Home LISA LoJACONO [Note 1] V. DOUGLAS C. BUMSTEAD

72 Mass. App. Ct. 1109

July 21, 2008

Present: BERRY, SMITH & RUBIN, JJ.

NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

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 former wife appeals from judgments issued by a Probate and Family Court judge: (1) denying the wife's request in her complaint for modification to relocate the parties' three children to Florida; (2) allowing the former husband's request in his complaint for modification for what amounts to shared physical custody; and (3) finding the wife in contempt of an order requiring her to pay to the husband $50 per week toward an outstanding liability.

1. Procedural background. The parties were married in 1989. There were three sons of the marriage, born in 1994, 1995, and 1996. The parties divorced on April 12, 2000. The divorce judgment specified that the wife and the husband would share legal custody of the three children, with the wife having primary physical custody. The husband was allowed alternate weekend visitation, along with a complex holiday and special event visitation schedule.

In late 2004, the husband filed a complaint for modification, generally seeking increased parenting time with the children, up to and including primary physical custody. In support of this custody modification, the husband stated that material circumstances warranted the modification, including that the husband had purchased a new home more suitable for parenting, had remarried, and had increased work flexibility. The husband also cited the children's increasing age as a factor to be considered. The children were ten, nine, and eight years old at the time the husband filed the complaint for modification.

In 2005, the wife filed a modification complaint seeking court approval to relocate with the children to Florida. [Note 2] The wife alleged that she was soon to be married, her new husband's job and residence were in Florida, her aging parents lived in Florida, and she would like to relocate the children to Florida so that she could be with her new husband.

After trial, the judge refused the wife's request for removal of the children to another State, granted the husband's request to change the custody arrangements, and found the wife in contempt for failing to make payments to the husband as required by a court order with respect to an outstanding financial obligation. We address these issues in turn.

2. Removal of the children out of State. On appeal, the wife argues that the judge utilized an incorrect standard in determining whether her removal petition to take the three boys to Florida should have been allowed. We disagree. In considering the issue of the removal of the children to Florida, the judge engaged in a thoughtful analysis, ultimately determining that the wife's remarriage and her move to Florida with her new spouse did not constitute a “real advantage,” and that the removal would not be in the best interests of the children. See generally Yannas v. Frondistou–Yannas, 395 Mass. 704 , 711 (1985); Pizzino v. Miller, 67 Mass. App. Ct. 865 , 873–874 (2006).

The removal from the Commonwealth of children of divorced parents is governed by G.L. c. 208, § 30, as amended by St.1986, c. 462, § 9, which provides that where one of the parents seeks to relocate without the consent of the other parent, such children may be removed by order of the court “upon cause shown.” “The words ‘upon cause shown’ mean only that removal must be in the best interests of the child.” Yannas, 395 Mass. at 711.

Analysis is governed by the two-part criteria set forth in Yannas. In the first step under Yannas, also known as the “real advantage” test, a court is to “look first at the reasons underlying the desire of the [custodial parent] to move.” Pizzino, 67 Mass.App.Ct. at 870. The custodial parent must establish a “good, sincere reason” for the move, i.e., a “real advantage.” Yannas, 395 Mass. 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....’ “ Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 267 (2001), quoting from Yannas, 395 Mass. at 711.

Under the second step in Yannas, “[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the children's best interests.” Pizzino, 67 Mass.App.Ct. at 870. In considering the best interests of the children, factors to be considered include the children's quality of life; the effect of the proposed move on the children's association with the noncustodial parent; the effect of the proposed move on the children's emotional, physical, or developmental needs; the interests of both parents and reasonableness of alternative visitation arrangements; and “[t]he relative advantages to the custodial parent from the move, the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Yannas, 395 Mass. at 711.

In our opinion, the judge properly applied the two-tiered standards under Yannas, and made findings of fact consistent with the standards, which findings had evidentiary support in the record. On this point, we set forth certain of the judge's findings that support the decision against removal of the children out of State, and that are decidedly adverse to the wife's contentions. Findings in which the judge rejected the rationale for the move advanced by the wife included, but were not limited to, the following.

“When asked point blank on direct examination by [the husband's] attorney her reasons for seeking removal to Florida, [the wife] answered that the weather is awesome, the economy great, and proximity to her parents would be a plus—clearly not sufficient to prove a ‘real advantage’ to herself to the move.”

