MAT v. BORGES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial, a judge in the Probate and Family Court entered a modification judgment and a supplemental modification judgment that awarded the father sole legal and physical custody of the parties' minor child, ordered the mother to have supervised parenting time, and ordered her to pay counsel fees to the father.² The mother appeals, claiming that the evidence did not support the custody and visitation orders, and that the judge erred in admitting certain testimony and awarding counsel fees. We affirm.

Background. The parties are the never married parents of a child born in April 2009. In June 2016, the parties entered into an agreement for judgment on a complaint for modification, which provided, among other things, that mother had the exclusive right to determine the child's educational needs and medical providers, except for mental health treatment. As to that, the parties agreed that the child would continue to be treated by her then therapist with mother having authority over appointments. They also agreed that the father would have overnight parenting time. The agreement was incorporated into a modification judgment.

On March 27, 2017, the mother filed a complaint for modification, an emergency motion to suspend the father's parenting time, and a motion for the appointment of a guardian ad litem (GAL).³ A GAL was appointed; the mother's motion to suspend the father's parenting time was denied. The father filed an answer and counterclaim for modification seeking sole legal and physical custody. Three months later, the mother filed another emergency motion to suspend parenting time, which was denied. On the same day, the father filed a motion for temporary physical custody of the child; that motion was allowed on October 3, 2017, and provided the mother with supervised parenting time.⁴ In November 2017, another temporary order entered concerning the mother's inappropriate conduct during her parenting time.

On May 31, 2018, the mother filed a complaint for contempt, alleging the father was in violation of numerous judgments and orders. She also filed three applications for criminal complaints against the father in two different district courts. On June 28, 2018, a temporary order entered requiring the mother to pay child support to the father. Thereafter, the case was tried over four days in February 2019.

Custody determination. As in any modification proceeding, the parties must first establish that a material and substantial change in circumstance has occurred to warrant a change in custody, and that the change is in the child's best interests. Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 777-778 (2005). “[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met.” Charara v. Yatim, 78 Mass. App. Ct. 325, 336 (2010). “In custody matters, the touchstone inquiry [is] ․ what is best for the child, and [t]he determination of which parent will promote a child's best interests rests within the discretion of the judge ․ [whose] findings ․ must stand unless they are plainly wrong” (quotations omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019). “The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit.” Id., quoting Smith v. McDonald, 458 Mass. 540, 547 (2010).

“We review the judgment and the subsidiary findings of fact for abuse of discretion or other error of law.” Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). “A trial judge's findings of fact will not be set aside unless clearly erroneous.” Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). The reviewing court will give due regard to the judge's assessment and determination of credibility of the witnesses and the weight of the evidence. R.D. v. A.H., 454 Mass. 706, 718-719 (2009). “[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” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the judge entered 218 findings of fact, all of which find ample support in the record and support her conclusion that there was a material and substantial change in circumstance that warranted a change in custody.⁵ In addition to the parties, fifteen witnesses testified at the trial. These witnesses included professionals from the child's school, the GAL, medical and mental health providers of the child, Department of Children and Families social workers, the child's piano teacher, and visitation supervisors.

Each party sought sole legal and physical custody of the child. In large part, the judge credited the testimony of the father, and not that of the mother. See Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 495-496 (2012) (in bench trial, within province of judge to weigh and assess credibility). In doing so, the judge found that it was in the child's best interest to be in the sole legal and physical custody of the father. The record is replete with examples of the mother's destructive relationship with the father, the child's school, and treatment professionals. The judge found that the mother levied false allegations of sexual abuse against the father, continued to attempt to corrupt the child's relationship with her father, and that the child's wellbeing was in jeopardy while she was in the mother's care. She found that the mother's actions have had serious adverse effects on the child's emotional, mental and physical health, and that the mother's behavior is the foundation for the child's stress and anxiety. As a result, the judge concluded that the mother's parenting time must be “highly controlled.”

By contrast, the father showed a willingness and ability to respond to the child's needs. The judge found that the father understood the importance of the child having a healthy relationship with her mother and encouraged the child to call her mother and spend time with her half-sister. The judge also found that the father has devoted his life to taking care of the child and providing her with a happy, healthy, and stable home environment.

