Opinion
15-P-516
02-19-2016
J. GRAHAM ZAHORUIKO v. MARCELLA LEE REGAL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
J. Graham Zahoruiko (father), the former husband of Marcella Regal (mother), purports to appeal from a judgment of the Probate and Family Court which modifies the parties' custodial arrangement and parenting plan. Although there is some question whether the father's notice of appeal has application to the judgment in issue, even if we were to assume that it does, we would not disturb the judgment.
1. Background. The parties were divorced in February, 2010, by a judgment of divorce nisi incorporating a separation agreement of the parties that survived the judgment as an independent contract, except for those provisions pertaining to the parties' children. The agreement provides, for purposes relevant here, that the parties were to have joint legal and shared physical custody of the two minor children of the marriage. Specifically, the parties agreed to a parenting schedule whereby they would essentially alternate primary responsibility for the children on weekdays and weekends. At the same time, the parties agreed to try to arrange their time with the children so as to "interfere as little as possible with [the children's] schooling and extracurricular activities." The agreement provides that the parties were to reside within thirty miles of each other within central Massachusetts. Any change to the parenting plan was to be discussed by the parties ahead of time and the parties agreed to renegotiate the parenting arrangements contained in the agreement if either party moved outside of central Massachusetts.
The parties' son was born in February, 2000; their daughter was born in July, 2004.
The agreement provides that the mother shall be primarily responsible for the children every Monday from 8:30 A.M. through Tuesday until 8:30 A.M. and Wednesday from 8:30 A.M. through Thursday until 8:30 A.M. In addition, the mother was to be primarily responsible for the children every other weekend, from Friday 8:30 A.M. until Monday 8:30 A.M. The father was to be primarily responsible for the children every Tuesday from 8:30 A.M. through Wednesday until 8:30 A.M. and every Thursday from 8:30 A.M. through Friday until 8:30 A.M. As we have indicated, the father was to alternate weekends with the children.
In April, 2014, the father filed a complaint for modification seeking a reduction in his child support obligation. The mother filed a counterclaim for modification alleging that the father had purchased a home in an adjacent State and planned on moving to that home in the near future, that there was a "considerable distance" between the father's current residence and his new home, and that the move "would be very disruptive to the children during his current parenting time schedule." The mother requested that the father's parenting time be modified to reflect his change in residence and the best interests of the children.
After a trial in August, 2014, on the father's complaint and the mother's counterclaim, the judge found that from February, 2010, until June, 2014, the parties lived in Grafton, Massachusetts, less than two miles apart. In June, 2014, the father moved to Tolland, Connecticut with his fiancée, over forty-five road miles from the mother's residence in Grafton. Despite the terms of the parties' agreement, the father refused to discuss a revised parenting plan in contemplation of the move.
At trial the mother proposed a parenting schedule where the children would remain with her on weekdays and the parties would alternate weekends with the children. The father requested that the parenting schedule be left "exactly as is." We shall discuss other aspects of the parties' testimony, infra.
Continuing, the judge found that the negotiated words of the parties' agreement had meaning, and that the father's move to Connecticut and his refusal to consider a revised parenting plan was a material and substantial change in circumstances that justified modification of the custody arrangement. The judge noted that the children resided in Grafton, their school enrollment was in Grafton, their friends were in Grafton, and their extracurricular activities were in Grafton. The judge found that it was not in the children's best interest to commute from Connecticut to Massachusetts under the prior shared parenting schedule. In the judge's view, the road miles required too much unnecessary time in an automobile on a school night and the father, not the children, should make the commute.
By a judgment of modification dated December 16, 2014, the mother was given physical custody of the children, with the parties continuing to share legal custody. The father was awarded parenting time on alternating weekends from Friday after school to Monday morning at school, and on "the Thursday before and the Tuesday after [the] mother's weekend from 4 P.M. to 7 P.M." In addition, the father was to have four nonconsecutive weeks of summer vacation with the children, and parenting time on certain holidays and other vacation days. The husband has appealed.
The judgment of modification also contains provisions concerning child support, which are not a subject of this appeal.
2. Discussion. At the outset, we address the mother's argument that the judgment of modification is not before us because the father failed to appeal from it.
