Opinion
21-P-259
03-22-2022
Ashley Ellen STROM v. Kevin WAKEFIELD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties, Ashley Ellen Strom (mother) and Kevin Wakefield (father), who are not married to each other, are the parents of one child. The mother appeals from a judgment of modification issued by a Probate and Family Court judge on July 15, 2020 (modification judgment), which expanded the mother's parenting time but denied her requests for primary physical custody and joint legal custody of the child. We affirm.
The mother's notice of appeal also appears to identify a July 15, 2020 judgment of contempt that adjudicated the father guilty of contempt for failing to allow the mother to have parenting time on certain dates. The arguments in the mother's brief, however, relate only to the modification judgment. Any arguments pertaining to the contempt judgment are thus waived.
Background. The Probate and Family Court issued a paternity judgment in April 2012, which was later modified by agreement of the parties. The agreement, which was incorporated into a judgment dated April 23, 2019, provided that the father would have sole legal and physical custody of the child and that the mother would have parenting time.
In July 2019 the father filed a complaint for modification seeking to suspend the mother's parenting time. The mother filed a counterclaim for modification seeking physical custody and joint legal custody of the child. The mother alleged as changed circumstances that the father had "attempted to withhold the child" from her and that the father had failed to "provide adequate care for the child." When she filed the counterclaim, the mother was living in New York, while the father was living in Massachusetts.
A one-day trial was held in June 2020. One of the central disputed issues was the mother's allegation that the child was living not with the father, but with Margaret Sheldon, a non-relative. Four witnesses testified: the father (who appeared pro se), the mother (who was represented by counsel), Sheldon, and Mike Chapdelaine, a private investigator hired by the mother to determine where the child was living during the father's parenting time.
On July 15, 2020, the judge issued the modification judgment and a separate rationale, concluding that the mother had "not provide[d] sufficient evidence to support a change in custody," but had "shown a material and substantial change in circumstances to support [a] modification of the parenting schedule." The judge thus ordered that the mother receive additional parenting time. In September 2020, after the mother appealed, the judge issued findings of fact and an additional rationale in support of the modification judgment. Observing that the mother's request for physical custody was functionally a request to remove the child from the Commonwealth, the judge concluded that removal was not in the child's best interests. The judge also declined to credit Chapdelaine's opinion that the child was living with Sheldon, and not with the father.
Discussion. "We review the judgment and the subsidiary findings of fact for abuse of discretion or other error of law." Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). "A trial judge's findings of fact will not be set aside unless clearly erroneous." Id. We "give due regard to the judge's assessment and determination of credibility of the witnesses in making such findings." Id.
We note that the mother has failed to include several necessary documents in the record appendix, including the modification judgment from which she appeals. An appellant has the duty to provide an adequate record appendix. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007). Nonetheless, we will address the mother's arguments, exercising our discretion to look beyond the appendix and consider the missing documents that are part of the record below. See id.
The mother first challenges as clearly erroneous the judge's finding that the child was living with the father. In support the mother relies on Chapdelaine's testimony that he conducted around fifty hours of surveillance and observed the child in Sheldon's "custody" "more than half a dozen times"; based on this, he opined that the child was living with Sheldon, not with the father. The judge, however, did not credit these portions of Chapdelaine's testimony because they contradicted his written report, in which he stated that he observed the child six times at three different locations with Sheldon, the father, and an unidentified man (rather than six times in Sheldon's custody). The judge also found that the mother offered no other "credible evidence" that the child was not living with the father.
The mother's challenge to these subsidiary findings is, in essence, an argument that the judge erred in assessing the credibility of the witnesses. Witness credibility, however, "is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings." Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). We see no reason to disturb the judge's credibility determinations here. Accordingly, the mother has failed to establish that the judge's finding regarding the child's residence was clearly erroneous. See Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992).
The mother next argues that the judge abused her discretion by denying the mother's request for primary physical custody and shared legal custody of the child. As the parent seeking to modify custody, the mother had the burden of "establish[ing] that a material and substantial change in circumstance has occurred to warrant a change in custody, and that the change is in the child's best interests." E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020). Moreover, where, as here, a noncustodial parent seeks to remove the child from the Commonwealth, "the judge must ... conduct an analysis that includes consideration of whether the parent's initial move was motivated by a desire to deprive the other parent of time with the child, and the current advantages of the out-of-State residence to the parent seeking custody." Id. at 410. If the "out-of-State parent has demonstrated a good, sincere reason ... for the move, the best interest of the child analysis begins and includes the impact of the move on each parent and the resultant effect on the child" (quotation and citation omitted). Id. at 411.
In this case the judge made numerous subsidiary findings supporting her ultimate conclusion that the mother failed to justify a change in custody and removal of the child to New York. Initially, the judge determined that the mother failed to articulate "her reasons for relocating to New York" and failed to present any evidence of a real advantage to be gained from the move. The judge found that the mother was "currently unemployed in New York." The judge further noted that the mother offered no evidence that she had friends or family in New York, that she derived "any social or emotional benefits" from living in New York, or that she had any "root[s] in her community in New York."
Although the mother failed to make the threshold showing of a "good, sincere reason ... for the move" (quotation and citation omitted), E.K., 97 Mass. App. Ct. at 411, the judge nevertheless went on to address the best interests of the child. On that issue the judge found, among other things, that the mother was not meeting the child's health and hygiene needs, failed to adequately investigate educational opportunities and health resources for the child in New York, and generally failed to show how "[the child's] life would be enhanced by a move to New York." In addition, the judge found that removal would "damage" the child's relationship with the father and would have a "likely adverse impact on [the child's] life."
These findings were based on the mother's testimony that she allows the child to bathe only once per week, her inability to recall the names of the child's prescription medications, and her stated belief that the child does not need those medications.
The judge's detailed and careful findings reflect that she addressed all the factors relevant to a noncustodial parent's request for removal. See E.K., 97 Mass. App. Ct. at 410-412. Although the mother argues that she is in a "better position" to have physical custody of the child, that argument amounts to a disagreement with the judge's assessment of the weight and credibility of the evidence, which we will not disturb. See Johnston, 38 Mass. App. Ct. at 536. As the judge's findings are supported by the record, she was within her discretion to conclude that a change in custody and removal to New York would not be in the child's best interests.
Judgments affirmed.