K.A. v. T.R.

86 Mass.App.Ct. 554

18 N.E.3d 1107

K.A.

v.T.R.¹

No. 13–P–108.

Appeals Court of Massachusetts, Norfolk.

Argued April 9, 2014.

Decided Oct. 31, 2014.

Michael J. Traft, Boston, for the mother.

Present: VUONO, MEADE, & CARHART, JJ.

Opinion

VUONO, J.

Cases concerning the custody of children are often difficult and emotionally charged, and may be rendered even more complex when domestic violence is involved. This appeal presents us with such a case.

Following a five-day trial on a complaint for divorce filed by K.A. (the former husband; hereinafter, the father), a Probate and Family Court judge concluded that although the father had engaged in a pattern of abuse towards T.R. (the former wife; hereinafter, the mother) within the meaning of G.L. c. 208, § 31A, it was in the best interests of the parties' children that their primary physical custody be with the father, with substantial parenting time for the mother. The mother has appealed from the custody orders in the amended judgment of divorce.² She also has appealed from those provisions of the amended judgment that adjudicated her complaints for contempt. While we are sensitive and sympathetic to the mother's position, for the reasons that follow, we affirm the amended judgment.

1. Procedural history. We recite the lengthy procedural history in detail as it informs our discussion of the issues. On April 16, 2010, the father filed a complaint for divorce and, claiming that the parties' two minor children were at risk, an ex parte motion, supported by affidavit, requesting that the mother be required to vacate the marital home and that he be given temporary legal and physical custody of the children. The motion was allowed, and a temporary order granted the father the relief he requested. Shortly thereafter, the parties entered into a stipulation, incorporated in a court order, in which they agreed to joint legal and physical custody of the children, and that the mother was to have sole and exclusive use of the marital home.

A guardian ad litem (GAL) subsequently was appointed to investigate and to report on the custody of the children, and to supply recommendations. The GAL filed a comprehensive report on November 18, 2010.

Following the entry of additional orders, the mother filed complaints for contempt against the father on July 23, 2010, September 23, 2010, and January 13, 2011, alleging that the father had failed to comply with certain provisions of the court orders.

The trial of the father's complaint for divorce (which centered largely on the custody of the children) and the mother's complaints

for contempt was held on various days between May 31, 2011, and August 24, 2011. Following trial, but before the entry of judgment, the parties filed numerous pleadings and motions, including the father's emergency motion for temporary physical custody of the children. That motion resulted in an order extending on an emergency basis the father's parenting time with the children.

By a judgment of divorce dated June 22, 2012, the father was designated the primary care parent of the children and, as we shall discuss more fully infra, the mother was given substantial parenting time. The parties were to share legal custody of the children. The father was ordered to pay alimony to the mother, and the mother was directed to pay child support to the father.

The father was adjudged not guilty of contempt with respect to the mother's complaints filed July 23, 2010, and September 23, 2010, the judge noting that the mother had failed to sustain her burden of proof. Although the father was adjudged not guilty on the mother's complaint for contempt filed January 13, 2011, he was ordered to make a specified payment to the mother.

2. The judge's findings. We summarize the judge's extensive findings and, where appropriate, make reference to evidence adduced at trial.³

The parties were married in May, 1997, and last lived together in April, 2010. Two children, a son and a daughter, were born of the union. At the time of trial, the parties' son was thirteen years old and their daughter was ten years old.

The father long has worked as a police officer, most recently in a town near Boston. The mother, at the time of trial was working part time as a lunch room attendant in a public school system. Both parties are in their forties. During the marriage (until April of 2010), the mother was the primary homemaker and caretaker of the children. As such, she attended all of the children's medical and dental appointments, extracurricular activities, and educational meetings. The father was the primary financial provider for the family. Although the demands of his work schedule (the father

generally worked overnight shifts as well as extra details) did not permit him to attend many of the children's extracurricular and school-related activities, the father maintained a close relationship with the children.

