MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a divorce trial, the judge awarded joint legal custody of the child to both parents and physical custody to the mother, and allowed the mother to remove the child to Florida. The father appeals, challenging the award of physical custody to the mother and the permission to remove the child to Florida. [Note 1] In addition, he claims that the judge's findings of fact were not substantiated by the evidence, the judge failed to compel the mother to produce mandatory discovery or to produce other timely requested discovery, and the judge erred in failing to allow the father to introduce in evidence the testimony of the family therapist. We affirm.

We address the issues raised by the father seriatim.

Physical custody. The father challenges the award of physical custody to the mother. A custody determination must be based on the best interests of the child. Matta v. Matta, 44 Mass. App. Ct. 946 , 947 (1998). Here, the judge found that it would be in the child's best interest to be in his mother's custody because the mother has been the child's primary caretaker. See Custody of Kali, 439 Mass. 834 , 842 (2003) (stability and continuity with primary caregiver an important factor in custody determination). After the child was born she stayed home with him. After the father filed this divorce action, temporary physical custody of the child was granted to her, and both before and since the divorce action was filed, the mother and child have lived in Florida with the mother's parents for extended periods of time.

In challenging the judge's physical custody determination, the father essentially argues that, based on the testimony at trial, the judge should have drawn negative inferences against the mother and should have credited and given more weight to the testimony of the father's witnesses. It is well settled that it is for the judge to determine the credibility of witnesses and the weight to be given to their testimony. See Bak v. Bak, 24 Mass. App. Ct. 608 , 616 (1987). The judge “was not obligated to believe the [father's] testimony or that of any other witness.” Care & Protection of Three Minors, 392 Mass. 704 , 711 (1984).

Removal. The father's main argument on appeal is that the judge erred in finding a real advantage in the mother's removal of the child to Florida. He contends that the judge made several clearly erroneous findings and omitted key facts. As the mother has been the custodial parent, we apply the “real advantage” test to the removal analysis. See Yannas v. Frondistou–Yannas, 395 Mass. 704 , 710–712 (1985). “Under the real advantage test, ‘[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 [child's] best interests.’ “ Abbott v. Virusso, 68 Mass. App. Ct. 326 , 330 (2007), quoting from Pizzino v. Miller, 67 Mass. App. Ct. 865 , 870 (2006).

The custodial parent must establish “a good, sincere reason for wanting to remove to another jurisdiction.” Yannas, supra at 711. Here, the judge found that the mother's prospects for financial improvement and gainful employment would improve upon permanent relocation to Florida and that she would have the support of her family there. See Cartledge v. Evans, 67 Mass. App. Ct. 577 , 580 (2006) (move offered mother free lodging, the companionship of family, and readily available childcare assistance from family while she looked for and established herself in a suitable job). See also Williams v. Pitney, 409 Mass. 449 , 456 (1991) (move would result in emotional support from relatives and friends and better employment prospects for mother); Vertrees v. Vertrees, 24 Mass. App. Ct. 918 , 919 (1987) (move would be to the advantage of the mother emotionally, socially and financially). There was no suggestion that the mother's motive was to deprive the father of visitation. Indeed, the evidence of the father's contacts with the child was to the contrary.

Citing Yannas, the judge noted that “every person, parent and child, has an interest to be considered.” The judge found likely improvement in the lives of the mother and child resulting from the move. He found that the child would have financial and emotional stability, would have better living conditions and would benefit from the support of the extended family. See Wakefield v. Hegarty, 67 Mass. App. Ct. 772 , 777 (2006) (move was in child's best interest, in part because of improvement in life of mother and because of the mother's extended family nearby). Moreover, the judge found that in many respects the child, who, since the age of three, had divided his time between living with the mother and her parents in Florida, and living with the father in Massachusetts, had already made the transition to Florida.

In addition, the judge found that a real advantage existed for the removal of the child simply due to the lack of a habitable dwelling for him in Massachusetts. The father's home has lacked heat from time to time, did not have a bathroom sink, the floor lacked covering, and the father's dog had used the floor as a bathroom. Moreover, the walls of the house were dripping with leaks. In contrast, the mother's home was well-maintained, and the child had his own bedroom and bathroom, and lived within a mile of his elementary school. The father argues that the judge failed to take into consideration the recent changes and repairs which he made to his house, but has failed to establish that the judge's findings in this regard were incorrect. [Note 2]

Based on all of the above, we conclude that the judge did not err in determining that removal was appropriate.

Challenged findings. First, the father challenges the judge's finding that the mother's parents provide the mother and the child with a financially and emotionally stable environment where a support system exists in the mother's extended family who are ready to assist in caring for the child. There was evidence in the record that the grandparents, who have been married for thirty-seven years, and own their home, have provided a home for the mother and child, and provided them food and other necessities. In addition, the grandparents are available to babysit the child and to pick him up from day care. There was no error.

