73 Mass. App. Ct. 1107

December 2, 2008

Present: Lenk, Graham & Grainger, JJ.


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.


These are consolidated appeals from two probate court judgments denying the plaintiff mother permission to move to Maryland with the parties' two minor children. The mother and the defendant father were married on August 8, 1994, in Wilton Centre, New Hampshire. It was the first marriage for the mother and the second marriage for the father. Two daughters were born of the marriage: the older, on April 19, 1998, and the younger, on November 3, 1999. On February 4, 2005, the father filed for divorce seeking a dissolution of the marriage on the grounds of irretrievable breakdown; and orders for joint legal and physical custody of the minor children, for child support, for conveyance of the marital real estate, and for an equitable division of the marital estate.

The mother filed a cross complaint for divorce on April 6, 2005, in which she sought dissolution of the marriage on the grounds of irretrievable breakdown; an order granting joint legal custody of the minor children, with physical custody to her, an order for conveyance of the marital real estate, an order for an equitable division of the marital estate, and an order granting her permission to remove the minor children from Massachusetts.

Subsequent to trial, but prior to an entry of judgment, the parties agreed to a division of assets and to all final matters relative to the divorce. On January 2, 2007, an amended judgment of divorce nisi was entered on the cross complaints for divorce. The judgment provided for joint legal custody of the minor children with physical custody to the mother, but the order denied her permission to remove and relocate to Maryland.

The mother filed a timely appeal from the portion of the judgment of divorce nisi denying of her relocation request, and on May 7, 2007, she filed a complaint for modification seeking permission to remove the minor children from the Commonwealth to Maryland. On June 8, 2007, the father filed an answer to the complaint for modification and a counterclaim for modification in which he sought physical custody of the two minor children. Thereafter, the trial judge recused himself from further hearings on the matter and the case was assigned to another judge.

After trial on the mother's complaint for modification, the second judge entered judgment denying her request for removal of the children from the Commonwealth. The mother filed a timely appeal from that judgment, and on January 23, 2008, this court entered an order granting consolidation of the appeal of the modification with the appeal on the judgment of divorce.

Discussion. As the mother here had physical custody of the children, we apply the "real advantage" test. See Yannas v. Frondistou-Yannas, 395 Mass. 704 , 710-712 (1985); Hale v. Hale, 12 Mass. App. Ct. 812 , 818-819 (1981). "[T]he 'real advantage' test is grounded on 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 interests of the custodial parent be taken into account."' Yannas v. Frondistou-Yannas, supra at 710, quoting from Cooper v. Cooper, 99 N.J. 42, 53-54 (1984).

On its face, the mother's case would seem to present a relatively straightforward application of real advantage principles: her marriage had dissolved; she had remarried and she and her new husband, a high income earner, purchased a house in Severna Park, Maryland; no evidence was presented at trial to prove that her earnings in Maryland would not be comparable to her current earnings; and no evidence was presented indicating that the move was motivated by a desire to make visitation with the father more difficult. These circumstances establish a "real advantage" to the mother, as the judge found. See Pizzino v. Miller, 67 Mass. App. Ct. 865 , 870 (2006).

Although purporting to use the real advantage test, in his findings on the modification complaint, the judge implicitly questions the applicability of that test to this case. In finding 52, he wrote, "Notwithstanding the designation of Mother as the physical custodial parent, the Court finds that, while the children do spend somewhat more time in Mother's residence, Mother and Father are both primary parents, with neither one exercising a significant majority of custodial responsibilities. The Court finds the label of 'sole physical custody' to be not reflective of the circumstances present in this case and thus misleading, inappropriate and irrelevant to the children in the within matter." Compare Mason v. Coleman, 447 Mass. 177 , 184-186 (2006) (articulating the standard for removal cases when the parties share physical custody).

The salient subsidiary findings of the judge find support in the record primarily in the report of the guardian ad litem. Although the report was filed in the divorce trial and was not updated, the judge based some of his findings on information in the report that may have been stale. For example, the guardian ad litem reported, and the modification judge found, that the children, particularly the older daughter, were emotionally fragile. That finding differs significantly from the testimony at trial of both the mother and father, each of whom reported that the children were doing well both at home and school. The judge's findings represent a distillation and amplification of the elements of the report negative to the mother and the removal. The judge's conclusion, moreover, shows less than full appreciation of the mother's genuine advantage in moving. [Note 1]

Moreover, in determining the effects of the move on the father, mother, and the children, see Yannas v. Frondistou-Yannas, supra at 711-712, the judge's findings and rulings concerning removal concentrated mostly on the father's relationship with the children, and the issues related to potential problems regarding visits by the father with the children. While those findings cannot be considered erroneous, disruption in the relationship of the children and the noncustodial parent cannot be controlling or no removal petition would ever be allowed. It is clear from the probate judge's findings that undue - in effect, dispositive - weight was given to this criterion. See Yannas v. Frondistou-Yannas, supra at 711; Hale v. Hale, supra at 815.

Finally, there is another aspect of the judgment that gives us pause, and suggests that the judge's analysis was not in keeping with the principles implicit in the real advantage test, namely his conclusion that "[t]here is no compelling necessity to justify removal." There simply is no requirement in the removal statute that the mother make such a showing.

The trial judge made thoughtful and comprehensive findings in denying the mother's complaint for modification seeking authorization to remove her minor child from this jurisdiction. The judge, however, appears to have failed to apply the appropriate legal standard in arriving at his conclusion that the best interests of the children are served by the denial of the mother's request.

Conclusion. The judgment denying the mother permission to remove the children is reversed, and the matter is remanded for reconsideration, consistent with the applicable standard as herein set forth.

The judgment of divorce nisi is affirmed. The judgment on the plaintiff's complaint for modification is reversed, and the case is remanded for further proceedings consistent with the memorandum and order of the Appeals Court.


[Note 1] For purposes of this decision we accept the judge's subsidiary findings but draw our own conclusions from those findings. See Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 265 (2001) (deference not accorded when findings do not support judge's actions). There is no dispute in this case concerning the basic facts of the situation the parties find themselves in. The dispute, rather, turns on whether the judge gave fair consideration to all aspects of that situation, including the mother's needs, or improperly gave undue emphasis to only one aspect of the situation, the father's visitation.