ROBINSON v. ROBINSON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial in this divorce case, a Probate and Family Court judge modified a child custody order by changing sole legal and physical custody of the minor child from the mother to the father. The modification judgment also limited the mother's parenting time to one supervised hour per week and awarded father $25,000 of his claimed attorney's fees (partially offset by certain other matters not at issue here). On appeal, the mother's principal claim is that the modification of custody and parenting time was an abuse of discretion. The mother also contends that the judge abused his discretion in awarding attorney's fees to the father. Because we conclude that the judge's written findings do not adequately explain why the change in custody was in the best interests of the child, we remand the case to the Probate and Family Court for further findings and, if necessary, redetermination on the counterclaim for modification. We also remand the award of attorney's fees for further findings.

Background. The parties were married in 2008 and had one son together in 2009. The marriage ended in divorce in 2014. On November 18, 2014, the judge adopted the custody and parenting provisions of the parties' separation agreement and entered judgment of divorce nisi. With respect to custody, the agreement provided, and the judge ordered, that the mother would have sole legal and physical custody of the child. The father was allowed supervised parenting time and was ordered to participate in reconciliation therapy with the child.

Conflict arose shortly after the judgment of divorce entered and both the mother and the father sought judicial intervention. In summary, the mother filed a modification complaint asking for an increase in child support. The father responded with a modification counterclaim and contempt complaints alleging that the mother was not cooperating with the reconciliation therapy. The mother responded with her own contempt complaint alleging that the father failed to pay her $20,000 as required by the divorce judgment. Ultimately, the father filed an amended modification counterclaim in which he requested sole legal and physical custody of the child. That amended modification counterclaim and four of the contempt complaints were tried together over the course of six days from December 2016 to May 2017.²

On January 26, 2018, the judge issued comprehensive written findings of fact and conclusions of law. He concluded that the father had “successfully demonstrated a substantial and material change in circumstances warranting a modification of custody of the minor child” and that it was in the child's best interest to modify the custody order and award the father sole physical and legal custody. This decision was based primarily on the judge's conclusion that the mother had repeatedly interfered with the father's attempt to reunify with the child. Specifically, the judge found that the mother “has done everything in her power to delay, obstruct, and subvert [the father's] efforts to reunify with his son.” The judge also found that “[the mother] repeatedly lied to the Court ․ and she lacked credibility throughout the entirety of her testimony, on direct and cross-examination.” Finally, the judge found that the mother's pattern of baseless allegations “casts significant doubt on her credibility with respect to all important issues, including her allegations against [the father] as well as her overall ability to parent the minor child.” Based on these findings, the judge awarded sole legal and physical custody to the father and allowed the mother supervised parenting time with the child for one hour per week.³ This appeal followed.⁴

Discussion. 1. Modification of custody and parenting time. General Laws c. 208, § 28, provides, in pertinent part:

“Upon a complaint [filed] after a divorce ․ the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.”

We have stated that “[t]he best interests of a child is the overarching principle that governs custody disputes in the Commonwealth.” Charara v. Yatim, 78 Mass. App. Ct. 325, 334 (2010). While there is no definitive checklist of factors to determine the best interests of the child, we consider certain constants such as “which parent has been the primary caretaker of, and formed the strongest bonds with, the child, 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.” Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010). We review the determination regarding a child's best interests “for clear error of fact finding and abuse of discretion.” Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 486 (2012).

Here, the judge's detailed findings regarding the mother's false statements, obstruction, and interference with the father's efforts to reunify with the child have ample support in the record and we see no reason to disturb them. See Adoption of Larry, 434 Mass. 456, 462 (2001) (we defer to judge's weighing of evidence and assessment of credibility of witnesses). Nor do we question the judge's conclusion that the mother's pattern of misconduct was a substantial and material change in circumstances. However, based upon the record before us, we cannot conclude that this change in circumstances warranted a modification in custody awarding sole legal and physical custody to the father.

