69 Mass. App. Ct. 1105

May 29, 2007


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.


Applying Yannas v. Frondistou-Yannas, 395 Mass. 704 , 710-712 (1985) (Yannas), a judge of the Probate and Family Court denied the request of the divorced mother for permission to leave the Commonwealth with her minor child and move to Virginia. The judge dismissed the mother's complaint and the mother filed a timely appeal.

1. Procedural history. The parties were divorced by a judgment of divorce nisi, dated March 5, 2003, as amended by judgment of divorce, dated August 29, 2003. The parties had one child, Alexis, born March 11, 1998. Pursuant to the terms of the judgment of divorce nisi, the mother and father were ordered to comply with the terms of a separation agreement. That agreement provided in pertinent part, as follows: “The parties shall have legal custody of the child and shared physical custody. Nevertheless, the child's principal residence shall be with the [mother].”

On or about March 4, 2004, the mother filed a complaint for permission to remove the minor child from Massachusetts to Virginia. The father, appearing pro se during the trial and on appeal, filed an objection to the proposed removal. On November 8, 2004, the Probate Court judge appointed a guardian ad litem (GAL) who was ordered to file a report to the court. The GAL's written report was filed in the court on April 6, 2005.

After a two-day trial, the judge entered a judgment dismissing the mother's complaint. Subsequently, the judge filed a memorandum of decision that contained her findings of fact and conclusions of law.

2. Judge's findings of fact. At the trial on the complaint, the mother presented the following reasons for moving to Virginia with Alexis. They included: the mother would be returning to Roanoke, Virginia, her hometown, where her parents reside; her parents would be available to assist her with child care; her mother is a successful real estate agent who would hire her as her assistant and pay her a salary of $25,000 while she took classes in real estate with the intent to obtain her real estate license. The mother also stated that her decision was based on the economics of the airline industry, her health considerations, and the complete inability of the father to assist her with the co-parenting needs of Alexis.

We summarize the judge's findings of facts. At the time of the trial on the mother's complaint, the mother was forty-four years old, the father was forty-seven years old, and Alexis was seven years old. The mother was employed as a flight attendant for American Airlines and earned approximately $11,000 a year in 2003 and $12,000 in 2004.

The mother, as a result of the parties' divorce agreement, is required to carry her daughter on her health insurance. Since the divorce, and because of problems in the airline industry, the mother's health insurance costs have increased, and her pay has been reduced by sixteen percent. The reduction in pay and rise in the cost of health care benefits had a negative effect on the mother's budget, and contributed to her desire to consider a change of employment.

Alexis resides with her mother and has specified periods of visitation with her father, including those times (often several days in a row) when the mother is flying. The father, because he owns his own business, has the flexibility in his schedule to take Alexis whenever the mother flies, which can be several consecutive days several times each month.

The judge found, based on the GAL report, that “the child is equally and strongly bonded to each of her parents.” [Note 1]

The judge specifically found that since the divorce, the father was “not a model divorced dad” (emphasis original). The judge listed the father's most serious failings as follows: use of profanity in front of Alexis; “childishly” refusing to set up an e-mail account with the mother, “childishly pouting” that he would not see the child if the mother decided to reopen the divorce case on charges of fraud; “childishly” refusing to sit in the same room with the mother at the child's birthday party; “petulantly refusing” on short notice to care for Alexis while the mother was at work, leaving the mother with no child care option, thereby forcing the mother's father to drive up from Virginia to care for the child in the mother's absence; and “cruelly refusing” to allow Alexis to take her dog with her to a scheduled dog show, thus requiring the mother to find another dog so that Alexis could attend the dog show.

The most serious failing of the father occurred when, according to the judge, he left Alexis alone unsupervised at his home on one occasion, resulting in a DSS investigation and a finding of neglect on his part. [Note 2]

Because of the above serious failings, the judge found that the father's “behavior on several occasions as set forth ... can be characterized as retaliatory, juvenile, typical of an ‘inexperienced’ father just finding his footing, and not in the best interest of the child.” [Note 3]

The judge specifically found that Alexis informed the GAL that she wanted to stay in Massachusetts. Based on her findings, the judge ruled that there was no real advantage to the mother in moving to Virginia and that the move was not in the best interests of the child. [Note 4]

We recognize that while a judge does not have to accept the GAL's recommendations, in this matter on some important points, the judge did accept the GAL findings for the most part and relied on them. However, as we observe in this memorandum, the judge misinterpreted some of the GAL's key findings. The judge found that there was no real advantage to the mother if the proposed move was allowed to take place because (1) there was no economic benefit to the mother, (2) child care by the grandparents could not be considered as a factor, (3) the lower cost of living in Virginia would be more than offset by increased costs of transporting Alexis for visitation with the father-lower cost of living often results in lower pay, and (4) the father was “something more than the typical non-custodial” father because he has the child for several days in addition to weekends and overnights when the mother is flying.

