Opinion
21-P-462
03-22-2022
Paris QUALLES & another v. Lorna AARON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (mother) appeals from judgments following a trial in the Probate and Family Court. The judge dismissed the mother's complaints for modification and contempt. On the counterclaim of the plaintiff (father) for modification, the judge entered a judgment that awarded sole legal and physical custody of the child to the father, and ordered, among other things, that any contact between the mother and the child shall be initiated by or as agreed to by the child. We affirm.
The judge also ordered that the mother must first obtain court permission before filing any further complaints for modification or contempt. See Camoscio v. Hodder, 409 Mass. 1001, 1001, cert. denied, 500 U.S. 906 (1991). The mother does not raise any issue with this aspect of the judgment on appeal and therefore we do not address it.
Background. The parties are the never married parents of a child who will turn eighteen years of age in September. They have been in litigation in two states for the majority of the child's life. In 2013, the father filed a complaint for modification seeking to terminate or modify the mother's parenting time with the then eight year old child. In 2015, after a trial, a judge entered a modification judgment that, as relevant here, established a parenting plan for the mother and the child. The mother filed a complaint for contempt in July 2016 alleging that the father was interfering with her parenting time. Following a trial, a judge dismissed the complaint, finding that the mother did not meet her burden of proof. The mother did not appeal from the judgment of dismissal.
At the time of the trial, the mother lived in New Jersey and the father lived in Massachusetts.
In 2010, a judge of the Superior Court in New Jersey awarded the parties joint legal custody, with physical custody to the father. The father was also given permission to remove the child to Massachusetts.
In the summer of 2017, the mother filed a complaint for modification seeking physical custody of the child, and a complaint for contempt alleging that the father refused to comply with a court-ordered parenting schedule. The father filed an answer, and counterclaim for modification seeking, among other things, sole legal custody of the child, and a termination of the mother's parenting time.
In December 2017 a judge entered a further temporary order that consolidated the three matters, and gave the father sole discretion as to contact between the mother and the child that the father deemed to be in the child's best interest. In October 2019 a judge (trial judge) issued another further temporary order awarding the father sole legal custody, and prohibited the mother from cancelling, postponing, or interfering with the child's upcoming surgical procedures, treatments, and appointments. The mother was also prohibited from being present at the medical facility during the procedures and the recovery period. Following a trial conducted by video conference, the trial judge issued a judgment on the consolidated complaints. She awarded sole legal and physical custody of the child to the father, precluded the mother from access to "any medical, educational, mental health or religious" records and providers of the child, and ordered that any contact between the mother and the child shall be initiated by or as agreed to by the child. The mother's complaints were dismissed. This appeal followed.
Discussion. 1. The modification judgment. "As in any modification proceeding, the [mother] 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." See E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020). "[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met." Charara v. Yatim, 78 Mass. App. Ct. 325, 336 (2010). "In custody matters, the touchstone inquiry [is] ... what is best for the child, and [t]he determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings ... must stand unless they are plainly wrong" (quotations omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019), quoting Hunter v. Rose, 463 Mass. 488, 494 (2012). We review the judge's decision for abuse of discretion or clear error of law. Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In doing so, we defer to the judge's factual findings, "absent a showing that they are plainly wrong or clearly erroneous." Schechter, supra.
We note that the father's brief outlines the background of this case and the history of the parties, but does not contain any citations to the appellate record or to any legal authority as required by Mass. R. A. P. 16 (a) (9) (A), (B), as appearing in 481 Mass. 1628 (2019). While "some leniency" may be appropriate when reviewing the father's pro se appellate efforts, he nonetheless remains, "as all other litigants" are, bound by the rules of procedure. Brown v. Chicopee Fire Fighters Ass'n., Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990).
"The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit." Malachi M., 483 Mass. at 740, quoting Smith v. McDonald, 458 Mass. 540, 547 (2010). "Such factors may include whether one parent seeks to undermine the relationship a child has with the other parent" (quotation and citation omitted). Malachi M., supra. The judge may "consider the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or G.A.L., evidence of the history of the relationship between the child and each parent, [and] evidence of each parent's ... over-all fitness to further the child's best interests." Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996).
In the present case, the mother claims that the judge abused her discretion by failing "to enforce a custody order ... [thereby] delegat[ing] authority to the father to limit [her] custodial rights," and impermissibly terminating her custodial rights. The trial judge heard the testimony of both parties, and had the benefit of 2016 and 2019 interviews of the child by the probation department, and a 2018 guardian ad litem report that concluded that "the only thing influencing [the child's] desire not to see the [m]other is the [m]other's own actions."
