Michael F. BUNNELL v. Courtney A. WRENN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this child custody dispute under G. L. c. 209C, the mother, Courtney A. Wrenn, appeals from a Probate and Family Court judgment that, although leaving her with physical custody of the parties’ then five year old son, awarded joint legal custody to the father, Michael F. Bunnell. The mother contends that the judge applied an incorrect standard in determining, under G. L. c. 209C, § 10 (a), that joint legal custody was warranted. We agree and therefore, without expressing any view on the merits of the father's request for joint legal custody, we remand the case for further findings based on the proper standard.
After a one-day trial in April of 2019, the judge issued a written decision, the core of which was as follows:
“The parties were [an] intact family until the child was three years of age. No credible or compelling evidence has been submitted to demonstrate that Mother and Father cannot jointly make decisions about the child's medical care, schooling, or other issues related to the child's upbringing. See G.[ ]L. c. 209C[,] § 10. The parties will have to work diligently to communicate with each other in a respectful manner with regard to the care of their child. The Court finds that joint custody is in the child's best interests.”
The governing statute provides a different standard:
“In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents  have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and  have the ability to communicate and plan with each other concerning the child's best interests” (emphasis added).
G. L. c. 209C, § 10 (a), third par. Here, the court did not explicitly make either of the two necessary findings.
“[W]e will not sustain an award of custody unless all relevant factors in determining the best interests of the child have been weighed․ Ordinarily, a judge should both reference the statutory requirements and explain their impact, if any, on the custody award” (quotation and citation omitted). Custody of Kali, 439 Mass. 834, 845 (2003). Although that case was decided under the second paragraph of G. L. c. 209C, § 10 (a), we think the same considerations apply to custody determinations under the third paragraph.
Of course, we may “look to the substance of the judge's findings and not to their form.” Id. Here, the judge's finding that the parties and the child were an intact family until the child was three years old (at which time the father moved out of the mother's home and filed the operative complaint), might be taken as an implicit finding that the parties had successfully exercised joint responsibility for the child. “The judge is not, of course, required to parrot the statutory language. An explicit written finding, while preferable, may be unnecessary when the record indicates an entirely amicable relationship and readily supports an inference that the requisite findings are implicit in the judge's order” (quotation and citation omitted). Smith v. McDonald, 458 Mass. 540, 553 (2010).
“However, when the record reflects a hostile and tumultuous relationship between the parties, positive findings are required that support an inference that joint decision-making authority is appropriate for the future.” Id. Because the record here does reflect some hostility and conflict between the parties, we decline to treat the judge's finding of a previously intact family as the equivalent of a finding of prior success in exercising joint responsibility for the child.
As to the second statutory criterion -- “ability to communicate and plan with each other concerning the child's best interests” -- the judge stated that she saw no evidence the parties were unable to do so. But “the statute requires more than a finding that the parties have ‘not demonstrated an inability to communicate and cooperate concerning major decisions affecting [the child].’ To support an award of joint custody the statute requires a positive finding that they have such an ability.” Custody of Odette, 61 Mass. App. Ct. 904, 905 (2004). Although the judge did find that “joint custody is in the child's best interests,” the statute imposes a more specific requirement: that the parties “have the ability to communicate and plan with each other concerning the child's best interests.” G. L. c. 209C, § 10 (a), third par. On that issue, the judge, rather than making a positive finding, seemed to have some doubt, stating that “[t]he parties will have to work diligently to communicate with each other in a respectful manner with regard to the care of their child.”2
Therefore, without expressing any view on whether an award of joint legal custody is warranted, we remand the matter so that the judge may make further findings (including credibility findings where material evidence conflicts) in accordance with the statutory standard. Because nearly two and one-half years have passed since the trial, the judge may, in her discretion, take further evidence. See Loebel v. Loebel, 77 Mass. App. Ct. 740, 747-748 (2010) (discussing judge's discretion to hold new custody hearing on remand, and constraints on that discretion).3
Conclusion. Paragraph numbered 1 of the October 9, 2019 judgment (awarding joint legal custody) is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. Unless the judge orders otherwise, the mother shall have legal custody during the pendency of the remand, pursuant to G. L. c. 209C, § 10 (b). In all other respects, the judgment is affirmed.
affirmed in part; vacated in part and remanded
2. The mother further contends that the judge was required to make explicit findings explaining how the parenting schedule she ordered, providing more parenting time to the father than he had previously enjoyed, was in the best interests of the child. The mother cites no authority supporting the proposition that each individual provision of a custody order under G. L. c. 209C must be accompanied by its own, separate best interests finding. To the extent that the parties’ positions regarding parenting time differ, we are confident that the judge on remand will make the findings of fact necessary to resolve the dispute.
3. The father's motion to expand the appellate record is denied. To the extent that the judge takes further evidence on remand, the father may seek to submit the materials in question at that time, subject, of course, to the rules of evidence and the judge's discretion.
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