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Appeals Court of Massachusetts.

Matthew KALISH v. Ashley KALISH.


Decided: November 10, 2021

By the Court (Massing, Lemire & Hand, JJ.1)


The mother appeals from a July 23, 2020 amended judgment of modification of a divorce judgment, which transferred sole legal and primary physical custody of the parties’ two children to the father. We affirm.2

Background. The parties were divorced in April 2017, having agreed to joint legal custody and the mother's primary physical custody of the children, then four and seven years old. Within a year, the parties agreed to a modification transferring sole legal custody of the children to the mother.

The parties’ relationship deteriorated and, in 2018, the father filed a complaint for modification seeking joint legal and shared physical custody. The mother filed a counterclaim seeking permission to remove the children from Massachusetts, and with the father's agreement in principle,3 but without judicial approval, the mother moved with the children to Texas. Later, the father amended his complaint for modification to request sole legal and primary physical custody, alleging that the mother had engaged in parental alienation.

After a four-day trial in March 2020, the judge ruled in favor of the father on his amended complaint for modification, finding a material change in circumstances in the mother's failure to prioritize the children's interests over her own, her “obstruction and interference with [the father's] efforts to participate in the children's lives,” and her failure to exercise her sole legal custody in the children's best interests. The judge granted the father sole legal custody of the children; while the judge maintained the parties’ shared physical custody, she ordered that the children reside primarily with the father.

Discussion. Upon a party's complaint after a divorce, a judge may modify a judgment as to the care and custody of a minor child “provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.” G. L. c. 208, § 28. See Custody of Kali, 439 Mass. 834, 840 (2003) (identifying best interests of child as “touchstone inquiry” in custody matters); Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262 (2001). “Whether such a change shall be ordered is a matter ‘peculiarly within the province of the judge, who observed the witnesses, among whom were both parents.’ ” Palmer v. Palmer, 357 Mass. 764, 764 (1970), quoting Grandell v. Short, 317 Mass. 605, 608 (1945). “The judge's decision will not be reversed unless erroneous and not supported by the evidence,” Palmer, supra, or otherwise amounts to an abuse of discretion. See Rosenthal, supra at 265 (appellate court gives “great deference” to trial judge's exercise of discretion in custody determination). See also Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017) (appellate court reviews modification judgment for abuse of discretion).

1. Material change in circumstances.4 Here, we discern no abuse of discretion in the judge's conclusion that the mother's conduct toward the father, which reflected her unwillingness or inability to put the children's interests in maintaining a positive relationship with both of their parents above her own interests, amounted to a material change of circumstances justifying a change to the parties’ original custody agreement. See Macri v. Macri, 96 Mass. App. Ct. 362, 369-370 (2019) (father's inability to put child's needs first and parents’ concomitant “inability to communicate” constituted material change in circumstances justifying grant of sole custody to mother).

Contrary to the mother's argument, the judge's decision does not demonstrate a failure to appreciate either the care that the mother provided to the children up to the time of the divorce,5 or the importance of stability in the children's lives. Rather, as the judge's thoughtful and detailed memorandum of decision indicates, the judge implicitly concluded that while both parents had the ability to care for the children capably, the mother's conduct -- for example, in moving the children from Massachusetts to Texas 6 solely to allow her to escape the “shadow” of the father's presence in Hingham,7 and, critically, in repeatedly involving the children in her angry disputes with the father -- demonstrated that she was not acting in the best interests of the children. See Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019), quoting Hunter v. Rose, 463 Mass. 488, 494 (2012) (“whether one parent seeks to undermine the relationship a child has with the other parent” relevant consideration in determining best interests of child for custody purposes).

This conclusion was well supported. For example, the judge's findings reflect that while the mother and children were living in Texas, the transitions involved in requiring the children or the father to commute cross-country for visitation were sometimes difficult for the children; on one occasion, the father chose to accompany the children back to Texas after one of them refused to get on the flight back from Massachusetts following a visit. Additionally, the judge found that despite knowing that one of the children (while in Texas) was threatening to hurt herself, the mother flew to Massachusetts for a court hearing without informing the father of the child's circumstances for the next four days, until concerns about the child's safety escalated and the child had to be taken to the hospital by the mother's significant other.8

More pervasive than this physical disruption, however, was the mother's unwillingness to refrain from involving the children in her acrimony toward the father, including manipulating the children's view of the father, painting him as uncaring, disinterested, and a “bad dad.” As the judge found, the mother not only failed to foster a relationship between the father and the children, she also intentionally and repeatedly interfered with it as a means of punishing the father. On this record, we do not agree that by granting sole legal and primary physical custody of the children to the father, the judge disrupted “arrangements that [were] already serving the child[ren]’s needs.” Kali, 439 Mass. at 843.

We likewise reject the mother's argument that the judge failed to consider the fact that the father's parenting time with the children was, historically, significantly less than the time that the mother spent with the children. As the judge acknowledged, for much of the children's lives, the father dedicated most of his time to growing his business while the mother was the primary caretaker for the children. Demonstrating an “ ‘even-handed’ assessment of the evidence,” Adoption of Helga, 97 Mass. App. Ct. 521, 528 (2020), quoting Adoption of Hugo, 428 Mass. 219, 225-226 & n.8 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), the judge also found that the father missed some parenting time after the parties’ separation, although she noted that the father sometimes ceded time to the mother at the mother's request, or otherwise in an effort to minimize conflict with the mother. To the extent the mother argues that the father's representations at trial about his present availability and travel requirements were not credible evidence of his ability to parent the children going forward, we defer to the trial judge's assessment. See Custody of Eleanor, 414 Mass. 795, 800 (1993) (judge hearing custody proceeding in best position to assess witness credibility).