The child was represented by ARC counsel (attorneys representing children) at trial.
The record amply supports the trial judge's findings that for most of her life, the child has been the subject of litigation between her parents in two states, that the child's relationship with her mother has been fraught with tension, that visits between the two had been tumultuous, and increasingly difficult, and that the child questioned her safety around the mother. Based on the evidence at trial, including the reports of third-party professionals, the trial judge was warranted in finding that the child was not influenced by her father or stepmother, and that in fact, they encouraged contact between the child and the mother. Cf. Smith v. McDonald, 458 Mass. 540, 553-554 (2010) (if judge finds "hostile parent has stymied deliberately any attempts by the other parent to participate in the child's life, such a finding may support an award of sole custody to the other parent, where that custodial arrangement will not be detrimental to the child"). Moreover, the trial judge's finding that the mother had no insight into how her actions caused the strained relationship with the child was amply supported. See Schechter, 88 Mass. App. Ct. at 248, citing Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220-221 (2002) ("[a] determination of whether a parent is able to separate his or her needs and interests from those of the minor child ... [is] relevant ... in determining custody").
The judgment did not terminate the mother's parenting time, but rather, it imposed conditions that the judge deemed to be in the child's best interest. See Schechter, 88 Mass. App. Ct. at 247-248 ("a judge is authorized to impose conditions and restrictions on and to suspend any [parenting time] ... when it is determined that [parenting time] would not be in the best interests of the child"). It is notable that at the time of the trial, the child was over sixteen years of age, and will turn eighteen this fall, at which time the court will no longer have jurisdiction over custody issues. It was therefore appropriate for the judge to consider, but not give decisive weight to the wishes and preferences of the child. See Bak v. Bak, 24 Mass. App. Ct. 608, 617 (1987) (judge may consider older child's preference regarding custody, but that factor should "not [be] given decisive weight"). Moreover, the judge's findings and rationale reflect the myriad of reasons that undergirded her judgment, all of which find support in the record.
The mother's contention that the judge failed to enforce custody orders that effectively limited her custodial rights is also without merit. As an initial matter, we note that the mother did not appeal from the judgment of dismissal of her 2016 contempt complaint. Moreover, the record does not support her claim. The evidence at trial demonstrated that the mother's actions were the reason that the child refused to see her, and that contrary to the mother's claim, the father encouraged contact between the mother and the child. Indeed, the judge found the child's point of view was hers and hers alone.
The mother also claims that the judgment effectively terminated her parental rights. We disagree. General Laws c. 208, § 28 and G. L. c. 209C, § 20 govern the judge's authority to make custody determinations, whereas termination of parental rights -- a separate and distinct legal concept -- is governed by G. L. c. 210. A plain reading of the judgment reflects that the mother's parental rights were not terminated. Cf. Adoption of Vito, 431 Mass. 550, 562 (2000) (adoption is meant to sever most enforceable obligations involving biological parent with child). Here, the mother retained her legal rights; they were not severed. Indeed, the child was not freed for adoption, and the child did not consent to adoption as required by G. L. c. 210, § 2. The judgment provided for contact between the mother and the child, and provided the mother complies with the gatekeeper order set forth in the modification judgment, she may pursue those rights.
2. Complaint for contempt. The mother spends considerable time in her brief discussing the 2017 dismissal of her contempt complaint filed in 2016. Because she did not file a notice of appeal from that judgment, it is not before us. See Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013). See also Jackson v. Milton, 41 Mass. App. Ct. 908, 908 (1996).
The mother filed a notice of appeal from "the [j]udg[ ]ment which entered against her" in this case, but she makes no separate argument in her brief about the contempt complaint filed on July 17, 2017. Accordingly, this claim is waived. See Barkan v. Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378, 389 (2019) (point not argued in brief deemed waived).
Even if not waived, the mother's claim still fails. "[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 under an abuse of discretion standard. See K.A. v. T.R., 86 Mass. App. Ct. 554, 567 (2014). Here, the mother alleged that the father refused to comply with court-ordered parenting time. However, as the judge found, the paucity of the mother's parenting time with the child stemmed from the mother's behavior and lack of insight, not from any actions of the father. Accordingly, the judge did not abuse her discretion or commit a clear error of law in dismissing the complaint for contempt. See Petruzziello v. Newman, 8 Mass. App. Ct. 896, 897 (1979) (complaint for contempt properly dismissed where ample evidence supported judge's finding that "there was reasonable and justifiable cause" to deny visitation rights).
Judgments affirmed.