Opinion
No. 13–P–1478.
10-01-2014
Amee DESJOURDY v. Bruce TASSONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father, Bruce Tassone, pro se, appeals so much of a Probate and Family Court modification judgment entered May 24, 2013, that granted full legal custody of his child to the mother, Amee Desjourdy. The mother has not submitted a brief; the mother's attorney filed with this court a letter stating that the mother would assent to the father's request to vacate so much of the judgment as modified legal custody, and have the matter remanded for a trial on the merits. This court then informed the parties that upon filing of a stipulation of dismissal with prejudice and without costs, signed by all parties, the appeal would be dismissed pursuant to Mass.R.A.P. 29(b), as amended, 378 Mass. 943 (1979). Subsequently, on May 29, 2014, we entered an order stating that “[u]nless a stipulation of dismissal is filed on or before June 6, 2014, the appeal shall proceed in due course.” Because the parties have not responded, we now consider the father's appeal.
The modification judgment states that as to the original judgment entered April 3, 2012, it is modifying only legal custody of the child and that in all other respects, the original judgment is to remain in “full force and effect.” On appeal, the father limits his argument to that portion of the modification judgment that modifies legal custody.
On November 22, 2013, we allowed the mother's motion to extend the due date of her brief, but no brief was later received.
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Discussion. The underlying judgment entered April 3, 2012, establishing custody, support, and visitation of the minor child, is not in the record before this court. The mother's complaint for modification, however, indicates that the original judgment granted the father and the mother joint legal custody of their minor child, but provided that if the father should go more than one month without visiting the child, he would waive his right to joint legal custody. The mother asserted in her complaint that the father had not visited with the child for more than one month, had been inconsistent in exercising his visitation, and had moved to Florida. The mother requested sole legal custody and restructuring of the father's visitation schedule. In his response, the father asserted that he had not missed any scheduled visits from January, 2012, until February, 2013, and that the mother “has intentionally kept [him] on the periphery of [the] minor child's life.” He requested that he retain joint legal custody with the mother.
The mother subsequently filed a motion requesting partial summary judgment as to the issue of sole legal custody. The judge, after hearing, issued an order allowing the mother's motion. In the order, the judge stated that she considered the evidence in the light most favorable to the father, and concluded that “given the [father's] failure to see the child for more than thirty (30) days, he has waived his right to joint legal custody.” A modification judgment granting the mother sole legal custody was entered on May 24, 2013.
It was error to decide this case on summary judgment. As stated in Guardianship of Phelan, 76 Mass.App.Ct. 742, 754 n. 22 (2010), “[by] the May 1, 2009, amendment to Mass.R.Dom.Rel.P. 56, summary judgment is no longer available in actions for custody or visitation.” Accordingly, so much of the modification judgment entered on May 24, 2013, that orders sole legal custody to the mother is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects, the modification judgment is affirmed.
So ordered.