M.T.S. v. A.C.B. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A.C.B. (mother) appeals from judgments on the complaints for custody and parenting time filed by M.T.S. (father) with respect to the parties’ two children and from a decree on the father's petition for partition of their shared residential property. The mother argues that the Probate and Family Court judge erred in granting the father joint legal and physical custody of the children and not awarding her child support; she also contends that the judge erred in the allocation of proceeds from the sale of the property. We affirm.

1. Custody, support, and parenting time. The parties, who were never married, have two children together, born in 2019 and 2020. The parties’ relationship deteriorated, and on June 28, 2022, the mother obtained an ex parte abuse prevention order under G. L. c. 209A (209A order) from the District Court that, among other things, awarded custody of the children to the mother and ordered the father to stay away from the mother and the children. After a two-party hearing on July 13, 2022, the 209A order was extended for one year.

While the 209A order was still in effect, in July and September 2022, the father filed complaints in the Probate and Family Court for custody of and parenting time with the two children. In a temporary order dated December 14, 2022 (docketed on December 19), the judge awarded the parties joint legal custody and physical custody to the mother, with parenting time for the father overnight on Wednesdays, on alternate weekends, and at certain times during the Christmas holiday. The judge issued a subsequent temporary order, dated April 28, 2023 (docketed May 1), awarding the parties joint legal and physical custody, with parenting time divided equally.¹ After a trial held over three days in late July and early August 2024, the judge issued a final judgment awarding the parties joint legal and physical custody with parenting time divided equally.

The mother argues that the judge abused her discretion by awarding the father joint physical and legal custody of the children. The mother contends that the judge failed to give proper consideration to the parties’ historical division of childcare labor or to the mother's allegations of abuse by the father, demonstrated by the issuance and extension of the 209A order.

a. Legal custody. “Parents have an equal right to custody of their children.” See Hunter v. Rose, 463 Mass. 488, 494 (2012). “In custody matters, the touchstone inquiry [is] ․ what is ‘best for the child.’ ” Id., quoting Custody of Kali, 439 Mass. 834, 840 (2003). “[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met.” E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020), quoting Charara v. Yatim, 78 Mass. App. Ct. 325, 336 (2010).

“[I]n reviewing the ultimate determination on custody and visitation, we consider whether there was an abuse of discretion in how the judge accounted for the child's best interests.” Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude 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” (quotation omitted). Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge granted the parties joint legal custody, reasoning that it was the only way that the father would be able to take an active role in the children's lives without the mother interfering. The mother faults the judge for failing to address evidence that even after the temporary orders gave the father joint legal custody, he had little involvement in “legal custodial matters.” Instead, the mother claims, she carried the “lion's share of custodial responsibilities ․ as had always been the case.”

“[F]or joint custody or shared responsibility to work, both parents must be able mutually to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children” (quotation omitted). Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981). See Macri v. Macri, 96 Mass. App. Ct. 362, 369 (2019). The judge acknowledged that while the parties were together, the father was the primary wage earner, responsible for all the household bills, while the mother handled the bulk of the caretaking, cooking, and cleaning. However, the judge “d[id] not find mother to be a truthful witness,” and found that the mother had substantially interfered with the father's opportunity to act as a caregiver, causing him “to step back as a way to avoid confrontation.”

The record does not support the mother's argument that the judge ignored evidence that the father was unresponsive to the mother regarding legal custody issues. We have reviewed the parties’ messages using the AppClose application and consider the father's communications to be appropriate. In addition, the judge found the mother responsible for the father's reluctance to engage, based on the mother's unsupported accusations against the father that increased in severity over time.

“A trial judge's findings of fact will not be set aside unless clearly erroneous.” Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). “The reviewing court will give due regard to the judge's assessment and determination of credibility of the witnesses and the weight of the evidence.” E.K., 97 Mass. App. Ct. at 409. We are satisfied that the judge properly considered and weighed the evidence and did not abuse her discretion by granting joint legal custody.

b. Physical custody. The mother argues that the judge abused her discretion in granting joint physical custody because the father's parenting could not provide stability or consistency and thus was not in the children's best interests.

