D.T. v. R.M.

100 Mass.App.Ct. 1123

182 N.E.3d 336 (Table)

D.T.

v.R.M.

20-P-1006

Appeals Court of Massachusetts.

Entered: February 9, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from the judgment of divorce nisi insofar as it granted the mother sole physical and legal custody of their two children, and limited the father's parenting time to four weeks a year, exclusively in California where the mother resides.² On appeal, the father contends that the judge's custody decision is unsupported, that she abused her discretion with respect to various evidentiary matters, and that she improperly assisted the pro se mother at trial and demonstrated bias in favor of the mother.³ We affirm.

Background. "We first summarize the judge's findings, setting forth other facts later in connection with the specific legal issues we address." Schechter v. Schechter, 88 Mass. App. Ct. 239, 241 (2015).

The parties were married in 2013, had two children (ages three and four at the time of trial), and last resided together in the marital home in Dorchester. The mother filed for divorce in December of 2016, and the father filed a counterclaim for divorce in 2017. Agreed upon temporary orders granted shared legal custody, primary physical custody to the mother, and authorized her move to southern California with the children to pursue a medical fellowship there.

The mother appeared pro se, and the father was represented by counsel at trial. At the time of trial, the father was working as a surgical resident in Boston. He had accepted a surgical fellowship in Baltimore, Maryland for the following year. While he had considered fellowships in California, he accepted a fellowship at a trauma and critical care center in Baltimore because it was the career opportunity that best trained him for his career in medicine and violence prevention. The judge found that this choice was not unusual for a medical professional and that taking the fellowship would increase the father's ability to find long-term employment in California near his children.

The father anticipated working a monthly average of eighty hours per week. He planned to schedule his hours in such a way as to maximize his time with the children, and the paternal grandmother (grandmother) would be available to help with the children when they were in Baltimore. The mother is also a doctor, and at the time of trial she was working as a fellow in southern California. She resided in California, with the children, and was planning to find a part-time position to spend more time with the children.

The judge found that the father was physically and mentally abusive to the mother during the marriage.⁴ On two occasions, while arguing, the father threw the mother's phone in the toilet to prevent her from contacting anyone. On the second occasion, the father also restrained her on the bed, screamed at her, and returned to the room with scissors in his hands. She was in fear and said, "don't hurt me." The judge credited her testimony, stating that "[the mother] was sobbing as she related this testimony, and her affect was not feigned."⁵

Relying on the father's testimony, the judge also found that the father suffered from depression, and, despite ongoing treatment, demonstrated difficulty handling periods of high stress.⁶ The judge found that the father "lost it" during the time when the father was struggling with depression, pressures from his career, and the mother's miscarriage.⁷ During this period he violated a protective order obtained by the mother by texting her 150 times in one day.

The judge also found that the mental and physical abuse and overall deterioration of the marriage made it difficult to coordinate decisions affecting the children and otherwise coparent. Communication difficulties led to delays in choosing the school, day care, and pediatrician for the children. Finding that the father often delayed making decisions and that the mother demonstrated a willingness to communicate decisions to the father, the judge granted the mother sole legal custody of the children.

The judge also granted sole physical custody to the mother, taking into consideration the father's highly demanding work schedule, the large geographical distance between the parents, and the young age of the children. She ruled that the father's parenting time should take place in California where the mother resided. In this respect the judge considered the difficulties of cross-country travel for young children, the father's ability to cope under stress, his limited parenting time with the children in recent months,⁸ and instances of controlling behavior, such as denying the mother's request to FaceTime with the children during the father's parenting time and withdrawing his agreement to the mother's planned vacation with the children. The judge indicated that her order extended for the foreseeable future, but that "[i]n a couple of years, the children will be older and [the father] will hopefully have a long stretch of good health and parenting behavior that will permit [a] court to reevaluate the parenting plan."⁹

