Opinion
10-P-911
08-04-2011
R.F. v. I.A.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
By a judgment on complaints for support, custody, and visitation filed pursuant to G. L. c. 209C, a judge of the Probate and Family Court (1) awarded sole legal and sole physical custody of the parties' six minor children to the plaintiff mother, (2) ordered the defendant father to pay child support to the mother in the amount of $200 per week, and (3) awarded the father parenting time in accordance with a schedule established by the judge. The father has appealed, challenging primarily the judge's award of custody. He appeals also from the order denying his motion for reconsideration and request for new trial. We affirm.
1. Cross-examination. The father, who proceeded pro se at trial, argues initially that the judge abused his discretion in failing to allow him 'to adequately cross-examine' the mother in several areas, including whether she may have committed housing or other public assistance fraud during the parties' relationship, and whether the mother's son by a previous relationship may have sexually assaulted a child in the past. With respect to the issue of fraud, the father asserts that the mother's answers to his questions were 'material for the court to assess her character for truthfulness and therefore would have served to impeach her credibility.'
It is settled that the 'scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry.' Commonwealth v. Gagnon, 408 Mass. 185, 192 (1990), quoting from Commonwealth v. Underwood, 358 Mass. 506, 513 (1970). Even were we to assume that the father properly could pursue his inquiry as to whether the mother had participated in housing or other public assistance fraud, see Care & Protection of Frank, 409 Mass. 492, 494-495 (1991); Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989); Brodin & Avery, Massachusetts Evidence § 6.16.3 (8th ed. 2007), the record discloses that while the judge, at times, limited the father's inquiry, the father was allowed to ask the mother many questions concerning her receipt and her use of public assistance. We perceive nothing in the father's argument on this point that would cause us to disturb the judgment.
Some of the questions which the father was precluded from asking, e.g., called for a legal conclusion or were improper as to form.
Similarly, and contrary to the father's assertion, the judge did not exclude the father's 'line of questioning' with respect to allegations of sexual assault. Rather, as the mother points out, while the judge prohibited the father from asking certain specific questions, the father was allowed other opportunities to inquire on the topic.
Again, certain of the questions posed by the father were properly the subject of objection.
2. Documentation. The father argues that the judge 'denied [him] the ability to offer documentation into evidence in support of his positions' concerning the custody of the children. He claims, inter alia, that during his cross-examination of the mother, he 'tried to make offers of proof by requesting to introduce certain documents into evidence and by illustrating their relevance to the proceeding.'
To the extent the father appears to argue that the judge somehow failed to allow him to introduce in evidence a report filed against the mother by the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A, after an altercation between the parties in May of 2005, the father did not seek formally to offer the report in evidence. See Friedman v. Board of Registration in Med., 414 Mass. 663, 666 (1993) (party proceeding pro se is bound by same rules and requirements as one represented by counsel); Baldyga v. Dudley Div. of the Dist. Ct. Dept., 449 Mass. 1012, 1012 n.2 (2007) (pro se party held to same standards applicable to litigants represented by counsel). At all events, the father was afforded the opportunity to question the mother on the point and the mother admitted that there was a supported 51A report against her in 2005 (and that there were no other supported 51A reports against her).
As we discuss, infra, the judge made findings concerning the May, 2005, incident and noted that as a result of that incident a DCF case was opened.
The father also asserts that he 'made statements [at trial] amounting to offers of proof to the court when he questioned [the mother] about whether a Guardian-ad-Litem had investigated the allegation that her oldest son . . . had previously sexually abused a child.' He claims that '[h]is emphasis on the [guardian ad litem's] report mentioning the investigation of the sexual allegation against [the mother's son from a prior relationship] amounts to an offer of proof which the court should have allowed [him] to introduce into evidence.' On review of those portions of the record referred to by the father, we find that the father never attempted formally to introduce the report of the guardian ad litem allegedly treating a question of sexual abuse by the mother's son (age nineteen years at the time of trial in March, 2009), and that therefore the judge did not wrongly deny him the opportunity to submit the document or an offer of proof.
At trial, the father asked the mother whether her son by another relationship had sexually assaulted a child in the past. The mother's counsel objected to the question, but before the judge could rule on the objection, the mother answered, 'No.' The judge subsequently sustained the objection but the mother's counsel made no motion to strike the mother's answer. The father then asked the mother whether another judge of the Probate and Family Court earlier had authorized a guardian ad litem to investigate the allegation. The mother answered, 'No,' over the objection of her attorney, which was overruled by the judge. Continuing, the father asked the mother, 'Did [the guardian ad litem] not specifically investigate the allegations of the sexual assault? Yes or no?' After the mother began her response, the father informed the judge that he just needed 'a simple answer.' The judge asked the father, 'Is it in the report?,' to which the father answered in the affirmative. The father then said, '[T]here were three reports . . . . You need to have copies of all three.'