When determining the best interests of a child, the judge may consider such factors as the parents’ past caretaking of the child, their bonds with the child, their current living arrangements and lifestyles, and their ability to address the child's needs. See El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010). Here, the parties had joint physical custody since the April 2023 temporary order was entered. At the time of the judgment in March 2025, the judge found that the physical custody arrangement had allowed the children to spend time with their half-siblings and each parent. Moreover, the judge found that the children were safe and well cared for by both parents.² The judge thoughtfully analyzed the historical dynamics of the parties’ relationship and found that it was in the best interests of the children for the parties to be on equal footing -- primarily so the father would have the opportunity to play an active role in the children's lives without the mother's interference. We discern no abuse of discretion in ordering joint physical custody.

c. Abuse allegations. The mother's primary argument on appeal is that the judge erred when granting joint custody to the father because she failed to give proper consideration to the mother's allegations of abuse and the entry of the 209A order.

General Laws c. 209C, § 10 (e), as inserted by St. 1998, c. 179, § 6A, requires that Probate and Family Court judges making child custody decisions “shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child.” A finding by a Probate and Family Court judge by a preponderance of the evidence that abuse has occurred creates “a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent.” Id.

The mother made numerous allegations of neglect and abuse of the children by the father. She lodged complaints with the children's pediatrician, with the Department of Children and Families (DCF), and, as noted, applied for and obtained a 209A order from the District Court. She repeated these allegations in her trial testimony. Her application for the 209A order, the DCF intake report, and records of DCF's investigation were admitted in evidence. The Probate and Family Court judge made detailed findings about the mother's allegations of abuse. The judge specifically discredited the mother's allegations in support of the 209A order, and noted that DCF found the allegations against the father to be unsupported and closed the family's case in June 2024. Thus, the judge followed the mandate of G. L. c. 209C, § 10 (e), considered the evidence of abuse, and found none.

The judge was not bound by the fact that the mother had obtained a 209A order in the District Court. Indeed, G. L. c. 209C, § 10 (e), states that “the issuance of an order or orders under chapter 209A shall not in and of itself constitute a pattern or serious incident of abuse.” Similarly, G. L. c. 209A, § 3, provides that if the parties to a 209A order are involved in subsequent proceedings in the Probate and Family Court, “any custody or support order or judgment issued in the subsequent proceeding shall supersede any prior custody or support order under this chapter.” Such superseding orders were entered in this case. See note 1, supra.

The judge properly considered the abuse allegations and did not err as a matter of law or abuse her discretion in awarding the parties joint physical and legal custody.

2. Child support. The judge ruled that no party would pay the other child support because their weekly income was approximately the same, they shared equally in all uninsured medical expenses and extracurricular activities, and they shared custody. The mother argues she should have been awarded child support because the judge failed to include the father's overtime earnings in calculating his income and mistakenly attributed income to her.

a. The father's overtime income. The Massachusetts Child Support Guidelines state that the judge “may consider none, some, or all overtime income ․” Child Support Guidelines § I(B)(1) (July 2023) (Guidelines).³ When determining whether to “disregard” overtime income, the judge must consider “the history of the income, the expectation that the income will continue to be available, the economic needs of the parties and the children, the impact of the overtime or secondary job on the parenting plan, and whether the overtime work is a requirement of the job.” Id.

The judge found that the father was employed as an automotive technician and was required to work forty hours per week, with some flexibility when the children were in his care. The judge credited the father's testimony that he often worked fifty hour weeks because he needed the additional money. In 2023, the father switched employers and his earnings increased to $47 per hour. The judge calculated the father's income for child support purposes based on full-time employment at $47 per hour over fifty weeks, amounting to $94,000 per year, or $1,880 per week.