The parties owned a home during the marriage and maintained a lower middle class station. During the marriage, the parties experienced financial difficulties that caused them to borrow funds on their credit cards and resulted in their repeatedly making late payments on their bills and receiving shut-off notices from utility companies. The judge found that the parties' financial difficulties were one of the main causes of their marital problems and often led to arguments between them. In addition, the father's work schedule, which limited the amount of time he could spend with the family, and the mother's assumption of nearly all aspects of the children's care, contributed to the significant stress experienced by the parties.

At trial, the mother testified to numerous incidents of domestic violence perpetrated by the father against her between May, 1997 (during the parties' honeymoon), and November, 2009.⁴ The incidents often took place during heated arguments between the parties, at least some of which arose from the parties' financial situation. While the judge did not find the mother credible concerning some of the alleged incidents of abuse, he found credible her general testimony about being physically abused by the father on multiple occasions during arguments.⁵ The judge also credited the testimony of the GAL that the mother had been the victim of domestic violence by the father.⁶

Typically, following a heated argument between the parties, the father would leave the marital home and “retreat” to his parents' home for days or weeks at a time, resulting in his having no contact with the mother or the children. The mother did not report the

incidents of domestic violence to the police (and requested that her family not report said incidents) because she did not want the father to lose his job as a police officer. At times, the parties' children witnessed the domestic violence between the parties. There was no evidence that the father ever was verbally abusive or physically violent towards the children.

Beginning in the winter of 2009–2010, the children experienced a change in their relationship with the mother (and with members of her family), a relationship, the judge found, that certain witnesses had described as having been loving and respectful. The father and the mother also began to disagree over the mother's parenting of the children. Indeed, the judge found that the father testified credibly that by December, 2009, he had become so concerned about the “abusive manner” in which the mother was treating the children that he instructed the children to wake him up if they had an argument with the mother.⁷ The children, in fact, began to seek solace in the father by waking him up when they had disagreements with the mother.

By early 2010, the children appeared defiant and disrespectful of the mother, and the mother had difficulty controlling and disciplining them.⁸ There were arguments during which the mother became physical with the children and, on one occasion, a child physically attacked the mother. The parties separated in April, 2010.

At trial, the mother's expert, a clinical and forensic psychologist who holds a Ph.D., testified concerning domestic violence and the “brainwashing” of the children by the father.⁹ The “red flags” for brainwashing, in the mother's expert's view, included the

sudden change in the children's behavior and their hostile and disrespectful treatment of the mother during the winter of 2010. The mother's expert recommended that the mother have sole legal and physical custody of the children¹⁰ and that the father, initially, be given supervised parenting time with the children.

Pointing to certain evidence at trial, including the report and the testimony of the GAL, the judge rejected the opinion of the mother's expert, finding that there was no credible evidence that the children's disobedience of and alienation from the mother was caused by the father.¹¹ To the contrary, the judge found that the father supported the mother, instructed the children to behave and obey the mother, and did not undermine the mother's role as a parent.

3. The law. “The best interests of a child is the overarching principle that governs custody disputes in the Commonwealth.” Charara v. Yatim, 78 Mass.App.Ct. 325, 334, 937 N.E.2d 490 (2010). See Loebel v. Loebel, 77 Mass.App.Ct. 740, 747, 933 N.E.2d 1018 (2010). Generally, “[w]hat is in a child's best interest depends upon the particular needs of the child, and is left largely to the discretion of the judge, who ‘may

consider any factor pertinent to those interests.’ ” Charara v. Yatim, supra, quoting from Houston v. Houston, 64 Mass.App.Ct. 529, 535, 834 N.E.2d 297 (2005). See El Chaar v. Chehab, 78 Mass.App.Ct. 501, 506, 941 N.E.2d 75 (2010) (referencing “constants,” or factors, often considered by judge in determining best interests of child). “A custody determination requires a ‘realistic, commonsense judgment,’ which takes account of the fact that the ‘determination of custody is a choice among limited alternatives, all of which,...