MAHLER v. MAHLER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Jessica Mahler (wife), the former wife of David Mahler (husband), appeals from a judgment of divorce nisi (divorce judgment) which, among other things, (1) granted the parties joint legal custody of their two minor children, and (2) assigned the former marital home to the husband.² We vacate the portion of the divorce judgment pertaining to legal custody and remand the matter for further proceedings consistent with this memorandum and order. The remainder of the divorce judgment is affirmed.

Background. The parties, who married in May 2004, lived in the marital home in East Sandwich with their two children. During the marriage, the wife was the primary income earner, working full-time as the sole proprietor of a nail salon that she opened in 2006. The parties both contributed to the care of the children, with the husband having principal responsibility for the children during the busy summer season at the wife's nail salon. Although the nail salon was successful for a number of years, revenues declined significantly in 2016, at which time the wife began the process of winding down the business.

In August 2016, the husband filed a complaint for divorce, seeking primary custody of the parties' children and conveyance of the marital home. The husband also sought “shared occupancy” of the marital home during the pendency of the divorce proceedings, which the wife opposed. On September 13, 2016, following a hearing, a judge of the Probate and Family Court issued an order (1) granting the parties temporary joint legal and physical custody of the children; and (2) permitting the husband to move back into the marital home, which was occupied by the wife and the children at the time. Due to ongoing conflict between the parties, the wife vacated the marital home in November 2016, and moved into a rental home in East Falmouth. However, the assignment of the marital home in the property division remained a contested issue for trial.

In January 2017, the judge appointed Judith Kolb Morris, Ph.D., to serve as guardian ad litem (GAL) for the purposes of investigating, evaluating, and reporting on the children's best interests, and making recommendations regarding custody. As part of her investigation, the GAL interviewed the parties, the children, and several collaterals.

In July 2017, the husband filed a motion seeking permission for the children to attend school in Mashpee, due to its location approximately halfway between the parties' respective homes. The wife opposed the husband's motion, requesting that the children be permitted to attend school in Falmouth, consistent with the recommendations of the GAL and the elder child's therapists. In August 2017, the judge issued a temporary order directing the parties to enroll the children in the Falmouth school system for the 2017-2018 academic year, while reserving final resolution of that issue for the upcoming trial.

A two-day trial was held in early September 2017, during which several witnesses testified, including both parties and the GAL. The GAL filed three reports between March and July 2017, all of which were entered in evidence. The GAL recommended that sole legal and physical custody be granted to the wife in light of the parties' mutual mistrust and disagreement on many parenting issues. Although the judge found the GAL's reports to be “very helpful,” he ultimately rejected her recommendations regarding custody. On October 10, 2017, the judge issued a divorce judgment granting the parties joint legal and physical custody of the children, specifically providing that the parties “shall confer regarding all major decisions affecting the children,” but if they are unable to agree, “the decision of the [w]ife shall be binding, subject to court resolution after hearing on a properly filed complaint for modification if any decisions made are found not to be in the best interests of the children.” ³

With respect to the distribution of the marital estate, the judge found that the case “call[ed] for essentially an equal division of the marital assets.” The divorce judgment left the wife with total assets of $54,383 (including a timeshare that the judge found was worth $600), and the husband with total assets of $54,786 (including the marital home having an equity value of $25,618). The husband was ordered to refinance the mortgage on the marital home no later than May 1, 2020. The parties were made solely responsible for their respective individual liabilities.

In the present appeal, the wife challenges the grant of joint legal custody to the parties, and the distribution of the marital estate. We address the wife's arguments in turn.

Legal custody. The wife contends that the award of joint legal custody was not adequately supported by the judge's findings and the evidence at trial. We agree.

We review custody determinations for an abuse of discretion.⁴ See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). “In custody matters, the touchstone inquiry [is] ․ what is ‘best for the child.’ ” Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208, § 28. “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. “[F]or joint custody or shared responsibility to work, both parents must be able mutually to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children.” Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981).

