Pawle v. Donovan

1

AMY PAWLE v. SEAN DONOVAN.

No. 23-P-1355

Appeals Court of Massachusetts

December 5, 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

Appellant Sean Donovan (father),^[1] and Appellee, Amy Pawle (mother), were briefly married before divorcing in December 2019.^[2] The parties have one child together, who was born about a month after the parties were married. The divorce judgment, which incorporated the parties' separation agreement dated December 17, 2019, provided for joint legal custody but awarded primary physical custody to the mother. The judgment also provided the father parenting time every Monday morning through Tuesday afternoon, and every Thursday morning through Friday afternoon. No child support was ordered.

In January 2022, the mother filed complaints for modification and contempt.^[3] In response, the father filed a counterclaim for modification the following month.^[4] Following a nonconsecutive three-day trial, from October 2022 to February 2023, the judge issued modification and contempt judgments that granted the mother sole legal and physical custody, ordered the father pay retroactive and prospective child support, modified the father's parenting time, and found the father in contempt of the separation agreement. The father now appeals from both the modification and contempt judgments. We affirm the contempt judgment. With respect to the modification judgment, we vacate so much of the judgment as pertains to the father's parenting time and remand the case for further proceedings consistent with this memorandum and order. The modification judgment is otherwise affirmed.

Discussion.

1. Custody and parenting time.

To support modification of child custody or parenting time "the [mother] must first establish that a material and substantial change in circumstance has occurred to warrant a change . . . and that the change is in the child's best interests." See E.K. v. S.C., 97 Mass.App.Ct. 403, 408 (2020); see also G. L. c. 208, § 28. "[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met." Charara v. Yatim, 78 Mass.App.Ct. 325, 336 (2010). "In custody matters, the touchstone inquiry [is] . . . what is best for the child, and [t]he determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings . . . must stand unless they are plainly wrong" (quotations omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019), quoting Hunter v. Rose, 463 Mass. 488, 494 (2012). "[I]t is generally inappropriate to grant shared legal custody to parents who display a high level of acrimony that impedes their ability to jointly make decisions about the children's welfare." Imbrie v. Imbrie, 102 Mass.App.Ct. 557, 571 (2023). The best interests of a child "are likely better served by ending the joint custodial arrangement," rather than "forcing the parties into a cooperative relationship they appear incapable of maintaining." O'Connell v. Greenwood, 59 Mass.App.Ct. 147, 156 (2003).

We review the judge's decision for abuse of discretion or clear error of law. Schechter v. Schechter, 88 Mass.App.Ct. 239, 245 (2015). In doing so, we defer to the judge's factual findings, "absent a showing that they are plainly wrong or clearly erroneous." Id.

Here, sufficient evidence was adduced at trial to support the judge's conclusion that a change in circumstances warranted granting sole legal custody to the mother, and that doing so was in the child's best interests. See E.K., 97 Mass.App.Ct. at 408. The judge heard extensive testimony from the mother detailing the challenges the parties have had making parenting decisions due to the father's hostile communication style and unilateral decision making. For example, the mother testified that the father does not "accept any criticism [in regards to parenting decisions] without then using abusive, belittling language towards [her]." To support this claim, the mother introduced text messages from the father reflecting his antagonistic communication style. The mother further testified that the father took issue with the child receiving routine dental care such as X-rays to check for suspected cavities.^[5]When the child was referred to a pediatric dentist, the father notified the dentist's office that the parties were involved in a custody dispute, resulting in the dentist cancelling the child's appointment and the mother having to find a different dentist for the child. Additionally, the father unenrolled the child from preschool even though the separation agreement did not give the father the authority to do so.

The judge also considered the written psychological evaluation of the father conducted by a clinical psychologist^[6] as well as the psychologist's corresponding testimony. The psychologist concluded that the father suffers from paranoid ideation, delusional thinking, and demonstrated "significant scores" of self-importance and dominance which are traits associated with narcissistic personality disorder.^[7] The psychologist testified that these traits would interfere with the father's ability to work collaboratively with the mother to make joint decisions about the child's medical care or education.^[8] The psychologist ultimately concluded that the father would benefit from mental health intervention, and failure to treat his mental health challenges would negatively impact the child's development.

As such, where the father's acrimonious communication style and mental health challenges prevent the parties from making joint decisions about their child's welfare, we discern no abuse of discretion in the judge's decision to grant the mother sole legal custody of the child. See Imbrie, 102 Mass.App.Ct. at 571; Schechter, 88 Mass.App.Ct. at 245.

The judge also determined that there was a material change in circumstances sufficient to justify altering the father's parenting time. For example, the judge found that because the child is now attending school, the child would benefit from a "more traditional" parenting schedule that provides the father with parenting time on alternating weekends as well as afternoon and evening time during the week.^[9] However, this new parenting schedule results in an approximate one-third reduction in the father's parenting hours over a two-week period.^[10] While we agree that the judge was justified in altering the father's parenting schedule in consideration of the child's need to attend school, the judge's findings were insufficient to justify such a significant reduction in the father's total parenting hours. Indeed, while the judge determined that the father is "overwhelmingly possessive" of the child and fails to understand that the child requires separation from each parent to become independent and develop,^[11] the judge did not explicitly justify the reduction in parenting time on this basis. See E.K., 97 Mass.App.Ct. at 408. Therefore, because it is unclear that the child's school attendance necessitates a significant reduction in the father's parenting hours, we vacate the so much of the modification judgment as it relates to the father's parenting time, and remand for further findings and a redetermination of the father's parenting time in light of such further findings.^[12]

2. Child support.

"[M]odification [of child support] is presumptively required whenever there is an inconsistency between the amount of child support that is to be paid under the existing support order and the amount that would be paid under the [Child Support Guidelines (guidelines)]." Morales v. Morales, 464 Mass. 507, 511 (2013). See Cavanagh v. Cavanagh, 490 Mass. 398, 423 n.22 (2022) .^[13] See also G. L. c. 208, § 28; Child Support Guidelines § III (Aug. 2021) . Moreover, "[t]o the extent possible, and consistent with common sense and justice, the modified judgment should take into account the earlier, expressed desires of the parties" as set forth in their separation agreement. Katzman v. Healy, 77 Mass.App.Ct. 589, 598 (2010), quoting Bercume v. Bercume, 428 Mass. 635, 644 (1999). See Fehrm-Cappuccino v. Cappuccino, 90 Mass.App.Ct. 525, 526-527 & n.1 (2016) (when modifying child support pursuant to Morales inconsistency standard, judge should also consider, to extent possible, parties' intentions set forth in separation agreement).

Here in her complaint for modification, the mother sought child support from the father citing "a difference between the amount of the existing child support order and the amount that would result from the application of the Child Support Guidelines," as well as the father's failure "to contribute to the child's expenses as was contemplated by the parties when agreeing to no specific order for child support." In their separation agreement, the parties stated that "[n]either party shall pay the other child support unless a change in circumstances takes place that warrants . . . modification." At the time that the parties agreed to a zero dollar...