Schechter v. Schechter , 88 Mass. App. Ct. 239 ( 2015 )

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13-P-1035 Appeals Court
KARINA SCHECHTER vs. YAN SCHECHTER (and a companion case1).
No. 13-P-1035.
Suffolk. September 9, 2014. - September 9, 2015.
Present: Rapoza, C.J., Carhart, & Agnes, JJ.2
Divorce and Separation, Child custody, Modification of judgment,
Findings, Visitation, Attorney's fees. Parent and Child,
Custody. Minor, Custody, Guardian ad litem, Visitation
rights. Abuse Prevention. Contract, Antenuptial
agreement. Husband and Wife, Antenuptial agreement.
Practice, Civil, Attorney's fees.
Complaints for divorce and for protection from abuse filed
in the Suffolk Division of the Probate and Family Court
Department on June 8, 2009, and September 14, 2009,
respectively.
After consolidation, the cases were heard by John M. Smoot,
J.
Lawrence F. Army, Jr. (William S. Smith with him) for the
father.
Alanna G. Cline for the mother.
1
The companion case is between the same parties.
2
Chief Justice Rapoza participated in the deliberation on
this case prior to his retirement.
2
Jerome Aaron, for National Parents Organization, Inc.,
amicus curiae, submitted a brief.
AGNES, J. These are consolidated appeals by the defendant
Yan Schechter (the father) from a judgment of divorce nisi and
an abuse prevention order. One child, a son who is still a
minor (the child), was born of the marriage. The judgment
awarded sole legal and physical custody of the child to the
plaintiff Karina Schechter (the mother). The father's appeal
presents four principal issues for our consideration. First, we
review the custody determination and the validity of a judgment
provision suspending the father's visitation rights for one
year, along with a corresponding G. L. c. 209A order precluding
any contact between the father and child during that period.
Second, we review the judgment's removal provision (see G. L.
c. 208, § 30), which provides that the mother has the right to
remove the child "from the Commonwealth of Massachusetts to the
state of New York or another state if the opportunity for
employment and security is more readily available elsewhere."
Third, we review the judge's determination that the parties'
prenuptial agreement was not "fair and reasonable" at the time
of its execution and was thus not valid. Finally, we consider
the judge's award of attorney's fees to the mother. For the
reasons that follow, we affirm the judge's orders relating to
custody and visitation, the invalidity of the prenuptial
3
agreement, and attorney's fees, but conclude that the removal
provision was not in compliance with G. L. c. 208, § 30, and
that the issue must be reconsidered after an evidentiary
hearing.3,4
Background. The consolidated trial in these cases occurred
over eighteen days in 2010 and 2011, and included testimony from
thirty-eight witnesses, and 132 exhibits. The conscientious
judge made 330 findings of fact, as well as detailed rulings of
law. We first summarize the judge's findings, setting forth
other facts later in connection with the specific legal issues
we address.
The father is a Ukrainian immigrant whose family initially
lived in Israel and then moved to Boston in 1988 when he was
nearly sixteen. The father and his family have lived in Boston
for the past twenty years. The mother emigrated from Uzbekistan
and eventually moved to Boston in 1999 at age twenty to pursue
educational opportunities. The father graduated from Brandeis
University and had early success in a small business and as a
computer consultant. Throughout their relationship, there were
3
Pending a further interim or permanent order by the judge
assigned to this case, the mother and the child may continue to
live in Illinois. See note 22, infra. Notwithstanding the
preservation of the status quo, we express no opinion how the
matter should be resolved after the appropriate hearings.
4
We acknowledge the receipt of an amicus curiae brief by
the National Parents Organization, Inc.
4
numerous instances of emotional and economic abuse,5 as well as
physical abuse and the threat of physical abuse, by the father
against the mother.
