Opinion
14-P-1730
01-13-2016
LAURY A. HARWOOD v. DAVID A. LEE.
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
A father, David Lee, appeals from a judgment of the Probate and Family Court dismissing his complaint for modification and permitting the mother, Laury Harwood, to move to Iowa with the parties' minor child. Lee argues that the judge applied the wrong standard in allowing the mother's removal motion and also erred in failing to consider paramount the child's best interests. In addition, he claims that the judge erroneously denied his complaint for modification, which sought shared physical custody, and failed to make findings as to whether there had been a material change in circumstances. For essentially the reasons set forth in the judge's detailed findings, we affirm.
Background. The mother and father met when both were living in Chicago. They never married. The mother's family lives primarily in Iowa; the father's family lives primarily in Massachusetts. The minor child was born in Massachusetts on October 9, 2007, when the parties were living in the father's home in Wakefield. Shortly thereafter, the parties' relationship deteriorated and the father moved out; on June 12, 2008, the mother filed a complaint for support, custody, and visitation. After a trial, the judge issued findings and conclusions, with judgment entering on February 6, 2009.
The judgment essentially provided that the mother's request to remove the child to Iowa was denied; she was ordered to seek employment in Massachusetts, and if she was unable to do so after reasonable efforts, or if she lost her housing, she was given leave to refile her complaint. The order specified that the parties share legal custody with primary physical custody awarded to the mother; the parenting schedule then current was to remain, with additional instruction for shared holiday parenting time. The mother and child were permitted to remain living in the Wakefield home, with the father paying all expenses; the father was ordered to pay child support, provide health insurance for the child, and pay for airline tickets to Iowa for the mother and the child for four trips per calendar year.
On May 4, 2011, this court vacated "those portions of the amended judgment pertaining to removal and make-up visitation" and ordered the case remanded for further proceedings. See Harwood v. Lee, 79 Mass. App. Ct. 1115 (2011). Thereafter, on January 15, 2013, the father, citing the child's autism diagnosis as a material change in circumstances, filed a modification complaint seeking a change in the parenting schedule that would have resulted in shared physical custody. The hearing on the modification complaint was consolidated with the trial on remand.
After a new trial, the judge concluded that it would be in the child's best interests that the mother remain the primary caretaker; she also allowed the mother's request to remove the child from Massachusetts to Iowa, and dismissed the father's modification complaint. The father timely appealed.,
The mother was to be responsible for traveling with the child to Massachusetts, as well as for the cost of the travel, so that the father could exercise his parenting time. The father was awarded parenting time for virtually the entire summer (except that the mother had time during the first week after the end of the school year, and the last week before school begins); every other Thanksgiving and Christmas (with the father having the remainder of the winter vacation), and school year vacations. The father also was allowed parenting time for an extended weekend in Iowa during any month in which the father did not otherwise have visits with the child. If the parties could not agree on the child's travel itinerary, the mother was to have the final say.
The father's motions to amend the judgment pursuant to Mass.R.Dom.Rel.P. 52(b) and 59(e) were both denied in August, 2014. He timely appealed those decisions but does not raise the claims on appeal; thus, we consider them waived.
On July 16, 2014, the father's motion for stay of removal was denied; no appeal was taken.
Discussion. Removal. The father first argues that the judge's finding that the mother was the child's primary caretaker is clearly erroneous. In his view, this is a shared custody case, and therefore the judge should have employed the analysis explained in Mason v. Coleman, 447 Mass. 177 (2006), rather than Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). The father also asserts that the judge failed to examine adequately the negative impact that removal would have on the child, particularly because of his developmental needs.
"[A] court may award joint custody, whether legal or physical, only if the parties have made an agreement approved by the court to share custody, or if 'the court finds that the parents have successfully exercised joint responsibility for the child . . . and have the ability to communicate and plan with each other.'" Smith v. McDonald, 458 Mass. 540, 553 (2010), quoting from G. L. c. 209C, § 10(a). "A custody determination 'presents the trial judge with a classic example of a discretionary decision.'" Murphy v. Murphy, 82 Mass. App. Ct. 186, 193 (2012), quoting from Youmans v. Ramos, 429 Mass. 774, 787 (1999). In this case, there was no agreement for shared custody: the father was contesting the mother's physical custody. In addition, the relationship between the parties, and the mother's relationship with the father's extended family, had deteriorated significantly. Finally, the parties experienced difficulty in communicating, especially with regard to the mother's trips to Iowa. In light of all of these facts, we cannot say that the judge abused her discretion in finding that it was in the best interests of the child that there be no shared physical custody order. Nor was there any abuse of discretion in the decision that the mother should continue as the primary caretaker and should continue to have physical custody of the child.