The father makes further reference in his brief to the following question he posed to the mother: 'Now, was there not a court order issued out of this court signed by [another probate judge] which stated when the children visited with you, that [the son from a prior relationship] should not be present? Yes or no?' The father claims that this information was relevant, among other reasons, to test the mother's credibility. The father's argument on the point is puzzling because there was no objection to the question and the mother answered, 'Yes.'
The other probate judge's order is not before us and the time of its issue is unclear. The rationale for the order also is not apparent on this record. The mother testified that she had not been in contempt of the order and that the son from a prior relationship was not present during visits. Upon questioning by the judge here, the mother testified that the son was nineteen years old. It is not clear from the transcript where the son was living at the time of trial. We note that the judge sustained the mother's objection to, and struck the father's testimony that, '[the mother] would allow [the son] to be present in the home in contempt of the court order.'
None of the father's additional arguments concerning the judge's alleged restrictions on his presentation of evidence would cause us to set aside the judgment.
3. Child custody. 'The best interests of the child is the 'touchstone inquiry' in child custody . . . cases,' Smith v. McDonald, 458 Mass. 540, 544 (2010), quoting from Custody of Kali, 439 Mass. 834, 840 (2003), including those under G. L. c. 209C, § 10(a) (applicable to nonmarital children). Smith, supra at 544-545. While 'the statute provides a framework for the court's 'best interests' analysis by requiring the court to preserve the child's relationship with the 'primary caretaker parent' when possible, and by mandating consideration of preexisting parental and living arrangements,' id. at 545, all relevant factors must be weighed by the court, Custody of Kali, supra at 843, 845. See Rosenberg v. Merida, 428 Mass. 182, 191 (1998). See also Smith, supra at 547 (judge accorded 'considerable freedom to identify pertinent factors in assessing the welfare of the child '). 'The determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings in a custody case 'must stand unless they are plainly wrong." Custody of Kali, supra at 845, quoting from Rosenberg v. Merida, supra.
The judge stated that the parties were married in a Muslim religious ceremony on November 26, 1996, but never were married in a civil ceremony and are not married pursuant to the laws of the Commonwealth. Neither party challenges this statement on appeal. To the contrary, the parties' complaints were filed pursuant to G. L. c. 209C (the complaints are not included in the record appendix), the mother's counsel represented in her opening statement at trial that 'the parties were never legally married,' and the father represents in his brief that '[a]lthough the parties were married under a religious ceremony, they were not married pursuant to the laws of the Commonwealth, thus Massachusetts General Laws c. 209C § 10 governing children born out of wedlock governs this case.' In light of the foregoing, and for purposes of this appeal, we treat c. 209C, § 10, as having application. See Larson v. Larson, 28 Mass. App. Ct. 338, 341 (1990).
General Laws c. 209C, § 10(a), second par., inserted by St. 1986, c. 310, § 16, provides: 'In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.'
Such additional factors may include, for example, 'consideration of . . . the need for stability and continuity in the child's life, the decision-making capabilities of each parent to address the child's needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child.' El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010), citing Charara v. Yatim, 78 Mass. App. Ct. 325, 334-336 (2010). Domestic violence also is to be considered. See G. L. c. 209C, §10(e); Custody of Vaughn, 422 Mass. 590, 599-600 (1996).
The father argues, among other things, that the judge failed to consider all relevant factors in determining the children's best interests and failed to explain his reasons for, or to make conclusions of law applicable to, his custody determination. More specifically, the father asserts that the judge failed to consider adequately that during the vast majority of the parties' relationship the father coparented the children with the mother, and between 2005 and 2007 he acted as the children's primary caregiver. The father seems to suggest that his involvement with the children should have been reflected in the custodial order, providing him (at least) with far more custodial time. He asserts also, inter alia, that the judge neglected the evidence that the father had worked to assist the children in achieving their academic goals and that the judge failed to consider the effects of domestic violence perpetrated by the mother upon the father (in the presence of the children) which resulted in the supported 51A report in 2005.
While ordinarily a judge should both reference the statutory requirements of G. L. c. 209C, § 10(a), and explain their impact, if any, on the custody award, Custody of Kali, supra, and while the judge here certainly could have explained better his rationale for decision, we think that the judge's findings reflect consideration of the relevant factors and that his rationale for the custody determination is implicit in those findings. See ibid.; Haas v. Puchalski, 9 Mass. App. Ct. 555, 556 n.5 (1980) ('[I]t is imperative that the judge make findings showing that all relevant factors in determining the best interests of the child have been weighed').