The father also argues the judge's finding that the mother's prospects for finding stable, consistent employment are better in Florida is erroneous. The judge apparently based that finding on the grandmother's testimony that she works for J.P. Morgan Chase Bank and that she believed that the mother would be able to work for the bank. While such a contact does not ensure a successful job search, it provides a substantial basis for the judge's finding.

Next, the father challenges the judge's findings that “[i]t is clear that the Plaintiff has not provided a suitable home in which a child of five should live” and that “[i]n contrast, the Defendant's home was shown to be well maintained.” There was evidence that in Florida the child has his own bedroom and bathroom. By contrast, when the child was born, the parties and the child lived in a one-bedroom residence, and the child was sleeping in the living room. For a period of time the house had no heating system and was being heated with space heaters. The bathroom had no sink. The family eventually moved to a different residence, which was also in poor condition. See supra. The findings were not erroneous.

In addition to arguing that the judge made findings favorable to the mother that were clearly erroneous, the father also argues that the judge erred in failing to make findings which would have been favorable to him and unfavorable to the mother. As discussed above, the judge had no obligation to believe any particular witness and it was up to him to decide on the credibility of witnesses and the weight to be given to their testimony. See Care & Protection of Three Minors, 392 Mass. at 711; Bak v. Bak, 24 Mass.App.Ct. at 616.

Discovery ruling. The father argues that the judge erred in not ordering the mother to comply with his discovery requests. “The conduct and scope of discovery is within the sound discretion of the judge.” Cardone v. Boston Regional Med. Center, Inc., 60 Mass. App. Ct. 179 , 191 (2003), quoting from Solimene v. B. Grauel & Co., KG, 399 Mass. 790 , 799 (1987). The father filed for divorce on June 28, 2007. The first hearing on the case was held on August 20, 2007. At that time, both parties indicated that they wanted to have a pretrial conference in January of 2008. They agreed that discovery would be completed by December 11, 2007, and a pretrial conference held on January 9, 2008. The judge inquired of the father's counsel if he wanted to put off the pretrial date, but he indicated that he did not. [Note 3]

In his January 4, 2008, pretrial memorandum, the father made no mention of any outstanding discovery, nor did he move to continue the pretrial hearing date. The pretrial hearing was held on January 9, 2008. At that time, the father's counsel made no mention of any outstanding discovery. The pretrial hearing continued on January 15, 2008. It was on that date that the father's counsel first brought up the issue of outstanding discovery. Since discovery closed on December 11, 2007, and the father did not move to compel discovery, we conclude that the judge did not abuse his discretion in declining to take any action on the father's belated request for discovery.

Therapist's proposed testimony. The father's final argument is that the judge erred in not allowing the testimony of the family therapist. After a hearing, the judge determined that the family therapist could testify, but that she could not testify about her individual sessions with the child because the father's pretrial memorandum identified her as a family therapist, not the child's therapist. Moreover, the mother, who along with the father had legal custody of the child, was never told that the witness had been acting as the child's individual therapist. [Note 4] There was no abuse of discretion by the trial judge. See Elias v. Suran, 35 Mass. App. Ct. 7 , 10 (1993).

Judgment affirmed.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is a removal case, decided in the Probate and Family Court. The mother appeals from a judgment dismissing her modification complaint, by which she sought to remove the couple's two children to Georgia, home of her new husband and step-children. On appeal she contends that the judge (1) abused her discretion in finding no real advantage to the mother if she relocated to Georgia; (2) erred in finding that separating the children from their father would not be in their best interest, because the father's domestic violence against the mother diminished his ability to serve as an appropriate role model to his children; and (3) failed to make findings as to mother's relationship to the minor children. We affirm.

Background. A judgment of divorce nisi entered in August, 2005. The mother, the custodial parent, is white, the father is black, and they have two minor children. The mother remarried in 2007, and her new husband resides in Georgia. In November, 2006, the mother filed a modification complaint, seeking leave to remove the children to Georgia. The judge specifically found, based on the mother's assertions in her testimony at trial and to the guardian ad litem (GAL), that her desire to be with her new husband was not her primary reason for wanting to relocate to Georgia, and that her primary reason to move to Georgia was the anticipated financial benefit of the move. These financial reasons, [Note 1] the judge concluded, were unfounded, and based more on speculation and hope than anything else. The judge also noted that the mother has no relatives in Georgia whereas she does have relatives residing nearby in Connecticut. Thus, the judge found, the proposed move did not represent a “real advantage” to mother. [Note 2]

In addition to finding no real advantage to the mother, the judge found that the proposed relocation was not in the children's best interests. In this regard, the judge rejected the GAL's recommendation, instead accepting the recommendation of Dr. Daniels, the father's expert, recognized by both parties as an authority in her field of expertise. Dr. Daniels opined, in part, that, because the children were dark skinned biracial youngsters, their separation from their father would be detrimental to the acculturation process, especially here, where, the judge found, the mother and her new husband are generally insensitive to the issue. The judge further found that the children would likely benefit from the father's sensitivity and proximity, and that removing the children to Georgia would lessen the father's positive influence in their lives.

