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Appeals Court of Massachusetts.

Jill JOHNSTON v. Benjamin JOHNSON.


Decided: October 08, 2021

By the Court (Massing, Kinder & Neyman, JJ.1)


Following a trial in the Probate and Family Court, a judge entered a modification judgment granting the plaintiff mother sole legal and physical custody of the parties’ minor child, providing supervised visits for the defendant father, and dismissing the father's counterclaim for modification. The father appeals from the judgment claiming, inter alia, that the judge failed to “provide specific, legitimate conclusions of law,” did not identify a material change in circumstances to justify the modification, denied him the opportunity to challenge witnesses for credibility, acted punitively against him, and omitted or misrepresented facts and testimony favorable to him. We affirm.

Background. The parties were divorced in May 2014. They had one child, born in 2010. Pursuant to a stipulation that was incorporated into a modification judgment in 2017, the parties shared legal custody of the child, the mother had physical custody of the child, and the father had parenting time. In June of 2018, the mother filed the underlying modification complaint seeking sole legal and physical custody of their child after the father had been arrested and incarcerated for elder abuse, and assault and battery of his elderly father. The father counterclaimed seeking shared parenting time and a request that the mother submit to random drug testing. The father subsequently modified his counterclaim to seek a reduction in his weekly child support obligation. By temporary order, the judge granted the mother sole legal and physical custody of the child and the father's parenting time was suspended. At the time of trial, the father had outstanding criminal charges against him for the elder abuse incident, and for violating an abuse protection order against the mother.2

Following a two-day trial, the judge found that, in view of the father's pending criminal charges, the child would be at risk if he was allowed unsupervised parenting time. The judge also reduced the father's weekly child support obligation to $25 per week and dismissed his counterclaims.

Discussion. The father's brief and reply brief suffer from the same shortcoming -- apart from a citation to one statute and one case, he fails to cite legal authority to support his arguments.3 While “some leniency” may be appropriate when reviewing the father's appellate efforts, he nonetheless remains, “as all other litigants” are, bound by the rules of procedure. Brown v. Chicopee Fire Fighters Ass'n., Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990). Accordingly, the claims do not rise to the level of appellate argument and are deemed waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1629 (2019); Tobin v. Commissioner of Banks, 377 Mass. 909, 909 (1979).

Even assuming, arguendo, that the father's arguments do rise to the level of proper appellate argument, they do not warrant appellate relief. To the extent that he contends that the judge failed to make specific and “legitimate” conclusions of law, the argument is unavailing. The judge's comprehensive and clear findings of fact, rulings of law, and rationale belie this contention. The judge's findings and rulings are supported by the evidence adduced at trial, and thus are not clearly erroneous. See Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 737 (1996) (“Unless there is no basis in the record for the judge's decision, we defer to the judge's evaluation of the evidence presented at trial”).

Likewise, the judge did identify a material change in circumstances to warrant the modification, including but not limited to the father's pending criminal matters, the incident involving the placing of knives in his car and in the mother's car, the abuse prevention order issues, and other issues detailed in the judge's findings and rulings of law. On the record before us we cannot say that the judge abused her discretion or committed “a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Finally, we discern no merit to the claim that the judge omitted or misrepresented facts and testimony favorable to the father. “There has been no showing in what is before us that the [judge] was biased in this case, or that his ruling was ‘influenced by any considerations other than the law.’ ” Erickson v. Commonwealth, 462 Mass. 1006, 1007 (2012), quoting Commonwealth v. Daye, 435 Mass. 463, 470 n.4 (2001).

To the extent we have not specifically commented, we have considered the father's remaining arguments and have found them to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

Judgment affirmed.


2.   The judge heard substantial additional evidence regarding multiple incidents of the father's hostile and threatening behavior toward the mother. The substance need not be repeated herein. We do note, however, that the judge credited the bulk of the mother's version of events.

3.   The father's reply brief contains no citation to any legal authority. His initial brief contains a generic cite to G. L. c. 208, § 28A, the Massachusetts Guide to Evidence, and one case. The briefs are not developed in a manner that rises to the level of proper appellate argument.

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