More to the point, the judge considered carefully the parties' volatile and troubled relationship, the parties' numerous separations and reconciliations (and the party with whom all or some of the children resided during these periods), and the mother's primary care of the children since at least September, 2007. Indeed, the judge noted that the probation officer whom he had appointed in the fall of 2008 to investigate the issue of custody found that the mother was the primary caretaker of the children and recommended that the mother be given full physical custody of them. The judge considered also the mother's current accommodations and the parties'decision-making as it bears on the best interests of the children. In addition, it is apparent from the findings that the judge had in mind the father's occasional academic assistance, particularly as to one child, and the parties' altercation in 2005 which led to the supported 51A report against the mother. Finally, to the extent the father claims that as a result of the judge's custody order he 'will be deprived of forming the parent-child relationship which this Commonwealth holds integral to a child's upbringing,' we observe that the judge crafted orders which will allow the father substantial parenting time with the children.
The judge's findings include the following. The father rented and maintained a separate apartment for himself during his relationship with the mother. At various times he would leave the parties' shared residence after an argument and take the children with him. He usually would return the children after several days but would remain in his private residence for periods ranging from a few days to several months. After an argument in July, 2004, the father pronounced a Muslim divorce from the mother, took the children, and left (although he subsequently allowed the mother to see the children on weekends). Shortly after the parties reconciled in early 2005, they argued again over finances, and the father ordered the mother (who then was pregnant) to leave their residence. The mother lived in a homeless shelter and, later, with a friend. Even during this period the mother actively assisted in the care of the children. By a temporary order issued in November, 2005, the father was awarded custody of the parties' four oldest children (the mother retained custody of the parties' then-youngest child), and the mother was ordered not to contact the four oldest children pending a guardian ad litem's investigation. Despite theno-contact order, the father allowed the mother to spend time with the four oldest children and, by March of 2006, the children regularly stayed with the mother the majority of each week, including 'overnights.' The parties reconciled in March, 2007 (at which time all pending court actions regarding the parties' children were dismissed), but separated in September, 2007, when the father moved out and left all five children (the parties' sixth child was born in March, 2008) with the mother. Between September, 2007, and August, 2008, the father took the children sporadically for several hours at a time; he increased his visits in the summer of 2008 and began taking them most weekends from Friday afternoon through Sunday afternoon.
The complaints for support, custody, and visitation at issue here were filed on November 26, 2007.
The judge noted, for example, that based on a pediatrician's advice, the mother had been attempting for approximately two years to have the tonsils removed of one of the parties' children. The judge found that the father has 'continuously sabotaged these efforts, canceling multiple scheduled surgeries and refusing to participate in any medical appointments.'
The judge found, among other things, that the mother, who then was several months pregnant, became angry with the father and threw a vase at him (and fought with him) after he had insulted her concerning her pregnancy. The judge noted that the DCF case that was opened as a result of the incident was closed in May, 2006. We note that the judge also made reference to an incident in 1999 when the mother pushed the father and he hit her, pushed her to the ground, and choked her.
Nothing in the father's additional arguments bearing on the question of custody would cause us to reach a different result in this case.
As we have discussed, supra, the judge received little actual evidence concerning the father's allegation of sexual abuse by the mother's son from a prior relationship.
The father's questions suggested that another probate judge had authorized or directed a guardian ad litem to investigate, inter alia, the allegation; that one or more reports had resulted; and that the other judge had excluded the son from the home when the children at issue here visited with the mother. As we have stated, no evidence indicated the residence of the nineteen year old son at the time of trial.
The father had not listed any report as a proposed exhibit in accordance with the pretrial order, and did not offer any at trial. The judge did not address the allegation as a finding of fact or as an element of the judgment. We necessarily infer that, in his firsthand observation of testimony, he did not find the allegation worthy of exploration.
Without knowledge of the content of any reports of the guardian ad litem and of the residence or proximity of the son, we have no basis to alter the existing judgment. Our decision operates without prejudice to the rights of the father, in the future and preferably with representation by counsel, to seek modification of the judgment in accordance with G. L. c. 208, § 28.
On review of the record, we are satisfied that the judge considered the relevant circumstances and that the judge's findings support the custody award. Consequently, we decline to disturb the judgment.
The father's terse assertion concerning the child support award does not rise to the level of reasoned appellate argument contemplated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgment affirmed.
Order denying motion for reconsideration and request for new trial affirmed.
By the Court (Grasso, Kafker & Sikora, JJ.),