5
In relationships in which there is domestic violence, the
victim is often economically dependent on the perpetrator. See
Note, Domestic Violence and Custody Litigation: The Need for
Statutory Reform, 13 Hofstra L. Rev. 407, 426 (1985), cited in
Opinion of the Justices, 427 Mass. 1201, 1209 (1998). Experts
in the field of domestic violence describe economic or financial
abuse as an element of the perpetrator's coercive control of the
victim. See E.C. v. RCM of Washington, Inc., 92 A.3d 305, 319
(D.C. 2014); State v. Newall, 710 N.W.2d 6, 27 (Iowa 2006).
"The CDC [Centers for Disease Control and Prevention] defines
coercive control as a form of psychological aggression that
includes 'behaviors that are intended to monitor, control, or
threaten an intimate partner.' . . . [O]ne type of coercive
control behavior includes economic abuse, defined as 'behaviors
that control a woman's ability to acquire, use, and maintain
economic resources.'" Kim, Credit Cards: Weapons for Domestic
Violence, 22 Duke J. Gender L. & Policy 281, 285 (2015)
(citations omitted). Economic abuse has also been defined as
"[m]aking or attempting to make a person financially dependent,
e.g., maintaining total control over financial resources,
withholding access to money, forbidding attendance at school or
employment." Johnson, Redefining Harm, Reimagining Remedies,
and Reclaiming Domestic Violence Law, 42 U.C. Davis L. Rev.
1107, 1120 (2009). See Conner, Financial Freedom: Women,
Money, and Domestic Abuse, 20 Wm. & Mary J. of Women & L. 339,
358 (2014).
In this case, the judge found that the father had the
mother's car towed and was on the scene for the removal of the
car, and then told the mother that everything belonged to him,
that she would only get the clothes that she brought to the
United States, and that she could take public transit until she
earned enough to buy a car. At other times, he cancelled and
later restored her credit cards when they fought. After one
particular fight the mother went to the grocery store to find
all of her credit cards cancelled, and the father did not
restore them until the parties made up. At another time he also
took and cut the mother's credit cards in half in front of her.
5
The father and the mother began dating in the summer of
2001 while they were both living in New York City. That fall,
they both relocated to Boston, where the mother began her final
year of college while continuing to work as a dental hygienist.
The father became involved in the residential real estate
business and again met with success. Initially, the couple
lived with the father's parents and then moved in with friends
of the father. From the inception, it was evident that the
father's family did not support the relationship. In December,
2001, the parties found out that the mother was pregnant. The
father proposed marriage and the mother accepted. The father's
family did not respond well to the engagement, and urged him to
obtain a prenuptial agreement. The mother experienced a
miscarriage in early 2002. The couple agreed to conceive
another child. The mother learned that she was pregnant again
in May of 2002. Meanwhile, the couple found a condominium unit
they both liked in Brighton and the father purchased it in the
name of his real estate company.
During that same month, the mother graduated from college
and started preparing for the Dental Admission Test (DAT). The
couple decided it was best for the mother not to work and to
focus on studying for her DAT. In spite of this agreement, the
father continually criticized the mother for avoiding work and
implied that she was exaggerating her morning sickness. He made
6
disparaging comments to her suggesting that she was worthless,
and did little to assist her with household chores.
1. Marriage. On December 18, 2002, days before their
marriage, the parties signed a prenuptial agreement that the
father had been discussing with lawyers since December of 2001.
The father had real estate assets in the greater Boston area
estimated to be worth over seven million dollars. They were
married on December 22, 2002.
The father's emotional abuse of the mother was constant and
continued during their marriage. It is documented in the
judge's findings of fact in great detail. The mother gave birth
in February of 2003. During this time, the mother chose to
pursue a degree as a dentist. By April of 2008, the stock
market suffered a serious downturn and the father had a
breakdown, becoming extremely anxious over his real estate
business. He was hospitalized and constructively incapacitated.6
By September of 2008, the mother returned to school and the
father became frustrated that the mother did not spend more of
her free time with him. He did not approve of the mother's
friendships with particular female friends. By the time the
6
The father sought to protect assets and decided to
transfer title of the marital home from his business entity into
his and the mother's name, as tenants in the entirety, in order
to utilize the Massachusetts homestead law.
