AMY P. RAWSTRON ROSENTHAL vs. PAUL S. MANEY

DUFFLY, J. A judge of the Probate and Family Court denied the request of the plaintiff, Amy P. Rawstron Rosenthal (mother), who had been adjudicated the primary custodial parent in an earlier divorce judgment, to relocate with the parties'

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minor child from the Commonwealth. In the same proceeding, the judge changed physical custody from the mother to the defendant, Paul S. Maney (father), pursuant to his request for modification of custody. From these judgments the mother appeals.

The mother claims that the change in custody was not, as is required by G. L. c. 208, s. 28, supported by a material and substantial change in the circumstances of the parties. She argues that neither a custodial parent's relocation, nor a temporary change in custody that was judicially imposed on the parties during the pendency of the proceedings, constitute changes warranting modification of a previously adjudicated custody arrangement. We agree. We also decide that the mother has established a "good, sincere" reason for moving to Rhode Island (to join her new husband, who is employed there), evidencing a "real advantage" for the move. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985) (Yannas). This, in combination with the judge's failure to assess or give appropriate weight to other relevant factors, requires reversal.

Background and proceedings. We summarize the proceedings, setting forth "relevant background facts as determined by the probate judge . . . supplemented by the record where necessary," A.Z v. B.Z, 431 Mass. 150, 151 (2000), reserving other facts for our discussion of the issues. The parties were married in Worcester on November 22, 1987, and resided during the marriage in Northborough, where their extended families, including both sets of parents, also live. Their only child, Caleb Page Maney (Caleb), was born June 16, 1991. During the marriage, both parties provided for Caleb's care, but the mother was his "primary caretaker and [saw] to the child's daily needs." Since 1990, the mother had been employed as principal second violinist for the Rhode Island Philharmonic Orchestra, commuting to Providence from Northborough during the concert season. The father is, and was throughout the marriage, employed as a service manager for a business owned by his family. In October, 1995, the parties separated. The father moved into an apartment in his parents' home in Northborough. The mother moved with Caleb into an apartment in Shrewsbury, where Caleb attended preschool, then kindergarten. During the parties' separation, the mother began to date Perry Rosenthal.

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The parties were divorced by a judgment of divorce nisi entered on January 16, 1997. The divorce judgment incorporated and, with respect to child-related issues, merged the parties' agreement, which was found to be fair and reasonable by a probate judge. Under this agreement, the mother had sole physical custody of Caleb. The father was entitled to visits on alternating weekends from Friday at 5:30 P.M. until Sunday at 7:30 P.M., overnight every Monday and Wednesday, and on specified holidays and observances.

On June 23, 1997, the mother filed a complaint for modification of the divorce judgment in which she sought leave to remove Caleb from Shrewsbury, to Providence, Rhode Island. On July 4, 1997, she married Rosenthal.

The father filed an answer and counterclaim to the complaint for modification on July 8, 1997, alleging that removal would limit visitation with his son, "disrupt the warm and close personal relationship between the [father] and his son and is not in his son's best interests." On this basis he requested physical custody of Caleb. On July 28, 1997, the court appointed a guardian ad litem "to investigate - evaluate - and report in writing" on the issues of removal and custody; "to act as . . . next friend to represent [Caleb's] interests"; and to act as an "investigator to review the matter and report to the Court."

On August 15, 1997, the mother and Rosenthal moved into the house they had purchased in Providence. On August 25, 1997, pursuant to a "Motion For Further Temporary Order" filed by the father requesting that the mother be prohibited from removing Caleb from the Commonwealth until the completion of the guardian ad litem's report [Note 1] and a hearing on the merits, the motion judge (who was also the trial judge) modified the

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existing divorce judgment that gave physical custody of Caleb to the mother, and ordered that the child "reside with the father from Monday after school through Friday delivery to school," and with the mother on weekends [Note 2]. This was a change in custody during the pendency of a complaint for modification of a prior custody order, and must therefore have been based on "specific findings of fact . . . which clearly demonstrate the injury, harm or damage that might reasonably be expected to occur if relief pending a judgment of modification is not granted." G. L. c. 208, s. 28A [Note 3]. The record reflects no reason for the order changing custody other than the mother's motion to remove the child to Rhode Island. The order should not have been made.

