MANNING v. MANNING (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a trial in the Probate and Family Court, the defendant, Jennifer Agnes Manning (wife), appeals from the resulting judgment of divorce nisi (divorce judgment). She argues (1) the judge erred in failing to make detailed findings about the effect on the parties' children of abuse in the marriage, as required by G. L. c. 208, § 31A, (2) the order of shared custody does not serve the best interests of the children, and (3) the judge abused his discretion in denying the wife's pretrial motion to appoint a guardian ad litem (GAL). We agree that further findings, as required by G. L. c. 208, § 31A, are necessary and therefore vacate the portion of the divorce judgment relating to custody of the children, and remand the matter for the judge to make those findings.

Background. The parties were married on May 11, 2002; they had two children together (ages eight and nine at the time of trial). On June 30, 2015, the plaintiff, Jeffrey Alan Manning (husband), filed a complaint for divorce seeking, among other things, custody of the minor children, child support, and conveyance of the marital home. In July 2015, the parties entered into a stipulation that became a temporary order, outlining a parenting schedule for the summer vacation months, with each parent having custody of the children for alternating two-week periods.²

After a hearing on August 27, 2015, the judge ordered, among other things, (1) shared legal and physical custody of the children with each parent having custody of the children for alternating one-week periods, with the exchanges occurring at the Melrose police station; (2) each week the noncustodial parent would be allowed to have dinner with the children on Tuesday or Wednesday; and (3) the wife would pay child support to the husband.³ This order was still in effect at the time of trial. Also, after the August 27 hearing, the wife's motion for the appointment of a GAL was denied without prejudice.

The trial took place over four nonconsecutive days between April 2016 and January 2017. Both parties testified and an investigating social worker, Melissa McPherson, from the Department of Children and Families (department) also testified. McPherson's testimony addressed her G. L. C. 119, § 51B, investigation (51B investigation) of allegations made in a G. L. c. 119, § 51A, report filed by a nonmandated reporter, alleging neglect of the children by both the wife and the husband.

McPherson testified that, during her investigation, the wife reported that she was the victim of repeated domestic abuse by the husband, but she did not report that abuse to anyone because she was fearful of repercussions from him. According to McPherson's report, the wife reported, among other incidents, that the husband had punched her in the stomach when she was pregnant; that one of the children had reported to his preschool teacher that his dad had punched his mother; that the husband reported that the wife had verbally attacked him and had thrown things at him during the marriage; and that the husband denied ever hitting the wife. She concluded that the allegations against the husband were unsupported, and the allegations against the wife were supported due to McPherson's concerns about what she perceived as the wife's interference with the children's relationship with the husband.⁴ McPherson recommended that the parties seek therapy for the children because of the trauma of the divorce and she also recommended the appointment of a GAL to investigate issues relating to custody of the children.

The wife appealed from the department's decision supporting allegations of neglect against her. After a Fair hearing, the administrative hearing officer concluded that “[t]he Department did not have reasonable cause to believe the [wife] neglected the children.” As the hearing officer noted, “The [d]epartment did not believe that there was domestic violence in the home and therefore it had no foundation to support [the wife] for using her child as a shield in an attack that they do not believe happened. Additionally, there was no foundation to say [the wife] was neglectful for denying concerns of domestic violence.” The hearing officer's decision concluded that the evidence supported the conclusion that the wife had made attempts to get the children into therapy, but that she and the husband were having trouble agreeing on a therapist. The hearing officer also concluded that there was “insufficient evidence to make a finding as to the level of violence in the home.”

The judge issued his findings and rationale along with the divorce judgment on March 30, 2018. He found that the husband had “physically battered and assaulted the [w]ife throughout the entire tenure of the marriage. The [h]usband first physically assaulted the [w]ife four days before their wedding and assaulted her for the last time right before the [w]ife told him she wanted a divorce in June 2015.” As the judge noted, by the husband's own admission, on September 13, 2013, he “accidentally” hit the wife with a spoon that caused injury to her eye. The judge explicitly disbelieved the husband's characterization of the incident as an accident, noting that the husband had texted the wife the next day “and apologized for the event, told the [w]ife it would never happen again and blamed the incident on his failure to properly manage his PTSD.”

The wife testified at trial that the husband intentionally threw the spoon at her “like you would throw a baseball”; the cut to her eye bled and later bruised, leaving a scar under her left eye. She also testified that, four days before the wedding, the husband punched her in the face; he was angry at her for not cleaning the house. She testified further that, when she was six months pregnant with her youngest child, the defendant “punched [her] in the stomach.” She continued, “He has held me by the throat up in the air. He has caused injury to my eye by trying to spit at me. He has pulled me by the hair․ I have put myself in the corner as he kicks me and repeatedly punches me.” She said that the husband had struck her “over forty-five times” during the marriage. She also said that, before her older child's birthday party, the husband had grabbed her by the neck in front of the children, and also pushed her down and hit her in front of the child when the party started.