Discussion. Application of the “real advantage” test. As the mother has been the custodial parent, the judge appropriately applied the “real advantage” test to the removal analysis. See Yannas v. Frondistou–Yannas, 395 Mass. 704 , 710–712 (1985). “Under the real advantage test, ‘[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.” Abbott v. Virusso, 68 Mass. App. Ct. 326 , 330 (2007), quoting from Pizzino v. Miller, 67 Mass. App. Ct. 865 , 870 (2006).

The custodial parent must establish “a good, sincere reason for wanting to remove to another jurisdiction.” Yannas, supra at 711. Here, the judge, after considering the appropriate legal precedents, concluded that the mother failed to demonstrate a real advantage to moving to Georgia since (1) the move would provide her with no financial benefit, and she had no firm employment there; (2) “[t]he Mother never stated either to the GAL or to [the] Court that the reason for the move was to be with her new husband”; (3) “both [the] Mother and [her new husband] testified that they would be willing to move to Massachusetts if [the] Mother's request to move the children was denied”; and (4) “[the new husband] would likely find employment in Massachusetts as a graphic designer and ... his income would be greater in Massachusetts than in Georgia.” Compare Cartledge v. Evans, 67 Mass. App. Ct. 577 , 580 (2006) (move offered mother free lodging, the companionship of family, and readily available child-care assistance from family, while she looked for and established herself in a suitable job). Compare also Williams v. Pitney, 409 Mass. 449 , 456 (1991) (move would result in emotional support from relatives and friends and better employment prospects for mother); Vertrees v. Vertrees, 24 Mass. App. Ct. 918 , 919 (1987) (move would be to the advantage of the mother emotionally, socially and financially). We need not decide this issue because the second inquiry under Yannas is dispositive.

Under Yannas the judge must also determine whether removal from the jurisdiction is in the best interests of the children. Yannas, supra. “An evaluation of the best interests of the child requires attention to 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), the possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent, and the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child.” Yannas, supra.

“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 the best interests of the child, but rather they must be considered collectively.” Yannas, supra at 711–712. See Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 267–268 (2001). At this second stage “[e]very person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding....” Yannas, supra at 712.

The judge concluded that relocation by the mother to Georgia would not be in the best interests of the children. She based her conclusion on her findings that the move would not result in an improvement in the life of the mother that would inure to the children's benefit and that separating the children from their father would have a negative effect on their emotional and developmental needs. [Note 3] The judge also found that the mother's motive, in some measure, was to deprive the father of meaningful contact with the children. [Note 4]

On the record before us, it appears that there was no error by the judge in her balancing of interests and her determination that removal was not appropriate.

Domestic abuse. The mother contends that the judge erred in failing to consider the seriousness of the past domestic abuse by the father in determining whether the requested removal was in the best interest of the children. [Note 5] The judge found that there was a single incident of domestic violence by the father in front of the children. Evidence of the incident was presented fully to the court and, indeed, addressed by both the GAL and the father's expert, Dr. Daniels. The judge noted that if domestic violence exists in a family on a continual basis, it would be unhealthy, but, here the father admitted his misdeed with appropriate contrition, and the problem subsided. The judge made findings regarding this issue, concluding that “there was no evidence presented, nor any reported by the GAL, that the children suffer from any adverse effects from the single incident of domestic violence witnessed between the parents.... [T]hese children did not live in an environment of domestic violence. They witnessed an incident between their parents when they were young, after which the father was immediately contrite and accepted full responsibility for his actions.” Such findings are sufficient.

Findings relating to the mother. Finally, the mother argues that the judge abused her discretion by failing to make findings as to the mother's relationship to the children. On closer inspection, the argument appears to be that the judge erred in failing to make findings which would have been favorable to her and unfavorable to the father. However, the judge had no obligation to believe any particular witness and it was up to her to decide on the credibility of witnesses and the weight to be given to their testimony. Care & Protection of Three Minors, 392 Mass. 704 , 711 (1984); Bak v. Bak, 24 Mass. App. Ct. 608 , 616 (1987).

Judgment affirmed.