Discussion. 1. Legal custody and parenting time. The father contends that the judge abused her discretion in awarding sole legal custody to the mother and limiting his parenting time to visits in California. Our touchstone is the best interests of the children. We review the judge's custody determination for an abuse of discretion. See Schechter, 88 Mass. App. Ct. at 245. "The judge's factual findings must be left undisturbed absent a showing that they are plainly wrong or clearly erroneous." Id.¹⁰

Contrary to the father's suggestion in his brief, there is no presumption of joint custody in a divorce proceeding. See G. L. c. 208, § 31, sixth par. ("There shall be no presumption either in favor of or against shared legal or physical custody at the time of the trial on the merits, except as provided for in section 31A"). The judge's decision was fully supported by the evidence. Although the parties’ versions of events regarding abuse in the marriage diverged at trial, determinations of credibility properly rested with the judge. See Schechter, 88 Mass. App. Ct. at 245. A finding of past or present abuse toward a parent is "a factor contrary to the best interest of the child." See id. at 246, quoting G. L. c. 208, § 31A. Having found that the grandmother minimized the father's behavior, see note 5, supra, the judge could permissibly conclude that parenting time where the mother lived was in the best interests of the children. There is no challenge on appeal to the evidence of the father's limited efforts to visit his children, the young age of the children, or the difficulties posed by cross country travel for young children. "The task of the Probate Court judge is not to find the perfect custody solution but to devise one that best accommodates to the difficulties and the child's interest." Freedman v. Freedman, 49 Mass. App. Ct. 519, 522 (2000).

The father further contends that he was not dilatory in making decisions about the children, that he did not obstruct the selection of medical providers or interfere with parent child conferences, and that he did not attempt to control the mother. It was for the judge to weigh the conflicting evidence on these points. Again, credibility determinations were for the trial judge. Schechter, 88 Mass. App. Ct. at 245.

2. Evidentiary challenges. "We review a trial judge's evidentiary decisions under an abuse of discretion standard." N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013).¹¹ We review any preserved error for prejudice. See Adoption of Ulrich, 94 Mass. App. Ct. 668, 680 (2019).

a. Mental health. The father asserts that the judge abused her discretion by allowing the mother to testify as a lay witness regarding the father's mental health. A lay witness may not testify as an expert or give an opinion that is "based on scientific, technical, or other specialized knowledge." See Mass. G. Evid. § 701(c) (2021). However, "[a] non-expert is competent to testify to the physical appearance and condition and acts of a person both for their probative value for the [fact finder] and for the purpose of furnishing facts as the basis of hypothetical questions for experts" (citation omitted). Sparrow v. Demonico, 461 Mass. 322, 333 (2012).

Referring to the father, the mother said, "So there's a background history of like depression and suicidal ideation –-." The father objected, but only as to the use of the term "suicidal ideation." The judge sustained that objection. The father later testified that he had been diagnosed with depression. He took four months off from work and saw his psychiatrist weekly. The evidence regarding depression was properly admitted, and any challenge to the mother's testimony regarding depression is waived for lack of objection. See Adoption of Norbert, 83 Mass. App. Ct. 542, 545 (2013).¹²

The mother also testified that the father had a "mental breakdown," testimony which the father moved to strike. The judge sustained the objection, and did not rely on this testimony in her findings. While she did make a finding that the father "lost it," this finding was permissibly based on the father's testimony and the admissible testimony of the mother. Therefore, there was no error and no prejudice.

Similarly, the mother testified that after an incident with the father, she e-mailed his psychiatrist because she thought the father was "acting crazy." The father objected to the use of the word "crazy" but the judge allowed it. This was not error, as the testimony was not allowed as expert testimony but to explain the mother's observations and state of mind, her reasons for e-mailing the psychiatrist, and for changing the locks on the doors to the marital home. See Mass. G. Evid. § 701. Regardless, the judge did not rely on this characterization in her findings, and the father was not prejudiced.

b. Reliance on excluded...