The judge reviewed the father's income history, whether the income would continue to be available, and the needs of the children. The judge credited the father's testimony about why he worked overtime and how the hours he worked varied with his parenting time. Given that the father would be responsible for the children half the time, the judge could reasonably have determined that working overtime would unduly interfere with his parenting time. The judge considered the relevant factors and did not abuse her discretion by deciding not to include the father's overtime in the child support calculation.

b. The mother's income. “Public policy dictates that children be supported by the financial resources of their parents insofar as is possible.” M.C. v. T.K., 463 Mass. 226, 231 (2012). Income may be “attributed” if the judge finds that a parent is “both underemployed and capable of earning more with ‘reasonable effort.’ ” Davae v. Davae, 100 Mass. App. Ct. 54, 57 (2021), quoting Macri, 96 Mass. App. Ct. at 364. See Guidelines § I(E)(1)-(2). If the judge so finds, then the judge “should consider potential earning capacity rather than actual earnings” in fashioning the child support order. Id. § I(E)(2). See Canning v. Juskalian, 33 Mass. App. Ct. 202, 206-207 (1992). The decision to consider attributed income is reviewed under the abuse of discretion standard, and underlying factual findings are reviewed “only for clear error.” Davae, 100 Mass. App. Ct. at 57-58.

Similarly, “imputation of income is appropriate where a party has made vague, misleading, or untruthful entries on a financial statement.” M.C., 463 Mass. at 240. When a judge finds that a parent has some undocumented or unreported income, the judge “may reasonably impute income to the parent based on all the evidence submitted, including, but not limited to, evidence of the parent's ownership and maintenance of assets, and the parent's lifestyle, expenses and spending patterns.” Guidelines § I(D)(1).

The judge found that the mother was a self-employed psychic medium, charging between $50 and $300 per hour for her services. The judge also found that the mother reported a different income amount for Federal income tax purposes than she reported on the financial statements filed with the court. Finding neither of these records to be credible, the judge calculated the mother's income by determining that if she worked twenty hours per week charging $100 per hour, she would earn $2,000. The judge then subtracted the mother's business expenses and concluded the mother's weekly income was $1,875.39.

The parties disagree about what method the judge used to determine the mother's income. The mother argues, without citation to any authority, that the judge erred by attributing income to her beyond full-time employment at the minimum wage because “vocational expert testimony is required for anything in excess of same.” The father argues that the judge imputed income to the mother, and that a vocational expert was not required. Although the judge's finding that the mother was not truthful about her income suggests imputation, the judge's approach of estimating income based on an assumed client base aligns more closely with attribution.

Notwithstanding this hybrid approach, we discern no error or abuse of discretion. To determine the mother's income, the judge properly relied on the mother's financial records, which illustrated an increase in income; the mother's testimony that her business was growing; and the discrepancies in her financial records. See Salten v. Ackerman, 64 Mass. App. Ct. 868, 872-873 (2005); Canning, 33 Mass. App. Ct. at 210-211. No expert testimony was required.⁴ “In the[se] circumstances, the degree of estimation reflected in the judge's finding is not unreasonable.” Canning, supra at 211.⁵

4. Partition proceedings. Shortly after filing his complaints for custody, the father filed a petition for partition of the property in Framingham that the parties owned as joint tenants. The partition matter was tried together with the custody matters. The judge determined that a departure from an equal division was warranted; she gave the father -- who had made all mortgage, property tax, and insurance payments during the nearly six years that the parties owned the property -- credit for the reduction of the principal balance and divided the remainder of the proceeds equally. The mother argues that the judge erred in giving the father full credit for the reduction in principal without considering the property's history of ownership or the mother's other household contributions.

“[T]he purpose of partition proceedings [under G. L. c. 241] is to balance the rights and equities of the parties concerning the property at issue.” Gonzalez v. Pierce-Williams, 68 Mass. App. Ct. 785, 787 (2007). The judge must make a “just and equitable” division “according to the respective rights of the parties.” Batchelder v. Munroe, 335 Mass. 216, 218 (1957). There is a rebuttable presumption that partitioned property should be divided equally, and “the burden of showing that a departure from equal division is appropriate rests with the party who seeks the departure.” Canepari v. Pascale, 78 Mass. App. Ct. 840, 844 (2011). “A judge making a division therefore has the discretion to depart from the presumption if warranted by the circumstances bearing on the equities and the parties’ rights, including any prior financial contributions made by a party to preserve the common estate.” Lodigiani v. Paré, 103 Mass. App. Ct. 140, 143 (2023). “And, though the judge necessarily is given considerable leeway in making an equitable division, that leeway is not boundless” (citation omitted). Canepari, 78 Mass. App. Ct. at 844.