The mother's remaining challenges to the July 23, 2020 amended modification judgment, including her contentions that the judge (1) failed to consider the father's role in precipitating the mother's move to Texas and in triggering her inappropriate e-mail and telephone communications with him, and (2) issued inconsistent rationales for changing the mother's proportionate parenting time, are unsupported by legal authority and do not rise to the level of appellate argument. Thus, we do not consider them.9 See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

2. Guardian ad litem. In June 2019, the parties stipulated to the appointment of a guardian ad litem (GAL) “to report to the Court and make recommendations on the best interests of the children relative to Father's request for joint legal custody and for return of the children to Massachusetts from Texas, as well as an ongoing parenting schedule.” The judge appointed a “Category F” GAL for that purpose. The GAL generated a report prior to the trial at issue here, and the mother moved in limine to exclude the GAL's “testimony, report and file” on the grounds that the father sought to have the GAL modify the substance of her report after the report had been filed, tainting the report and creating a risk of bias. The motion was denied.

On appeal, the mother raises two new arguments relative to the evidence provided by the GAL: first, the mother claims that the GAL failed to investigate the matter properly, and that her findings therefore favored the father and prejudiced the mother. Second, she contends that the GAL failed to adhere to the standards for Category F GAL investigators because she went beyond “gather[ing] and report[ing] factual information,” see Probate and Family Court Standing Order 1-05, Standard 1.1 for Category F Guardian Ad Litem Investigators (2005), and because the GAL's opinions, assessments of the parties’ and witnesses’ credibility, and legal conclusions -- impermissible in the first place -- favored the father to the mother's detriment.

These arguments regarding the GAL's evidence were not properly preserved. See Mass. G. Evid. § 103 (a) (1) (2021); Commonwealth v. Marshall, 434 Mass. 358, 365 (2001). Although the mother objected to the admission of the GAL report in the trial court, she did not do so on the bases pressed here. Accordingly, the mother's current arguments are waived.

Even if we were to consider them, however, we would not be persuaded. As to the points that the mother argues should have been investigated more thoroughly -- the father's claim that the mother “continuously brings up the fact that he did not call [one of the children] on her birthday,” the mother's allegation that the father regularly threatened to call the police in front of the children, an account by a “collateral witness” for the mother about marijuana use by the father, and the father's claim that he was only “reprimanded for parking violations” despite concerns for the children's safety expressed by the mother and maternal grandmother -- in our view, these were unlikely to have affected the judge's decision. Indeed, the mother acknowledges as much in her brief.

As to compliance with the GAL investigator standards, we first note that the GAL's appointment appears to have been based on the parties’ stipulation, which explicitly sought the GAL's “recommendations.” To the extent that the mother argues that the judge lacked the discretion to consider evidence from the Category F GAL that went beyond the limitations described in the applicable standards, she has not cited any authority for her position, and we are aware of none.

Putting that point aside however, we discern no prejudice to the mother where the GAL recommended shared legal custody of the children, a recommendation that was more favorable to the mother than the judge's order. Finally, we recognize that even if the GAL overstepped the intended boundaries of her appointment, the judge could -- and apparently did -- assess the effect of any error on the GAL's credibility and on the validity of her report.

Amended modification judgment dated July 23, 2020, affirmed.10


2.   We acknowledge the father's argument that the mother failed to comply with Mass. R. A. P. 18 (b), as appearing in 481 Mass. 1637 (2019), but decline the invitation to reject the appeal or issue a summary affirmance on that basis. Cf. Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992) (Appeals Court properly refused to review certain issues on appeal where parties omitted necessary transcript from appellate record).

3.   The father agreed to the mother's temporary move but refused to sign the final version of a written agreement that included the following language: “It is believed by all parties, [Father, Mother], the children, extended family, friends and neighbors and community members, including teachers, that the move will have no detrimental impact on the children as [Mother] has been the only reliable, consistent adult in [the children's] live [sic] since birth.”

4.   At oral argument, the mother's counsel suggested that the relevant considerations for changing legal custody differ from the standard applicable to changes in physical custody. Given that both legal custody and physical custody implicate a need for parents to communicate effectively with and about the children, see Mason v. Coleman, 447 Mass. 177, 181-182 (2006) (distinguishing shared legal and shared physical custody and their requirements), we do not consider any such differences significant to our analysis.

5.   The judge was explicit in her acknowledgement that the mother was the primary caretaker for the children and that she had always been attentive to them.

6.   The mother's original proposal had been that she take the children to Australia for a year.

7.   The judge's findings on this point are consistent with the mother's counsel's explanation at oral argument that the mother moved to Texas to make herself happier. To the extent the mother argues that the move was also intended to make the children happier, the record does not clearly support that conclusion.

8.   When he learned about the child's emergency room visit, the father immediately flew to Texas to see her. The mother responded by berating the father for his failure to see both children during the emergency visit.

9.   Were we to do so, however, they would gain the mother no ground. The judge's findings demonstrate that she considered all the evidence of the parties’ interactions after the divorce, and that she determined that although he did not wish to reconcile with the mother, the father's actions and communications with her were intended to minimize conflict with her and to try to establish a cooperative parenting plan for the children. As to the second point, we discern no inconsistency between the judge's rationale for modifying the original custody agreement in her original memorandum of decision and the amended memorandum prepared after the judge addressed the father's motion for clarification.

10.   Although the mother has not prevailed on appeal, we are not persuaded that her appeal was frivolous. Accordingly, we decline to award appellate attorney's fees to either party.

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