Opinion
13-P-920
02-27-2015
SOFIA ZANZARELLA v. STEPHEN BURRELL.
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
The defendant has appealed from a judgment on a complaint for custody, support, and visitation entered on the docket on August 1, 2012. In pertinent part, the judgment (1) awarded sole legal and physical custody of the child to the mother; (2) allowed the father one hour supervised visitation per week; (3) contemplated the possibility of increased visitation without court intervention in the future, should it be recommended by the child's therapist; (4) ordered weekly telephone contact by the father with the child; and (5) ordered the father to pay child support of $108 weekly. The judgment was entered after a trial in which both parties were represented by counsel. Among other things, the trial included the examination (and cross-examination) of the guardian ad litem (GAL).
Now proceeding pro se, the defendant raises four issues on appeal. First, he contends that his ability to prosecute this appeal has been impeded by the denial of his motion to receive a copy of the GAL's report. As an initial matter we note that the judge's April 23, 2014, order is not properly before us; the defendant's notice of appeal is from the August 1, 2012, judgment. Second, even were we to consider the judge's order, the defendant has failed to show that the judge abused his discretion in entering it. The judge based the order on the sensitive nature of the report's contents and the fact that original documents previously had "vanished" from the Probate and Family Court file. Furthermore, the defendant has failed to show how his appellate rights have been impeded: the order does not preclude the defendant from reviewing the GAL report in the register's office, or from taking notes from it, and the transcript of the trial makes clear the major areas of substance of the report.
We have on our own initiative obtained the GAL report from the trial court, and have reviewed it carefully in connection with this appeal.
Second, the defendant argues that the judge erred in allowing the clerk, with whom the defendant has a negative relationship, to participate in the proceedings. As an initial matter, the issue is not preserved; the record does not show that the issue was raised below. Second, there is nothing in the record to support the substance of the defendant's argument, as it contains nothing reflecting the existence of the alleged relationship.
The defendant contends that the clerk had an intimate relationship with one of the defendant's former relatives by marriage.
Third, the defendant contends that the judge should not have allowed the GAL to offer an opinion as a category F GAL. The defendant's argument is made without record citation. However, our own review of the record shows (1) that the GAL was appointed as a category E GAL, not a category F; and (2) that when the GAL was asked to offer an opinion within the ambit of a category F GAL, the judge sustained the objection.
Finally, the defendant argues that the GAL should not have been allowed to testify to hearsay in her report. However, GAL reports may contain hearsay where, as here, the GAL is available to testify at trial and the source of the material is sufficiently identifiable that the affected party may rebut it. See Gilmore v. Gilmore, 369 Mass. 598, 605 (1976); Adoption of Georgia, 433 Mass. 62, 68-69 (2000); Guardianship of Pollard, 54 Mass. App. Ct. 318, 323-324 (2002). Here, the source of each hearsay statement was clearly identified at trial, and the defendant's counsel skillfully brought out the biases of the sources of each statement, together with the fact that the information was not otherwise corroborated. It was for the judge to determine what weight to give the hearsay evidence.
The argument was preserved in one instance, but not in the others.
The plaintiff's request for appellate attorney's fees is denied.
Judgment affirmed.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 27, 2015.