While the judge's factual findings were otherwise detailed and extensive, he made no findings regarding the factors we set forth in Chaar to determine the best interests of the child in these circumstances. There were no specific findings regarding (1) the mother and father's relative caretaking abilities, (2) their living arrangements, (3) their bonds with the child, or (4) how the change in custody and parenting would promote stability and continuity in the child's life. In particular, the judge's findings did not address all of the evidence regarding the father's domestic violence and substance abuse. While we defer to the judge's assessment of the mother's credibility on those subjects, the judge's decision does not adequately address the reports of domestic violence and substance abuse made by the child, the mother's older daughter, and the mother's former husband. Absent a more detailed assessment of that evidence, we cannot agree, for example, with the judge's conclusion that the “boiling water incident [was] exaggerated.” Nor does the judge's decision address why it was in the child's best interests for the mother's parenting time to be limited to one supervised hour per week. Simply put, without more detailed findings, we cannot assess whether 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). Accordingly, we shall remand the case to the Probate and Family Court for further factual findings and, if necessary, redetermination on the counterclaim for modification.⁵ Finally, in light of the change in custody brought to our attention at argument and the pending care and protection action in the Juvenile Court, the judge's findings regarding the best interests of the child should take current circumstances into consideration.

2. Attorney's fees. A judge has broad discretion to award attorney's fees in a divorce case. Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996). See G. L. c. 208, § 38. A judge may consider “the ability of the [father's] counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the [mother's] obstructionist conduct which prolonged the proceedings” (quotation omitted). Schechter v. Schechter, 88 Mass. App. Ct. 239, 260 (2015). “As long as the amount awarded is not incommensurate with an objective evaluation of the services performed, ․ ‘[t]he award of such costs generally rests in sound judicial discretion ․ and ordinarily ought not to be disturbed.’ ” Ross v. Ross, 385 Mass. 30, 38-39 (1982), quoting Smith v. Smith, 361 Mass. 733, 738 (1972).

Here the father's attorney filed a posttrial motion for attorney's fees in the amount of $35,000 supported by his affidavit and billing records. The motion sought attorney's fees in three categories -- fees expended (1) in connection with the contempt complaints, (2) to compel the mother's attendance at a deposition, and (3) in relation to the modification. The judge's findings regarding attorney's fees were limited to his conclusion that “25,000 represents a fair and reasonable portion of [f]ather's attorney's fees which mother shall be responsible for.”

We have little doubt that an award of attorney's fees was appropriate given the mother's obstructionist behavior. Indeed, there is a presumption that the prevailing party in a contempt proceeding is entitled to an award of attorney's fees. Kennedy v. Kennedy, 23 Mass. App. Ct. 176, 177 (1986). We are also mindful that in assessing the request for fees the judge was not obligated to “review and allow or disallow each individual item in the bill, but could consider the bill as a whole.” Berman v. Linnane, 434 Mass. 301, 303 (2001). But here there were no findings to support the judge's award of $25,000 in attorney's fees. Accordingly, we shall vacate the award of attorney's fees and remand for further findings regarding the factors set forth in Schechter, 88 Mass. App. Ct. at 260.⁶

So much of the modification judgment dated January 26, 2018, as pertains to custody, parenting time, and an award of attorney's fees to the father is vacated, and the case is remanded for further proceedings consistent with this memorandum and order. In all other respects the modification judgment is affirmed.

So ordered.

Affirmed in part; vacated in part and remanded.

FOOTNOTES

2.   The mother was found in contempt for failure to pay her portion of the fees expended for the guardian ad litem and her failure to cooperate with the appointed therapist. The father was found in contempt for failure to pay the mother $20,000. The contempt judgments are not before us on appeal.

3.   At oral argument we were informed by counsel that since the modification judgment entered, the child has been removed from the father's custody by the Department of Children and Families (DCF) and placed with a grandparent. This fact is not part of the record on appeal and we do not rely on it. However, we take judicial notice of the pending care and protection action in the Juvenile Court regarding custody of the child. See G. L. c. 119, § 24.

4.   The mother's record appendix includes various documents that were not part of the record in the Probate and Family Court. These documents include letters from the mother's physicians, documents related to the father's criminal charges that did not result in convictions, and the mother's postjudgment motion to recuse the trial judge. These documents are not properly before us and we do not consider them.

5.   We have considered, but are not persuaded by, the mother's arguments regarding the judge's consideration of the mother's mental and physical health. We discern no abuse of discretion.

6.   We do not consider the mother's appeal to be frivolous. We therefore decline to exercise our discretion to award appellate attorney's fees and costs as requested by the father.