CIOLLARO v. CIOLLARO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (father) appeals from a further amended judgment of divorce nisi, arguing principally that the judge erred in giving the defendant (mother) equal parenting time with the parties' two minor children. We affirm.

Background. We provide a brief summary of the judge's factual findings and the procedural history, reserving details for later discussion. The parties were married in 2011. They have a daughter and a son, seven years old and six years old, respectively, at the time of trial. At some point in the marriage, the mother began struggling with alcohol use disorder. In September 2017, after several incidents relating to the mother's alcohol use, the father filed for divorce.

In October 2017 the judge entered a temporary order on agreement of the parties, awarding the parties joint legal custody of the children with primary physical custody to the father. The order allowed the mother to have supervised parenting time with the children. In April 2018 the judge entered a second temporary order on agreement of the parties, lifting the supervision requirement. The second order, which was in place at the time of trial, provided that the mother would have unsupervised parenting time on alternating weekends and every Wednesday after school to Thursday at 7:00 p.m., unless there was no school, in which event the mother's parenting time would begin at 10:00 a.m. on Wednesday.

Trial occurred over four days in January 2019. Subsequently, in a detailed written decision, the judge determined that it was in the children's best interests for the father to have sole legal custody, but that there was a “need for the children to have more time with [the] [m]other.” The judge thus increased the mother's parenting time from the schedule then in place, awarding her alternating weekends and every Monday to Wednesday morning. A further amended judgment entered on August 29, 2019, nunc pro tunc to April 9, 2019, and the father appealed.²

Discussion. We will uphold the judge's findings of fact unless clearly erroneous, giving due deference to the judge's assessment of the weight of the evidence and credibility of the witnesses. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). In reviewing the judge's ultimate custody determination, “we consider whether there was an abuse of discretion in how the judge accounted for the child[ren's] best interests.” Id. An abuse of discretion occurs where “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.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

The father argues here that the judge abused her discretion by ordering a parenting schedule that gives the parties essentially equal time with the children. We disagree. The judge determined that increased time with the mother was warranted, in part because the mother had worked diligently on her sobriety and had not consumed alcohol since September 2017. We reject the father's contention that this finding was clearly erroneous, as it is supported by the mother's testimony, which the judge credited. Evaluating the witnesses' credibility was wholly within the province of the judge. See Schechter, 88 Mass. App. Ct. at 245.

Furthermore, the judge found that the children “clearly love” both parents, have positive relationships with both of them, and enjoy their time in both homes. The judge also found that the parties' daughter expressed to the guardian ad litem (GAL) her desire to have more time with the mother. See Bak v. Bak, 24 Mass. App. Ct. 608, 617 (1987) (child's preference is appropriate factor to consider in custody determination). The father challenges this latter finding as clearly erroneous, but it is supported by the GAL's report and her testimony confirming that the daughter stated on many occasions that she would like to spend more time with the mother. Although the father notes that the GAL acknowledged the possibility that the mother was pressuring the daughter to make the statements, ultimately, the GAL concluded that “it was not clear.” It was for the judge to determine what weight to give this evidence, and her assessment does not leave us “with the definite and firm conviction that a mistake has been committed.” Schecter, 88 Mass. App. Ct. at 245, quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).

Based on these factual findings, the judge was within her discretion to conclude that the children would benefit from increased time with the mother and that a shared parenting arrangement was therefore appropriate. In arguing otherwise, the father points to certain other findings, which, he says, demonstrate that the mother puts her own needs ahead of those of the children. But while those findings show that the mother may have made poor decisions relative to the children's educational and medical development, and that the mother had difficulty respecting the children's relationship with the father, they do not establish that the mother was inappropriate in her regular day-to-day interactions with the children. The findings cited by the father are therefore more germane to the issue of legal custody, not to the issue of parenting time. See Mason v. Coleman, 447 Mass. 177, 181-182 (2006). The judge drew this distinction when she awarded sole legal custody to the father -- concluding that, despite his own poor behavior, he was the parent more likely to support the children's relationship with the other parent -- while also recognizing that it would be in the children's best interests to have more time with the mother.³ This was an appropriate exercise of the judge's discretion. See Bak, 24 Mass. App. Ct. at 616, quoting Jenkins v. Jenkins, 304 Mass. 248, 250 (1939) (custody arrangement “is a subject peculiarly within the discretion of the judge”). Cf. Mason, supra at 186 (judge did not abuse discretion in denying mother's request to relocate where, among other factors, parties had shared physical custody and “move would impair the father's parenting to the detriment of [the children's] interests”).

The father further argues that the judge abused her discretion by not following the GAL's recommendation regarding parenting time.⁴ The judge was not required to adopt the GAL's recommendation, however, so long as her findings provided adequate support for her decision. See Mason, 447 Mass. at 186-187. Contrary to the father's assertion, this case is not like Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 195-196 (2015), where the judge rejected, without explanation, the GAL's opinion that the father was the more stable parent and instead awarded sole legal and physical custody of the children to the mother. Here, the judge's findings substantiate her conclusion that the children's needs would be best served by an increase in the mother's parenting time. The judge also explained that she was adopting a schedule that “provides for fewer transitions and opportunities for the parties to have contact with one another.” This decision fell comfortably within the judge's broad discretion.⁵

Further amended judgment of divorce nisi affirmed.

FOOTNOTES

2.   The original judgment was amended twice on the mother's motions. The mother filed notices of appeal from the original judgment and the first amended judgment, but she did not pursue either appeal.

3.   At oral argument the father claimed that the judge did not conduct an inquiry into the children's best interests. This is belied by the judge's detailed factual findings. Moreover, the judge's observation in her rationale that there was a “need for the children to have more time with the [m]other” was effectively a best-interests determination.

4.   Specifically, the GAL recommended that the mother have parenting time on the following schedule: alternating weekends; after the mother's weekends, Wednesday after school until Thursday morning; and, after the father's weekends, Monday after school until Tuesday morning.

5.   As we conclude that the judge did not err in rejecting the GAL's recommendation, the father's argument that the child support order must be recalculated is moot.