The docket entries indicate that the judgment (dated December 16, 2014) on the mother's counterclaim for modification was entered on the docket on December 18, 2014. On December 22, 2014, the father appears to have filed a motion for new trial or, in the alternative, for alteration or amendment of judgment. That motion was denied on January 8, 2015, and the denial was entered on the docket on January 9, 2015. The docket entries also indicate that the father was adjudged in contempt on January 8, 2015, for failure to comply with the judgment of modification dated December 16, 2014, and that the contempt judgment was docketed on January 9, 2015.
Although the filing of the motion is not reflected on the docket, the Probate Court date stamp on the motion indicates that it was received by the register's office on December 22, 2014.
On January 9, 2015, the father filed a notice of appeal stating that he was appealing "from the final judgment which was entered against him on January 8, 2015." The docket entries recite that on January 9, 2015, the father filed a notice of appeal from the judgment of modification dated December 16, 2014, after denial of the motion for new trial, or in the alternative to alter or amend judgment dated January 8, 2015.
At the top of the notice of appeal is a handwritten notation which recites the name of the probate judge in the matter, under which is written: "J. on mod 12/16/14 after denial of mot. for new trial/amend. 01/08/15 01/09/15." It is not clear who made the notation or when it was made.
The mother argues that pursuant to Mass.R.A.P. 3(c), as appearing in 430 Mass. 1602 (1999), a party must designate the judgment from which he or she is appealing. Here, she states, although the father claimed an appeal from the final judgment entered against him on January 8, 2015, no judgment was entered on the docket on that date. The only "judgment" that issued against the father in that time frame, the mother asserts, was the judgment of contempt dated January 8, 2015 -- a judgment that is not argued by the father in his brief. The mother argues that because the father failed to appeal from the judgment of modification, the judgment is not subject to appellate review and the father's appeal must be dismissed.
While the mother's argument is not without appeal, we are reluctant to conclude that the judgment of modification is not before us for review. While the father's notice of appeal should have designated specifically the judgment of modification, it is possible that the father had in mind that the judgment of modification was not appealable until the disposition of his postjudgment motion (assuming that that motion was timely made). See Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). Moreover, there remains the cryptic notation on the notice of appeal referencing the judgment of modification, and the entry on the docket indicating that the father was appealing from that judgment.
We turn to the father's substantive arguments. General Laws c. 208, § 28, as amended by St. 1993, c. 460, § 61, provides, in part: "Upon a complaint [filed] after a divorce . . . the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds 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." Indeed, we have stated that "[t]he best interests of a child is the overarching principle that governs custody disputes in the Commonwealth." Charara v. Yatim, 78 Mass. App. Ct. 325, 334 (2010) (noting also that "no case has set forth a definitive list of criteria that must be considered in determining what is in a child's best interest"). "The appellate court reviews the trial judge's determination of a child's best interests for clear error of fact finding and abuse of discretion." Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 486 (2012). See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015) ("[I]n reviewing the ultimate determination on custody and visitation, we consider whether there was an abuse of discretion in how the judge accounted for the child's best interests"). "[A] judge's discretionary decision constitutes an abuse of discretion where [the reviewing court] conclude[s] the judge made 'a clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted).
The father argues that the judge committed legal error by failing to make findings (or adequate findings) of fact. He also asserts that the judge erred in determining that his "move" was a sufficient change in circumstances to warrant a change in physical custody and the reduction in his parenting time. In addition, the father seems to argue that the judge failed to consider adequately whether the modification judgment is in the best interests of the parties' children.
While the father also makes reference in his brief to G. L. c. 208, § 30 (removal of children from the Commonwealth), there is no indication that either the parties or the judge proceeded at trial under that statute.
The judge's findings, although not labeled as such, are included in her rationale for decision. See Haas v. Puchalski, 9 Mass. App. Ct. 555, 556 n.5 (1980). While those findings are not voluminous, we think they set out adequately the basis for the judge's decision to modify the physical custody award and the parties' parenting plan and reflect consideration of relevant factors.