When one parent is deemed the primary caretaker and requests permission to remove the child from Massachusetts, the judge must apply the standard articulated in Yannas, 395 Mass. at 711-712. The Yannas analysis consists of a two-part inquiry. "In this process, the first consideration is whether there is a good reason for the move, a 'real advantage.'" Id. at 711. The custodial parent must establish "a good, sincere reason for wanting to remove to another jurisdiction." Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775 (2006), quoting from Yannas, supra. This is so "because the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account." Abbott v. Virusso, 68 Mass. App. Ct. 326, 332 (2007), quoting from Yannas, supra at 710.
Contrast Mason, 447 Mass. at 184-185 ("Where physical custody is shared, the 'best interest' calculus pertaining to removal is appreciably different from those situations that involve sole physical custody. . . . No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and responsibilities with respect to the children. The importance to the [child] of one parent's advantage in relocating outside the Commonwealth is greatly reduced.").
Here, after consideration of all of the evidence, the judge concluded that the mother had demonstrated a real advantage to the relocation, and that her motivation for moving was not to deprive the father of time with the child. The basis of the judge's rationale was that the mother's "personal happiness will be enhanced by living in Iowa where she will feel supported and surrounded by family. . . . Moving to Iowa will be to the advantage of Mother, financially, emotionally, and socially."
Specifically, the judge found that the mother's request to move to Iowa was prompted by her desire to "be close to her family and friends; she has no familial connections in Massachusetts. Mother has an offer of full-time employment in Iowa. Despite a diligent job search here in Massachusetts, Mother has not been able to obtain full-time employment. Finally, Mother has a four-bedroom home in Wayland, Iowa which is significantly larger than her one-bedroom apartment here in Massachusetts." Also, "[i]n Iowa, Maternal Grandmother is available to assist with child care duties while Mother works," unlike in Massachusetts, where the child would be placed in daycare.
The mother has a strong bond with her family in Iowa, including a close relationship with her parents; she has no support network in Massachusetts and, since the 2009 judgment, has been experiencing stress and anxiety in Massachusetts due to her stated circumstances.
The judge also determined that the mother "recognizes [the child]'s close relationship with Father and she is committed to fostering the relationship between Father and son." Indeed, there was testimony that the mother often accommodates the father's request to alter parenting time to allow the child additional time with the father and his extended family.
Having found that a real advantage exists, the judge then considered the second factor under the Yannas analysis, i.e., "whether removal from the jurisdiction is in the best interests of the child." Wakefield, 67 Mass. App. Ct. at 776. "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, 395 Mass. at 711. "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 . . . .'" Abbott, 68 Mass. App. Ct. at 332, quoting from Yannas, supra at 712.
"When assessing the best interests of the child under the Yannas analysis to determine 'the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child,' . . . the Supreme Judicial Court has examined such factors as the financial, emotional, and social advantages associated with the proposed move; the availability of continued contact with both parents; the relative strengths of the local schools; and the home environment into which the child[] would be moving." Murphy, 82 Mass. App. Ct. at 191, quoting from Yannas, supra. See Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015) ("The relevant factors are: [1] whether the quality of the children's lives will be improved, including any improvement that may flow from an improvement in the quality of the custodial parent's life; [2] any possible adverse effect of the elimination or curtailment of the child[ren]'s association with the noncustodial parent; [3] the extent to which moving or not moving will affect the [children's] emotional, physical, or developmental needs; [4] the interests of both parents; and [5] the possibility of an alternative visitation schedule for the noncustodial parent" [quotations omitted].). As appears from this record, the judge carefully considered each of the relevant factors in concluding that relocation to Iowa was in the child's best interests.