7
mother prepared to graduate from dental school,7 the father told
the mother that he wanted her to stay home and care for the
household. The mother started work as a dentist in the practice
where she had previously been employed as a dental assistant for
ten years. As a dentist she worked as an independent
contractor, receiving forty percent commission.
2. Separation. On May 30, 2009, the father and the mother
separated. Soon after the father left their home, he telephoned
the mother and said that he intended to get a divorce and needed
to speak with her that night after the child went to bed. She
agreed to talk. The mother and child then went to visit a
friend. As the mother was leaving to return home, she found
that her car was being towed and saw the father emerge from the
tow truck's passenger seat. He got into his own car and drove
away, staring at her intently with an angry look as he passed.
Afraid to go home, the mother and child spent the night at the
friend's house. The father, by his own account, grew furious.
He expected that the mother would get a ride home so that he
could kiss the child good night and have a discussion with her
about the marriage. He failed to understand the natural
response to the intimidation of having one's car towed.
7
The mother graduated from Tufts Dental School in May of
2009, magna cum laude.
8
While at the family home waiting for the mother, the father
gathered up several pairs of her shoes, some boots, and a purse
and put them in the oven. He turned the oven on and left. He
stated that "[i]t seemed like the most harmless way to piss her
off." The father's father went to the home to shut the oven
off.
The parties did not live together after the father moved
out of the home. The father attempted to get key access to the
building adjacent to and overlooking the marital home, but his
request was not granted.
3. Legal proceedings. On June 8, 2009, the mother filed a
complaint for divorce. On September 14, 2009, she filed a
separate complaint in which she sought protection from abuse
under G. L. c. 209A. In support of the protective order issued
by the court, the judge cited an instance in which the father
threatened, "I'm coming with an axe to chop you up," after the
mother would not agree to let the child have a sleepover.8 On
another occasion months later, when the mother picked up the
child from a supervised visit with the father, the supervisor
witnessed as the father pulled up behind the mother's car,
"revved" his engine, swerved his car back and forth, then
accelerated around her car, completely crossing the double line
in the street, and raced away.
8
See note 15, infra.
9
During this time frame, the father transferred a
significant interest in his business into his parents' names.
He sought to give his parents retroactive distributions of his
own personal share of profits. The father claimed his income
was $580 per week, which the judge found was a "completely
unreliable" estimation.
4. Guardian ad litem report. As part of the proceedings,
a psychologist was appointed as guardian ad litem (GAL) on
behalf of the child to evaluate the issues of custody and
parenting time, and later the issue of removal. The GAL issued
an extensive report dated April 15, 2010 (and supplemented that
September), that detailed his observations and interactions with
family members. The report concluded that the father dominates
both the mother and the child with his words and actions. The
father appeared to have agendas concerning information he wanted
to discuss or disclose and rewarded the child when he
cooperated. On the other hand, the GAL observed that "[the
mother] allows [the child] to be himself and have his own
thoughts and feelings, and to express them without fear or
reservation." The GAL cited a number of parenting decisions
that reflected poor judgment on the father's part. The GAL
pointed out that there was extensive "mudslinging" by the father
10
against the mother, while the mother focused only on trying to
do what is best for the child.9
Discussion. 1. Standard of review. The judge's factual
findings must be left undisturbed absent a showing that they are
plainly wrong or clearly erroneous. This deferential standard
applies to our review of cases involving custody and visitation,
see Felton v. Felton, 383 Mass. 232, 239-240 (1981); Rosenberg
v. Merida, 428 Mass. 182, 191 (1998); Loebel v. Loebel, 77 Mass.
App. Ct. 740, 747 (2010); as well as to factual findings in
connection with removal under G. L. c. 208, § 30, see Mason v.
Coleman, 447 Mass. 177, 186 (2006); Murray v. Super, 87 Mass.