The wife also testified that the parties had gone to therapy and talked about the husband's PTSD. “[The husband] had trigger words, where he couldn't have anything loud in the morning that would trigger him to hit me.” She said she would hide in the bathroom when the husband was triggered so she would “not get beaten. [She] also said that [she had] wanted to work on the marriage to make [the husband] not angry anymore.”

The husband admitted that, during arguments with the wife he had on two separate occasions broken a glass in his hand as a result of his anger, each time requiring medical treatment. He also admitted to cracking a car windshield with his fist when he was upset with the wife. The judge also emphasized the wife's “serial verbal abuse” of the husband, including outbursts that occurred in the children's presence.

The judge stated that he had “carefully considered” the parties' conduct, and also considered the provisions of G. L. c. 208, § 31A, in fashioning the custody order. However, the judge did not provide any findings at all about the impact on the children of the domestic abuse he found had occurred.⁵ He determined that the parenting plan the parties had agreed to for the summer months while the matter was pending should continue; he made that order permanent.⁶ Due to the change in the parties' respective incomes since issuance of the August 2015 temporary order, the husband was ordered to pay child support to the wife. The wife timely appealed.

Discussion. 1. Custody. The wife first argues that the judge failed to make sufficient findings in accordance with G. L. c. 208, § 31A, regarding the impact on the children of the father's abusive behavior toward her; for that reason she contends his findings do not support an order of shared legal and physical custody. We agree.

“General Laws c. 208, § 31A, requires the Probate and Family Court judge to ‘consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child’ when issuing any temporary or permanent custody order.” Maalouf v. Saliba, 54 Mass. App. Ct. 547, 549 (2002). “Put another way, ․ the plain language of § 31A requires a Probate and Family Court judge to have a complete view of abuse when determining whether a custody decision is in the child's best interest.” Malachi M. v. Quintina Q., 483 Mass. 725, 734 (2019). A finding, by a preponderance of the evidence, that “a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child[ren] to be placed in sole custody, shared legal custody or shared physical custody with the abusive parent.” ⁷ G. L. c. 208, § 31A. If the judge makes such a finding, the judge is required to make written findings of fact within ninety days as to the effects of the abuse on the children. Id. Those findings must demonstrate that the temporary or permanent custody order “is in the furtherance of the child's best interests and provides for the safety and well-being of the child.” Id. See Custody of Vaughn, 422 Mass. 590, 599 (1996).

Here, as noted, the judge expressly found that the husband had “physically battered and assaulted the [w]ife throughout the entire tenure of the marriage,” beginning a few days before their wedding day and ending very shortly before the wife said she wanted a divorce. A pattern of abuse emerges from that finding, supplemented by the wife's testimony that the judge apparently credited at least in substantial part. At a minimum, the incident where the husband threw the spoon, injuring the wife's eye and leaving a scar suggests that a “serious incident of abuse” occurred. Either of those conclusions would create a rebuttable presumption that it was not in the best interests of the children to be placed in a shared custody arrangement with the husband. See G. L. c. 208, § 31A.

We therefore conclude that the judge failed to make the required findings as to “whether the parties have met the preponderance standard for the presumption to apply and, if so, whether the [husband] ha[d] rebutted the presumption.” Malachi M., 483 Mass. at 740. The judge did reiterate that “[t]he Court has, in fashioning [the j]udgment carefully considered the issues of conduct of the parties. The Court has considered the provisions of G. L. c. 208, § 31A.” He then dismissed the significance of the husband's physical abuse by concluding that “each party has demonstrated inappropriate behaviors during the marriage.” He noted that he was not “diminishing the incidents of verbal and, on at least one occasion, a physical injury sustained by the wife.”

However, the judge's findings simply did not sufficiently address the serious and admitted incidents of physical abuse. His statements that “there were regrettable incidents in which the [h]usband demonstrated an inability to control his anger,” and his reference to what he characterized as the wife's “serial verbal abuse,” fall far from the detailed and comprehensive findings required under G. L. c. 208, § 31A.