In the mother's motion for reconsideration of the August 25 order, filed September 18, 1997, she sought reinstatement of the original custody arrangement on the basis that she would be able to reside with her parents in Northborough until a hearing on the merits, and that Caleb's schooling would therefore not be interrupted. The motion was denied without explanation by endorsement on September 26, 1997. The mother's motion requesting that Caleb temporarily be allowed to relocate to Providence was denied on October 9, 1997. Pursuant to

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subsequent temporary orders, the parties established a schedule for holiday and vacation visitation.

Trial on the parties' claims took place on October 2, October 5, and November 12, 1998, well over a year following the entry of the temporary order modifying custody. On January 20, 1999, the court entered a judgment denying the mother's request to relocate and modifying custody in conformity with the temporary orders already in place.

Modification of custody. Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move. See, e.g., Hersey v. Hersey, 271 Mass. 545 (1930); Usen v. Usen, 359 Mass. 453 (1971); Yannas, 395 Mass. 704; Williams v. Pitney, 409 Mass. 449 (1991); Haas v. Puchalski, 9 Mass. App. Ct. 555 (1980); Signorelli v. Albano, 21 Mass. App. Ct. 939 (1985) [Note 4]. Our decision today, that a request for modification of custody is distinct from a request to relocate and must be based on a material and substantial change in circumstances other than the move, is consistent with these decisions and with G. L. c. 208, s. 28 ("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 circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children"). The custody claim must be considered in light of established principles governing custody determinations. See, e.g., Hersey v. Hersey, supra at 554; Grandell v. Short, 317 Mass. 605, 607 (1945); Yannas, supra at 711-712; Haas v. Puchalski, supra at 557; Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).

The original judgment awarded sole physical custody to the mother, and "must be presumed to have been right." Hersey v. Hersey, supra at 554. See Delmolino v. Nance, supra at 211. The probate judge's finding that the mother was the child's primary caretaker during the marriage is consistent with the original award of physical custody to the mother. A judgment

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modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances "of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]. " Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974). "The uprooting of a child . . . should be done only for compelling reasons." Tolos v. Tolos, 11 Mass. App. Ct. 708, 710-711 (1981) (citation omitted).

We have reviewed the extensive findings (entitled "Findings of Fact on the Issue of Removal") and summarize below those that arguably could be said to support the judgment. Although it is nowhere stated in her findings that a material change in circumstances had occurred [Note 5], that conclusion may be inferred from the judge's finding that "the minor child's best interests dictate that . . . the Judgment [of divorce] be modified to include shared physical and legal custody," and her passing reference to the relevant changed circumstances standard.

The probate judge found that, following the divorce, "[b]ecause both parties were working full-time . . . the minor child was in need of and received daycare." She also found that -[t]he Mother's work schedule was quite hectic. . . . [Her] schedule is a combination of odd hours and concert schedules. The Father has some flexibility in his work schedule . . . [as] he is employed by a family-owned business and works in the same town where he lives."

Detailed findings set forth the mother's work history. During the marriage as well as following the parties' separation and

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divorce, the mother's employment as a professional musician [Note 6] and private violin teacher (and, we assume, the father's full-time employment) required the assistance of child-care providers other than the parents. Other than in Caleb's first year, when childcare was provided by the father's sister, childcare was provided primarily by the maternal grandmother, in addition to other family members and nonfamily caregivers. The maternal grandmother continued to provide childcare two to three days a week after the parties separated and for a time following the divorce. After the separation, the mother, compelled by financial need, took on additional students until the number reached twenty to twenty-five a week. However, in May of 1997, when her imminent remarriage to Rosenthal made it financially feasible, she stopped teaching and accepting extra performance commitments in order to spend more time with Caleb.

