Opinion
14-P-1703
11-05-2015
ANDREW R. JANKOVICH v. MARIJA V. JANKOVICH.
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
This is an appeal by the defendant, Marija V. Jankovich (mother), from a judgment of divorce nisi dated July 8, 2014. The sole issue raised on appeal is the judge's failure to order that, in the event a judgment of divorce enters, the plaintiff, Andrew R. Jankovich (father), would be prohibited from permitting the children to be in the company of a former au pair who is involved in a relationship with the father. As we discern no error of law or abuse of discretion, we affirm.
Background. Based on the testimony of the father and the mother, the judge made the following findings of fact. The parties separated on or about December 8, 2012, when, after the children were asleep, the father left the house and did not return. The father refused to testify about his ongoing relationship with a live-in au pair the parties had hired in December, 2010, and the judge properly inferred that the father had been involved in a long-term relationship with the au pair, which began prior to the parties' separation. The judge found that the au pair left the parties' employment in August of 2012. There was no evidence that the children have seen the au pair since the parties separated.
The judge credited the mother's testimony that the children had certain adverse reactions to the separation of their parents, which began almost immediately with the three children insisting on sleeping in their mother's bed, and that this behavior continued up to the time of trial. The judge inferred that this behavior was in response to the circumstances of the parties' separation. There was no expert witness testimony offering any other explanation.
There also was evidence of other adverse reactions by the children following the parties' separation, including bedwetting, outbursts, and other misbehavior.
The judge noted that the parties are in agreement that the children do not know that their father and the au pair are involved in a relationship, and do not know that that relationship was the cause of their parents' separation. The judge found that there is no evidence that the au pair, who cared for the children for more than one and one-half years, has ever done anything improper in her interaction with the children. The judge characterized as speculation the mother's testimony that if the children are permitted to interact with the au pair they will realize the cause of the breakup of the parties' marriage. Furthermore, the judge noted that even if the children do learn of this, it does not constitute grounds to order the father not to permit the children to have any access to the au pair, with whom he has a long-term relationship. The judge observed that "[w]hile the court is not condoning an extramarital relationship, the assertion that the children's problems are the result of the separation and the separation is the result of the au pair's actions, therefor[e] the au pair is responsible for the children's problems is not a leap I am willing to make. The Court is concerned that the wishes of the adults are being conveyed in such a manner as advocacy for the best interest of the children."
The mother also argued that the au pair's immigration status was a basis to prohibit contact. We agree with the judge that "the au pair's desire to remain in the United States, even with an expired visa, does not constitute a reason to prohibit access, even if the possibility of deportation exists." The judge also noted that the father asserts that the au pair has a green card.
Discussion. Standard of review. We leave undisturbed the judge's factual findings unless they are "plainly wrong or clearly erroneous." Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). See Mass.R.Dom.Rel.P. 52(a) (1987). "In applying the standard, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Two Minors, 396 Mass. 610, 618 (1986). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted).
Children's access to a third person. As the judge noted, the mother did not offer any evidence that if the children were in the presence of the au pair it would exacerbate the adverse behaviors which began following the separation. In effect, the mother seeks the court's moral condemnation of the father's lifestyle. In Fort v. Fort, 12 Mass. App. Ct. 411, 415 (1981), a case upon which the mother relies, we rejected this argument. "Our courts must serve a society comprised of groups that are widely disparate in cultural background and moral and religious outlook. The judges who must ultimately determine disputes over custody have the same disparities of outlook as the society they serve. Obviously the individual judge cannot hold up his own moral and religious views as the standard against which he determines the moral fitness of the proposed custodian, for different judges would make conflicting determinations, and 'the judicial branch of government, with respect to [custody disputes], would become a government of men and not of laws.'" Ibid., quoting from Reddington v. Reddington, 317 Mass. 760, 765 (1945). Instead, in a case such as this, the judge's responsibility is to evaluate the "interpersonal relationships of the persons involved as they affect the well-being of the child or children whose custody is under consideration." Fort, supra at 418. The mother's reliance on Doe v. Doe, 16 Mass. App. Ct. 499 (1983), is similarly unavailing. There, we affirmed an award of joint custody, concluding that no evidence had been presented to show that what was described as the wife's homosexual lifestyle would adversely affect the child. Id. at 504. Here, as we have noted, there was a similar lack of evidence to support the mother's contention.
Finally, we reject the mother's argument that there are "compelling" parallels between this case and B.B.V. v. B.S.V., 68 Mass. App. Ct. 12 (2006), where we imposed a limitation on the award of physical custody in favor of the wife by requiring that she not allow or permit the children to be in the presence of her father, with whom she was in an incestuous relationship. In B.B.V., there was expert witness testimony at trial about the risks the children would face if exposed to the relationship between their mother and grandfather, and we acknowledged that such exposure "would be a direct and articulable adverse impact on the children." Id. at 20. In this case, comparable evidence of a "direct and articulable adverse impact on the children" as a result of the father's relationship with the former au pair is noticeably lacking. Finally, we do not agree with the mother's assertion that the judge's refusal to forbid contact between the children and their former au pair will interfere with the mother's right to participate in the children's education or in imparting to them religious and moral values.
Judgment affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: November 5, 2015.