Opinion
14-P-1736
11-06-2015
JOAN E. FIORE v. CATHERINE DERUOSI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from an order of the Probate and Family Court modifying the custody judgment and two judgments of contempt entered against Joan E. Fiore, Fiore raises various claims of error. We discern no cause to disturb the judgments, and affirm, addressing the plaintiff's contentions in turn.
1. The guardian ad litem report. Contrary to Fiore's argument, the trial judge's use of the guardian ad litem's report was appropriate. The report was clearly admissible under G. L. c. 215, § 56A, which affords probate judges broad latitude to appoint guardians ad litem. "All that is required is that the guardian ad litem be available to testify at trial and that the source of the material be sufficiently identified so that the affected party has an opportunity to rebut any adverse or erroneous material contained therein." Adoption of Georgia, 433 Mass. 62, 69 (2000). Fiore does not deny that she was able to cross-examine the guardian ad litem at length. Rather, Fiore argues that the guardian ad litem's report was not objective and unbiased. However, "[t]he guardian ad litem is free to make recommendations, 'provided the judge draws [her] own conclusions and understands that the responsibility of deciding the case [is] [hers] and not that of the guardian.'" Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006), quoting from DeMolino v. Nance, 14 Mass. App. Ct. 209, 212 (1982). It was of course within the prerogative of the trial judge to determine the appropriate weight and credibility to assign to the guardian ad litem's report, and to evaluate Fiore's charge that the guardian was biased. The judge's thorough decision demonstrates that she independently considered the facts and reached her own conclusions.
2. Modification of the custody judgment. A court may modify an existing custody judgment if it finds that a "substantial change" in circumstances has occurred, and that modification is in the child's best interests. G. L. c. 209C, § 20. Appellate courts recognize that the statute confers "broad discretion" on probate courts to fashion appropriate custody orders. Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000). A custody decision will not be overturned absent an "[e]rror of law apparent on the record" or "findings that have no support in the evidence." Ibid. Furthermore, a "judge's assessment of the quality of the testimony is entitled to considerable weight because he or she is in the best position to judge the weight and credibility of the evidence." Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 774 (2006).
We are unpersuaded by Fiore's claim that there was not a substantial change in circumstances, and that the Probate and Family Court failed to consider the child's best interests. The judge made extensive subsidiary findings of fact, for which there was ample support in the evidence introduced at trial. Considered as a whole, the judge's subsidiary findings of fact supported the judge's ultimate conclusions that there was a substantial change in circumstances, and that the modification was in the child's best interests.
Fiore's claim that the probate judge did not consider the best interests of the child is incorrect. The judge began by quoting the appropriate standard, and went on to tailor her decision to that standard: "'The court may make a judgment modifying [its] earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.' G. L. c. 208, § 28 . . . . The plaintiff has met her burden in this case."
The judge found that there had been a substantial change in circumstances due to the fact that, between July, 2013, and February, 2014, DeRuosi was deprived of parenting time with the child, aside from "a handful of reunification therapy sessions." The judge concluded that this estrangement occurred because Fiore had engaged in a pattern of alienation. Fiore "consistently and repeatedly excluded DeRuosi from [the child's] life," including failing to discuss medical and educational issues with DeRuosi, and refusing to list DeRuosi as the child's second parent when dealing with medical, educational, and child care providers. Such behavior amounts to Fiore having used "her final decision making authority as a tool to marginalize DeRuosi as a parent." The judge paid particular attention to the fact that Fiore and her partner had exposed the child to inappropriate conversations critical of DeRuosi. The judge found that these conversations had the effect of causing the child stress due to the conflict between the negative portrayal of DeRuosi by Fiore, and "the positive relationship [the child] enjoys with DeRuosi."
Fiore contends that incidents that occurred in 2010 and 2013 between the child and DeRuosi were what caused the relationship to become strained. The judge found that, in 2010, DeRuosi became angry with the child and grabbed his shirt. The judge also found that a 51A report filed in June, 2013, was unsupported for allegations of sexual abuse, but was supported for emotional maltreatment, due to DeRuosi remaining in the bathroom while the child took a bath. However, the period in which the judge found that the relationship between the child and DeRuosi deteriorated was after the second incident occurred. Both parties agree that the relationship was positive from 2010 to July, 2013. Ultimately, the judge acted well within her discretion when she decided that parental alienation by Fiore, not the incidents with DeRuosi, were the primary cause of the strain in the relationship, and her decision rested on ample factual support. Absent demonstrated abuse of discretion, we will not disturb the judge's decision. See Freedman v. Freedman, 49 Mass. App. Ct. at 521.
We note that, despite the judge's findings of a concerted effort by Fiore to alienate the child from DeRuosi, the child by all accounts appears to be developing well. In that context, the judge's order appears designed to further the child's best interests by removing that negative strain from the child's environment and allowing him to enjoy a healthy relationship with both parents.
3. Contempt. Lastly, Fiore appeals the judgment finding her in contempt on two counts, for failing to ensure that the child answer his phone to speak with DeRuosi on numerous occasions, and for refusing to allow DeRuosi to exercise her parenting time on three dates. To support a judgment of civil contempt, the judge must find "clear and convincing evidence of disobedience of a clear and unequivocal command." In re Birchall, 454 Mass. 837, 853 (2009). Fiore appears to argue that, as long as she did not physically prevent the child from speaking with or visiting DeRuosi, she complied with the court's order. However, the court's order on July 18, 2013, providing for DeRuosi to have phone contact with the child, imposed on Fiore an affirmative duty to "ensure that [the child] answers the phone." The visitation orders were also phrased in the affirmative: "Ms. DeRuosi will have . . . visitation," and "Ms. Fiore will drop [the child] off" (emphasis supplied). The judge permissibly found Fiore in contempt when, in defiance of the court's orders, she failed to insist that the child answer DeRuosi's telephone calls and failed to facilitate the required visitation.
Judgment of modification issued on August 24, 2014, affirmed.
Judgments of contempt issued August 25, 2014, affirmed.
By the Court (Berry, Green & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 6, 2015.