We note, first, that a parent who works outside the home, even one with a "hectic" schedule, may still be the appropriate primary caretaker and that, standing alone, such employment would not warrant a custody modification. Second, by the time of trial, the probate judge found that positive changes in the mother's work schedule "allowed her to spend more time with the minor child. For example, she began to drive Caleb to school in the mornings and became a volunteer classroom parent." Thus, to the extent that changes in the mother's work schedule did occur, they were not changes warranting a modification in the custody arrangement.

The trial judge found that both sets of grandparents "live in Northboro . . . and are very involved in Caleb's life and care. Caleb has a close and loving relationship with both his maternal and paternal grandparents, [whom] he sees on almost a daily

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basis [Note 7]. [He] also has a close relationship with all of his aunts, uncles, and cousins who live in" the area. Caleb's close relationship and frequent contact with his extended family predates the divorce. That he remains close to his grandparents and other family members since the divorce reflects a concerted effort on the part of both parents to foster and maintain familial relationships that had existed during the marriage. The findings fail to support the conclusion that it is in Caleb's best interests to change custody to his father in order that he be able to spend portions of his weekdays with his extended family members instead of with his primary caretaker [Note 8].

The probate judge found, "[b]ecause Caleb spends the majority of his week in Northboro . . . most of his activities take place there." This was a change in Caleb's living arrangements, brought about solely as a consequence of the mother's compliance with the August 25 order. That order, entered in the absence of any finding of a substantial and material change in circumstances, let alone the requisite findings of "injury, harm or damage," G. L. c. 208, s. 28A, cannot form the basis upon which a final judgment modifying custody is granted. Were we to decide otherwise, tactical delays or overcrowded court dockets could come to dictate the result in every custody modification proceeding, and render meaningless any eventual hearing on the merits.

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There is nothing in the findings or the record before us to indicate that anything occurred after the divorce that so altered the circumstances of the parties as to warrant a change in custodial arrangements which, on all of the uncontested evidence, had been in place with no ill effect on the child since the parties' separation in October, 1995. To the contrary, the findings reflect that the mother is a loving and appropriate caretaker [Note 9]. The probate judge took note of the fact that both parents love the child, and that "both parents have safe and secure homes. . . . The child is happy in each party's home."

Although great deference is accorded a probate judge's custody determination, "[t]here are limits to appellate deference," as when the judge's action is not supported by the findings, or the findings are not supported by the evidence, as here. Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000). The judgment modifying custody must be reversed.

Removal from the Commonwealth. A request for removal is governed by G. L. c. 208, s. 30 [Note 10], as that statute has been interpreted by Yannas, 395 Mass. at 710, and Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981) [Note 11]. A parent's request to relocate with a child from the Commonwealth must be "grounded on

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the 'realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce . . . [and] that the child's quality of life and style of life are provided by the custodial parent.' Although the best interests of the children always remain the paramount concern, [b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the custodial parent be taken into account.' " Yannas, supra at 710, quoting from Cooper v. Cooper, 99 N.J. 42, 53-54 (1984). See Hale v. Hale, supra at 815-818, quoting from D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 204-206, aff'd per curiam, 144 N.J. Super. 352 (1976) (a court must consider the advantages of the move in terms of whether the move is likely to improve the general quality of life for both the custodial parent and the child, the "new family unit" [Note 12]). These considerations lie at the root of the specific factors described in Yannas, collectively referred to as the "real advantage" standard. We proceed to discuss the extent to which the probate judge's findings and conclusions reflect appropriate consideration of each of the requisite elements.

Real advantage, good and sincere reason for the move. In

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weighing the factors to be considered, "the first consideration is whether there is a good reason for the move, a 'real advantage.'" Yannas, supra at 711. This is determined by assessing "the soundness for the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation . . . ." Ibid.

