R.F. v. I.A.

R.F.

v. I.A.

10-P-911

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Entered: August 4, 2011

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

By a judgment on complaints for support, custody, and visitation filed pursuant to G. L. c. 209C, a judge of the Probate and Family Court (1) awarded sole legal and sole physical custody of the parties' six minor children to the plaintiff mother, (2) ordered the defendant father to pay child support to the mother in the amount of $200 per week, and (3) awarded the father parenting time in accordance with a schedule established by the judge. The father has appealed, challenging primarily the judge's award of custody. He appeals also from the order denying his motion for reconsideration and request for new trial. We affirm.

1. Cross-examination. The father, who proceeded pro se at trial, argues initially that the judge abused his discretion in failing to allow him 'to adequately cross-examine' the mother in several areas, including whether she may have committed housing or other public assistance fraud during the parties' relationship, and whether the mother's son by a previous relationship may have sexually assaulted a child in the past. With respect to the issue of fraud, the father asserts that the mother's answers to his questions were 'material for the court to assess her character for truthfulness and therefore would have served to impeach her credibility.'

It is settled that the 'scope of cross-examination, including to what extent the accuracy, veracity, and credibility of a witness may be tested, rests largely in the sound discretion of the judge, not subject to revision unless prejudice is shown to a party by reason of too narrow restriction or too great breadth of inquiry.' Commonwealth v. Gagnon, 408 Mass. 185, 192 (1990), quoting from Commonwealth v. Underwood, 358 Mass. 506, 513 (1970). Even were we to assume that the father properly could pursue his inquiry as to whether the mother had participated in housing or other public assistance fraud, see Care & Protection of Frank, 409 Mass. 492, 494-495 (1991); Adoption of Irwin, 28 Mass. App. Ct. 41, 43 (1989); Brodin & Avery, Massachusetts Evidence § 6.16.3 (8th ed. 2007), the record discloses that while the judge, at times, limited the father's inquiry,¹ the father was allowed to ask the mother many questions concerning her receipt and her use of public assistance. We perceive nothing in the father's argument on this point that would cause us to disturb the judgment.

Similarly, and contrary to the father's assertion, the judge did not exclude the father's 'line of questioning' with respect to allegations of sexual assault. Rather, as the mother points out, while the judge prohibited the father from asking certain specific questions,² the father was allowed other opportunities to inquire on the topic.

2. Documentation. The father argues that the judge 'denied [him] the ability to offer documentation into evidence in support of his positions' concerning the custody of the children. He claims, inter alia, that during his cross-examination of the mother, he 'tried to make offers of proof by requesting to introduce certain documents into evidence and by illustrating their relevance to the proceeding.'

To the extent the father appears to argue that the judge somehow failed to allow him to introduce in evidence a report filed against the mother by the Department of Children and Families (DCF), pursuant to G. L. c. 119, § 51A, after an altercation between the parties in May of 2005, the father did not seek formally to offer the report in evidence. See Friedman v. Board of Registration in Med., 414 Mass. 663, 666 (1993) (party proceeding pro se is bound by same rules and requirements as one represented by counsel); Baldyga v. Dudley Div. of the Dist. Ct. Dept., 449 Mass. 1012, 1012 n.2 (2007) (pro se party held to same standards applicable to litigants represented by counsel). At all events, the father was afforded the opportunity to question the mother on the point and the mother admitted that there was a supported 51A report against her in 2005 (and that there were no other supported 51A reports against her).³

The father also asserts that he 'made statements [at trial] amounting to offers of proof to the court when he questioned [the mother] about whether a Guardian-ad-Litem had investigated the allegation that her oldest son . . . had previously sexually abused a child.'⁴ He claims that '[h]is emphasis on the [guardian ad litem's] report mentioning the investigation of the sexual allegation against [the mother's son from a prior relationship] amounts to an offer of proof which the court should have allowed [him] to introduce into evidence.' On review of those portions of the record referred to by the father, we find that the father never attempted formally to introduce the report of the guardian ad litem allegedly treating a question of sexual abuse by the mother's son (age nineteen years at the time of trial in March, 2009), and that therefore the judge did not wrongly deny him the opportunity to submit the document or an offer of proof.

The father makes further reference in his brief to the following question he posed to the mother: 'Now, was there not a court order issued out of this court signed by [another probate judge] which stated when the children visited with you, that [the son from a prior relationship] should not be present? Yes or no?' The father claims that this information was relevant, among other reasons, to test the mother's credibility. The father's argument on the point is puzzling because there was no objection to the question and the mother answered, 'Yes.'⁵

None of the father's additional arguments concerning the judge's alleged restrictions on his presentation of evidence would cause us to set aside the judgment.

3. Child custody. 'The best interests of the child is the 'touchstone inquiry' in child custody . . . cases,' Smith v. McDonald, 458 Mass. 540, 544 (2010), quoting from Custody of Kali, 439 Mass. 834, 840 (2003), including those under G. L. c. 209C, § 10(a) (applicable to nonmarital children). ⁶ Smith, supra at 544-545. While 'the statute provides a framework for the court's 'best interests' analysis by requiring the court to preserve the child's relationship with the 'primary caretaker parent' when possible, and by mandating consideration of preexisting parental and living arrangements,' ⁷ id. at 545, all relevant factors must be weighed by the court, Custody of Kali, supra at 843, 845. See Rosenberg v. Merida, 428 Mass. 182, 191 (1998). See also Smith, supra at 547 (judge accorded 'considerable freedom to identify pertinent factors in assessing the welfare of the child ').⁸ 'The determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings in a custody case 'must stand unless they are plainly wrong." Custody of Kali, supra at 845, quoting from Rosenberg v. Merida, supra.

The father argues, among other things, that the judge failed to consider all relevant factors in determining the children's best interests and failed to explain his reasons for, or to make conclusions of law applicable to, his custody determination. More specifically, the father asserts that the judge failed to consider adequately that during the vast majority of the parties' relationship the father coparented the children with the mother, and between 2005 and 2007 he acted as the children's primary caregiver. The father seems to suggest that his involvement with the children should have been reflected in the custodial order, providing him (at least) with far more custodial time. He asserts also, inter alia, that the judge neglected the evidence that the father had worked to assist the children in achieving their academic goals and that the judge failed to consider the effects of domestic violence perpetrated by the mother upon the father (in the presence of the children) which resulted in the supported 51A report in 2005.

While ordinarily a judge should both reference the statutory requirements of G. L. c. 209C, § 10(a), and explain their impact, if any, on the custody award, Custody of Kali, supra, and while the judge here certainly could have explained better his rationale for decision, we think that the judge's findings reflect consideration of the relevant factors and that his rationale for the custody determination is implicit in those findings. See ibid.; Haas v. Puchalski, 9 Mass. App. Ct. 555, 556 n.5 (1980) ('[I]t is imperative that the judge make findings showing that all relevant factors in determining the best interests of the child have been weighed').

More to the point, the judge considered carefully the parties' volatile and troubled relationship, the parties' numerous separations and reconciliations (and the party with whom all or some of the children resided during these periods),⁹ and the mother's primary care of the children since at least September, 2007. Indeed, the judge noted that the probation officer whom he had appointed in the fall of 2008 to investigate the issue of custody found that the mother was the primary caretaker of the children and recommended that the mother be given full physical custody of them. The judge considered also the mother's current accommodations and the parties'decision-making as it bears on the best interests of the children.¹⁰ In addition, it is apparent from the...