App. Ct. 146, 148 (2015). See also Mass.R.Dom.Rel.P. 52(a). "A
finding is clearly erroneous when there is no evidence to
support it, or when, 'although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Custody of Eleanor, 414 Mass. 795, 799 (1993),
quoting from Building Inspector of Lancaster v. Sanderson, 372
Mass. 157, 160 (1977). "In applying the standard, the judge's
assessment of the weight of the evidence and the credibility of
9
Unsatisfied with the GAL interviews, the father provided a
recording of his own interview with the child that was "clearly
staged." During a supervised dinner on March 7, 2010, the
father took the child into the bathroom and told him his mother
was at fault for what was going on in the family.
11
the witnesses is entitled to deference." Custody of Two Minors,
396 Mass. 610, 618 (1986). However, in reviewing the ultimate
determination on custody and visitation, we consider whether
there was an abuse of discretion in how the judge accounted for
the child's best interests. See Sagar v. Sagar, 57 Mass. App.
Ct. 71, 79 (2003). See also Youmans v. Ramos, 429 Mass. 774,
787 (1999). "[A] judge's discretionary decision constitutes an
abuse of discretion where we conclude the judge made 'a clear
error of judgment in weighing' the factors relevant to the
decision." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014)
(citation omitted).
2. Parenting issues. a. Custody and visitation. i. The
terms of the judgment. The judgment ordered that the mother
have sole legal and physical custody of the child and that
"[t]here shall be a one year cessation of any contact between
[the child] and his father." "In Massachusetts the focus in a
custody dispute between parents is not on their personal rights
but on the welfare of the child." Kindregan et al., Family Law
and Practice § 61.1, at 307 (2013) (collecting cases). "[I]n
deciding issues involving custody, the overriding concern of the
court must be the promotion of the best interests of the
children and their general welfare." Rolde v. Rolde, 12 Mass.
App. Ct. 398, 402 (1981). See Carr v. Carr, 44 Mass. App. Ct.
924, 925 (1998). In exercising discretion, the judge is
12
authorized "to consider the widest range of permissible
evidence." Loebel, 77 Mass. App. Ct. at 747 (citation omitted).
The father maintains that "the minimal findings here do not
support any plausible contention that the best interests of the
child standard was properly applied here." This is a gross
mischaracterization of the basis for the judge's rulings. The
judge dealt with the parties for more than two years and had
numerous opportunities to observe their interactions, as well as
to assess witness accounts of how they treated each other and
interacted with their child. The judge also had the benefit of
the comprehensive and detailed GAL report, which is part of the
record on appeal. The judge documented numerous instances of
the father's abusive and degrading conduct toward the mother
before and during the marriage, including several instances in
which the father threatened to kill or do great bodily harm to
the mother. In making a decision about legal or physical
custody, a judge "shall consider whether or not the child's
present or past living conditions adversely affect his physical,
mental, moral or emotional health." G. L. c. 208, § 31, as
appearing in St. 1989, c. 689. Furthermore, in such cases the
judge "shall consider evidence of past or present abuse toward a
parent or child as a factor contrary to the best interest of the
child." G. L. c. 208, § 31A, inserted by St. 1998, c. 179,
13
§ 3.10 Where there is a finding of "a pattern or serious
incident of abuse," the judge must employ a rebuttable
presumption that sole or shared custody with the abusive parent
is not in the child's best interests. Ibid.11 Here, the
10
General Laws c. 208, § 31A, defines "abuse" as follows:
"the occurrence of one or more of the following acts
between a parent and the other parent or between a parent
and child: (a) attempting to cause or causing bodily
injury; or (b) placing another in reasonable fear of
imminent bodily injury."
11
The statute specifies,
"[a] probate and family court's finding, by a preponderance
of the evidence, that a pattern or serious incident of
abuse has occurred shall create a rebuttable presumption
that it is not in the best interests of the child to be
placed in sole custody, shared legal custody or shared
physical custody with the abusive parent. Such presumption
may be rebutted by a preponderance of the evidence that
such custody award is in the best interests of the child."