The mother's reasons for relocating to Providence - which include the fact that she has remarried; that her new husband is a long-time Rhode Island resident employed in Providence's [Note 13]; and that the mother's primary employment is in Providence - establish a "good reason" for the move. See Yannas, supra at 712 (move to Greece where mother found new job and would be geographically close to her relatives "would be to [her] advantage"); Williams v. Pitney, 409 Mass. at 455 (that mother found employment and would live near her relatives in California were "good and sincere reasons"); Signorelli v. Albano, 21 Mass. App. Ct. at 940 (that mother had remarried, given birth to a child of the new marriage, and new husband obtained higher paying job in New Jersey were "good and sincere reasons" for move); Vertrees v. Vertrees, 24 Mass. App. Ct. 918, 919 (1987) (that mother wanted to move to Illinois because her relatives there would provide emotional support and social interaction was "good and sincere reason"). There was no finding, nor is there evidence in the record to support a finding, that the mother was motivated to deprive the father of reasonable visitation. The probate judge's conclusion that "the Mother's request to remove the minor child from the Commonwealth . . . is not founded on a good, sincere advantage," was clearly erroneous, meaning it was not supported by the evidence. See Yannas, supra at 709-710.

We turn now to the judge's consideration of the interests of the child, the mother, and the father, in light of factors established by Yannas. "If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding

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the best interests of the child, but rather they must be considered collectively." Id. at 711-712.

1. Interests of the child. (a) Improvement in child's quality of life. The probate judge was bound to consider "whether the quality of the child's life may be improved by the change (including any improvement flowing from an improvement in the quality of the custodial parent's life) . . . ... Id. at 711. The probate judge concluded that "[y]he Mother has not provided any evidence which is tantamount to finding such a removal would be an improvement upon this child's life. The evidence indicates that such removal would be disruptive to this child's life." We first note that it was not the mother's burden to provide evidence of improvement, but that the factors must be considered collectively. "The judicial safeguard of [all parties'] interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof." Id. at 712.

The probate judge's subsidiary findings supporting her conclusion focus on Caleb's relationship with his father and adjustment to the court-imposed change in physical custody [Note 14].

There were no findings reflecting consideration of "the relationship of the mother to the [child]," Hale v. Hale, 12 Mass. App. Ct. at 815, or "any improvement flowing from an improvement in the quality of the custodial parent's life." Yannas, 395 Mass. at 711.

That there were improvements in the mother's quality of life is evident from the findings. They reflect that, upon her remarriage, "the Mother's financial situation greatly improved." She was able to discontinue the private music lessons that had resulted in a schedule the mother "found stressful and impacted her time with the child." The mother's one-hour commute to and from work was reduced to five minutes. She enjoyed access to the city's cultural offerings. These facts incontrovertibly establish the positive improvements resulting from the mother's move to Providence. That, as the judge found, "[h]er decision

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to move was her lifestyle choice," does not dictate the conclusion that the benefits of the move to the mother would not also be experienced by the child particularly where, as here, the mother had been the child's primary custodian [Note 15].

(b) Effect of move on child's association with noncustodial parent. No findings were made that specifically address the effect on Caleb of a possible "curtailment of the child's association with the noncustodial parent," in the event of relocation. Id. at 711. In light of the fact that the distance between Northborough and Providence is but fifty-five miles and has not precluded significant access to both parents, it is likely that by living in Providence the effect on Caleb's association with the father would be no greater than the effect on the child's association with the mother if he were to remain in Northborough.

(c) Effect of move on child's emotional, physical, or developmental needs. The probate judge's findings reflect some consideration of "the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child." Yannas, supra at 711. Hale v. Hale, supra at 817-820. Caleb was found to be a "physically and emotionally healthy" boy whose "frequent, continuing and equal interaction. . . with each parent is most beneficial to him." "Both parents serve as equally important guides for this child's continued healthy development ... .. The Court finds the minor child's life is enriched by each parent's equal participation in his upbringing." These findings would not support a decision denying

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removal. However, the probate judge's findings reflect consideration of other circumstances affecting Caleb's development and emotional well-being that, in the judge's view, tipped the balance in favor of Caleb remaining in Massachusetts.

The first was that, since the entry of the August 25 order, "the joint legal and physical custody arrangement has been carried out successfully by each parent," and the judge announced herself satisfied with Caleb's adjustment to it. Caleb was found to be doing well in school, where he had made friends and excelled academically. However, there are no findings, and no evidence suggesting, that Caleb would not continue to do well emotionally, physically, and developmentally if the removal were allowed. There are, to the contrary, findings that the order denying removal and changing custody from the mother was disruptive to the child [Note 16].