Finally, the judge ruled that the proposed move is not in the child's best interests.

On appeal, the mother challenges the judge's findings that there was no economic benefit to the mother if permitted to move with the child to Virginia. The mother also claims the judge, in applying the real advantage standard, failed to consider that she would be rejoining her family in Virginia, and failed to consider the complete failure of the father to assist with the co-parenting needs of Alexis. The mother also argues that the judge placed undue weight on evidence that Alexis did not want to move to Virginia.

Further, the mother contends that in considering the best interests of the child, the judge never considered the relevant factors discussed in Yannas, 395 Mass. at 710-712.

Discussion. “A custodial parent may not remove a minor child from the Commonwealth ‘without the consent of both parents, unless the [probate judge] upon cause shown otherwise orders” ’ (emphasis added). Dickinson v. Cogswell, 66 Mass. App. Ct. 442 , 447 (2006), quoting from G.L. c. 208, § 30. “The words ‘upon cause shown’ mean only that removal must be in the best interests of the child.” Yannas, supra at 711.

“Although the best interests of the [child] always remain the paramount concern, ‘[b]ecause the best interests of the child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account.” Yannas, supra at 710, quoting from Cooper v. Cooper, 99 N.J. 42, 54 (1984).

In that regard, “the first consideration is whether there is a good reason for the move, a ‘real advantage'." Yannas, supra at 711. “The advantage may be economic; it may be support of family residing in another jurisdiction; or it may be any other ‘good, sincere reason for wanting to remove.'" Pizzino v. Miller, 67 Mass. App. Ct. 865 , 870 (2006). The judge must consider both “the soundness of the reasons for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Yannas, supra at 711. [Note 5]

3. The real advantage test. a. No economic benefit to the mother. The mother attacks the judge's finding that there was no economic benefit to the mother in moving to Virginia.

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Mass.R.Dom.R.P. 52(a)(2006). We do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error, G.E.B. v. S.R.W., 422 Mass. 158 , 172 (1996), or a “firm conviction that a mistake has been committed.” New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671 , 675 (1977).

The judge's findings that there was no economic benefit to the mother if she was allowed to move to Virginia were both internally inconsistent and unsupported by the evidence.

The judge found that the mother's pay from American Airlines was “good”, she had “health benefits” and “guaranteed employment here.” There was no basis in the evidence for the judge to find that the mother's pay was “good.” Further, although the mother did have health benefits, the judge found that since the divorce judgment, the mother's “cost of health insurance has increased, [Note 6] and [mother's] pay has reduced by approximately 16%.” On that point, the judge noted that “[t]he airline industry as a whole has required employees to accept reductions in pay and increases in benefit costs, to avoid bankruptcy.”

There was no evidence to support the judge's finding that the mother had “guaranteed employment here.” Rather, the uncontradicted evidence was that the mother's employment was tied to the success or failure of her employer, and she could be laid off or discharged if business conditions turn downward.

The judge's finding that if the mother moved to Virginia, she would have but “speculative employment income (sales commission rather than salary)” was not based on the evidence. The undisputed evidence was the mother would be employed by her mother in a successful real estate practice and paid $25,000 (double her present salary) while she was studying to obtain her real estate license.

There was no support in the evidence for the judge's finding that it would not be “realistic” for the mother to assume her new position to provide her “the equivalent of either salary or benefits, as compared to her present airline employment.” The evidence demonstrated that at first her salary would be doubled, she could obtain her own health benefits through being employed by her mother, and her position as an assistant would be more stable than being employed by an airline in these volatile times.

b. Lack of finding as to advantage of relatives living in Virginia. One of the advantages to be considered in determining whether there is a real advantage is returning to a place where there are supportive relatives. See Vertrees v. Vertrees, 24 Mass. App. Ct. 918 , 919-920 (1987). Despite the fact that there was considerable evidence as to the advantage of this factor, the judge did not make any finding on this point.

c. Child care by the grandparents. The judge found that there was equal benefit and detriment in Alexis' child care if the proposed move took place. The judge found that the mother's parents were willing and available. On the detriment side, the child's father is the preferred caretaker and as he has “historically (with one egregious exception) been willing and available as well.” The judge then found that the age of the grandparents “suggests that it is likely that they could become ill or elderly and unable to serve, whereas the father has long-term availability.”

