SABOGAL v. BRUCE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 2018, a Probate and Family Court judge entered a judgment under G. L. c. 209C, giving Jaclyn Sabogal (mother) and Derek Bruce (father) shared physical and legal custody of the parties' minor child and ordering the father to pay child support to the mother. On the father's subsequent complaint for modification, and after a one-day trial, the judge in June 2019 entered a modification judgment, which granted primary physical custody to the father, maintained shared legal custody but granted the father final decision-making authority on specified issues, and ordered that the mother pay child support to the father. The mother now appeals from that modification judgment. Although we are not persuaded by most of the mother's arguments, we conclude that certain errors and gaps in the judge's findings of fact and rationale require a remand for amended or additional findings and for reconsideration of the modification judgment.

1. Governing standards. A judgment for custody under G. L. c. 209C may be modified if “the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child's best interests.”² G. L. c. 209C, § 20. A judge has considerable discretion to “settle custody in a manner that advances the best interests of the child[ ],” Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987); we recognize that “[t]he opportunity which the judge had to observe and appraise both parents is particularly important” (citation omitted). Id. We review a modification judgment (1) to determine whether the factual findings are “clearly erroneous,” giving “'due regard ․ to the opportunity of the trial court to judge of the credibility of the witnesses,' Mass. R. Dom. Rel. P. 52 (a) (2008)”; (2) for “errors of law”; and (3) for abuse of discretion. Pierce v. Pierce, 455 Mass. 286, 293 (2009). “The standard of review reflects substantial, but not unlimited, deference to the judge who saw the witnesses and heard the evidence.” Id.

2. Mother's initial arguments. Several of the mother's arguments may be addressed summarily. First, the mother points out that none of the relief ultimately awarded in the modification judgment was actually requested in the father's complaint for modification. To the extent that the mother claims the relief was barred on this ground alone, we are not persuaded. The father filed a pretrial memorandum and a proposed judgment making clear that he sought sole physical and legal custody. At trial the mother did not object on the basis that the issues went beyond the specific relief set forth in the father's complaint for modification, and on appeal she has identified no resulting prejudice. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Mass. R. Dom. Rel. P. 15 (b).

Second, the mother argues that the judge “completely ignored uncontroverted documentary evidence in the form of written communications between the parties in which [the father] attempt[ed] to impose his will on matters pertaining to legal custody” and to “attack [the mother] ․ as a person.” The short answer to this contention is that the judge, particularly after seeing and hearing both parties testify, was not required to accept the mother's interpretation of and conclusions based on those communications. We reject the mother's related contention that the evidence supported an award of sole legal custody to her.

Third, the mother argues that because the provision of the modification judgment awarding primary physical custody to the father should be reversed, so too should the provision requiring the mother to pay child support. As we do not agree with her premise, we need not address the child support issue further.

3. Mother's challenges to findings of fact. We agree with the mother that errors or gaps in several important findings of fact make a remand necessary.

a. Impact of mother's move. The judge found that, in light of the father's longstanding residence in Dracut, the mother's move from Beverly to Millbury “has complicated the part[ies'] ability to share physical custody.” This finding apparently was significant to the judge's ultimate rationale, which concluded that “the distance is too great for the parties to continue to share physical custody.” But, aside from the child having to spend more time in transit,³ the findings leave it unclear how the mother's move affected the parties' ability to share physical custody and thus affected the child's best interests. It is likewise unclear whether the judge viewed the mother's move as constituting the substantial change in circumstances that warranted the modification; indeed, the judge did not expressly conclude that there had been any substantial change in circumstances at all.⁴

Several of the judge's findings describe incidents that arose out of the parties residing in separate communities and that could be viewed as contrary to the child's best interests. But the findings do not indicate whether such incidents are likely to become more frequent or serious as a result of the mother's move or, instead, are the result of the continuing animosity between the parties unrelated to the move.⁵ The judge also made findings regarding other incidents caused by the mother that were potentially harmful to the child but had no apparent relationship to the distance between the parties' homes. On remand, the judge should make amended or additional findings regarding how the move complicated the parties' ability to share physical custody, and her rationale should clarify whether it was the move, the continuing conflict between the parties, or some combination of these or other factors that constituted the substantial change in circumstances necessary to justify the modification.⁶

b. Reason for mother's move. The judge found that the mother “offered no reason for her move other than to be with her boyfriend”; that because the mother “now works in Boston,” there was no other reason for the move; and because the “boyfriend did not testify[,] ․ the [c]ourt has limited information about the stability of this fairly new relationship.” The mother, however, testified that she moved to Millbury for three reasons: to be nearer to her fiancé in Connecticut, her doctoral program in Rhode Island, and her job at Bristol Community College in Fall River. The record seems clear that the mother worked not in Boston but in Fall River at the time of trial.⁷ And the mother's fiancé testified at trial and was questioned by both parties and by the judge directly.

