ABREW v. DELGADO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Jonathan Abrew, filed a complaint in the Probate and Family Court seeking legal custody of his child (child), whose mother is the defendant, Sugeidi Delgado. After a hearing, a judge awarded legal custody of the child to the plaintiff. The defendant now appeals, primarily arguing that the Probate and Family Court lacked jurisdiction to adjudicate the custody of the child.² We affirm.

Background. The child was born in Rhode Island on March 17, 2016. The plaintiff and the defendant have never been married, and the defendant has two other children unrelated to the plaintiff. In May or June of 2017, the defendant struck one of her other two children, which resulted in her arrest. As a result, the defendant's other two children were placed in their father's care, and the child was initially placed in the custody of the Department of Children, Youth, and Families of Rhode Island (DCYF). On July 7, 2017, after spending several weeks in a foster home, the child was placed in the care of the plaintiff, who resides in Springfield.

Despite the defendant's having returned to Massachusetts with her other two children, the DCYF case remained open until May 14, 2018, when the Rhode Island Family Court ordered that the pending DCYF matter “be terminated, without prejudice, on June 8, 2018.” After this order issued, the defendant filed a motion in that court seeking to have that case terminate on June 1, 2018, instead. As grounds for the motion, the defendant noted that the parties had an action pending in a Massachusetts court that was scheduled to be heard on June 4, 2018, and that “[a]n order closing out the DCYF petition will serve to expedite th[at] ․ case.” The court granted the motion.

On March 9, 2018, the plaintiff filed a “complaint for custody-support-parenting time” in the Probate and Family Court that sought sole custody for the plaintiff and parenting time with the child for the defendant. The defendant moved to dismiss the plaintiff's complaint and filed a counterclaim seeking sole legal and physical custody of the child.

On June 4, 2018, following a hearing, the judge issued a temporary order granting “legal and physical custody of the ․ child” to the plaintiff.³ A hearing on the merits of the complaint was held on December 7, 2018, after which the judge issued a written judgment ordering, inter alia, that the plaintiff “shall continue to have legal custody of the child.” Soon thereafter, the defendant moved for relief from judgment, which the judge denied. On January 9, 2019, the defendant moved for findings of fact and conclusions of law. The judge allowed this motion on February 25, 2019, and issued seven findings of fact on the same day.

Discussion. The defendant raises four arguments on appeal. None were raised or argued to the judge, and none are availing.

1. Jurisdiction. The defendant first contends that the Probate and Family Court lacked jurisdiction to enter any custody order pertaining to the child. “The decision of a Massachusetts court to exercise jurisdiction and to make a custody determination must be based solely on G. L. c. 209B.” Redding v. Redding, 398 Mass. 102, 106 (1986). Under G. L. c. 209B, § 2 (d), the Probate and Family Court “shall not exercise jurisdiction in any custody proceeding commenced during the pendency of a proceeding in a court of another state ․ unless the court of the other state shall decline jurisdiction ․ or shall stay its proceedings or otherwise defer to the jurisdiction of a court of the commonwealth.”

The defendant argues that the existence of a pending custody matter regarding the child in a Rhode Island court at the time the plaintiff filed his complaint precluded the Probate and Family Court from exercising jurisdiction to adjudicate the present complaint. See G. L. c. 209B, § 2 (d). We disagree. While a case involving the child was indeed pending in the Rhode Island Family Court at the time the plaintiff filed his complaint, the defendant herself filed a motion ⁴ in that court that (1) sought to hasten the dismissal of the DCYF case; (2) informed the Rhode Island court that a new case in Massachusetts involving the parties had been filed; and (3) specified that “[a]n order closing out the DCYF petition will serve to expedite the [Massachusetts] ․ case.” By allowing this motion, the Rhode Island Family Court has “otherwise defer[red] to the jurisdiction of” the Probate and Family Court, thus lifting the G. L. c. 209B, § 2 (d), bar to the judge's proper exercise of jurisdiction here. Thus, the judge did not lack authority to award custody of the child to the plaintiff.

2. Other arguments. The defendant also argues that the judge failed to join the Rhode Island DYCF as an interested party, denied her right to due process by failing to provide notice to her of the June 4, 2018, hearing, and failed to properly analyze the best interests of the child as required by G. L. c. 209C, § 10. The defendant did not raise these arguments in the Probate and Family Court. They are therefore waived, and need not be addressed herein. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (“An issue not raised or argued below may not be argued for the first time on appeal” [citation omitted]). In addition, the docket and appellate record reflect that the judge did hold a hearing on June 4, 2018, and that both parties attended that hearing.⁵

Judgment affirmed.

Order denying motion for relief from judgment affirmed.

FOOTNOTES

2.   The defendant also appeals from an order denying her motion for relief from judgment.

3.   By agreement of the parties, the temporary order also granted the defendant supervised parenting time every other week.

4.   A copy of this motion was submitted as part of the supplemental appendix, and the contents are not in dispute.

5.   To the extent we do not discuss other arguments made by the defendant, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).