“The circumstances of [the wife's] remarriage and focus on removal suggests her willingness to put her preferences ahead of the children's needs. There is no real nor significant personal financial advantage to [the wife's] removal to Florida.... There is no real nor significant psycho-social benefit to [the wife's] removal to Florida ....“

Furthermore, the judge found that the wife's proposed move and her request to remove the children to Florida (as the judge reiterated in the denial of the wife's motion for relief from judgment) appeared to be a part of a continuing pattern and litigation strategy [Note 3] to deprive the husband of parenting time and impair his ability to maintain a relationship with the boys. We note that there clearly were certain litigation-based time lines associated with the wife's marriage planning — this, and other factors, led the judge to conclude that, “in the particular circumstances and history of this family and the parties, ... [the wife's] remarriage was for the convenience and facilitation of this underlying motive” on the part of the wife to intrude into the father's parenting relationship with the children. As the judge stated, “[t]here are simply too many credible indications on the record that [the wife] is ‘flying just below the radar’ of contempt as concerns [the husband's] parenting time, and that the other significant adults in her life encourage or support her in this behavior.” The judge's findings support the conclusion that the timing of the wife's marriage during the pendency of the husband's modification complaint was a litigation strategy and not predicated upon a sincere desire to be married to her new spouse.

The judge's finding that there was not a “real advantage” to the wife's contemplated move was alone sufficient to justify denial of the request for removal. See Pizzino, 67 Mass.App.Ct. at 870. Nonetheless, the judge also gave careful scrutiny to the second standard in Yannas, and found that the removal would not serve the best interests of the children. Several of the judge's pertinent findings, on the best interests standard, which again were fully supported in the record, were as follows:

“It is in each son's best interests to have regular contact with [the husband] at this stage of their lives.”

“[The husband] is physically and intellectually bonded with his eldest son ... who is more intellectual than most kids his age, not the best athlete, and has few close friends. [The husband] relates personally to these challenges and is most suited to helping [his eldest son's] self esteem.”

“[Several] incidents raise concern as to how prolonged absence from [the husband] coupled with increased influence of maternal grandparents would not cause an erosion of the father son relationships as the boys approach adolescence.”

The wife claims that the judge erred in not accepting the recommendations set forth in the report of the guardian ad litem (GAL). The GAL report concluded that the wife's reasons for wanting to move to Florida were warranted and justified removal. The GAL report also recommended that the husband's request for modification of custody be denied. (See part 3, infra.) The judge rejected both GAL recommendations. We believe the judge did so with good reason and cause. We discern no error.

The judge described the GAL report as “essentially so one-sided and lacking in fair diligence as to be practically useless to the Court.” [Note 4] The judge's findings which are detailed, as well her reasoning in rejecting the GAL recommendations, are solid and persuasive. We note, furthermore, that a judge is not obliged to adopt the views of the GAL, but rather should—as did the judge here—make independent determinations. See Mason v. Coleman, 447 Mass. 177 , 186 (2006).

3. Modification of custody. The wife also complains that the judge's change of primary physical custody — from the wife alone to a shared custody arrangement with the husband — was erroneous because it was not based on a “material change” of circumstances distinct from the wife's proposed move. To the contrary, the judge appropriately cited the husband's new marriage, new home, the older age of the children, and the husband's ready acceptance of, and participation in, parenting counseling and classes as “material changes of circumstance” justifying the change. (In contrast, the wife declined to attend the recommended counseling sessions). All of these changed circumstances — when added to the fuller picture developed in the judge's other findings with respect to the removal question — were sufficient to justify the change in custody vis-vis the husband. (We have previously addressed why the GAL's custody recommendation was properly rejected by the judge, and more need not be said).

4. The contempt judgment. On December 14, 2000, a Probate and Family Court judge (different from the one who entered the judgments challenged in this appeal) ordered the wife to pay the husband $50 per week for monies owed the husband's business for furniture for the marital home, an obligation in excess of $30,000. In May of 2006, the husband filed a complaint for contempt, on the basis that payments from the wife under the aforesaid order were in arrears in the amount of approximately $6,100. The parties filed written submissions on the contempt question. In these proceedings, the judge found the wife to be in contempt of the order to pay on the furniture obligation, and ordered the wife to pay the entire outstanding balance plus attorney's fees and costs, for a total of $25,509.

The wife contends that the judge's findings in support of the contempt judgment are clearly erroneous because: (1) they fail to account for about $3,500 in payments and setoffs that the wife made toward the liability; (2) filings by the husband in 2002 constitute binding admissions precluding him from alleging a greater amount owed five years later in subsequent pleadings; (3) the husband's delay in bringing the contempt action materially prejudiced the wife because she is no longer able to produce documents showing her various offsets and payments; and (4) the husband failed to carry his burden of proof.