Here, the judge apparently credited the GAL's observations of the parties' discord and inability to agree, as he found the parties to “have hopelessly conflicting parenting styles, and unfortunately this conflict has evidently affected the part[ies'] [elder] daughter ․ the most.” In reviewing the judge's findings, however, “we cannot ascertain why he chose not to follow the recommendation[ ] of the GAL” to grant sole legal custody to the wife.⁵ Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 196 (2015). To be sure, a judge is not required to adopt a GAL's recommendation. See Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006). However, “our duty as a reviewing court is to ensure that the record reflects that all relevant factors have been considered by the judge, and that the decision is based on a fair weighing of the factors.” Schechter, 88 Mass. App. Ct. at 248. Not only did the judge here reject the GAL's recommendation without explanation, the judge failed to address other evidence in the record demonstrating that the parties are unable to agree on major issues involving the children (including issues regarding school, camp, and religion), and that such disagreements are a source of stress for the children. Although the judge may have sought to prevent further conflict by granting the wife final decision-making authority when the parties cannot agree, the apparent necessity of such a safeguard demonstrates why joint legal custody may be inappropriate. See Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998) (joint legal custody not appropriate where “the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict”).

Accordingly, on this record, the joint custody order is not supported by the judge's findings. On remand, if the judge decides to award one party sole legal custody, the judge may consider an order that requires that party to notify, and obtain input from, the other party regarding all major decisions involving the children.

Distribution of the marital estate. The wife next contends that the judge erred in assigning the marital home to the husband, and failed to effectuate an equal distribution of the marital estate, resulting in a disparity of $5,621.83 in the husband's favor. We disagree.

“Under G. L. c. 208, § 34, judges possess broad discretion to divide marital property equitably.” Dalessio v. Dalessio, 409 Mass. 821, 830 (1991). “A division of marital property which is supported by findings as to the required factors [under § 34] will not be disturbed on appeal unless ‘plainly wrong and excessive.’ ” Passemato v. Passemato, 427 Mass. 52, 57 (1998), quoting Heins v. Ledis, 422 Mass. 477, 481 (1996).

The wife argues that awarding the marital home to the primary custodial parent is a “traditional child support provision,” Hartog v. Hartog, 27 Mass. App. Ct. 124, 128 (1989), and the judge abused his discretion in failing to consider the children's best interests when awarding the marital home to the husband instead of the wife. The wife's argument fails, however, for the simple reason that she was not granted primary physical custody of the children.⁶ Although the judge did not explain the basis for his decision to award the marital home to the husband, it is reasonable to infer that it was intended to provide the children with some degree of stability insofar as they would not be required to change schools once again, and they would be in a familiar environment while in the husband's care. To the extent the wife complains that the husband was improperly afforded an extended period to refinance the marital home, this too was presumably done, at least in part, to ensure stability for the children. Moreover, the wife, unlike the husband, received more liquid, unencumbered assets. Accordingly, we discern no inequity in the disposition of the marital home.

The wife further claims that the judge, despite finding an equal division to be warranted, ultimately distributed the marital estate in a manner resulting in a disparity of $5,621.83 in the husband's favor. Although the wife asserts that the judge overvalued the timeshare at $600, his finding was based on the wife's own testimony. We are similarly unpersuaded by the wife's contention that the judge erred in failing to consider the wife's greater liabilities and the husband's retention of the parties' $4,987 joint tax refund. The judge indicated in his findings that he considered the parties' liabilities when dividing the marital assets, and acknowledged the husband's receipt of the tax refund but declined to include it in the asset division. Even if the judge had included the tax refund in the asset division and assigned it to the husband, the wife still would have been left with nearly forty-eight percent of the total marital assets, which is consistent with the judge's intention to effectuate an “almost” equal division. See Ross v. Ross, 50 Mass. App. Ct. 77, 81 (2000), quoting Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 861 (1989) (“Mathematical precision is not required of equitable division of property”).

In light of the foregoing, we cannot say that the property division was “plainly wrong and excessive.” Passemato, 427 Mass. at 57, quoting Heins, 422 Mass. at 481.

Conclusion.⁷ We vacate the portion of the divorce judgment granting joint legal custody to the parties and remand the matter for further proceedings consistent with this memorandum and order. The remainder of the divorce judgment is affirmed.⁸

So ordered.

affirmed in part; vacated in part and remanded

FOOTNOTES

2.   Although the wife originally raised challenges pertaining to legal custody, property division, child support, and parenting time, the latter two issues have been rendered moot by a subsequent modification proceeding.

3.   The wife was deemed the “primary care parent for residential purposes and ․ schooling.”

4.   “[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.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

5.   Indeed, the judge declined to “elaborat[e] ․ on all [his] reasons for the above custody order.”

6.   That the wife received “somewhat more” parenting time under the divorce judgment does not change this analysis.

7.   With respect to the wife's other arguments not addressed herein, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

8.   The wife's request for fees and costs is denied.