Opinion
11-P-774
04-20-2012
ERIC WETTSTEIN v. ZAHRA FATHI.
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 mother appeals from the October 20, 2010, judgment on the father's October 28, 2008, complaint for modification.
On June 23, 2008, the parties, represented by counsel, entered into a written agreement for judgment on three complaints under G. L. c. 209C. This agreement was incorporated into a judgment of the same date. The agreement contained provisions for sole legal and physical custody of the child to the mother, visitation rights for the father, and payment by the father of child support and maintenance of health insurance for the child.
The parents married in 1995, divorced in 2002 and had their child in 2006. 'Once paternity is established . . . the father, if not unfit, has a constitutionally protected right to parent and maintain a relationship with his child.' Smith v. McDonald, 458 Mass. 540, 544 (2010).
On October 28, 2008, the father filed a complaint for modification alleging that he was terminated from his employment, no longer had health insurance and had relocated to Florida. He sought a reduction in child support, change with respect to the child's medical insurance requirement until he is employed again and a change in the visitation schedule in light of his relocation. On December 10, 2009, the parties entered into a stipulation for entry of partial judgment, which addressed the amount of child support, child support arrears and future medical insurance for the child. Partial judgment on the modification entered on the same date.
The trial was held over three days between December 10, 2009, and March 20, 2010. The October 20, 2010, modification judgment changed the visitation schedule by eliminating twice-per-week daytime visitation, increasing monthly weekend visitation to two overnights and establishing two weeks of vacation visitation per year. The mother appealed.
Record appendix. The mother's record appendix is inadequate in several respects. First, it does not include the docket sheets. Secondly, while the record reflects the admission of thirty-seven trial exhibits, many of these exhibits are not included in the record appendix. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997); Cameron v. Carelli, 39 Mass. App. Ct. 81, 83- 84 (1995). On the other hand, the appendix includes materials that were not entered in evidence below and are not part of the record on appeal.
The mother's one-phrase reference to health insurance in the conclusion section of her brief does not constitute argument, let alone a reasoned appellate argument, and need not be addressed. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Cameron v. Carelli, 39 Mass. App. Ct. at 85-86.
Visitation schedule. The mother argues that the judge erred in finding the change in circumstances to be so substantial and material that it would be in the child's best interest to expand her overnight visitation with her father. The original judgment which issued prior to the father's relocation to Florida provided, in part, for one weekday daytime visit per week, one Sunday daytime visit and, eventually, a once-per-month overnight visit of less than twenty-four hours. The father's relocation to Florida made adherence to the original schedule impossible and constituted a material change of circumstances as a matter of law.
The record appendix includes the judgment, but not the findings. Even if the judge did not issue findings, see G. L.c. 209C, § 20, this would not require a reversal under the circumstances: where each party filed proposed judgments and rationales referencing the facts and the standards in question, and where many key elements of the father's proposed judgment found expression in the ultimate judgment, it is not unreasonable to assume that in issuing her judgment, the judge had in mind the father's proposed rationale.
The modification judgment provided, in part, for once-per-month weekend visitation from Friday to Sunday, a one-week visitation during April or February of each year at the father's home in Florida commencing in 2011, and a one-week summer visitation anywhere in the country commencing in 2011.
Because the noncustodial parent has 'an independent interest in continued, meaningful involvement with the upbringing of his or her child,' and contact with both parents benefits a child, the noncustodial parent is generally entitled to reasonable visitation. Smith v. McDonald, 458 Mass. at 551, quoting from Pizzino v. Miller, 67 Mass. App. Ct. 865, 871 (2006). 'A trial court's broad discretion to fashion an appropriate . . . visitation arrangement will not be disturbed on appeal unless clearly wrong.' Austin v. Austin, 62 Mass. App. Ct. 719, 722 (2004).
Here, the judge presided over a change in the visitation schedule during the two-year pendency of the father's modification complaint. She was familiar with the parties and issued a number of temporary orders in the case. The modification judgment eliminated the twice-per-week daytime visitation, expanded the monthly weekend visitation and provided for a gradual build-up to two separate week-long vacation visitations during the year. It appears, based on our review of the record, that the judge's considered approach to the issue of visitation was made with a view towards the child's best interests. We note that this conclusion contains an element of speculation forced upon us by the absence of any clearly articulated findings. While neither case law nor statute explicitly requires such articulation, it would have been far better practice for the judge to provide specific factual findings on which the child's best interests were determined, particularly in this case which involves a very young child, a significant change in visitation and a history of domestic violence.
