Opinion
10-P-2146
12-06-2011
NANCY P. SMITH v. STEPHEN L. SMITH
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from so much of a judgment of the Probate and Family Court as modified the child visitation provisions of the divorce judgment. On appeal, the father contends that the judge, in error, failed to make several critical findings. Specifically, the father argues that the judge failed to find there existed a 'substantial change in circumstances' warranting a modification of the divorce judgment, that no such change occurred, and, finally, that the judge failed to make a determination that the modification was in the best interest of the child. We vacate the custody modification in the judgment and remand the case for further proceedings.
Background. The child at issue was adopted by the parties from Russia when he was fifteen months old. At the time of the relevant trial, he was thirteen years old. The original divorce judgment granted the parties joint legal and physical custody and, in addition, implemented what the modification judge called an 'out of the ordinary' parenting plan. The rationale for this unique custody arrangement took heed of the parents' work schedules (the mother was a registered nurse and the father an independent fisherman), and specifically articulated that the parties, with the agreement of the attorney for the child, could 'seek to review the parenting schedule as circumstances require.' Proceeding pro se, the mother thereafter made several attempts to change the aforementioned parenting schedule to give the mother more weekend hours with her son. In the complaint for modification at issue here, the mother alleged that her increased work schedule, notably her addition of Friday as a work day, and the child's increased involvement in extracurricular activities had substantially diminished the amount of quality time available with her son. The mother therefore sought a modification, with the approval of the child's attorney, increasing her weekend time with the son. The court appointed a GAL to advise on the matter. While noting the acrimony between the parties concerning parenting issues, the GAL recognized the child was well-adapted to the current parenting schedule and ultimately recommended said schedule to remain intact. After a trial, at which both parties were represented by counsel, the judge modified the parenting schedule to provide the mother with alternating weekends with her son, but left unchanged the total hours of time the child would spend with each parent.
The judge who originally ordered this parenting schedule retired prior to the hearing on the modification at issue. The original plan, which granted the mother custody from Tuesday at 7 P. M. until Saturday at 3 P. M., and thereby granted the father custody from Saturday at 3 P. M. until Tuesday at 7 P. M., was found by the modification judge to 'deprive the Mother of virtually any weekend parenting time with her son.'
The mother's claim that such a change existed because she added a fourth work day (Friday) to her schedule, carries with it a change in her employment to be nearer to her home and the child's school and which also allows her to leave work earlier at the end of her work days. The record suggests that this change in work schedule was contemplated at the time of the divorce and had taken place even prior to the last attempt by the mother to persuade the original judge to reconsider the parenting schedule he had ordered.
The father makes no contentions on appeal with respect to additional issues concerning the mother's health insurance that the modification judgment addressed.
Analysis. 'General Laws c. 208, § 28, provides that a judge of the Probate and Family Court may modify an earlier divorce judgment concerning the custody of a minor child on finding '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." J.F. v. J.F., 72 Mass. App. Ct. 782, 790 (2008). '[T]he change in circumstances must be 'of sufficient magnitude . . . [so that the change in visitation] will be conducive to the welfare of the [children]." R.S. v. M.P., 72 Mass. App. Ct. 798, 803 n.9 (2008), quoting from Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262 (2001). The judge's findings in a custody case 'must stand unless they are plainly wrong,' Rosenberg v. Merida, 428 Mass. 182, 191 (1998), or 'clearly erroneous.' Mason v. Coleman, 447 Mass. 177, 186 (2006). Compare Rolde v. Rolde, 12 Mass. App. Ct. 398, 401 (1981) ('It is well settled that a judgment awarding alimony or a division of marital property which is supported by findings necessary to sustain it will not be set aside unless those findings are plainly wrong') (citations omitted). Nevertheless, an award of custody will not be sustained 'unless all relevant factors in determining the best interests of the child have been weighed.' Rosenberg v. Merida, supra, quoting from Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981).
The memorandum of decision and rationale noted that the 'constant bickering between the parents continue[s] to leave [the son] in the unenviable position of having to please the parents, and this cannot be good, in the long run, for the child.' Although consideration of the child's best interests was implicit in the judge's findings, the judge's reasoning does not permit us to infer that he made the findings necessary to support his decision to modify the parenting schedule.
With regard to the original custody plan, the modification judge wrote, inter alia, that 'it was actually a bold attempt on the [original] judge's part since it did deprive the Mother of virtually any weekend parenting time with her son. Indeed, in this undersigned judge's sixteen (16) years on the bench he cannot recall any case wherein a parenting plan was ordered that did not give the primary care parent virtually any time on the weekend with the child. . . . Therefore, in an effort to alleviate the bickering and the unhappiness of the parents, and particularly the Mother, this Court has now decided to issue a parenting plan that does provide weekend time for the Mother, and for the Father as well. This seems to be a more balanced and fair schedule than what was previously ordered.'
Because he did not make specific or detailed findings of fact sufficient to support the conclusion that the requisite change in circumstances 'of sufficient magnitude' had occurred, we are unable to infer that the judge was warranted in modifying the original divorce judgment. See Rosenberg v. Merida, 428 Mass. at 191 (judgment vacated and remanded for further proceedings upon judge's failure to make detailed findings); Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 741 (1996) (same).
The paragraphs numbered '1' and '2' in the March 22, 2010, consolidated judgment on the complaints for modification are vacated, and the matter of the custody plan is remanded to the Probate Court for further proceedings in accordance with this memorandum and order. The custody arrangement set forth in the March 22, 2010, judgment shall remain in effect pending those proceedings or until further order of the Probate Court. We retain jurisdiction for review following remand proceedings.
This is in order to lessen disruption to the child during the proceedings on remand; we intend no suggestion as to how the final disposition of the case should be decided.
So ordered.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),