There was no evidence before the judge as to the grandparents' age or health. The grandfather appeared to be healthy when he was required to drive from Virginia because the father petulantly refused on short notice to take care of Alexis.

d. The lower living costs in Virginia. Although the judge considered the claim by the mother of lower living costs in Virginia, she rejected it as a factor because of increased costs in transporting Alexis for visitation with her father in Massachusetts. The mother offered to pay half the costs. The father's income in 2004 was $149,000. Clearly, the father has the funds to pay for half the costs.

There was no evidence before the judge to support her finding that lower living costs will result in lower wages.

e. The child's express wish to stay. The mother also argues that the judge, in reaching her decision, improperly relied on the child's express wish to stay in the Commonwealth.

The judge wrote, in part, “I note that the GAL reports (and I credit her report) that the child has very clearly expressed her desire NOT to move to Virginia.”

The GAL report did state that Alexis told her that she did not want to move. The judge, however, failed to mention that the GAL report also stated the following in regard to the child's “wish.”

“It was my impression that this child has no understanding of the advantages and disadvantages of the proposed move, except the disadvantages such as loss of friends, school, dog and contact with father, as a result of her discussion with father. Mother has appropriately tried to limit the child's exposure to this litigation. This 7 year old child expressed a wish not to move, based on her current understanding.... Alexis is too young to know her own mind. She is all too aware of the parental conflict, and very aware of father's fears and position.”

In view of the qualifying statements by the GAL, we hold that it was error for the judge to rely on Alexis' expressed wish to stay. Further, it was error for the judge to rely on the statement of a child, age seven, and the judge should not have given it any particular weight. Hale v. Hale, 12 Mass. App. Ct. 812 , 820 (1981).

f. Conclusion. We hold that the mother clearly established that there was a genuine recognizable advantage to her from the move.

4. The child's best interest. Perhaps because the judge ruled that there was no real advantage to the mother in the proposed move, the judge did not explore in a meaningful way whether the move was in the best interests of the child. [Note 7]

Therefore, the matter is remanded in order for the judge to determine “the extent to which a move will improve the child's quality of life, the potential effect of the child's relationship with the noncustodial parent, and the ramifications of the move on the child's emotional, physical, and development needs.” Dickerson v. Cogswell, 66 Mass.App.Ct. at 449.

We vacate the judgment and remand this matter for additional findings as to the best interests of the child. It is within the judge's discretion to conduct a hearing and consider further evidence regarding the current circumstances of the parties and Alexis.

So ordered.


[Note 1] The finding is clearly erroneous. The GAL report which the judge specifically credits, states, “Alexis showed positive attachments with both parents, but clearly has a stronger bond with her mother to the point of some separation issues when upset or absent for extended periods of time.”

The error is important because the error played a major part in the judge's ultimate ruling that there was not a real advantage to the mother in the proposed move.

[Note 2] The judge noted that the father while a witness “unconditionally admitted his error and believably promised that it would not happen again”. We note that the promise only came after persistent questioning by the judge that spanned eight pages of transcript.

[Note 3] Despite finding that the father's serious failures were not in the best interests of the child, the judge concluded that, “on balance, considering the totality of the evidence, I concur with the GAL ... that father's shortcomings, while real, do not rise to the level of suggesting he should spend less time with the child nor do they rise to the level of contradicting the real father-daughter bond that exists between the two.”

[Note 4] The GAL in her report stated as follows: “It is my impression that mother may have met the “real advantage” standard set by case law.”

[Note 5] The judge found that the mother was not seeking removal “out of spite or vindictiveness.”

[Note 6] There was undisputed evidence that because of problems in the airline industry, the mother is required to pay 100 percent of her health insurance premiums.

[Note 7] We are aware that since the trial in this case, the Supreme Judicial Court released Mason v. Coleman, 447 Mass. 177 , 178 (2006), in which the court held, among other things, that where there is joint legal and physical custody the appropriate test is “the best interests of the child.”

Here, the child's residence is with the mother, and it does not appear to us that Mason would control.