The judge acknowledged that the parties acquired the property from the mother's family members, who fell behind on mortgage payments, resulting in foreclosure proceedings. She found that neither party “contributed financially towards the purchase” of the property. Although they jointly mortgaged the property for $313,000, the father made all of the mortgage payments, including taxes and insurance, from November 2017 to August 2023. Based on those payments, the judge found that the father had met his burden to show that a departure from equal division was equitable. See Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct. 64, 69-70 (1983) (“taxes, mortgage debt service, and insurance” costs “are incurred to preserve the common estate and it would be a windfall to the noncontributing tenant if, upon partition, the paying tenant and the noncontributing tenant were not obliged to account so that each tenant in common bears his proportional share of the costs”).

The judge specifically considered the mother's financial contributions for other family expenses, but, citing Moseley v. Moseley, 240 Mass. 22, 25 (1921), ruled that these contributions did not entitle her to “a greater share of the proceeds in a partition action.” It was appropriate for the judge to “make adjustments ․ for particular contributions to the property, and the effect of those contributions on the property's increase in value“ (emphases added). Canepari, 78 Mass. App. Ct. at 846. The mother suggests that the judge should have considered the mother's role as the children's caregiver to the children as contributing to the value of the property, but offers no authority for that proposition.⁶

The judge reasonably partitioned the property so that the parties shared equally in its increased market value, while the father received credit for the payments he made that decreased their mortgage debt. The judge did not abuse her discretion in departing from a strictly equal division.

Judgments and decree affirmed.

FOOTNOTES

1.   The docket also includes the entries, “Order 12/14/2022, Modifying Abuse Prevention Order,” and “Order 04/28/2023, Modifying Abuse Prevention Order,” corresponding with the temporary orders. The mother did not include copies of these orders in the record appendix, nor did she provide transcripts of the hearings held on December 14, 2022, and April 28, 2023.

2.   The mother asserts, “One of the most troubling concerns is that the [children] are spending a majority of the [f]ather's parenting time with the paternal grandmother.” As the mother's brief provides no record citations to support this allegation, we do not consider it. See Mass. R. A. P. 16 (a) (7) and 16 (e), as appearing in 481 Mass. 1628 (2019).

3.   We refer to the Guidelines in effect at the time of the trial and judgment.

4.   As noted, the mother cites no authority for this proposition. To the extent she was relying on our unpublished memorandum of decision in Macri v. Macri, 89 Mass. App. Ct. 1115 (2016), as the father suggests in his brief, that decision was based on facts that are clearly distinguishable. See Macri, 96 Mass. App. Ct. at 363 (explaining that prior panel had vacated support order and remanded for redetermination of husband's earning capacity, holding that “the attributed annual income of $400,000 was ‘inappropriate’ insofar as it was ‘base[d] [on] the husband's ․ earnings he made from another country’ without ‘any expert testimony on the husband's earning potential in the United States’ or on any ‘comparable salaries’ ” [citation omitted]).

5.   To the extent that the mother's income, with reasonable efforts, proves to be substantially less than the judge calculated, the mother may request a modification. See Whelan v. Whelan, 74 Mass. App. Ct. 616, 620 (2009); G. L. c. 209C, § 20; Guidelines § III(A)(5).

6.   We do not consider the summary decision in Hooper v. Fernandes, 105 Mass. App. Ct. 1104 (2024), on which the mother relies, to have persuasive value in this appeal. In that case, although the Probate and Family Court judge declined to credit the father for the year during which the mother paid less than half of the mortgage payments because she was working parttime to care for a newborn with medical issues, the judge credited the father with the full amount of the principal payments he made during the period when he alone made the mortgage payments.