Specifically, the judge did not consider, or at least make findings about, the effect that the physical violence had on the children. The law has been clear since Custody of Vaughn, 422 Mass. at 599, that it is error when “the judge below ‘fail[s] to make detailed and comprehensive findings of fact on the issues of domestic violence and its effect upon the child[ren] as well as upon the father's parenting ability.’ R.H. v. B.F., 39 Mass. App. Ct. 29, 40 (1995)” (emphasis added). We conclude that here, as in Custody of Vaughn, supra,

“The Probate Court failed to consider the special risks to the child in awarding custody to a father who had committed acts of violence against the mother. It is well documented that witnessing domestic violence, as well as being one of its victims, has a profound impact on children. See Note, Domestic Violence and Custody Litigation: The Need for Statutory Reform, 13 Hofstra L. Rev. 407, 417-422 (1985). There are significant reported psychological problems in children who witness domestic violence, especially during important developmental stages. See Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041 (1991).”

For that reason, this case must be remanded for further findings as required under G. L. c. 208, § 31A, and, in light of those findings, a consideration whether a shared custody order is in fact in the best interests of the children.

2. Guardian ad litem. The wife also argues that the judge abused his discretion in denying without prejudice her pretrial motion to appoint a GAL. “Any judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children and as to any matter involving domestic relations.” G. L. c. 215, § 56A. “The decision to appoint a guardian ad litem ․ for a minor rests within the sound discretion of the judge and will be overturned only upon a showing of abuse of discretion by the judge.” Ruml v. Ruml, 50 Mass. App. Ct. 500, 513 (2000).

The judge emphasized at trial that, because he had presided over this matter for more than two and one-half years, he had become well acquainted with the parties and their respective positions as to the custody of the children. He expressly acknowledged that the children had resided with each parent an equal amount of time, and that each child was in excellent health and performing well in school. Notably, the wife did not renew her motion after the 51B investigation report (completed in September 2015) recommended the appointment of a GAL.

While, at trial, the judge had the benefit of the department's 51B investigation report detailing information given by the children, the parties, and some identified collaterals involved in the family's life, we note that the 51B report is seriously undermined by the Fair hearing decision that reversed its conclusion. On balance, given the extent of the testimony at trial and the numerous exhibits offered, we cannot say that the judge abused his discretion in denying the wife's motion for the appointment of a GAL. See Ruml, 50 Mass. App. Ct. at 513. However, he may wish to reconsider that decision when the case is remanded.

Conclusion. We vacate the portion of the judgment that grants the parties shared legal and physical custody of the two minor children. The case is remanded to the Probate and Family Court for explicit findings as mandated by G. L. c. 208, § 31A. The judge is not required to hear further testimony if he does not consider it necessary, but the parties should be provided an opportunity to be heard and the judge should make explicit findings on the issues set out above, as required by G. L. c. 208, § 31A. See Custody of Vaughn, 422 Mass. at 600. The judgment dated March 30, 2018, shall remain in effect without prejudice pending further order of the Probate and Family Court. In the event the custody order is altered, the child support order should also be recalculated. The judgment is otherwise affirmed.⁸

So ordered.

vacated in part and remanded; affirmed in part

FOOTNOTES

2.   On July 29, 2015, the wife's request for an abuse prevention order, pursuant to G. L. c. 209A, was denied by another judge of the Probate and Family Court “upon a finding by the [judge] that no current imminent fear of harm existed because the alleged abuse was not recent enough in time.”

3.   In December 2015, the husband bought out the wife's interest in the marital home and, by agreement, the parties equally divided their respective retirement accounts. As a result, the trial focused only on custody, parenting time, and support.

4.   McPherson testified that she had concerns about the wife “coaching” the children about fear of the husband; one of the children reported to McPherson that “[m]y mom told me [the husband] hit me.” The wife also encouraged the children to use “code words” when they were with the husband in order to let the wife know if the children were afraid or feeling threatened by the husband; the children told McPherson that they felt safe with the husband and were not afraid when with him. McPherson testified that the children were “confused and upset by [the wife's] manipulation.” She also testified that one of the children had told her that he saw the wife hit the husband while the parties were in the car driving the child to preschool; the wife admitted to McPherson that she had once used one of the children as “a shield” during an abusive attack by the husband. The children's statements were included in McPherson's report, which was admitted in evidence.

5.   The judge did note that both children were generally in excellent health and that they were “performing well in school.”

6.   Although the judge referred to the July 2, 2015 parenting plan order, he in fact described the parenting plan ordered after the August 27, 2015 hearing, consisting of parenting time for each party on alternating seven-day weeks, and dinner one night each week for the noncustodial parent.

7.   A “[s]erious incident of abuse” is defined, as relevant here, as “the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child: (a) attempting to cause or causing serious bodily injury; [or] (b) placing another in reasonable fear of imminent serious bodily injury.” G. L. c. 208, § 31A. “Serious bodily injury” is defined as “bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.” G. L. c. 265, § 13K.

8.   The husband's request for appellate attorney's fees and costs is denied.