Specifically, the judge found that in Iowa, the mother has options for full-time employment, providing financial stability for her and the child. They would live in a home that has a large yard for outdoor play and is considerably larger than the one bedroom apartment where they were living in Massachusetts. The mother would be in close proximity to her parents, her siblings, cousins, and friends, some of whom have young children with whom the child could socialize regularly. In living near her family, the mother, and, in turn the child, would have a network of support; the child has a strong bond with the mother's family due to frequent trips to Iowa each year, and enjoys participating in activities with his maternal grandparents, uncle, and cousins. Because the mother's "personal happiness will be enhanced by living in Iowa where she will feel supported and surrounded by family," and in a superior position financially, the child will directly benefit from the change in the mother's circumstances.
The judge recognized the strong bond the child shares with his father, as evidenced by the parenting schedule she crafted as part of the judgment. However, she also noted that "[t]he fact that visitation by the noncustodial parent will be changed to his or her disadvantage cannot be controlling." Yannas, supra at 711. In devising the parenting schedule, the judge provided the father with substantial time with the child in both Massachusetts and Iowa. The judge also considered the father's flexible work schedule and financial ability to travel to Iowa for extended visits with the child during months that the child does not travel to Massachusetts. Finally, the mother also was ordered to keep the father regularly informed about events in the child's life, particularly about important decisions relating to his education.
The father argues that the relocation is not in the child's best interests. In the father's view, the move will have a negative impact on the child's developmental and educational progress, particularly in light of his autism diagnosis. He claims that Wilmington (Massachusetts) has a far superior school system, and a more developed and comprehensive program to meet the child's special needs, than that offered in the WACO school district in Iowa. The judge, however, provided sufficient support for her conclusion that attending school in the Iowa school district would have no detrimental effect on the child's developmental progress. We cannot say that she abused her discretion.
In support of her conclusion, the judge found that "the WACO school system is ready and eager to provide [the child] with any and all services his IEP may require. Additionally, Federal law requires that they do so." Further, when he arrives at his new school, the child will be evaluated and a new individualized education plan (IEP) will be implemented; paraprofessional support will be provided in accordance with the IEP. He will be in a first grade mainstream classroom with fewer students than if he were to attend school in Massachusetts. There is one early childhood special education teacher who has a fully integrated classroom of up to eighteen students, and two special education teachers serving kindergarten through sixth grade. In addition, the level II special education program in those grades is overseen by "a highly qualified and experienced" teacher with special education training for students with autism. The child "will still receive the same services from the traveling specialists, including speech, occupational therapy, and physical therapy"; the child will be part of an integrated classroom, with a smaller teacher to student ratio, and will, as in Massachusetts, "be pulled out of the classroom for separate one-on-one or small group instruction."
Because the child will not be in the kindergarten class, which is taught by a first year teacher, the father's argument on this issue is moot.
In addition, the father's worry that the child would not have an adequately developed and appropriate summer program in Iowa is no longer a concern because the child will be with the father in Massachusetts for the bulk of the summer months. During that time, with the mother's agreement, the father may locate what he considers to be an appropriate program and enroll the child in it.
Based on the foregoing, we are satisfied that the judge did not err in finding a real advantage to the mother's relocation to Iowa, and in determining that the best interests of the child also favored removal. See Murphy, 82 Mass. App. Ct. at 193. However, we agree with the parties that the portion of the 2014 judgment relating to the parenting schedule must be vacated and the matter remanded to the Probate and Family Court for the sole purpose of coordinating the father's parenting time with the vacation schedule of the Iowa school district.
Complaint for modification. The father's complaint for modification sought leave of the court to amend the parenting schedule ordered by the 2009 amended judgment, essentially to allow for shared physical custody of the child. He argued that the child's 2010 autism diagnosis provided the material change in circumstances required to support that modification and now contends that the judge erred in concluding that there was no basis for modifying the custody order, without making specific findings as to whether there was a change in circumstances. We disagree.
Based on the judge's allowance of the mother's request for removal, and our affirmance of that decision, the father's complaint for modification was properly denied. On that basis, the judge was not required to determine whether there was a material change in circumstances. Her findings are supported by this record, and we see no abuse of her broad discretion in dismissing the father's complaint. See Pierce v. Pierce, 455 Mass. 286, 293 (2009).
Conclusion. The portion of the judgment dated May 28, 2014, related to the parenting schedule is vacated, and the matter is remanded solely for the purpose of coordinating the father's parenting time with the vacation schedule of the Iowa school district. The judgment is otherwise affirmed.
The present parenting schedule will remain in effect as a temporary order until further order of the Probate and Family Court.
So ordered.
By the Court (Kafker, C.J., Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 13, 2016.