothing barring him from filing a complaint for further modification on the ground that such refusal is a "material and substantial change in the circumstances" existing or anticipated at the time of the modification judgment now before us, and that a further "modification is necessary in the best interests of the children." G. L. c. 208, § 28.
We of course express no view about the merits of any complaint for further modification the father might file.
Second, the judge's findings were sufficient to support the limited modification judgment entered here. The judge was not required to make findings on each issue raised in the father's 234 minutely detailed proposed findings of fact. Notably, although the judge plainly did not wholly accept the father's version of key events, neither did she make any finding that the mother's version was wholly accurate. Rather, her findings recognized that the parties' versions differed. She could reasonably have concluded that instead of radically altering custody as the father requested, which might have required her to make more detailed findings resolving the parties' many disputes as to past events, the best course was to look ahead, by ordering therapy aimed at healing the father's relationship with the children.
Similarly, the judge commented at trial that the parties' issues with their children existed and should have been addressed to a greater extent before the divorce, "[a]nd I don't say that to blame either one of you." She added that the children appeared to be on a dangerous course: "I will say that to both of you."
7. Weighing of relevant factors. The father's final argument is that the judge abused her discretion by failing to weigh what the father asserts are certain relevant factors. Most of the factors to which the father refers concern his challenges to the mother's credibility. As we explained supra, that the judge did not make findings on each of these issues does not mean that she entirely credited the mother's testimony -- but in any event she was not required to choose between the parties' versions in order to enter the limited modification judgment challenged here. To the extent that she implicitly credited the mother, that was within the judge's exclusive province as the fact finder, and we will not disturb her determination. See Okoli, 81 Mass. App. Ct. at 379.
The father argues that the department found the mother and children not credible, that she unsuccessfully worked with the daughter to deceive the police, that she committed perjury in her 2016 affidavits, and that she lied to the department about another judge's ruling.
Another factor the father claims the judge ignored was the mother's two admitted violations of the parties' agreement, as merged in the divorce judgment. The mother admitted doing so in 2015 (by keeping their son with her one night during the father's scheduled parenting time) and in 2017 (by enrolling their son in an athletic program without consulting the father). The judge was not required, however, to view these violations as so serious as to warrant granting the father's request for sole legal and physical custody. See Bak, 24 Mass. App. Ct. at 616 (judge must settle custody in manner that advances best interests of children, a subject particularly within judge's discretion).
The father also argues that the mother violated the divorce judgment by making medical decisions for their daughter without timely notification to him. The mother did not admit that her actions were a violation, nor, after reviewing the relevant provision of the divorce judgment, is any violation clear to us.
Nor does it appear that the father sought any more limited relief aimed specifically at ensuring future compliance with the divorce judgment.
The father also argues that the judge ignored what he asserts is the mother's prioritization of "harming the father/child relationship over the best interest[s] of the children." To the extent that the judge's rejection of the father's request for sole legal and physical custody embodies an implicit finding that the mother did not engage in such prioritization, that finding was not clearly erroneous. The same is true of the father's argument that the judge ignored that "joint custody will not work." Moreover, both determinations -- regarding the mother's priorities and whether joint custody should be altered -- involve the judge's discretionary assessment of the best interests of the children. See Bak, 24 Mass. App. Ct. at 616. We are not persuaded of any abuse of discretion in her decision.
A judge's factual findings will "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass. R. Dom. Rel. P. 52 (a). "A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Barboza v. McLeod, 447 Mass. 468, 469 (2006), quoting Marlow v. New Bedford, 369 Mass. 501, 508 (1976).
We conclude, however, that the father's appeal is not frivolous, and we therefore deny the mother's request for appellate attorney's fees and double costs.
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Modification judgment affirmed.
Judgment dismissing amended counterclaim affirmed.