Opinion
No. 15–P–1630.
12-19-2016
Guinevere Arthur VANHORNE v. Dominic CERONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Dominic Cerone (father), the former husband of Guinevere Arthur Vanhorne (mother), appeals from a judgment of modification and a judgment on a complaint for contempt both entered in the Probate and Family Court on July 22, 2015. The father challenges so much of the judgment of modification that (1) allows the mother, who has primary physical custody of the parties' two children, to relocate from Rowe to Northampton and modifies the parties' shared legal custody by authorizing the mother to make "final" decisions regarding the children's education. For the reasons set forth below, we affirm.
To the extent that the father challenges so much of the judgment of modification that orders him to pay $198 per year for "Our Family Wizard," an "on-line parent communication tool" that serves as the parties' "primary source of communication," we are unpersuaded. It was not an abuse of discretion to make the father solely responsible for the nominal cost of the program where the judge found that the program "is necessary in order for [the parties] to continue to share legal custody," the father has the ability to pay for the program, and the parties' difficulty communicating is largely due to the father's behavior.
Removal. The parties were divorced in 2012, pursuant to a judgment of divorce incorporating their separation agreement. With respect to the parties' two children, the separation agreement provided that the parties would have shared legal custody, the mother would have primary physical custody, and the father would have parenting time three weekends (Friday through Sunday) per month, along with afternoon visits every Tuesday and on one Thursday per month. At the time of the divorce, the mother lived with the children in Rowe and the father lived with his parents in Heath. In her response to the father's complaint for modification of judgment dated December 8, 2014, the mother requested that the children be permitted to relocate with her to Northampton. The father opposed the mother's relocation request, asking the judge to treat it as an out-of-State removal under G.L. c. 208, § 30. The judge ultimately granted the mother's request, which the father now challenges on appeal, claiming that the judge's decision "was not consistent with the facts or the evidence," and that the judge failed to "take into consideration that the [m]other ... is actively trying to rid the [f]ather ... [from] the children's lives." We disagree.
At the outset, we note that the assertions made by the father (who appeared pro se below and on appeal) in his bare bones brief "do not rise to the level of reasoned appellate argument contemplated by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975)," thus we are not obligated to consider them. K.A. v. T.R ., 86 Mass.App.Ct. 554, 567 (2014). We nevertheless address the primary issues raised by the father on appeal.
The removal statute, G.L. c. 208, § 30, provides that "a minor child of divorced parents ... may not be removed from the Commonwealth without the consent of both parents ‘unless the court upon cause shown otherwise orders.’ " Altomare v. Altomare, 77 Mass.App.Ct. 601, 603 (2010), quoting from G.L. c. 208, § 30. While the statute "does not address relocation within the Commonwealth," judges may "apply out-of-State removal principles to in-State moves ... in cases ‘where the relocation would evidently involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree.’ " Id. at 602–603, quoting from D.C. v. J.S., 58 Mass.App.Ct. 351, 355–356 (2003). " ‘In determining whether cause for removal by the parent with primary physical custody has been shown under the statute, the judge must consider the custodial parent's request under the familiar two-prong "real advantage" test’ articulated in Yannas [v. Frondistou–Yannas, 395 Mass. 704, 710–712 (1985) ]." Rosenwasser v. Rosenwasser, 89 Mass.App.Ct. 577, 580 (2016), quoting from Murray v. Super, 87 Mass.App.Ct. 146, 149 (2015). "The judge must first consider whether the move provides a ‘real advantage’ to the custodial parent.... If that threshold prong is met, the judge must then determine whether the move is in the child's best interests." Rosenwasser, supra at 580–581, citing Yannas, supra at 711.
Here, the judge found that the children's in-State relocation, from Rowe to Northampton, would not significantly disrupt the father's parenting time. Notwithstanding that finding, the judge proceeded to "analyze[ ] this case as a removal case," applying the "real advantage" test set forth in Yannas, in light of the mother's status as the children's primary custodial parent. The judge found that the move to Northampton presented a real advantage, as the mother had "received a full scholarship to attend Smith College" ("a prestigious liberal arts college" located in Northampton), which covered the mother's tuition, "housing costs, and a $9,000 scholarship for each child to attend the Smith College Campus School" (campus school). The judge found there to be "no evidence" that the mother was seeking to deprive the father of access to the children. Instead, the judge found that the mother was seeking to "better her life" and that "[h]er desire to move with the children, rather than commute over two and one-half hours [per] day, [was] reasonable." See Rosenwasser, supra at 581–582, quoting from Murray, supra ("To satisfy the real advantage test, the custodial parent must demonstrate ‘the soundness of the reason for moving, and the ... absence of a motive to deprive the noncustodial parent of reasonable visitation’ ").
