Opinion
14-P-571
01-08-2015
LORI J. WEISSBERG v. MARIANNE F. LEAHY.
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
Marianne Leahy appeals from the November 17, 2010, judgment on Lori Weissberg's May 7, 2010, modification complaint and her own June 18, 2010, modification complaint. On appeal, Leahy raises a variety of claims. We affirm.
On February 9, 2010, the parties entered into a separation agreement, which was incorporated into the divorce judgment, with the provisions related to the children merging into the judgment. The judgment of divorce nisi issued on the same date.
The parties have three children. At the time of trial, two of the children lived with Leahy and their custody was not in dispute. The third child, Michael, lived primarily with Weissberg, with the parties sharing legal and physical custody of him. On May 7, 2010, Weissberg filed a complaint for modification seeking sole legal and physical custody of Michael. On June 18, 2010, Leahy filed a complaint for modification seeking an increase in child support. The trial was held on November 2, 2010. Both parties testified and numerous exhibits were introduced in evidence.
In the November 17, 2010, judgment, the judge awarded Weissberg sole legal and physical custody of Michael and increased the child support due from Weissberg to Leahy to $109 per week. He further ordered Leahy to pay Weissberg $1,000 in attorney's fees for her failure to appear for trial, which was originally scheduled for October 4, 2010.
Although Leahy raises numerous issues with respect to different court decisions, the only appeal that is before us is her appeal from the November 17, 2010, judgment. As a starting point, we note that Leahy's record appendix is inadequate: it does not include the separation agreement, the divorce judgment, Leahy's financial statements, the child support worksheet, many of the exhibits entered in evidence at trial, or the judge's rationale. See Cameron v. Carelli, 39 Mass. App. Ct. 81, 83-84 (1995). See also Mass.R.A.P. 18, as amended, 428 Mass. 1601 (1998). The fact that Leahy is proceeding pro se on appeal does not excuse her noncompliance with the rules of appellate procedure. A pro se party "is held to the same standards as litigants who are represented by counsel." Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996).
In a single sentence in her statement of the case, Leahy alleges that "[t]he judgment submitted and signed by" the judge and the rationale submitted by Weissberg "read almost verbatim." This sentence does not constitute reasoned appellate argument pursuant to Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and also fails for the reason that Leahy did not include Weissberg's proposed rationale in the record appendix.
Leahy raises no separate argument regarding the denial of her motion for a new trial.
Both parties have proceeded pro se on appeal.
It is far from clear that the issues of custody of Michael and the proper amount of child support are before us as they are not identified in Leahy's detailed notice of appeal. Even if the issues are properly before us, "[o]ur review recognizes that, in fashioning an appropriate modification judgment, the probate judge enjoys considerable discretion, and the judgment will not be reversed unless it is 'plainly wrong.'" Cooper v. Cooper, 62 Mass. App. Ct. 130, 134 (2004), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981).
Relative to custody, this is not an issue that Leahy properly raised in her appellate brief, as she devoted only two sentences to it in the conclusion section: "I ask of the courts to give custody of my son Michael Leahy back to me. It has been four years." The above does not constitute reasoned appellate argument supported by relevant legal authorities. See Cameron v. Carelli, supra at 85-86. See also Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Even if the issue were before us, we would conclude, based on our review of the record, that the judge's findings of fact are not clearly erroneous and he did not abuse his discretion in concluding that Leahy's actions toward Michael (since the time of the divorce) were inappropriate, detrimental, and not in his best interest, and that these actions, together with the high level of conflict between the parties, called for awarding sole legal and physical custody of Michael to Weissberg. See Custody of Zia, 50 Mass. App. Ct. 237, 245 (2000), and cases cited (the findings must stand unless they are clearly erroneous).
Leahy's challenge to the judge's child support determination also fails. "To be successful in an action to modify a judgment for . . . child support, the petitioner must demonstrate a material change of circumstances since the entry of the earlier judgment." Schuler v. Schuler, supra. "The change may be in the needs or the resources of the parties . . . or in their respective incomes." Downey v. Downey, 55 Mass. App. Ct. 812, 815 (2002), quoting from Fugere v. Fugere, 24 Mass. App. Ct. 758, 760 (1987).
As indicated above, Leahy did not include the separation agreement or the divorce judgment establishing the original child support amount, her own financial statements (filed at the time of the divorce and thereafter), her tax returns, or the child support guidelines worksheet. She also did not include many of the trial exhibits.
In any event, Leahy's claim on appeal is that Weissberg was not truthful with respect to her finances. However, this court is not equipped to resolve such questions. It was for the trial judge to evaluate the credibility of witnesses and the weight to be given to their testimony. See Custody of Eleanor, 414 Mass. 795, 799 (1993). The divorce judgment issued on February 9, 2010, and the modification trial was held less than nine months later on November 2, 2010. The judge, who has been the judge in the case from the start, discussed how the original child support amount was determined. He wrote that "[a] new amount has been established based upon the increase in income and the cost of health insurance reflected in Ms. Weissberg's financial statement submitted on the day of the hearing, the increase in income on Ms. Leahy's financial statement due to rental income, and using the child support guidelines, similarly taking into consideration that Ms. Leahy is the primary custodian for Samantha and Brandon and Ms. Weissberg is the primary custodian of Michael." Based on the record before us, we cannot conclude that the judge abused his discretion in setting the new child support amount.
Judgment affirmed.
By the Court (Kantrowitz,
The panelists are listed in order of seniority.
--------
Clerk Entered: January 8, 2015.