ARISTOFANES ZAPATA v. NATASA NINKOVIC (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Aristofanes Zapata (father) appeals from a June 2025 judgment issued by a Probate and Family Court judge that (1) dismissed the father's two complaints for modification of an existing March 2024 judgment issued pursuant to G. L. c. 209C, and (2) awarded $25,670 in attorney's fees to Natasa Ninkovic (mother). The judge ruled that the father had not shown any substantial change of circumstances that would justify any modification and that his two complaints were frivolous. We affirm.

Background. The parties are the parents of a child born in 2019. In March 2024, a c. 209C judgment granted sole legal and primary physical custody to the mother, with specified parenting time for the father. The judgment required that the child be exchanged between the parents at a police station in Charlestown.

Less than four months later, in July 2024, the father filed his first complaint for modification, which sought among other things to change the exchange location to a police station closer to downtown Boston and to increase the father's parenting time. The complaint alleged that “[t]he current exchange location has led to a hostile environment, negatively impacting [the child] emotionally,” and that the mother had failed to comply with the March 2024 judgment's parenting time requirements and had denied the father his parenting time on “multiple occasions, notably on July 4, 2024.” The father filed his second complaint for modification in November 2024.¹ After a trial in May 2025, the judge denied the father's requests for modification, awarded attorney's fees to the mother, and issued detailed findings of fact and conclusions of law, which we now describe.

1. Exchange location. The judge found that the father's request to modify the exchange location was based on a single incident in July 2024 in which an officer at the Charlestown police station, during an unscheduled drop off of the child, had allegedly raised his voice at the father. Neither the father nor his witness, a woman who had accompanied him to the drop off, offered any evidence to explain why the officer was displeased with the father or “whether it was [the] [f]ather's behavior which gave rise to a conflict with” the officer. Moreover, the “[f]ather failed to present any evidence that this incident -- which occurred nearly a year before trial -- had any lasting effect on himself or the child.”

The mother, in contrast, “credibly testified that exchanges at the police station are typically smooth, and that [the child] is excited and comfortable at drop-offs, and that the child even greets the officers there.” In sum, the “[f]ather offered insufficient credible evidence that the Charlestown [police station] was a hostile environment necessitating a change to a new location.”

2. Parenting time. The judge found that the father “offered no testimony or documentary evidence suggesting that [the] [m]other had failed to comply with court-ordered parenting time on July 4, 2024, or since the entry of [j]udgment.” The judge noted that the father had previously filed a complaint for contempt against the mother based on the alleged denial of parenting time on July 4, and that the mother had been found not guilty of contempt, yet the father persisted in pressing his claim. Although the father's complaint for modification alleged that the mother had denied him parenting time on “multiple occasions,” at trial the father “did not even offer testimony -- credible, not credible, or otherwise -- in support of this and other claims,” and that “[s]uch wholly unsubstantiated claims, when taken all the way to trial without even an attempt to present supporting evidence by the moving party, are frivolous.” The judge found that the additional midweek parenting time sought by the father was neither warranted by any change in circumstances nor in the child's best interests. This latter determination reflected the judge's finding that after visiting the father, the child was often “overtired and emotionally dysregulated, requiring naps during the school day.”

3. Mother's attorney's fees. The judge found that the “[f]ather's filings lacked merit, duplicated previously adjudicated issues, and were advanced without any reasonable likelihood of success.” Further, his “relentless and baseless litigation has caused [the mother] significant emotional and physical distress” and “directly and negatively impacted [her] health and professional life.” The judge credited the mother's testimony that “she can no longer afford summer camps for the child due to the substantial legal fees and costs she has been forced to incur in defending against [the] [f]ather's litigation.” The judge found that father proceeded to trial despite ample notice that he might be found liable for the mother's attorney's fees, and that an award of $25,670 was warranted. This appeal followed.

Discussion. 1. Modification issues. No modification of a prior judgment “concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child's best interests.” G. L. c. 209C, § 20. See E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020) (applying “material and substantial change in circumstance” standard in modification proceeding involving unmarried parents). “In reviewing a modification judgment, we examine whether the factual and legal bases for the decision are in error, or whether the judge otherwise abused [her] discretion.” Flor v. Flor, 92 Mass. App. Ct. 360, 363 (2017).

Here, the father claims that the judge abused her discretion in ruling that there was no sufficient change in circumstances to warrant modification in either the exchange location or his parenting time. The father's arguments, however, largely consist of disagreements with the judge's findings of fact, a number of which were based on her assessment that the father lacked credibility.

Yet the father has failed to provide us with the trial transcript, leaving us with a wholly inadequate record on which to review his claims. It is “a fundamental and long-standing rule of appellate civil practice” that the appellant has an obligation “to include in the appendix those parts of the” record that “are essential for review of the issues raised on appeal.” Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). Without the transcript, we are in no position to determine whether any of the judge's findings of fact are clearly erroneous. Moreover, “[i]n a bench trial credibility is ‘quintessentially the domain of the trial judge [so that her] assessment is close to immune from reversal on appeal except on the most compelling of showings.’ ” Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). The father has not come close to making any such showing.

Finally, the facts as found do not support the father's claim that the judge abused her discretion. It was entirely reasonable for the judge to conclude that a single, unexplained incident at a police station, a year earlier, did not warrant changing the location for exchanging the child. Likewise, the judge could reasonably conclude that an additional dinnertime visit with the father, in the middle of the week, was neither warranted by any change in any party's circumstances nor in the bests interests of the child, who was already overtired and emotionally dysregulated after visits with the father.

2. Attorney's fees award. The judge had authority to award attorney's fees in this action to modify a judgment issued under G. L. c. 209C. See J.S. v. C.C., 454 Mass. 652, 665 n.19 (2009) (judge's statutory authority to shift fees set forth in G. L. c. 208, § 38, “has been read to extend to [cases involving] nonmarital children” under G. L. c. 209C). “Such an award is within the sound discretion of the judge and will not ordinarily be disturbed” (citation omitted). Id. at 665-666. The father challenges the award on the ground that his claims were “not frivolous and without merit” because he had “clearly shown substantial and material changes” warranting modification. The judge disagreed, and the father has not shown that 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).

The father suggests that the award should have been, but was not, based on “strictly conservative principles” (quotation and citation omitted). Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 16 (1980). He overlooks that such principles allow for consideration of the losing party's litigation conduct. See Downey v. Downey, 55 Mass. App. Ct. 812, 819-820 (2002) (holding that fee award satisfied ‘strictly conservative principles’ standard articulated in Pemberton).

3. Appellate attorney's fees. The mother, asserting that this appeal is merely the continuation of the father's frivolous litigation approach, asks us to award appellate attorney's fees under the appellate rules and under G. L. c. 215, § 34A. We decline to rely on the statute, as the mother cites no authority applying it outside of the contempt context to which its terms appear to limit it. We agree, however, that the appeal is frivolous and that an award of fees is warranted under Mass. R. A. P. 25, as appearing in 498 Mass. 1601 (2026) (rule 25). The parties shall proceed in accordance with rule 25 (b), with the mother's application due within fourteen days of the date of this decision.

Judgment dated June 17, 2025, affirmed.

FOOTNOTES

1.   The father's second complaint for modification sought to reduce his child support and related financial obligations. Because the father's present appeal does not challenge the denial of that financial relief, we need not discuss it further.