The judge also found, after the weighing of several factors, that the move from Rowe to Northampton was in the children's best interests. See Rosenwasser, supra at 582–583. In addition to the benefits to the children from an improvement in the quality of the mother's life, the judge found that the move would allow the children to "have more time with their custodial parent ... rather than living in Rowe while [the mother] commutes to Smith College." The judge also credited the mother's testimony that the children, "who are of African descent," may benefit from attending the more racially-diverse campus school, despite that "both [their school in Rowe and the campus school] offer enriching programs for the children." Moreover, the judge found that the move would "have no negative impact on the children's emotional, physical or developmental needs," nor would it have a "negative affect on the children's relationship with the [f]ather," since the existing parenting schedule would remain largely undisturbed.
Determining "whether the move is in the child's best interests ... involves the weighing of several factors, including ‘(1) whether the quality of the [child's] li[fe] 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's] association with the noncustodial parent"; (3) "the extent to which moving or not moving will affect the [child'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.’ " Rosenwasser, 89 Mass.App.Ct. at 582–583, quoting from Murray, 87 Mass.App.Ct. at 150.
The judge credited the mother's testimony that it would cost her approximately $420 per month for gas to commute between Rowe and Northampton, and "[i]t would take her approximately one hour and 20 minutes to drive each way and would limit the time she has to spend with and care for the children."
The judge specifically made the following findings. "If [the children] move, they will be leaving a school in which they are familiar and in which they have made friends. However, they will continue to spend most weekends with the [f]ather at his home and should be able to continue these relationships. The Court credits the [m]other's testimony that she intends to promote these friendships through visits with their friends.... The children will have the opportunity to continue to have a significant relationship with their paternal grandparents after the move."
The judge found that the father "will continue to have parenting time with [the children] on weekends and during the week. The only change to the parenting schedule will be that the weekly Tuesday parenting time and the monthly Thursday parenting time will take place in Northampton," thus requiring the father "to drive two and one-half hours for his parenting time" approximately five times per month. The judge also noted that, "given the distance between the [f]ather's home and Northampton, he may not be as available as he has been to attend their school functions and to provide caretaking when the [m]other is not available." However, the judge found that, in light of the father's flexible work schedule, the additional driving time would not affect his "ability to work," nor would it "impede his ability to maintain a relationship with the children."
While we question whether it was necessary for the judge to apply out-of-State removal principles to this case, given that the proposed move to Northampton would not cause significant disruption to the father's parenting time, see Altomare, 77 Mass.App.Ct. at 602–603, we conclude that there is ample support in the record for the judge's decision to allow the mother's relocation request. Accordingly, we decline to disturb that decision. See Rosenwasser, 89 Mass.App.Ct. at 580 (removal decisions are reviewed for abuse of discretion).
Legal custody. At the modification trial, the mother sought sole legal custody of the children, which the father opposed. While the judge ultimately declined to shift legal custody entirely to the mother, the judge granted the mother the authority to make "final" decisions regarding the children's education. The father claims that this modification of the parties' shared legal custody was error. We disagree.
"Shared legal custody" is defined as "continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." G.L. c. 208, § 31, as appearing in St.1989, c. 689. Shared legal custody is "inappropriate for parents whose relationship to date has been ‘dysfunctional, virtually nonexistent, and one of continuous conflict.’ " Smith v. McDonald, 458 Mass. 540, 553 (2010), quoting from Carr v. Carr, 44 Mass.App.Ct. 924, 925 (1998).
Here, the judge found that the "parties have a difficult time communicating," "the [f]ather is demeaning to [the mother] at times and is unwilling to discuss with her some issues which affect the children," and "most of the difficulty the parties have in making decisions regarding the children has to do with educational issues." The judge found that while "it is very important to the [f]ather to continue to share legal custody of the children ... his behavior makes it difficult ... to continue to do so." It is apparent from the judge's findings that the father's antagonistic behavior toward the mother was rendering it difficult, if not impossible, for the parties to continue making joint decisions regarding the children's education. Accordingly, we discern no error in granting the mother final decision-making authority relative to the children's education. See Smith, supra, quoting from Mason v. Coleman, 447 Mass. 177, 182 (2006) ("[I]nvolving both parents in decision making is in the child's best interests ‘only if the parties demonstrate an ability and desire to cooperate amicably’ ").
To the extent that we do not address the father's other contentions, in them that R., 62 Mass. "they ‘have not been overlooked. We find nothing requires discussion.’ " Department of Rev. v. Ryan App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments entered July 22, 2015, affirmed.