Opinion
No. 12–P–785.
2013-02-11
Lawrence WATSON v. Sherry WALKER.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a judgment of the Probate and Family Court on his complaint for modification of visitation. He also appeals from an order of the single justice of this court. We affirm.
Background. A child was born to the parties, who never married, on December 8, 2002. The parties' romantic relationship ended in 2003, and by a judgment of July 1, 2004, the mother was awarded sole legal and physical custody of the child, the father's visitation was suspended until his completion of parenting classes, his weekly child support obligation was continued, and arrears were established. The mother obtained a temporary restraining order against the father pursuant to G.L.c. 209A after they broke up in 2003, and following several extensions the order was made permanent in December, 2006. On May 23, 2007, the father filed a complaint for modification with a supporting memorandum. He sought reinstatement of visitation and further asked that visitation be unsupervised. After a hearing, the judge issued a judgment dated August 12, 2009, and a memorandum of decision containing findings of fact, conclusions of law, and analysis. He allowed supervised visitation under certain conditions. The father's appeal from that judgment is now before us.
This judgment was affirmed on appeal. See L.W. v. S.W., 68 Mass.App.Ct. 1112 (2007). See also Watson v. Walker, 455 Mass. 1004 (2009).
This order was likewise affirmed on appeal. See Walker v. Watson, 72 Mass.App.Ct. 1110 (2008). See also Watson v. Appeals Ct., 456 Mass. 1027 (2010).
Captioned “plaintiff's motion for reconsideration of visitation and reinstatement of visitation,” it has been treated as a complaint for modification by the father and the court.
The judgment also dealt with other matters, which the father has not addressed in his appellate brief.
Discussion. A probate judge's broad discretion to modify an existing judgment and to fashion an appropriate visitation arrangement will not be disturbed unless plainly wrong. See Cooper v. Cooper, 62 Mass.App.Ct. 130, 134 (2004), quoting from Schuler v. Schuler, 382 Mass. 366, 368 (1981). Based on the record before us, we cannot reasonably conclude that the judge abused his discretion by imposing conditions on visitation. The judge's decision is well supported by his findings of fact, none of which the father has shown to be clearly erroneous. The mother continues to fear the father, who has physically abused her and her children in the past. The child has always lived with the mother. The father's last visit with the child was in July, 2003, when the child was seven months old. In 2004, the father's visitation was suspended until such time as he completed an approved parenting course, but the father failed to do so until 2007. Instead, the father has focused on a sustained legal campaign (totaling approximately forty cases and appeals) harmful to both the mother and the child. The father and the child have no relationship; the father puts his own needs above the child's and has not contributed to the care or comfort of the child in years. The mother's fear that if the visitation is unsupervised, the father may harm or abscond with the child, is reasonable.
The father devotes much of his brief to challenging numerous decisions from 2003 that are not presently before us. We address only those issues properly presented.
The father's record appendix does not comply with Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). It includes numerous materials related to other decisions and cases that are not part of the appellate record in this case. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995). In addition, the father failed to include both the 2004 judgment that he was seeking to modify and the transcript of the 2009 modification hearing. See Mass.R.A.P. 18(a); Cameron v. Carelli, supra.
The father argues that he was indigent and therefore entitled to have the Commonwealth pay for the hearing transcript. In an order vacating the initial approval of the father's affidavit of indigency, the judge wrote that the father admitted to some income, but refused to disclose any details (including the amount) and was otherwise not forthcoming regarding financial matters. On June 12, 2012, a single justice of this court ruled that the father's appeal, if any, of that ruling under G.L.c. 261, §§ 27A–27D, was untimely. The father's appeal from the June 12 single justice order was consolidated with his appeal from the modification judgment, and is now also before us. The former appeal fails because a single justice's affirmance of a denial of a request for transcript at the Commonwealth's expense based on an allegation of indigency is final. G.L.c. 261, § 27D. See Singer v. Rosenkranz, 453 Mass. 1012, 1012–1013 (2009).
The father moved in this court to compel the Probate and Family Court to transmit the 2003 and 2008 guardian ad litem (GAL) reports to this court. The motion is denied. As to the 2003 report, it was prepared prior to the 2004 judgment that the father is seeking to modify. As to the 2008 report, the father has set forth no reason to believe the report is necessary to our consideration of this appeal. The only apparent reference to a GAL report in the judge's decision is a quote in finding 17. The father has not challenged either the accuracy of the quotation or its substance. See Mass.R.A .P. 9, as amended, 417 Mass. 1601 (1994).
See generally Watson v. A Justice of the Boston Div. of the Hous. Ct. Dept., 458 Mass. 1025, 1026–1027 & n. 1 (2011)(detailing numerous meritless petitions and appeals filed by the father and restricting his ability to file petitions for extraordinary relief absent a motion for leave to file, in order to “prevent [him] from further abusing the system”).
To the extent that the father raises other issues related to this appeal, based on our review on the present record we find them to be without merit.
Conclusion. The August 12, 2009, judgment of the Probate and Family Court on the father's May 23, 2007, complaint for modification is affirmed. The June 12, 2012, order of the single justice of this court is affirmed.
So ordered.