The evidence here supported the conclusion that the father is the parent who is best able to put the needs of the child first. We discern no abuse of discretion in granting the father physical and legal custody of the child and ordering supervised parenting time for the mother. See Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting G. L. c. 208, § 31 (“The judge shall consider ‘whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health’ ”). See also Macri v. Macri, 96 Mass. App. Ct. 362, 369-370 (2019); O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 155-156 (2003) (“in the face of overwhelming undisputed evidence of hostility between the parents and their disagreement on matters pertaining to the child, the child's best interests, always the paramount concern, are likely better served by ending the joint custodial arrangement” [quotation and citation omitted] ).

Trial testimony. The mother claims that the judge erred in allowing witnesses from the child's school to testify regarding their impressions of the mother and child's relationship and behavior. Specifically, the judge allowed the witnesses to testify to the effect that the mother had coached the child, that the child experienced anxiety, and that the child's social interactions improved because of the change in custody. We disagree that the judge abused her discretion.

“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is (a) rationally based on the witness's perception; (b) helpful to a clear understanding of the witness's testimony or in determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.” Mass. G. Evid. § 701 (2019). A lay witness is not permitted to testify as to opinions and conclusions that they are not qualified to make. Peterson v. Foley, 77 Mass. App. Ct. 348, 350-351 (2010).

The witnesses here testified to their observations and interactions with the parties and the child. The evidence was helpful in determining a factual dispute and was not based on scientific or specialized knowledge. The testimony did not lie outside of common experiences. Indeed, for these witnesses, it was something that was within the realm of their experiences as educators and professionals working with the family. And, to the extent that any of the testimony crossed over into opinion testimony, a judge is presumed to sort out the evidence and rely only on admissible evidence. See Commonwealth v. Collado, 426 Mass. 675, 678-679 (1998); Kendall v. Kendall, 426 Mass. 238, 243 n.11 (1997), cert. denied, 524 U.S. 953 (1998). Moreover, this testimony was factually cumulative, and the admission of cumulative evidence does not commonly constitute reversible error. See Commonwealth v. Davis, 54 Mass. App. Ct. 756, 764 (2002). There was no error.

Counsel fees. An award of counsel fees lies within the sound discretion of the trial judge and will not be disturbed unless there is an abuse of discretion. Dematteo v. Dematteo, 436 Mass. 18, 38-39 (2002). In determining an award of counsel fees, a judge may consider the amount of time required to prepare the case, the conduct of the parties in the litigation, and the reasonableness of the fees. Hunter, 463 Mass. at 499. See J.S. v. C.C., 454 Mass. 652, 665-666 (2009). Here, the trial judge awarded counsel fees to the father based on her “extensive involvement in [the] case during the trial; and [the] intense litigation that lead up to the trial.” The judge concluded that the award was conservative in light of the total amount of the fees incurred by the father, and found that the awarded fees were incurred as a direct result of the mother's “pattern of behavior.”⁶ On this record, there was no abuse of discretion.⁷

Judgments entered May 14, 2019, and supplemental modification judgment entered June 19, 2019, affirmed.

FOOTNOTES

2.   Separate judgments entered dismissing the mother's complaints for modification and contempt and the father's counterclaim for modification. In response to the father's motion to alter and amend, the judge later entered a supplemental modification judgment on the father's counterclaim for modification.

3.   The mother alleged that the father questioned the child about her; yelled and screamed at the child in an uncontrolled manner; frightened the child with outbursts of anger; and slept in the same bed with the child.

4.   The father alleged that the mother was arrested for domestic assault and battery on him, and malicious destruction of property. In addition, he alleged that she traveled with the child out of the country for two weeks and denied the father parenting time upon their return.

5.   To the extent that the father's brief contains a motion to strike the mother's statement of facts, it is denied.

6.   The father incurred in excess of $83,000 in counsel fees to his trial attorney; he was awarded nearly $30,000 in fees. The mother paid in excess of $93,000 in fees to her trial attorney and incurred no debt therefrom.

7.   The father's request for appellate attorney's fees and costs is denied.