LARSON v. LARSON (2024)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from a judgment of divorce nisi entered after trial, which, among other things, denied her request to remove the parties’ two children from Massachusetts to Alabama. On appeal, the mother argues that the judge abused her discretion in concluding that removal is not in the best interests of the children. We discern no abuse of discretion or error of law and affirm.

We review a judge's decision regarding the removal of children from the Commonwealth for “ ‘abuse of discretion or other error of law,’ accepting the judge's findings unless shown to be clearly erroneous.” E.K. v. S.C., 97 Mass. App. Ct. 403, 411-412 (2020), quoting Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

“If the party seeking removal is the sole physical custodian of the children, then the judge must consider the request under a two-prong test set forth in Yannas.” Altomare v. Altomare, 77 Mass. App. Ct. 601, 603 (2010). See Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). “[T]he first consideration is whether there is a good reason for the move, a ‘real advantage.’ ” Yannas, supra at 711. Second, if the custodial parent satisfies the “real advantage” test, the judge must examine whether removal is in the best interests of the children, which is the court's “paramount concern.” Id. at 710.

In the present case, the judge determined that though the mother established a “real advantage” for the move, removal is not in the best interests of the children.² The relevant factors in determining the best interests of the children are:

“(1) whether the quality of the children's lives 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[ren]’s association with the noncustodial parent’; (3) ‘the extent to which moving or not moving will affect the [children'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.”

Murray, 87 Mass. App. Ct. at 150, quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006).

The mother contends that the judge erred by (1) not placing sufficient weight on the benefit of the move to the mother, (2) disregarding the hardships that the mother would experience by remaining in Massachusetts, and (3) placing dispositive weight on the effect of the removal on the father. We disagree.

The judge acknowledged that the move to Alabama would benefit the mother emotionally and socially and “likely reduce [her] stress and sorrows,” which in turn would positively affect the children.³ On the other hand, the judge considered that the father is “actively involved in the children's lives through his frequent and continued contact” with them, and that, if the children were removed, “they would be uprooted not only from their relationship with the father, but the relationships they have formed at daycare, their routines, and the father's extended family who have provided significant support to the family.”⁴ Moreover, the judge found that having to travel to Alabama to exercise his parenting time would cause a financial and logistical hardship for the father.⁵ Implicit in the judge's findings is the expectation that, as a practical matter, the father's parenting time would decrease significantly if the children were moved to Alabama, even if the court approved a more generous parenting plan. “We discern no abuse of discretion with respect to the judge's consideration and balancing of the interests at stake here.” Miller v. Miller, 478 Mass. 642, 658 (2018). The judge's determination that the benefit to the mother does not outweigh the negative impact on “the children's own emotional and developmental wellbeing due to the distance from their father” cannot be said to lie outside the range of reasonable alternatives. Accordingly, we reject the mother's claim that the judge abused her discretion in concluding that removal is not in the children's best interests.⁶

Judgment affirmed.

FOOTNOTES

2.   The judge found that it was in the children's best interest that the mother remain their primary caregiver, and based on the parenting plan in place at the time of trial, applied the Yannas standard in evaluating her request for removal.

3.   Though the mother claimed that she has little to no support network in Massachusetts, the judge was not persuaded that the mother had been unable to develop friends or other supportive relationships during the time (since 2007) she has lived and worked in the Commonwealth. The judge, however, did find that residing near her family in Alabama, including her sister and her parents, would positively affect the mother's happiness.

4.   The judge found that under the mother's proposed parenting schedule, the father's parenting time would be considerably less than what he currently has.

5.   The judge noted that the father is not able to take off work on alternating Fridays and Mondays to travel to and from Alabama for his weekend parenting time.

6.   In the exercise of our discretion, we deny the husband's request for appellate fees and expenses. See Fronk v. Fowler, 456 Mass. 317, 326-327 (2010).