C.S. v. K.G. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, K.G. (father), appeals from judgments entered in the Probate and Family Court dismissing his amended motion for modification of an amended judgment, finding C.S. (mother) not guilty of civil contempt, and allowing in part the mother's counterclaim for modification of the amended judgment. On appeal, the father claims that the probate judge abused his discretion in ordering continued and indefinite supervision of the father's parenting time with the parties' son (child). We affirm.

Background. “We summarize the proceedings, setting forth relevant background facts as determined by the judge, supplemented by the record where necessary, and reserving other facts for our later discussion of the issues.” Rosenwasser v. Rosenwasser, 89 Mass. App. Ct. 577, 578 (2016), quoting Murray v. Super, 87 Mass. App. Ct. 146, 147 (2015). The child was born in 2005. He was three years old when the first complaint for support, visitation, and custody was filed, and was twelve years old at the conclusion of the modification trial at issue.²

On April 7, 2009, a judge of the Probate and Family Court entered an amended judgment (2009 amended judgment) awarding sole legal and physical custody of the child to the mother, and granting the father scheduled, supervised parenting time with the child.³ In addition to requiring a supervisor to be present for each visit (parenting time supervisor), the judge also assigned a separate therapeutic clinical supervisor (TCS) to meet with the family and help the father “get to a point where supervised visitation [would no longer be necessary],” and ordered the TCS to submit a report when the TCS believed that the need for supervision of the visitation had ended. The supervision requirement was predicated on the judge's concerns about the father's impact on the child's mental health and emotional well-being.

Subsequently, parenting time transitions occurred with varying levels of difficulty due to delays and conflict between the father and others, including the mother, child care providers, and the child's maternal grandmother. Nonetheless, in 2010, the TCS concluded that his services were no longer necessary,⁴ and successfully moved to be discharged from his role in the case.

On June 21, 2011, on the ground that the discontinuation of the TSC's service constituted a change in circumstances, the father filed a complaint for modification of the 2009 amended judgment, seeking termination of the requirement that his parenting time with the child be supervised. A judge appointed a guardian ad litem (GAL) to evaluate and report on the father's request, and issued a temporary order relieving the father of the supervision requirement.

Shortly after the father began having unsupervised parenting time with the child, however, the child began to exhibit significant behavioral problems. He resisted attending parenting time with the father, expressed his desire not to go with the father for parenting time, and after being with the father, often become angry, agitated, and stressed. The judge reappointed the GAL to update his report and appointed counsel for the child.

In July 2012, the father filed an amended complaint for modification, seeking sole custody of the child on the basis of additional “changed circumstances.”⁵ The father also filed a complaint for civil contempt against the mother, alleging that she had violated a prior court order by cancelling some of his scheduled parenting time. The GAL filed an updated report in 2013; the judge then entered a series of temporary orders that again required the father's parenting time be supervised, and specifically limited the father's ability to be present at the child's school. The mother responded to the father's complaints and filed her own counterclaim for modification.

In 2018, after a consolidated trial, a judge further modified the 2009 amended judgment, reinstating the requirement that the father's parenting time be supervised.⁶ The father appeals from the judgments, and now focuses on challenging the judge's order of “indefinite” supervision of his parenting time with the child.

Discussion. 1. Standard of review. “General Laws c. 208, § 28, authorizes the court to ‘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 has occurred and the judgment of modification is necessary in the best interests of the children.’ ” R.S. v. M.P., 72 Mass. App. Ct. 798, 802-803 (2008), quoting G. L. c. 208, § 28. See Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 289 n.1 (1996). The party seeking modification bears the burden of proof. See Schuler v. Schuler, 382 Mass. 366, 368 (1981). We review the judge's decision for an abuse of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). In doing so, we defer to the judge's factual findings, “absent a showing that they are plainly wrong or clearly erroneous.” Schechter, supra.

2. Supervision of parenting time. The father challenges two facets of the judgment, arguing that the judge abused his discretion both in requiring that the father's parenting time be supervised, and in failing to establish a “roadmap” for terminating that supervision.

We first note that to the extent the father's arguments here challenge aspects of the 2009 amended judgment, the father has mounted an improper collateral attack on that earlier judgment. See Tompkins v. Tompkins, 65 Mass. App. Ct. 487, 493 (2006). The father appealed from the 2009 amended judgment and lost. See C.S. v. K.G., 78 Mass. App. Ct. 1124 (2011). Where his rights have been fully adjudicated, he cannot rely on this appeal to seek relief that he has already been denied. See Tompkins, supra.

Turning to the merits of the father's appeal, we discern no abuse of discretion in either the judge's explicit determination that the father failed to show a material change in circumstances as they relate to the father's ability to prioritize the child's mental health and emotional well-being, and so failed to carry his burden in seeking modification of the portion of the judgment requiring that his parenting time be supervised, or in the judge's implicit determination that the father's ongoing negative effect on the child's well-being outweighed the change in circumstances presented by the fact of the child's aging. See Cabot v. Cabot, 55 Mass. App. Ct. 756, 765 (2002) (child's advancing age as change in circumstances warranting modification).