A second factor that appears important to the judge's conclusion that removal is not in Caleb's best interest is his close relationship with his grandparents and other members of his extended family living in or near Northborough. While we recognize that a child may have important relationships extending beyond those of his immediate family members that deserve protection, Youmans v. Ramos, 429 Mass. 774, 782-784 (1999); E.N.O. v. L.L.M., 429 Mass. 824, 828-829 (1999), there is nothing in the record to indicate that, here, those relationships are so important to Caleb's emotional well-being that they deserve primacy over his relationship with his mother, who had been the primary custodial parent throughout Caleb's life. In any case, the evidence is clear that the mother has continued, even after the change in custody, to assure Caleb's ongoing contact with extended family members, that she is close to her family, and would continue to foster contact with them and with members of the father's family.

2. Interests of custodial parent. There are no findings that indicate consideration of the interests of the mother in maintaining both her close relationship with Caleb, and in living with

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her new husband in the city in which he and the mother both work. The denial of the mother's request to relocate, and the order changing custody because she made that request, left the mother with the choice of living with her husband and suffering separation from her child, or living with Caleb and suffering separation from her husband. The probate judge "did not appear to give much weight to the quality of life of the custodial parent by reason of the separations enforced on her," Signorelli v. Albano, 21 Mass. App. Ct. at 940, as a consequence of her decisions.

3. Interests of noncustodial parent. The court must consider "the possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent." Yannas, 395 Mass. at 711. In this context, "[t]he reasonableness of alternative visitation arrangements should be assessed. The fact that visitation by the noncustodial parent will be changed to his or her disadvantage cannot be controlling." Ibid. There is nothing in the evidence to suggest that a relocation to Providence, fifty-five miles from Northborough, would preclude the father (whose work schedule was found to be "flexible") from having contact with Caleb in a manner significantly different from that provided by the original divorce judgment.

That there would be some impact we infer from the fact that the father generally picks Caleb up from his after school day care program and the fact that Caleb is involved in "a variety of programs," including gymnastics and swimming lessons and soccer. By all accounts he is an attentive and loving father, and we assume that he participates in these activities by his attendance. But the test is not whether there is no impact on the father's association, but whether reasonable "alternative visitation arrangements" might achieve ongoing and meaningful contact appropriate to the circumstances. There were no findings that such visits could not be arranged. Transporting Caleb on a weekly basis pursuant to the current visitation schedule was found by the judge to be accomplished "with ease," and with little burden on the mother [Note 17]. That it might work a somewhat greater burden on the father, who works full-time, is

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not dispositive. The fact that both the mother and her husband perform with the Rhode Island Philharmonic Orchestra on many Saturdays and some Sundays during the October through May season suggests a weekend visitation schedule that is eminently workable. "From what we can ascertain, the judge recognized the importance of the 'frequent and continuing contact' of the child with both its parents . . . and entered [her] judgment prohibiting removal on the basis that the move would make visitation more difficult. We consider that factor not in itself conclusive." Hale v. Hale, 12 Mass. App. Ct. at 815 (citations omitted).

Conclusion. Based on this record, "[a] remand for findings of fact to support the judge's order is unnecessary, because the evidence, weighed under the relevant factors . . . convincingly establishes that the plaintiff's request should have been allowed." Gridley v. Beausoleil, 16 Mass. App. Ct. 1005, 1006-1007 (1983). The judgment denying removal and awarding custody to the father is reversed. We remand for the entry of a judgment that the custody of the parties' minor child remain with the mother, that she may relocate with the child to Rhode Island, "and for such further proceedings consistent with this opinion relative to time and conditions of visitation." Haas v. Puchalski, 9 Mass. App. Ct. at 558. In the absence of agreement, the Probate Court may consider whether it is in Caleb's best interest to conclude the current school term in Northborough and to begin the next school term in Providence, or transfer to a new school in Providence forthwith [Note 18].

So ordered.