Opinion
No. 15–P–1404.
10-27-2016
Benjamin L. GREEN v. Sara D. FERENCHICK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Sara Ferenchick (mother), appeals from a judgment of the Probate and Family Court that found her in civil contempt, and made orders regarding parenting time and transportation responsibility. We affirm.
Background. A Probate and Family Court judge approved the parties' agreement on a complaint for custody, support, and visitation related to their three year old daughter. In relevant part, the agreement provides that the parties have shared legal custody and the mother has primary physical custody. The father has parenting time with the child on Monday and Friday mornings and every other weekend. The parties share transportation responsibility equally. Neither party can schedule an activity during the other's parenting time without that party's consent and “said consent shall not be unreasonably withheld.”
The father filed a complaint for contempt alleging that the mother violated the agreement by (1) arriving between fifteen and seventy-five minutes late thirty-five times between September, 2014, and March, 2015; (2) scheduling activities for the child during his parenting time without his consent; and (3) unreasonably refusing to allow the child to attend soccer practice that extended into the mother's parenting time. After a hearing, the judge rejected the father's first two claims, but held the mother in civil contempt for “unreasonably withholding consent to an activity during 30 minutes of her parenting time.” The judge further ordered that “[i]f the Mother is more than 15 minutes late dropping off the child, the Father's parenting time shall be extended by an equal amount of time. The Mother shall deliver the child to the Father at the beginning of his parenting time. The Father shall deliver the child to the Mother or her designee at the end of his parenting time.” This appeal followed.
Discussion. 1. Contempt. “[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command.” Birchall, petitioner, 454 Mass. 837, 853 (2009). We review the ultimate finding of contempt for abuse of discretion. Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). An abuse of discretion occurs where “the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014) (citation and quotation omitted).
For the first time on appeal, the mother claims that the judgment of contempt was error because the order that “consent shall not be unreasonably withheld” is not a clear and unequivocal command. Because this argument was not raised in the trial court, it is waived and we do not address it. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ; DeMarco v. DeMarco, 89 Mass.App.Ct. 618, 623 (2016).
The mother also claims that the judge abused his discretion when he concluded that she unreasonably withheld her consent to the father's request to take the child to soccer practice on Fridays. Here, there was evidence that the soccer practice extended into the mother's parenting time by only thirty minutes, and the father returned the child immediately after soccer to day care or the child's maternal grandmother. The mother challenged these assertions at the hearing, but “our task is not to substitute our judgment for that of the fact finder.” Goodman v. Atwood, 78 Mass.App.Ct. 655, 658 (2011). In these circumstances, we discern no abuse of discretion in the judge's conclusion that the mother's consent was unreasonably withheld.
2. Orders regarding transportation and extensions of parenting time. The mother claims that the judge exceeded his authority by entering an order clarifying the parties' responsibilities for transporting the child to and from parental visits. Because counsel for the mother agreed to the order at the contempt hearing, she is foreclosed from objecting to it now. Cf. Commonwealth v. Myers, 82 Mass.App.Ct. 172, 185 (2012) (knowing and intelligent waiver of confrontation right).
Finally, the mother claims that the order extending the father's parenting time, should the mother deliver the child late, exceeded the judge's authority. We disagree. Even though there was no finding of contempt related to the father's claim that the mother repeatedly delivered the child late, the mother admitted that she did not always deliver the child on time. After considering this evidence, the judge ordered that if the mother is more than fifteen minutes late dropping off the child, the father's parenting time shall be extended an equal amount of time. We view this as a reasonable exercise of the judge's authority to ensure that the parenting plan agreed to by the parties is equitably executed. See Bloksberg v. Bloksberg, 7 Mass.App.Ct. 233, 234–235 (1979) (court's power to modify can be exercised in contempt proceeding).
3. Attorney's fees. The father has requested attorney's fees and double costs on appeal pursuant to G.L. c. 211A, § 15, claiming that the mother's appeal is frivolous. As we do not consider the mother's appeal frivolous, immaterial, or intended for delay, the request is denied.