G. L. c. 208, § 31A. (We note that this same rebuttable
presumption governs temporary custody determinations in abuse
prevention proceedings in the Probate and Family Court. G. L.
c. 209A, § 3[d].)
The section defines "serious incident of abuse" as
"the occurrence of one or more of the following acts
between a parent and the other parent or between a parent
and child: (a) attempting to cause or causing serious
bodily injury; (b) placing another in reasonable fear of
imminent serious bodily injury; or (c) causing another to
engage involuntarily in sexual relations by force, threat
or duress."
G. L. c. 208, § 31A.
Finally, the statute directs,
14
rebuttable presumption applied. The G. L. c. 209A order that
issued as to the mother, discussed in more detail infra, rested
on a finding that the father placed the mother in fear of
imminent serious physical harm. See G. L. c. 209A, § 1 (part
[b] of definition of "abuse"). (The father does not challenge
this aspect of the c. 209A order.) In the circumstances, this
amounted to a finding of a "serious incident of abuse" under
G. L. c. 208, § 31A (part [b] of definition), which triggered
the presumption.
We recognize that "parents have a fundamental interest in
their relationships with their children that is constitutionally
protected." Opinion of the Justices, 427 Mass. 1201, 1203
(1998). However, the strong expression of public policy by our
Legislature that a child's welfare must be the paramount concern
when a judge determines custody, see G. L. c. 208, §§ 31 and
31A, and G. L. c. 209A, § 3(d), means that a judge is authorized
not only to order sole legal and physical custody with one
parent when it serves the best interests of the child, see,
"[i]f the court finds that a pattern or serious incident of
abuse has occurred and issues a temporary or permanent
custody order, the court shall within 90 days enter written
findings of fact as to the effects of the abuse on the
child, which findings demonstrate that such order is in the
furtherance of the child's best interests and provides for
the safety and well-being of the child."
Ibid. (Again we note the identical requirement appears in G. L.
c. 209A, § 3[d].)
15
e.g., Carr, 44 Mass. App. Ct. at 925; Custody of Zia, 50 Mass.
App. Ct. 237, 241-245 (2000), but also that a judge is
authorized to impose conditions and restrictions on and to
suspend any visitation by the other parent when it is determined
that visitation would not be in the best interests of the child.
See, e.g., Donnelly v. Donnelly, 4 Mass. App. Ct. 162, 163-164
(1976). In cases such as this, our duty as a reviewing court is
to ensure that the record reflects that all relevant factors
have been considered by the judge, and that the decision is
based on a fair weighing of the factors. See L.L., 470 Mass. at
185 n.27.
In this case, the judge made findings that the father was
domineering in his relations with the mother and child. The
judge credited the GAL's observation that the father repeatedly
made negative comments and disparaging references to the mother
in the child's presence, "and spent considerable time and
impassioned energy impugning [the mother's] moral character."
The judge also documented the father's lack of insight into the
destructive nature of his behaviors, his tendency to blame
others for everything, and his lack of impulse control. As the
judge correctly noted, "[a] determination of whether a parent is
able to separate his or her needs and interests from those of
the minor children and whether a parent's actions will
compromise the minor children's relationship with the other
16
parent are relevant factors in determining custody." See
Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220-221 (2002).
Finally, the judge explained why neither unsupervised nor
supervised visitation between the father and the child was
feasible.12
The judge's decision to suspend visitation for one year is
also supported by his extensive findings that over the course of
their relationship, the father had engaged in physical,
emotional, and financial abuse of the mother, and, in his
interactions with the child, had damaged the mother's
relationship with the child.13 See G. L. c. 208, § 31A.
