Malachi M. v. Quintina Q.

483 Mass. 725

136 N.E.3d 704

MALACHI M.

v.QUINTINA Q.¹

SJC-12674

Supreme Judicial Court of Massachusetts, Essex..

Argued September 9, 2019.

Decided December 26, 2019.

Michael J. Traft for the mother.

Robert E. Curtis, Jr., for the father.

The following submitted briefs for amici curiae:

Kia L. Freeman & Wyley S. Proctor, Boston, for Women's Bar Association of Massachusetts & another.

Richard M. Novitch, pro se.

Sasha Drobnick, of the District of Columbia, Philip A. O’Connell, Jr., & Tony K. Lu, Boston, for Domestic Violence Legal Empowerment and Appeals Project.

Kevin J. Powers, Boston, Elizabeth V. Brennan, Worcester, Christine M. Bonardi, Jamaica Plain, Roberta M. Driscoll, & Amy DiDonna, Worcester, for D.M. & others.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

This is an appeal by the mother from a modification judgment that granted sole legal custody of the parties' child to the father. In this case we must resolve the tension between the requirement in G. L. c. 208, § 31A, that "[i]n issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child" and the constraints of G. L. c. 208, § 28, limiting modifications to changed circumstances. The issues presented are whether (1) during a proceeding to modify a child custody decision the judge must consider evidence of domestic abuse that occurred prior to the entry of the divorce judgment; (2) during a proceeding to modify a child custody decision the judge must consider the applicability of the rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent, even in the absence of evidence of abuse occurring after the divorce judgment; and (3) there was a material and substantial change in circumstances to warrant the modification.

We hold that pursuant to G. L. c. 208, § 31A, the judge at a modification proceeding must consider evidence of both past and present abuse, including evidence of domestic abuse that occurred prior to the entry of the divorce judgment, and must address the applicability of the rebuttable presumption, even in the absence of evidence of abuse occurring after the divorce judgment. We further hold that in the present case, a substantial change in circumstances warranted modification of the custody order. For the reasons that follow, we affirm.²

Background. 1. 2015 judgment of divorce nisi. The parties met in 2001 and married in 2003. They have one child, who was born in 2006. In 2014, the father filed for divorce. The parties entered into a partial agreement for judgment, in which they agreed to share legal custody of the child. After a trial in which both parties were represented by counsel, the judgment of divorce nisi (divorce judgment), which incorporated the partial agreement for judgment, was entered in August 2015.³ The divorce judgment provided that the parties would share legal and physical custody of the child.

As part of the divorce proceedings, the court appointed a guardian ad litem (divorce GAL), who conducted an investigation, submitted a report (divorce GAL report), and testified at the divorce trial.⁴

The divorce GAL interviewed the mother, the father, and the child, as well as other individuals connected to the parties. The divorce GAL report stated, inter alia, that the mother alleged that the father hit her and slapped her on and off throughout their marriage, that the father turned physical three or four times per year, and that the father "rage[d]" if the mother tried to speak with him about the child's care. In addition, the mother described to the divorce GAL what the divorce judge found to be "a particularly egregious occurrence of father assaulting mother in Florida in 2011" (2011 incident). The mother alleged that after she was two hours late returning home from a shopping trip, the father yelled and screamed at her, pushed her into a wall, knocked the door down after she locked herself in the bedroom, told her "I will teach you a lesson," and stabbed the chair she had just purchased.⁵ The mother told the divorce GAL that the child was present in the home during this incident. The divorce GAL report addressed the father's description of this incident, with the father recalling that he pushed the mother to the floor; that, after the mother locked herself in a room, he then pushed the door off the hinge; and that the fight ended when he pushed the mother up against a wall. The divorce GAL report stated that the father said that he and the mother had had five or six fights that became physical and that the mother had hit and slapped him.⁶ The divorce GAL report also noted the father's statement that after the 2011 incident he "immediately looked for an anger management class and booked himself in" and that he had not been physical toward the mother since that time, which the mother confirmed.

The divorce judgment includes two sentences about domestic violence: "The Court finds that the parties have both engaged in physical assaults upon the other during the early part of the marriage which culminated in a particularly egregious occurrence of father assaulting mother in Florida in 2011. Following that incident, father engaged in anger management counseling at his own initiative and there have been no further incidents." Neither party appealed from the divorce judgment.⁷

2. Postdivorce events. Certain incidents occurred after the divorce judgment, leading the father to seek modification of the divorce judgment in May 2016. In the time between the divorce judgment and the modification trial, the father learned that the mother had brought the child to the child's pediatrician to be tested for a sexually transmitted disease (STD),⁸ that the mother told the child's therapist that the child showed signs of regression corresponding to visits with the father, and that the mother brought the child to her pediatrician for a bruise on the child's face and alleged that the bruise could have been from the father squeezing the child's face.

In early February 2016, the child was staying with the father when she lost a baby tooth. The mother requested that the father give the mother the tooth, but by the time she made the request the father was traveling and could not provide the mother with the tooth. The mother contacted the police to seek assistance with obtaining the tooth from the father's home, but the police declined to become involved.

A few days after the tooth incident, the mother reported an alleged 2013 incident of abuse to the police (2013 incident). The resulting police report stated that an argument between the father and the mother led the father to grab the mother's arm, "squeezing extremely hard," and to the father throwing the mother's car keys at her head; however, the mother ducked and the keys landed on the child's leg, causing her to bleed.⁹ As a result of the mother's report, an application for a criminal complaint issued against the father, but the application was denied for lack of probable cause.

Five days after the denial of the application for a criminal complaint, the mother sought a G. L. c. 209A abuse prevention order against the father. A judge granted an ex parte abuse prevention order, which, in part, prohibited contact between the child and the father for fifteen days, but after a full hearing at which both parties were present, the order was not extended.

In February 2016, after receiving a report pursuant to G. L. c. 119, § 51A, from a mandated reporter (51A report), the Department of Children and Families (department) began a screening process concerning the father. However, the department screened the 51A report out, thereby declining to become involved.

3. 2016 complaint for modification. In May 2016, the father filed a complaint for modification of the divorce judgment, alleging multiple material changes in circumstances, including that he "has serious concerns regarding Mother's intentional alienation efforts to keep him from exercising his parenting time." The mother filed an answer and counterclaim, alleging, in part, that during the abuse prevention order hearing, the father admitted to multiple "newly revealed" incidents of domestic violence. The modification judge (judge) appointed a guardian ad litem (modification GAL) and ruled that the modification GAL report would be an uncontested exhibit at trial.¹⁰ During the modification proceeding, the judge reviewed documentary evidence from the divorce trial and heard testimony from the parties.

a. Documentary evidence. The modification GAL discussed the 2013 incident in his report, writing that the child "did state that she had been struck in the leg by car keys during an incident in 2013, when her parents had been arguing and her father had thrown the keys." Other exhibits the judge admitted during the modification trial included the police report for the 2013 incident, the mother's journal narrative of the 2013 incident, and the divorce GAL report. The judge also reviewed the allegations the mother presented in support of the abuse prevention order.

b. Scope of the testimony. After a pretrial conference, the judge issued an order that, at the modification trial, "[t]he scope of the testimony shall be from August 15, 2015 until the present." The judge subsequently denied the mother's motion in limine seeking modification of the order.¹¹ During the pretrial hearings, the judge did not waver from her trial order, but she did state that she would take questions about evidence on a case-by-case basis.

During the one-day modification trial, the judge allowed limited testimony regarding events that occurred before the divorce judgment. The judge stated multiple times that she would not consider predivorce incidents during the trial, including those concerning alleged abuse, stating at one point, "Counsel, I have to be...