The evidence in the record is sufficient to support the contempt judgment. The wife concedes that she was aware of the 2000 order, which obligated her to pay to the husband $50 per week to pay for the furniture debt. In fact, the wife listed it as an obligation on her financial statements. The husband's accounting shows that the wife made some payments but, at the time of the accounting, was in arrears in the amount of about $6,100, supporting the judge's finding that the wife was in arrears in excess of $5,800. [Note 5] The wife also concedes that she never made weekly $50 payments, asserting instead that she occasionally made sporadic payments of differing amounts and had “setoffs” that should have been credited toward the liability.

The wife's primary defense is basically that the husband's accounting is wrong. However, she does not point to much in the record to so demonstrate. Furthermore, the wife has offered no evidence of her own as to what the correct figure should be, as countervailing evidence. We see no error in the judge's decision to credit the husband's accounting.

The wife's assertion that the husband's 2002 pleadings are binding admissions in the instant case is incorrect. See Hibernia Sav. Bank v. Bomba, 35 Mass. App. Ct. 378 , 384 (1993), quoting from Clarke v. Taylor, 269 Mass. 335 , 336 (1929) (pleadings are binding only in the “trial of the case in which the pleadings were filed”).

The wife also argues that she was entitled to “offset” from this obligation certain other matters, such as dental payments for the children. There is nothing in the order permitting her to do so, and there are no receipts in the record for such “setoffs.” The wife's laches and estoppel defenses also fail, not least because it does not appear as if she either raised these questions at trial or introduced any evidence supporting them. [Note 6]

Judgments affirmed.


FOOTNOTES

[Note 1] Now known as Lisa LoJacono Offerman.

[Note 2] We recognize that the wife also filed an earlier complaint on October 1, 2004, seeking similar relief. That action appears to have been voluntarily dismissed by the wife.

[Note 3] The wife contends that the judge's negative comments concerning the circumstances of her remarriage were inappropriate. Taken in context, however, the judge raised these concerns to suggest that moving the children at this early stage in the remarriage might have detrimental consequences, and, therefore, would not be in the children's best interests.

[Note 4] The judge's pertinent findings with respect to the GAL report were as follows:

“The guardian ad litem unilaterally disregarded his mandate to investigate parenting ..., failed to interview even one person from [the husband's] two page list of contacts, lost his notes of his meeting with [the husband] which took place for four hours on June 7, 2005 – a year prior to writing his report, never explored the possible benefits to the children for increased time with their father, relied heavily on the parenting coordinator's impressions of the family dynamics which had to be stale by at least a year prior to his investigation, and then concluded that [the husband] had failed to make his case to expand his visitation[, and] filed his report on the eve of trial, a year after his appointment. He has no valid basis for his summary impression that he believes [the husband] could still benefit from appropriate parenting instruction. His impressions of the children's interactions with their step mother were formed early in his appointment at a time where the children had only recently met her. Yet there was no effort by him to follow up to see if anything had changed in the year by the time of trial.”

“The Guardian ad litem report is rejected outright except as noted in limited instances in this decision. The guardian ad litem did not meet nor did he interview [the husband's] new wife ... [although] his investigation spanned over fourteen months. He did not write his report until shortly before filing with the Court three weeks before trial. He failed to interview any persons on [the husband's] list of contacts which was two pages long. When he sat down to write his report he could find no notes from his meeting with [the husband] which spanned over four hours ten months prior to his drafting his report. He reports his belief that [the husband] could still benefit from appropriate parenting instruction. He had no idea about the efforts [the husband] had made in this regard since the divorce. He appears to have given inordinate weight to the stale guardian ad litem report from the time of the divorce and parent coordinator's stale and summary input.”

“Amazingly, [the GAL] testified that [the husband] is not aware of the sons' needs to be able to communicate with him, to express their concerns, and for [the husband] to focus on their needs and their desire to be with their father. This contradicts the request for and institution of Tuesday “alone time” in which [the husband] has engaged with each child since 2001.”

[Note 5] This figure of $5,800 differs from the husband's accounting figure in that it includes deduction of several payments that the wife asserts she made but erroneously argues were not factored into the final figure. We note that the wife provided no proof regarding two other payments she insists should be credited to her.

[Note 6] Finally, the wife challenges that part of the modification judgment which states that, “[i]f [the wife] ceases to reside in Cohasset, primary physical custody of the minor children shall be with [the husband].” Given the circumstances of this case, and the battle over where the children should reside, the judge took account of the parties' and the children's history of strong ties to Cohasset in specifying Cohasset as a home base for this part of the order. Should the wife wish to move from Cohasset at any point in the future, she could, of course, file a petition based on the changed circumstances of her proposed new residence and seek a modification of this Cohasset-based term.