The judge found initially that the parties negotiated a shared parenting plan with the view that they would reside within thirty miles of each other within central Massachusetts, and that they contemplated a scenario that would be followed if one of them moved outside the close vicinity of the other (i.e., they would discuss/renegotiate the parenting plan). See Bercume v. Bercume, 428 Mass. 635, 644 (1999) (even when an agreement does not survive with independent significance, "it is nevertheless appropriate for a judge to take heed of the parties' own attempts to negotiate terms mutually acceptable to them"). While the judge found that the father refused to discuss a revised parenting plan, a proper consideration, there is nothing in the judge's rationale to indicate that the judge modified custody and the parties' parenting plan simply to discipline the father for his shortcomings. See Charara, 78 Mass. App. Ct. at 335, citing Hersey v. Hersey, 271 Mass. 545, 555 (1930) ("parental fault does not override child's best interest"); El Chaar v. Chehab, 78 Mass. App. Ct. 501, 507 (2010), quoting from Murphy v. Murphy, 380 Mass. 454, 462 (1980) ("[W]hile removal of a child without court authorization or parental consent is a relevant consideration, the child is 'not chargeable with the misconduct of her mother . . . and ought not to be compelled to suffer for it. Her welfare is the paramount consideration'"). Rather, it is apparent that the judge grounded her decision in the present case on the best interests of the parties' children. The judge found that the children's lives centered around the town of Grafton, where their mother resided, and that it was not in the best interests of the children to commute from Connecticut to Massachusetts under the prior shared parenting schedule. See Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000) (duty of judge to consider welfare of children "in reference not merely to the present, but also to the probable future"). The judge stated that the road miles require too much unnecessary time in an automobile on a school night. In short, the judge determined (at least implicitly) that the continued implementation of the shared parenting plan would be burdensome and disruptive for the children and would not be in their best interests. In the circumstances presented, and giving due deference to the judge's custody determination, see L.L., 470 Mass. at 185 n.27; Prenaveau, 81 Mass. App. Ct. at 486, we fail to discern either legal error or an abuse of discretion in the judge's decision to modify the parenting plan and the physical custody of the children.
At the time of trial on August 25, 2014, the parties' son had just started school in Upton, Massachusetts. We take judicial notice that Upton is close to Grafton. The parties' daughter had not yet begun her classes at an elementary school in Grafton. The father testified that as a result of his move to Connecticut, the children, while in his primary care, will be required to get up at 6:00 A.M. The father acknowledged that this will require the parties' daughter to get up "a little bit earlier than she maybe would have before." The father stated that he would then drive approximately fifty minutes to his son's school where he would drop his son off at about 7:25 A.M. The father anticipated that he would then drive some eight to fifteen minutes to his daughter's school and sit with his daughter in his car for a period of time prior to dropping her off before the commencement of her school day at 8:20 A.M. We note that by the father's own testimony the parties' daughter would be required to get up almost two and one-half hours before the commencement of her school day and, assuming no delays on the road, would spend roughly one and one-half hours in the father's car before school. There would also be travel time for the children, when they are in the father's primary care, upon their return to Connecticut.
In contrast, the mother testified that when the parties' son is in her primary care, he leaves her house at 7:00 A.M. to take the bus and "probably" gets to school at about 7:15 A.M. The son returns home at 2:30 or 2:45 P.M. The mother further testified that beginning in September, 2014, the parties' daughter will take a school bus from a stop that is a five minute walk from the mother's house. The mother also testified that the parties' son intends to participate in extracurricular activities after school.
We also perceive no reason to disturb the judgment of modification based on the father's argument that the judge should have heard the children's "wishes" concerning their time with him either through an in chambers interview (the father filed a pretrial motion to allow the parties' son to meet privately with the judge, and made reference to the motion at trial) or through a probation investigation in which the children would be interviewed. In this case, among other things, the parties' ten year old daughter had not yet begun her school year or been meaningfully subjected to the full school day commute. Moreover, the mother acknowledged that the parties' son would like the parties' parenting schedule to remain the same, but noted that the son had only recently begun the school year commute with the father.
Finally, we address the mother's requests for attorney's fees and double costs pursuant to Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), and G. L. c. 211A, § 15. While we find the father's arguments unpersuasive, we do not think sanctions are warranted. See Avery v. Steele, 414 Mass. 450, 455 (1993). Accordingly, we decline to exercise our discretion to award attorney's fees and double costs. See Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 329-330 (1997).
The judgment of modification dated December 16, 2014, is affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 19, 2016.