Ruddy v. Ruddy

84 Mass.App.Ct. 1110

993 N.E.2d 752

Ginger A. RUDDY

v.Raymond J. RUDDY.

No. 12–P–840.

Appeals Court of Massachusetts.

September 16, 2013.

OPINION TEXT STARTS HEREBy the Court (BERRY, SIKORA & MILKEY, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This appeal involves a dispute between the plaintiff (mother) and the defendant (father), who are divorced, over the appointment of a parenting coordinator to assist the parties in resolving issues pertaining to the shared legal custody of their two children. For the reasons that follow, we vacate the order dismissing the father's complaint for appointment of an alternate parenting coordinator. We remand for further proceedings consistent with this memorandum and order.

The parties were divorced by a judgment of divorce nisi entered in March, 2010. Pursuant to a separation agreement, relevant provisions of which were merged in the divorce judgment, one Dr. Cavallaro was to serve as the parenting coordinator for at least one year after entry of the divorce judgment. This arrangement proved successful until November, 2011, when the mother took issue with one or more of Dr. Cavallero's recommendations and consequently refused to acknowledge Dr. Cavallaro as the parenting coordinator. The father filed a complaint in the Probate and Family Court seeking appointment of a new parenting coordinator.¹ The probate judge dismissed the father's complaint, seemingly on the sole basis that he did not subscribe to the notion of appointing parenting coordinators.² This appeal resulted. At the heart of this appeal is the mother's contention the separation agreement required the use of a parenting coordinator for only one year. The father, in contrast, argues that the use of a parenting coordinator was intended to continue until the children reach the age of majority or, otherwise, until the separation agreement is modified by the court. Each party contends that the language of the separation agreement unambiguously supports their respective position. The disputed provisions state as follows:

“Linda Cavallero, PhD ... shall serve as the parties' parent coordinator (the ‘Parent Coordinator’) to put helpful co-parenting parameters in place and serve as a neutral resource when the parties reach an impasse around a given issue.

“...

“The Parent Coordinator will serve a term of one (1) year, which shall be renewable for successive periods by agreement of the parties, or, if the parties are unable to reach agreement, the Parent Coordinator will be determined by the Probate & Family Court.”

“The interpretation of the separation agreement is a question of law, and is therefore ‘afforded plenary review.’ “ Colorio v. Marx, 72 Mass.App.Ct. 382, 386 (2008), quoting from Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. of Mental Retardation (No. 1), 424 Mass. 430, 443 (1997). “Free from ambiguity, the words of the agreement, like any other contract, must be given their usual and ordinary meaning.” American Venture 594 Corp. v. A. Russo & Sons, Inc., 79 Mass.App.Ct. 770, 775 (2011). And, while the parties here stand in sharp disagreement as to the meaning of the parenting coordinator provisions, “[t]he mere existence of a disputed interpretation by the parties does not create an ambiguity.” Suffolk Constr. Co. v. Illinois Union Ins. Co., 80 Mass.App.Ct. 90, 94 (2011).

After reviewing the language of the disputed provisions, we think it reasonably clear that the use of a parenting coordinator was intended to continue beyond the term of one year. The separation agreement expressly contemplates a situation, as we have here, where the father and mother “are unable to reach agreement” with regard to the renewal of a parent coordinator. In such cases, the agreement instructs that “the Parent Coordinator will be determined by the Probate & Family Court” (emphasis added). Significantly, the agreement does not leave to judicial discretion the issue of whether a parent coordinator will be appointed. We can therefore infer, based on the conspicuous absence of such “whether” or “if” language, that the continued use of a parenting coordinator is an integral part of the agreement. The only issue that requires mutual agreement between the parties is the identity of such parenting coordinator. Accordingly, we reject the mother's urged interpretation.

We note that the purpose of the parenting coordinator is to avoid potential deadlock between the parties and the court intervention that inevitably results from such deadlock. If, as the mother contends, the continued use of a parenting coordinator depends on the mutual agreement of the parties, this would only invite the exact type of impasse that both the parent coordinator, and the separation agreement as a whole, intend to...