12
The judge added that
"[a]llowing unsupervised contact between [the father] and
[the child] would be a capitulation to a manipulative
parental alienator. Continuing to allow supervised contact
between [the father] and [the child] is a recipe for
continued misery. No list of rules prohibiting certain
behaviors could ever encompass all the ways [the father]
will find to harass, intimidate, berate, and manipulate all
those involved. The hard reality is that it is in [the
child's] best interest to place a moratorium on any
communication or contact between him and his father."
13
The judge found that
"a. The findings entered in this case clearly demonstrate
that the father's behavior is not transitorily connected to
the divorce action; it is symptomatic of a more permanent
condition. Many of the behaviors described predate any
contemplation of divorce by the parties. They also predate
the financial crisis of 2008 when the father was under
great stress.
17
Children who experience domestic violence, whether as direct
witnesses or indirectly as members of the household in which
violence occurs, "suffer deep and profound harms," Opinion of
the Justices, 427 Mass. at 1203;14 here, the evidence in the
record does not rebut the judge's factual determinations
"b. The father cannot have unsupervised visits because he
will cause [the child] serious emotional harm and destroy
[the child's] relationship with the mother.
"c. The father cannot have supervised visits without
constantly instigating a crisis that drains the energy of
all involved.
"d. [The child] needs for his mother to have the
opportunity to safely rebuild her strength and that
outweighs, for the near future, the child's need to
continue the relationship with his father wherein the
father uses manipulation to twist [the child's] thoughts
and confuse him. If the mother is not safe, secure, and
protected, [the child] will have two dysfunctional
parents."
The judge also credited the GAL's observation that during
interviews, in discussing the father's parenting and behavior
problems, the mother "generally spoke about her wish for [the
father] to correct those problems so he could be a better
parent. There was never the sense of the character-
assassination that pervaded [the father's] interactions." The
judge found the mother, on the other hand, has "demonstrated
appropriate parenting skills, supporting [the child] without
smothering him. She makes a distinction between one's behavior
and the essence of one's being. She is committed to [the
child], consistent in her parenting, and she provides [the
child] with stability. She has a loving relationship with [the
child]."
14
"Very disruptive symptoms related to trauma can be
exhibited by children even when they have not been personally
subjected to direct physical or sexual abuse." Guidelines for
Judicial Practice: Abuse Prevention Proceedings § 12.02,
Commentary (Admin. Office of Trial Ct. 2011).
18
illustrating the point. The findings are amply supported by the
evidence and demonstrate that the decision to suspend the
father's visitation rights with the child was based on the
exercise of a sound discretion.
ii. The G. L. c. 209A order. The original abuse
prevention order was an emergency order issued ex parte on
September 13, 2009, as a result of an episode over whether the
father could have an overnight visitation with their child at
the home of the child's friend. (There was an order in effect
at the time that required written consent by both parties for
the father to have an overnight visit.) Several days later, the
court conducted an extension hearing at which it heard from the
mother and the father as well as their attorneys. The judge
credited the mother's account of the events, which involved
threatening behavior and impulsive misconduct directed toward
her by the father in the presence of the child.15 The judge
15
The judge found that the father sought the mother's
consent for the overnight via a telephonic text message. After
consulting with the parenting coordinator, the mother telephoned
the child's friend's home and asked to speak to the child. The
father took the telephone from the child and told the mother the
child wanted to sleep over and then hung up. The judge found
that "[the father] then called back screaming in a rage. Seeing
[the mother] shaking and hearing [the father's] voice yelling,
[a family friend who was with the mother] took the phone himself
in time to hear [the father] threaten to kill [the mother] with
an ax[e]. [The family friend] heard [the father] say in
Russian, 'I'm coming with an axe to chop you up.'" The judge
also found that although the child is not fluent in Russian, he
heard and understood enough of the conversation to be "aware
19
extended the abuse prevention order for one year, and later
extended it again on several occasions prior to the consolidated
trial.
The order was made a permanent abuse prevention order on
February 3, 2012, the same day the divorce judgment entered.
The judge's endorsement reads as follows: "This order is
entered after an 18 day trial on cross complaints for divorce
and on plaintiff's complaint for protection from abuse.
