74 Mass. App. Ct. 1120

June 24, 2009

Present: Lenk, Cypher & Mills, 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.


The parties, married in 1992, were divorced in 2003. They have two sons, born in 1994 and 2000. Pursuant to an agreement, not merged in the divorce judgment, they chose joint legal custody, with the mother having primary physical custody and the father having visitation. (A.I:20-21) Subsequently the parties were involved in numerous actions in the Probate and Family Court, [Note 1] leading to a trial held over four days. (A.I:21-28) We summarize in the margin, the actions which were resolved, as shown in the judgment issued after the trial. [Note 2] The father appeals so much of the judgment as permits the mother to remove the children to Florida and orders that she have their sole legal custody.

1. The removal decision. The father claims the judge erred in finding (a) that there was a real advantage, and (b) that removal is in the best interests of the children.

a. The father asserts the judge ignored "overwhelming" evidence that the mother was motivated to get away from him and deprive him of regular visits with the children (brief at 16-17). His argument consists of references to portions of the report and supplemental report of the guardian ad litem (GAL) (brief at 17-23) (A.II:18,68). These portions of the GAL's report do not undermine the judge's findings, and the father's challenges to those findings are without merit. [Note 3] There is no indication that the judge overlooked any substantial evidence. [Note 4] While the GAL may make recommendations, the judge must draw his own conclusions, and "the responsibility of deciding the case [is] his and not that of the guardian." Pizzino v. Miller, 67 Mass. App. Ct. 865 , 876 (2006), quoting from Jones v. Jones, 349 Mass. 259 , 265 (1965).

The judge found that the stress of the parties' antagonistic relationship and the lack of support from the father and his family have caused the mother to be unhappy in Massachusetts, and her unhappiness has affected the children (A.I:29 F.13,14). In moving to Florida where she was raised and still has an extensive network of friends, the mother also will be in geographic proximity to close relatives who will provide emotional support.

In particular, she will be close to her mother, a sister, and a sister-in-law who can assist with child care. There are cousins with whom her two children have vacationed and have a close relationship (A.I:29-30 F.21-27,32). The judge credited the mother's investigation of housing, school, and job opportunities which appear to be available (A.I:30 F.28-31) (see also A.I:113- 159). Moreover, he credited the mother's testimony that she "fully supports, encourages, and expects that [the father] will have extended periods of visitation," and found that her desire to relocate is "not motivated by an intent to deprive [the father] of reasonable visitation." (A.I:33 F.62,63) The judge concluded that the mother "has shown good and sincere reasons in support of her request to remove the children from the Commonwealth of Massachusetts to the state of Florida." (A.I:31 F.34)

b. The father asserts the judge ignored evidence that removal would have an adverse effect on the emotional and developmental needs of the children, especially the older child. Here again, the father cites portions of the GAL report and the supplemental report (brief at 25-29), but those portions do not undermine the judge's findings or indicate that the judge overlooked any substantial evidence. See notes 3 & 4, supra.

The judge principally found that removal of the children will eliminate the "day-to-day interaction" between the parties which has placed "constant stress" on the children (A.I:32 F.52). He specifically found that "continued day-to-day interaction between the parties is not in the best interest of the children." (A.I:34 F.70) He credited the GAL's testimony that therapy is very important to the older child, and that he is currently "stable" and attending therapy monthly (A.I:32 F.46,48). He found that the parties' "tumultuous relationship" and inability to communicate is a "major stressor" for the older child and that he cannot make progress unless that stress is removed (A.I:32 F.49,50). [Note 5] The judge found that the benefits which will accrue to the mother from the move will "benefit the development of the children and promote their best interests." (A.I:33 F.61) See generally Yannas v. Frondistou-Yannas, 395 Mass. 704 , 710-712 (1985). He also found that "alternative visitation arrangements, such as extended summer vacations, are reasonable in this case, and are in the best interests of the children." (A.I:34 F.71) 2. The modification of custody. The father first complains that there was no request for a change of legal custody before the court. In a recorded lobby conference with counsel near the beginning of the trial, the judge clearly indicated that custody would be treated as an open issue at the trial (Tr.I:149-153). There were no objections then or at trial.

The judge made a number of findings in support of his decision to award legal custody to the mother. Although having joint legal custody since the divorce, the mother has primarily, and often solely, been responsible for the day to day care of the children. The father does not assist with transportation or child care outside of his visitation hours, and does not actively participate in their schooling or extracurricular activities (A.I:33-34 F.64,65,66). The father has not been involved in decisions regarding their welfare, takes little responsibility for their welfare, and has been inflexible on visitation arrangements (A.I:35-37 F.79,80,83-98). The judge found the father relies on the mother's status as custodial parent "as an excuse to abdicate all responsibility" for the well-being of the children (A.I:37 F.103).

The judge concluded that awarding sole physical custody to the father would not be in the best interests of the children, and that it is in the best interests of the children that the mother have sole physical as well as legal custody (A.I:38 F.107,109). Contrary to the father's assertions, there was ample evidence of changed circumstances (since the parties' original agreement to joint legal custody) to justify the award of sole legal custody to the mother. He properly could conclude that joint legal custody was not appropriate. Compare R.H. v. B.F., 39 Mass. App. Ct. 29 , 43 (1995). It was within the judge's discretion to determine the custody arrangement in the best interests of the children. [Note 6]

Judgment affirmed.


[Note 1] In his decision, the judge listed fifty-eight motions and orders docketed between the divorce in 2003 and the trial in 2007. (A.I:21-28)

[Note 2] The judgment (1) allowed in part the father's February 6, 2006, complaint for modification of child support requesting a reduction; (2) denied the father's February 21, 2006, complaint for modification seeking sole physical custody of the children; (3) allowed the mother's June 30, 2006, complaint for modification seeking removal of the children to Florida; (4) denied the mother's September 7, 2007, complaint for contempt concerning medical expenses for the children; (5) denied the father's September 17, 2007, counterclaim for contempt; (6) denied the mother's October 25, 2007, motion for apportionment of guardian ad litem fees; and (7) denied the father's November 13, 2007, motion for sanctions regarding the mother's motion for apportionment of GAL fees. (A.I:52).

[Note 3] The father asserts that certain findings are not supported by evidence or are "against the great weight" of the evidence (father's brief at 30-39). The mother's brief contains responses

to each of these assertions, referencing portions of the record in support of the judge's findings (mother's brief at 9-13,14-18,19-22). The findings demonstrate that the judge gave close attention to the evidence. Where there is evidence to support a finding, it cannot be clearly erroneous, and where there is contrary evidence, it is open for the judge to weigh that evidence and assess the credibility of the witnesses. Custody of Eleanor, 414 Mass. 795 , 799 (1993), and cases cited. "We do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error." Mason v. Coleman, 447 Mass. 177 , 186 (2006), and cases cited.

[Note 4] The judge made a total of 173 findings of fact, and forty-five conclusions of law. (A.I:28-49)

[Note 5] The judge credited the testimony of the GAL that the monthly therapy the older child is attending is very important to his well-being (A.I:32 F.46).

[Note 6] We note that the judge denied the father's motion to stay the judgment pending appeal (A.I:19). In that judgment he ordered that the mother "shall be permitted to remove the children . . . upon furnishing to the Court evidence of employment, housing, and schooling for the children"; appointed a "visitation monitor," and ordered the mother and father to meet with the visitation monitor, to prepare an appropriate visitation schedule to be approved by the court prior to relocation. The judge retained exclusive jurisdiction over issues involving the children or their support (A.I:51-52, pars.5,6,7,16).