As to the need for supervision, there was ample evidence that the judge credited to support the finding that the father's problematic behavior had a significant adverse effect on the child's emotional well-being, such that outside supervision of the father's parenting time was needed.⁷ See Schechter, 88 Mass. App. Ct. at 247-248 (“a judge is authorized to impose conditions and restrictions on and to suspend any visitation by the other parent when it is determined that visitation would not be in the best interests of the child”).

As to the father's behavior, the judge properly considered the father's denigration of the mother to the child, discussion with the child about the ongoing litigation and prohibitive costs of supervised visits, and attempts to enlist the child's help in lobbying for an increase in the father's parenting time. See Schechter, 88 Mass. App. Ct. at 248 (judge's decision to suspend visitation supported by evidence that father made disparaging and negative comments about mother in child's presence). The evidence likewise supported the judge's findings concerning the father's inability to put the child's needs before his own. Additionally, the judge credited evidence of the father's attempts to circumvent the supervision order by engaging in activities that, by their nature, prevented the parenting time supervisor from adequately supervising the father's time with the child;⁸ volunteering unsupervised at the child's school; appearing, unannounced, at places where the child and the mother were; and contacting the child directly by telephone.

In considering the effect of the father's conduct on the child, the judge explicitly credited the GAL's report that the emotional distress and behavioral dysregulation experienced by the child appeared to coincide with the lifting of the supervision requirement for the father's parenting time. The judge also accepted the GAL's recommendation “that it would be best for [the child] at this time for his parenting time with his father to be supervised by a professional visitation supervisor.” See Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996) (in determining modifications of custody awards based on changed circumstances, “[d]iscretion allows the judge, when determining the best interests of the [child], to consider the widest range of permissible evidence,” including reports of court-appointed investigator or GAL and evidence of history of relationship between child and each parent).

While it is certainly true that a child's increasing age and maturity can be “changes in circumstances” that may, depending on the facts of a given case, be a basis for modification of an existing parenting order, we are satisfied in this case that the trial judge did not abuse his discretion in concluding, based on the father's continued inappropriate behaviors during both supervised and unsupervised parenting time, that granting the father unsupervised parenting time would not be in the child's best interests. See R.S., 72 Mass. App. Ct. at 803 n.9, quoting Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262 (2001) (change in circumstances must be “of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the [change in visitation] will be conducive to the welfare of [the child]”); P.W. v. M.S., 67 Mass. App. Ct. 779, 784 (2006) (judge has discretion to determine limits to be placed on father's visitation). See also Smith v. McDonald, 458 Mass. 540, 551 (2010) (in awarding visitation, judge did not err in considering whether existing arrangement meets child's needs).

3. Mechanism for terminating supervision. The father argues that the 2009 amended judgment provides no mechanism for the termination of supervised visits. To the extent this argument was not waived below, and assuming that it rises to the level of appellate argument, see Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019), we disagree, and decline the father's invitation to provide further guidance on that point.⁹ We see nothing in the 2009 amended judgment that sets out an exclusive method for seeking a change in the visitation requirement. The father can, to the extent that the facts and law permit, seek a modification based on a material and substantial change in circumstances. See E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020).

4. Attorney's fees. The mother requests an award of attorney's fees for having defended a frivolous appeal. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). We deny the request. See Avery v. Steele, 414 Mass. 450, 455 (1993) (“Unpersuasive arguments do not necessarily render an appeal frivolous”).

Conclusion. The judgments dated December 20, 2018, on the father's amended complaint for modification, the mother's counterclaim for modification, and the father's complaint for contempt are affirmed.

So ordered.

Affirmed.

FOOTNOTES

2.   The parties never married.

3.   The father appealed from the 2009 amended judgment. A panel of this court affirmed. See C.S. v. K.G., 78 Mass. App. Ct. 1124 (2011).

4.   In doing so, the TCS reported that the father and child did not need family therapy at that time. The TCS explicitly stated that he “[had] no opinion on” the need for the parenting time supervisor's continued involvement.

5.   The father alleged that the mother was “engaged in parental alienation” to the detriment of the child.

6.   The three separate judgments that issued were supported by detailed and thoughtful written findings applicable to all of the matters before the judge. The judge also granted the parenting time supervisor discretion in terminating visits based on the supervisor's assessment of the child's best interests and imposed restrictions on when the father could be present at the child's school.

7.   We note that the judge found the testimony of the mother, the GAL, and the parenting time supervisor credible, and found the testimony of the father “not credible in many aspects.” We see no reason to disturb those credibility determinations. See Malachi M. v. Quintina Q., 483 Mass. 725, 741 (2019).

8.   The evidence at trial supported the judge's finding that during supervised visits, the father and the child would engage in recreational activities including hiking on unmarked trails, go carting, jet skiing, and running -- activities that impeded the parenting time supervisor's ability to monitor the visits.

9.   We are likewise not inclined to order any additional neuropsychological testing of the child, although nothing in our decision prevents the parties from seeking such an order through the trial court.