While the mother conceded in the stipulation for the original judgment and again at the modification trial that it was appropriate for the father to have overnight visitation, she has continued to oppose visitations of more than one consecutive overnight. She points to evidence that the child cried upon return from the first overnight visitation and told her that she missed her. Such evidence does not constitute sufficient grounds for requiring visitation to be limited to less than twenty-four hours once per month. '[T]he judge could conclude reasonably that any disruptions from visitation were outweighed by the benefits to the child of developing a relationship with the father.' Smith v. McDonald, 458 Mass. at 552.
Despite this, she opposed visitation in her answer to the father's complaint for modification and in her pretrial memorandum.
Location of weekend visitation. The mother's challenge to the judge's allowance of overnight visitation in a hotel or at friends' houses fails for a number of reasons. Firstly, and most obviously, is that the father lives out of State; thus, prohibiting overnight visitation in a hotel or in friends' homes would prevent overnight visitation altogether. Secondly, in her proposed judgment, the mother herself stated that the visits she proposed 'shall take place at a hotel.' Thirdly, the mother's objection to the judge's allowance of overnight visitation at a home of one of the father's friends -- his former colleague who was convicted of vehicular homicide more than twenty years earlier -- fails because the judge heard the evidence, had the probation report which addressed this matter and could reasonably conclude that overnight visitation in that friend's house would not be detrimental to the child.
The judge also heard evidence of the extent of the father's visitation expenses, including hotel expenses. The mother sought payment of these expenses by the father and the judgment so provided.
Trips abroad. The original judgment provided that the mother was entitled to take the child on vacation, including overseas, for up to three consecutive weeks per year. In her proposed modification judgment, the mother stated, in part, 'Father must defer exclusively to Mother's decisions with respect to . . . Child's travel' and '[v]isitation may not be cancelled or changed, except in an emergency situation or scheduled yearly vacation.' The modification judgment, however, provided that '[n]either party may remove the child from the United States for a vacation or permanently without the other party's written permission or court order.'
No limitation was placed on the length of the yearly vacation.
The mother herself states that the lower court has a history of conducting evidentiary hearings on overseas travel for the child. Furthermore, where the mother has sole legal and physical custody, lost her job, remained unemployed at the time of trial, and sought the right to overseas travel of unspecified duration, the father's visitation rights could well be affected and the line between vacation and removal could become blurred. See Smith v. McDonald, 458 Mass. at 546 ('[W]hen a nonmarital child has two legal parents, the parent with custody may not move the child outside the Commonwealth without the permission of the other parent or of a court' [footnote omitted]). Under the circumstances, the judge did not abuse her discretion in requiring each party to seek permission from the other or from the court prior to overseas travel.
The mother is originally from Iran. The father's proposed judgment evidenced a concern about the child's permanent removal from the United States.
The mother's reference in her brief to her numerous relatives abroad (including two brothers, a nephew, and many extended family members), a history of traveling overseas with the child, and a prior history of the judges of the lower court permitting the child to accompany the mother overseas, does not support her challenge to the requirement that the parties seek permission for overseas travel.
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Lack of findings regarding domestic abuse predating the original judgment. The mother challenges the judge's failure to make findings regarding domestic abuse. Because there was no evidence of domestic abuse occurring between the time of the entry of the original judgment and the time of the modification judgment, the judge did not need to make any findings on the subject. See Loebel v. Loebel, 77 Mass. App. Ct. 740, 750 (2010) ('Changed circumstances are those that occur subsequent to the judgment of divorce or subsequent to a prior modification'), quoting from Pizzino v. Miller, 67 Mass. App. Ct. at 872. We note further that at trial the mother was challenging the visitation schedule, not the father's fitness for visitation.
Travel companions for out-of-State visitation with the father. The judgment also provided that '[t]he father or Marisol Gonzalez shall accompany the child on any out of state visits until either further court order or agreement of the parties.' Without intimating whether or not such a provision would be appropriate in the future, we agree with the mother that it should be struck from the present judgment because it was not requested or raised by the parties and because there was no evidence to support it at the time of trial.
So much of the October 20, 2010, modification judgment as allows Marisol Gonzalez, alone, to accompany the child for out- of-State visits with the father is vacated. The modification judgment is otherwise affirmed.
So ordered.
By the Court (Graham, Grainger & Hanlon, JJ.),