Howard v. Howard

1

STEPHANIE A. HOWARD v. DAVID W. HOWARD.

No. 23-P-498

Appeals Court of Massachusetts

June 11, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

David W. Howard (father), the former spouse of Stephanie A. Howard (mother), appeals from a judgment of divorce nisi (divorce judgment) issued by a judge of the Probate and Family Court claiming error in the judge's determinations of custody (both legal and physical) and child support. The father also appeals from an order issued by a single justice of this court on May 25, 2023, denying the father's motion to stay the divorce judgment.^[1] We affirm.

Background.

We summarize the trial judge's relevant findings supplementing them with undisputed facts in the record, and reserving other facts for later discussion. See Pierce v. Pierce, 455 Mass. 286, 288 (2009).

The parties were married in 2004. Four children were born of the marriage: two sons and two daughters. Both parties worked full time during the early years of the marriage; however, the mother reduced her hours after the birth of the first child and, shortly before the birth of the second child, she left her job to care for the children full time. The father, a mechanical engineer, worked for a company until late 2016, when he started his own firm. Though the firm was successful during the first few years, with the father earning in excess of $200,000 annually, its revenues began to decline after the mother commenced divorce proceedings in February 2019.

1. The divorce proceedings.

The father's reaction to the mother filing for divorce was "nuclear." He became "hostile," "nasty," and "abusive" in his communications with the mother, and he insisted on immediately having equal parenting time with the children, despite that the mother had been the children's primary caregiver since birth.

After the mother filed for divorce, both parties initially remained living in the marital home with the children. In September 2019, the judge issued a temporary order incorporating the parties' agreement for temporary shared legal and physical custody, which allotted relatively equal parenting time to them.^[2]The father, however, refused to comply with the temporary parenting schedule and failed to shield the children from his anger toward the mother. During a confrontation in January 2020, the father threatened the mother that their next confrontation would become "physical." The mother thereafter obtained a G. L. c. 209A abuse prevention order against the father (which was extended for one year) and moved out of the marital home.

As the divorce litigation progressed, the boys' previously "very close" relationship with the mother deteriorated. The boys became increasingly hostile and combative toward the mother, and both expressed their desire to spend less time with her and more time with the father. On several occasions, the father did not produce the boys for their scheduled parenting time with the mother, sometimes claiming that the boys refused to see her and that he would not force them to do so. The discord between the boys and the mother reached an apex in January 2022, when the father was jailed for contempt based on his failure to pay child support. On learning of the father's incarceration, the eldest son (who was fifteen at the time) became enraged and verbally abusive toward the mother. After the father was released from jail, the children visited him at his home. When the mother came to pick the children up, the boys were "extremely angry" with her. When they returned to her home, the younger son (who was fourteen at the time) yelled and verbally abused her while backing her into the kitchen counter. The incident frightened the mother, and she was concerned about exposing the girls to similar incidents in the future, so she returned the boys to the father's house and had little parenting time with them in the following months leading up to trial.

2. The trial and divorce judgment.

Approximately three months later, in May 2022, a two-day trial was held. Two of the major disputed issues at trial were custody (both legal and physical) and the father's income for purposes of calculating child support. With respect to custody, the father proposed that the parties be granted shared legal custody and shared physical custody of all four children but that he be granted primary physical custody of the boys. He asserted that the boys' relationship with the mother deteriorated because of his incarceration, and that the last time they were in the mother's care, the environment was "unsafe." The judge disagreed and found that the boys' animosity toward the mother had been fueled by the father expressing his anger about her to the boys and "embroil[ing]" them in the conflict between the parties. The judge concluded that the father had "intentionally interfer[ed] with [the] mother's relationship with [the boys]." The judge further found that, throughout the litigation, the father "refused to communicate respectfully and cooperatively about the children" with the mother. The judge ultimately granted primary physical custody of the girls to the mother, shared physical custody of the boys to both parents, and sole legal custody and decision-making authority for all four children to the mother.

With respect to determining the father's income for purposes of calculating child support, the father claimed that his income from his firm had drastically declined through no fault of his own, due in part to the COVID-19 pandemic, decreasing from approximately $235,000 in 2018 to less than $100,000 by 2020 (as reported on his tax returns for those years). At the time of the May 2022 trial, the father had not yet filed his 2021 tax returns. The father proposed that the judge calculate child support using an annual income for him of $100,000. The judge, however, did not find the father credible regarding his income. She ultimately concluded that he was voluntarily underemployed, attributed an annual income to him of $165,000, and ordered him to pay child support of $655 per week.

The father appealed, challenging the aspects of the divorce judgment pertaining to custody and child support. We address his contentions in turn.

Discussion.

1. Custody.

The father contends that the judge committed reversible error by granting the mother sole legal custody of all four children, and by granting the parties joint physical custody of the boys while allowing the mother to retain sole decision-making authority.

As an initial matter, we address the father's contention that by vesting sole legal custody (and thus sole decision-making authority) in the mother, the judge effectively granted the mother sole physical custody of the boys because she retains decision-making authority when they are in the father's care. "[C]ustody is divisible into two components:" (1) "legal custody," and (2) "physical custody." Mason v. Coleman, 447 Mass. 177, 181 (2006). See G. L. c. 208, § 31. Legal custody involves making "major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." G. L. c. 208, § 31 ("Sole legal custody" vests decision-making authority in one parent; "[s]hared legal custody" requires "continued mutual responsibility and involvement by both parents in major decisions"). Physical custody, by contrast, pertains to parenting time; that is, how much time the child is in each parent's care. G. L. c. 208, § 31 ("Sole physical custody" defined as child "resid[ing] with and be[ing] under the supervision of one parent, subject to reasonable visitation by the other parent; "[s]hared physical custody" defined as child "hav[ing] periods of residing with and being under the supervision of each parent . . . in such a way as to assure a child frequent and continued contact with both parents"). See Mason, supra at 181-182.

Here, the father was granted equal parenting time pursuant to a schedule that ensured frequent and continued contact with the boys, consistent with the statutory definition of "[s]hared physical custody." G. L. c. 208, § 31. Moreover, while the custody arrangement in this case was perhaps less common than other custody arrangements, our courts have affirmed the grant of sole legal custody to one parent where the parents have shared physical custody. See, e.g., Malachi M. v. Quintina Q., 483 Mass. 725, 731, 741 (2019); Custody of a Minor (No. 1), 21 Mass.App.Ct. 985, 987 (1986) ("mother has been granted joint physical custody . . . to satisfy her important interests in sharing the child's time and in exercising her responsibility for the child's upbringing. In view of the antagonism presently existing between the parents, it was not unreasonable" to grant father sole legal custody). Accordingly, we do not agree with the father's assertion that the grant of shared physical custody was illusory.

We next turn to the father's claim that the judge's determinations as to legal and physical custody amounted to reversible error. We review custody...