Opinion
21-P-299
04-08-2022
Wanjiku GACHUGI v. Asegun HENRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After moving to Massachusetts where her two children were living with their father pursuant to a Georgia divorce decree, the mother filed a Massachusetts action seeking to modify the Georgia decree. A Probate and Family Court judge allowed the motion to dismiss that the father filed pursuant to Mass. R. Dom. Rel. P. 12 (b) (6). On the mother's appeal, we vacate the judgment of dismissal and remand for further proceedings.
The parties, who were married in 2012, originally lived together with their two children in Georgia. The father decided to move to Massachusetts after he was offered a professorship at the Massachusetts Institute of Technology. In the divorce action in Georgia, a judge issued a decree in August of 2018 that awarded the parents joint legal custody, and assigned primary physical custody to the mother who, for years, had served as the children's primary caregiver. However, the mother soon thereafter expressed her intention to move, with the children, to Kenya. This prompted the father to file a complaint for modification in Georgia. The Georgia judge left joint legal custody in place, but reassigned primary physical custody to the father. The mother was allowed unsupervised parenting time with the children every other weekend, along with several weeks during summers. Some financial adjustments were made to account for the mother's having to travel to Massachusetts to see the children. A modified judgment and decree entered in the Georgia case on December 12, 2018.
The father separately moved to vacate the Georgia divorce decree on the ground that the mother had committed a fraud on the court by claiming that she had no intent to move to Kenya when the divorce was finalized. The judge concluded that the father had not met his burden of proving this.
In or about September of 2019, the mother moved to Massachusetts and, the following month, filed an action in the Probate and Family Court seeking to enforce and modify the Georgia decree and parenting plan. Through this complaint, the mother sought, among other things, that primary physical custody be assigned back to her or that, at a minimum, she be given additional parenting time now that she and the children were again living in the same State. In response, the father filed what was styled as a "verified motion to dismiss," which was akin to a motion for summary judgment. After holding a nonevidentiary hearing, the judge allowed the father's motion, stating that "[e]ven considering the light most favorable to [the mother], she has failed to demonstrate a material change in circumstances." See E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020) (parenting seeking modification "must first establish that a material and substantial change in circumstance has occurred to warrant a change in custody, and that the change is in the child's best interests"). A judgment of dismissal dated December 19, 2019, was entered on December 23, 2019. This appeal followed.
It appears that the form of the father's motion may have been driven by the fact that the relevant court rules do not contemplate that custody issues can be decided on summary judgment. See Mass. R. Dom. Rel. P. 56. We need not decide whether the father's motion to dismiss was procedurally proper.
The docket of the Probate and Family Court does not reflect that the mother filed a timely notice of appeal, but this was a clerical error by the register's office, and the father now accepts that a timely notice of appeal was filed. In April of 2020, the mother filed a motion seeking clarification of the judgment or, in the alternative, relief from the judgment. After that motion was denied, the mother filed a second notice of appeal. The mother's postjudgment motion dealt in great part with her efforts to register the Georgia decree in Massachusetts in accordance with G. L. c. 209B, § 12, and G. L. c. 209D, § 6-609. The judgment of dismissal required such registration, but the register's office declined to allow such registration on the current docket because the complaint had been dismissed. At oral argument, the parties reported that the Georgia decree since has been registered. We have no occasion to reach the father's arguments that the mother's appeal cannot go forward without the Georgia decree being registered. We do not accept the father's argument that the Probate and Family Court lacked subject matter jurisdiction over this matter because the mother had not yet filed an affidavit pursuant to G. L. c. 209B, § 3 (a ).
Because the judge ruled that the mother's complaint for modification failed as a matter of law, our review is de novo. See Martinez v. Martinez-Cintron, 93 Mass. App. Ct. 202, 204 (2018). Although the judge did not explain why she concluded that the mother could not demonstrate a material change in circumstances, the record suggests two potential grounds. We address these in turn.
The father argued that the current custody and parenting time arrangements were driven by the Georgia judge's fear that the mother would take the children to Kenya, a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, 22 U.S.C. §§ 9001 et seq. Based on this premise, the father argued that the mother's moving to Massachusetts is not material because it would not alleviate the concern that the mother would take the children to Kenya; if anything, it might exacerbate that concern. From comments that the Massachusetts judge made at the hearing, it appears that she may have accepted the father's argument on this point.
The father's premise that the Georgia judge's ruling on the custody issues was primarily motivated by the judge's fear that the mother was a "flight risk" is not substantiated by the record. Certainly, the Georgia judge found that the mother did intend to move to Kenya, and he reassigned primary physical custody to the father because he (the judge) found that it was in the children's best interests that they live in Boston rather than Kenya. Specifically, the judge found "that the uncertainty and upheaval for the children will be less in Boston than Kenya, and that it will also be easier for both parents to have a relationship with the children in Boston than in Kenya." At the same time, however, the judge awarded the mother significant unsupervised parenting time, and she was free to travel with them within the United States. It is evident that any fear that the mother unilaterally would abscond with the children to Kenya was not the driving factor in the custody arrangements set by the Georgia judge; rather, it was a concern that the judge determined could be managed by having the father take possession of the children's passports. In these circumstances, the father's concern that the mother remains a "flight risk" does not preclude the Massachusetts judge from revisiting the custody and parenting time provisions that the Georgia judge had set prior to the mother's moving to Massachusetts.
Each parent had an obligation to notify the other if the children were to travel more than one hundred miles from their "respective cities of residence."
The father also argued, and continues to argue, that the mother's move to Massachusetts could not constitute a material change in circumstances because it was, or at least could have been, anticipated at the time the Georgia judge switched primary physical custody to the father. But when the father filed for a change in custody, the mother was living in Georgia, and intending to move to Kenya; nothing suggests that she was contemplating moving to Massachusetts at that time. To be sure, the mother's potential move to Massachusetts presumably became more of a distinct possibility once primary physical custody was reassigned to the father. In fact, it is possible that the Georgia judge anticipated that his custody ruling would create a likelihood that the mother would decide to move to Massachusetts. However, this does not prevent the mother's subsequent move here from constituting a material and substantial change of circumstances that might warrant a fresh look at custody and parenting time issues. It is one thing to be able to anticipate the possibility of a major eventuality, and quite another to have it actually come to pass.
This readily can be illustrated by analogy. For example, there would be nothing improper about revisiting custody in the event that a parent who was recovering from a substance use disorder should relapse, even if such a relapse might have been anticipated.
In sum, we conclude that the judge erred in ruling that, as a matter of law, the mother could not demonstrate that her move to Massachusetts constituted a material and substantial change in circumstances with respect to custody and parenting time. We therefore vacate the judgment of dismissal and remand for further proceedings consistent with this memorandum and order. We deny the father's request for appellate attorney's fees.
To be clear, we note that we state no position on whether a change is custody or parenting time is warranted. We also state no position on whether the mother should be compelled to engage in good faith negotiations prior to pressing forward with this litigation. The Georgia parenting plan states that "[s]hould the parents disagree about this Plan or wish to modify it, they must make a good faith effort to resolve the issue between them prior to initiating litigation." Based on this provision, the father argued in the Probate and Family Court that the mother failed to engage in such negotiations and that the litigation therefore should be dismissed or stayed; the mother countered by suggesting that compliance with that provision would have been futile based on alleged bad faith by the father.
So ordered.
Vacated and remanded