Bennett v. Nelson

102 Mass.App.Ct. 1104

200 N.E.3d 530 (Table)

Andrew BENNETT

v.Kelsi NELSON.

20-P-1168

Appeals Court of Massachusetts.

Entered: December 14, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Andrew Bennett (father) and Kelsi Nelson (mother) are the parents of one minor child. The father appeals from a judgment of the Probate and Family Court ordering that the child remain in the mother's primary custody. On appeal, the father claims the judgment lacked factual basis and was not in the child's best interests. We affirm.

Discussion. We review a custody modification judgment for "abuse of discretion or other error of law." See E.K. v. S.C., 97 Mass. App. Ct. 403, 409 (2020), quoting Murray v. Super, 87 Mass. App. Ct. 146, 148 (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." E.K., supra, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The father claims that the judge abused his discretion by making factual findings that were inconsistent with the evidence at trial. The record before us on appeal is incomplete, but even with a complete record, "[a] trial judge's findings of fact will not be set aside unless clearly erroneous." E.K., 97 Mass. App. Ct. at 409, quoting Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). "A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation and citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). We give deference to "the judge's assessment of the weight of the evidence and the credibility of the witnesses." Id.

Here, the judge held a two-day trial in November 2019 on several modification and contempt complaints the parties filed during 2018. After trial, the judge ordered the continuation of shared legal custody; the continuation of the mother's primary physical custody; and unsupervised visitation by the father at least twice per week. The judge's findings of fact included the child's history of developmental delays while living with the father and his progress at school after transferring to the mother's custody. The judge noted the child's behavioral problems but attributed them to the changes occurring in his life, including the transfer of custody from the father to the mother. The judge further found that while both parents had difficulty co-parenting, the mother had more consistently attempted to co-parent. The father's behavior, on the other hand, indicated efforts to alienate the child from the mother.²

The judge's factual findings were not clearly erroneous. The findings were based on two days of testimony from the parties and their witnesses. The judge also reviewed multiple trial exhibits including state agencies' records of their interactions with the parties. The record before us, although incomplete, contains nothing to suggest that the judge overlooked or improperly weighed any critical fact. See E.K., 97 Mass. App. Ct. at 409 ; L.L., 470 Mass. at 185 n.27. Moreover, the judge was best positioned to assess the witnesses' credibility and evaluate the evidence. See Custody of Eleanor, 414 Mass. at 800. Given the deference we owe to the judge, we find no error in the factual basis underlying the judgment. See E.K., 97 Mass. App. Ct. at 409 (no clear error where judge issued detailed findings of fact supported by the record and facts supported legal conclusions).

The father...