Although the order is permanent, paragraph 7 may be reviewed
after one year." In paragraph 7, the father is ordered not to
contact the child and not to come within fifty yards of him.
The father does not challenge the substance of the c. 209A
order insofar as it bars him from abusing or contacting the
mother. The father's principal contention is that he was
deprived of notice and the right to be heard before the issuance
of the permanent abuse prevention order. However, this claim is
not supported by the record.16
that his father was very mad and intended to 'kick his mother's
butt.'"
16
At the original extension hearing on September 15, 2009,
the judge invited counsel to develop a joint recommendation for
the father to have supervised visitation. An agreement could
not be reached. Instead the judge extended the G. L. c. 209A
order for one year, which included barring contact between the
father and the child. However, the judge left the door open to
a modification of the order, to permit visitation between the
father and the child. The judge inquired, "Do the parties want
to work out visitation or bring a motion for visitation? I'll
20
The father appears also to challenge the judge's decision
to incorporate the one-year suspension of visitation into the
permanent abuse prevention order under c. 209A. The argument is
that, in order to include a no contact with a child provision in
an abuse prevention order (i.e., paragraph 7), there must be
evidence of and a judicial finding that the child was suffering
from "abuse" as that term is defined in G. L. c. 209A, § 1.17 It
is true that the statute requires a person seeking an abuse
prevention order, such as the mother in this case, to
demonstrate that she was suffering from "abuse," as defined in
G. L. c. 209A, § 1, in order to obtain any relief under G. L.
deal with it in an appropriate fashion. But as far as the
emergency goes, it's extended for a year." Clearly, by this
stage of the case the father was on notice that whether he would
be permitted to have contact with the child was a live issue
that the judge would resolve in his final decision after the
consolidated trial. Following this hearing, as the mother
points out in her brief, the court addressed the abuse
prevention order eight times prior to the entry of the permanent
order on February 3, 2012. During the consolidated trial, the
father testified and cross-examined a number of witnesses,
including the mother, on matters relating to the order.
17
General Laws c. 209A, § 1, as appearing in St. 1990,
c. 403, § 2, defines the term "abuse" as "the occurrence of one
or more of the following acts between family or household
members: (a) attempting to cause or causing physical harm; (b)
placing another in fear of imminent serious physical harm; (c)
causing another to engage involuntarily in sexual relations by
force, threat or duress." There is only one finding by the
judge here that addresses the father's use of force against the
child. The judge found that on one occasion the father slapped
the child on the back of his neck for misbehaving while in the
custody of the babysitter. Without more, we cannot say that
this was an act of abuse within the meaning of G. L. c. 209A,
§ 1.
21
c. 209A, § 3(a)-(c) (no abuse, no contact, leave and remain away
from plaintiff's household and workplace). "Abuse" under G. L.
c. 209A, § 1, requires a judicial determination that the
plaintiff is in danger of imminent and serious physical or
sexual harm. See Commonwealth v. Jacobsen, 419 Mass. 269, 273-
274 (1995); Smith v. Jones, 67 Mass. App. Ct. 129, 132-133
(2006).
However, in such a case a judge is not also required to
find that the defendant has committed a separate act or acts of
abuse against the parties' child to order that the defendant
have no contact with that child. Under the statute, "A person
suffering from abuse from an adult or minor family or household
member may file a complaint in the court requesting protection
from such abuse, including . . . (h) ordering the defendant to
refrain from abusing or contacting the plaintiff's child, or
child in plaintiff's care or custody, unless authorized by the
court . . ." (emphasis supplied). G. L. c. 209A, § 3, as
appearing in St. 1990, c. 403, § 3. As the statute also
expressly provides, "a finding by [the Probate and Family Court]
by a preponderance of the evidence that a pattern or serious
incident of abuse, as defined in [G. L. c. 208, § 31A,18] toward
a parent or child has occurred shall create a rebuttable
18
See notes 10 & 11, supra, for the definitions of "abuse"
and "serious incident of abuse" under G. L. c. 208, § 31A.
