Opinion
14-P-942
08-05-2015
JILL LaGASSE v. SCOTT HYDE.
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
The plaintiff, Jill LaGasse (mother), appeals from a modification judgment, generally complaining that certain of the judge's findings and credibility assessments are unsupported and that portions of the judge's ultimate disposition are erroneous. It is a bedrock principle of law that it was for the trial judge, not for us, to consider the evidence, assign weight, and determine credibility. Adoption of Daniel, 58 Mass. App. Ct. 195, 200 (2003), quoting from Adoption of Stuart, 39 Mass. App. Ct. 380, 382 (1995). See J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). We see no basis for disturbing her credibility judgments. And, in particular, we see no error in the judge relying on the mother's new allegations of drug use and physical abuse by the father prior to the 2010 stipulation and judgment in assessing her credibility. As the judge noted, these allegations are either false, or the mother was long willing to allow her child to be alone while cared for by a dangerous adult. We may reverse a finding of fact only if it is clearly erroneous. After close record review we are satisfied that the trial judge's findings are adequately supported.
Neither did the judge abuse her broad discretion by leaving substantially intact the parties' previously stipulated shared custody/parenting arrangement. See Della Corte v. Ramirez, 81 Mass. App. Ct. 906, 908 (2012). Given the conflicting trial evidence, the trial judge was not obliged to credit the mother's or Ashley Keller's domestic violence allegations. Also adequately supported is the judge's conclusion that the father's admitted, brief drug use posed no danger to the child. All that remains is the mother's assertion that the parties' relatively recent unwillingness to agree on such matters as the child's school location and extra-curricular activities constitutes a material change of circumstance of such magnitude that the trial judge was required not only to place both legal and physical custody with the mother but to significantly reduce the father's parenting time. We do not agree. It is axiomatic that "[t]he best interests of the child is the 'touchstone inquiry' in child custody, visitation, and relocation cases." Smith v. McDonald, 458 Mass. 540, 544 (2010), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). Insofar as it appears to be undisputed that the child is doing well, indeed is flourishing, under the present shared custody arrangement as established by the parties' 2010 stipulation and judgment, we conclude that the judge acted well within her discretion by effectively enforcing that plan.
Review of some aspects of the modification judgment is problematic. The parties presently are unwilling to confer and compromise. The judge modified the 2010 stipulation and judgment so that, although schooling and other similar decisions are left to mutual agreement, the father shall have "the binding determination" should the parties reach impasse. The father apparently sought sole legal custody, although the mother has not included his counterclaim for modification in the appendix, leaving us uncertain of the precise modification or modifications he put forward. We cannot say this lesser modification was outside of the judge's authority.
The mother is correct that, in the absence of a finding of a relevant change in circumstance, the judge lacked authority to alter the terms of the 2010 stipulation and judgment to allow the father to claim the child's tax deduction. See Iv v. Hang, 83 Mass. App. Ct. 598, 602-603 (2013). Likewise, with the change to the holiday schedule. But the mother does not contend that these were unsought changes, issued sua sponte by the judge. Again, the father's counterclaim for modification is not in the record before us, and we are not in a position to presume that these modifications were not warranted by the father's counterclaim.
Finally, while we understand the mother's desire for a change in parenting schedule with respect to weekends, given the judge's conclusion that there was no adequately changed circumstance, we cannot fault her determination to leave the previously agreed-upon schedule in place.
We deny the father's request for his appellate attorney's fees and double costs. We cannot say this appeal was frivolous. Indeed, given the father's positive test for cocaine and admission to sufficient facts with respect to domestic violence against his now-wife, even the mother's allegation of changed circumstance cannot be so denominated.
Modification judgment dated November 15, 2013, affirmed.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 5, 2015.