We do not suggest that the judge was required to credit the mother's testimony, or that of her fiancé. But these errors call into question the judge's ultimate conclusion. Amended or additional findings are necessary.

c. The prescription incident. The judge found that, on an occasion when the child needed a prescription filled, the father asked the mother if she could move the prescription to a pharmacy in Dracut; the mother claimed it could not be moved; and, after the father called and had the prescription moved, the mother “called and had it moved back to Beverly.” The judge made this finding after admitting in evidence, over the mother's hearsay objection, a note written by a physician's assistant who apparently worked at the child's pediatric practice. The note described what the practice had done to get the prescription filled and the parents' various communications with the practice about the logistics of doing so.

The judge overruled the hearsay objection on the ground that the mother had “testified to all the same hearsay” that she had objected to in the note. This was inaccurate in at least one respect: the note stated, “The patient's mother had stated that she did not want the prescription sent to CVS in Dracut,” but the mother's trial testimony included no such statement. Also, we are unable to locate any evidence in the note or the parties' testimony to support the judge's finding that the mother “called and had [the prescription] moved back to Beverly.” As the erroneous evidentiary ruling and finding may well have contributed to the judge's conclusion that the mother “has made decisions based solely on her desire to make things harder for” the father, we cannot say that the errors were harmless.

The judge was certainly free, as she did, not to credit the mother's testimony about this incident. And there was other documentary evidence that could be read to reflect unfavorably on the mother's handling of it. Finally, there were other incidents that could have supported the judge's finding that the mother made child-related decisions for the purpose of making things harder for the father. Because the judge's rationale relied upon the prescription-filling incident as an example of the parties' poor communication, amended or additional findings on these issues are necessary.

Conclusion. We do not suggest that the judge on remand cannot reach the same ultimate result as she already has. We remand only because we are left uncertain whether, absent the errors we have identified, the judge would have reached that result in the first place. Accordingly, the modification judgment entered on June 5, 2019, is vacated, and the matter is remanded for amended or additional findings and any appropriate amendments to the rationale and the modification judgment. In the judge's discretion, she may hear additional evidence and make such temporary or final orders as she deems in the best interests of the child. Pending further order or judgment of the Probate and Family Court, the modification judgment shall remain in effect as a temporary order, without prejudice.

So ordered.

Vacated and remanded

FOOTNOTES

2.   The mother's brief erroneously cites the similarly-worded standard from G. L. c. 209, § 28.

3.   The judge found that the move “require[d] substantially more driving.” This finding was supported by the father's testimony that the drive from Dracut to Millbury required one and one-half hours, as compared to approximately one hour from Dracut to Beverly.

4.   Even where not express, such a conclusion may sometimes be inferred from a finding (such as the judge made here) that the best interests of the child require a modification of custody. See Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262 (2001). But, as Rosenthal illustrates, if the record does not support that finding, the modification cannot stand. Id. at 262-265.

5.   In finding that the mother's move had complicated the parties' ability to share physical custody, the judge added that “[m]atters are made worse by the fact that the parties['] ability to get along and communicate have not improved.” The findings do not make clear whether the judge viewed the continuation or deterioration of those problems as itself constituting the substantial change in circumstances warranting a modification in custody. Cf. Macri v. Macri, 96 Mass. App. Ct. 362, 370 (2019) (although parents' communication issues and conflict already existed at time of original custody judgment, judge permissibly found that ongoing conflict had become contrary to child's best interests and warranted modification of legal custody).

6.   The judge's rationale also referred to the mother's move as requiring the father to drive to “Fall River,” similarly, the modification judgment stated that the mother had moved to Fall River. These may simply have been slips of the judicial pen; the parties stipulated that the mother had moved to Millbury and worked in Fall River, and elsewhere the judge so found. The mother's brief acknowledges that “Fall River would indeed be a much further [drive] for [the father] than is Millbury,” and expresses the understandable concern that “[i]t is unknown how much this mistake of fact influenced the trial judge's decision, if at all.”

7.   Earlier in her findings the judge recounted that the mother's “financial statement lists her employment as a [s]tudent [a]dvisor in Boston,” whereas the parties stipulated “that [she] works at Bristol Community College in Fall River.” When the judge sought clarification at trial, the mother explained that because the college was a State school, she was paid by the Commonwealth from a Boston address, even though she worked in Fall River. The mother's counsel explained that the Boston address on the mother's paychecks had mistakenly been listed on the financial statement.