CHALIFOUX v. CHALIFOUX (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The husband appeals from a judgment of divorce nisi that was entered on the docket on June 12, 2015. He makes multiple claims, the primary claim being the judge abused his discretion with respect to child custody and support. We affirm.

1. Discussion. As a preliminary matter, we question whether this appeal is timely.² Even if it were timely, the husband is not entitled to relief. A judge's discretionary decision constitutes an abuse of discretion only when 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” (citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “In providing for the custody of ․ minor child[ren], while the feelings and the wishes of the parents should not be disregarded, the happiness and the welfare of the child[ren] should be the controlling consideration. It is the duty of the judge to consider the welfare of the child in reference not merely to the present, but also to the probable future, and it is a subject peculiarly within the discretion of the judge.” Jenkins v. Jenkins, 304 Mass. 248, 250 (1939).

Here, ample evidence supported the judge's decision to grant the wife sole legal and physical custody of the two children. His decision was based, in part, on an existing G. L. c. 209A abuse prevention order against the husband, which had been extended for five years. Additionally, the judge considered the husband's stated positions and demeanor, including his unwillingness to answer questions without defiance or aggression, and his disregard for the wife's parenting and decision making. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015) (judge's assessment of evidentiary weight and witness credibility entitled to deference).

In contrast, the wife had been the primary parent for the children. The judge found that the wife provided both emotional and financial stability for the children. See Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010) (children's need for stability relevant in determining custody). Importantly, the judge noted his concern that any shared custody arrangement would “at minimum, subject [the wife] to a bullying situation and, at worst, to a very abusive situation.” See, e.g., Schechter, 88 Mass. App. Ct. at 246-247. Given this determination, we cannot say the judge abused his discretion in allowing the husband to have the children for periods of indicated time upon securing a signed lease and providing evidence of a utility bill.

The husband also claims the judge abused his discretion in ordering the husband to pay one hundred dollars weekly in child support. We disagree. The judge did not find the husband credible as to his income and sources of income. See Schechter, 88 Mass. App. Ct. at 245. The judge, based on the husband's ability to rent an apartment and purchase a significant number of guns, determined that the husband had the income to pay the child support amount. Finally, the husband has not borne his burden to demonstrate the wrongful exclusion of any evidence. Any additional claims of error are either without merit or harmless. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Judgment affirmed.

FOOTNOTES

2.   The judge dated the judgment of divorce nisi on June 8, 2015, and it entered on the docket on June 12, 2015. On July 17, 2015, the husband filed his notice of appeal from the judgment nisi. Despite this filing date, the husband's prior counsel averred in support of the husband's motion for reconsideration from our memorandum and order dismissing the husband's appeal that the notice of appeal entered on the docket on July 17, 2015, was in fact hand delivered in a timely manner to the appropriate clerk on July 13, 2015. Thus, we address the merits of the appeal. Also, the husband filed at least two separate notices of appeal. However, the brief before us addresses only issues pertaining to the judgment of divorce nisi, of which his appeal was filed over thirty days after the judgment nisi entered. See Mass. R. A. P. 4 (a) (1), as amended, 464 Mass. 1601 (2013).