22
presumption that it is not in the best interests of the child to
be placed in sole custody, shared legal custody or shared
physical custody with the abusive parent" (emphasis supplied).19
G. L. c. 209A, § 3(d), as amended by St. 1998, c. 179, § 5.
Additionally, in abuse prevention proceedings, "[i]f ordering
visitation to the abusive parent, the court shall provide for
the safety and well-being of the child and the safety of the
abused parent." Ibid. That an act of serious abuse or a
pattern of abuse committed by one parent against another parent
may support the issuance of a c. 209A order on behalf of the
abused parent as well as an order prohibiting the abuser from
having contact with the child is based on the interrelationship
between the provisions of c. 208 and c. 209A, noted above, and
reflects the critical understanding, also noted previously, that
children who experience domestic violence "suffer deep and
profound harms." Opinion of the Justices, 427 Mass. at 1203.
See note 14, supra.
Our decision in Szymkowski v. Szymkowski, 57 Mass. App. Ct.
284, 288 (2003), is not to the contrary. There, we concluded
that an abuse prevention order obtained by the defendant's
19
See Guidelines for Judicial Practice: Abuse Prevention
Proceedings § 12.03 (Admin. Office of the Trial Ct. 2011) ("The
Court shall provide for the safety and well-being of the child
and the safety of the abused parent when custody is awarded to
the perpetrator of the violence").
23
former wife on behalf of the defendant's minor daughter was
invalid because the plaintiff mother had not demonstrated that
the child was the victim of "abuse" as defined in G. L. c. 209A,
§ 1.20 In the present case, on the other hand, the judge's well
documented findings of fact showed that there was at least one
"serious incident of abuse" by the father against the mother --
i.e., placing her in reasonable fear of imminent serious bodily
injury -- see note 15, supra; that the child witnessed the
father's abusive behavior toward the mother; and that any
contact between the father and the child within a period of at
least one year would damage the mother's relationship with the
child and be harmful to the child. These findings not only
justified the provisions of the c. 209A order directly ensuring
the safety of the mother, but also supplied the basis for the
provisions of the final order regarding child custody, contact,
20
It is significant that Szymkowski was a case where the
mother sought the order only on behalf of the child, and alleged
abuse only against the child. The mother did not seek the order
for her own protection.
When a parent who has custody of a child satisfies the
requirements for an abuse prevention order for the parent's own
protection, before any order is made on behalf of the other
parent relating to visitation with that child, the judge should
assess the safety of the family. In these most sensitive cases,
judges should make every effort to craft any order relating to
visitation so as "to protect the emotional and physical well
being of the child and the non-abusing parent, while preserving
both parent-child relationships." Guidelines for Judicial
Practice: Abuse Prevention Proceedings § 12:01, Commentary
(Admin. Office of the Trial Ct. 2011).
24
and visitation. The judge also did not err in failing to
conclude that the father rebutted the presumption against his
custody resulting from the serious incident of abuse, or that
the evidence established that there was a feasible alternative
to the suspension of visitation.
This case also is distinguishable from Smith v. Joyce, 421
Mass. 520, 522-523 (1995), in which a judge of the Probate and
Family Court extended a c. 209A order directing the defendant
father to stay away from the plaintiff mother and their two
sons, exclusively on the basis of evidence that the father had
placed the mother in fear of imminent serious physical harm. In
vacating the order as to the sons, the court noted that "[t]he
judge should have considered the defendant's relations with his
sons apart from the plaintiff's request that the defendant stay
away from her. If there is to be a G. L. c. 209A order that a
defendant stay away from and have no contact with his or her
minor children, there must be independent support for the
order." Id. at 523. Here, however, the judge's findings
reflect that he focused attention on the relationship between
the father and the child. Furthermore, in this case, unlike in
Smith, there is "independent" evidence apart from the father's
abuse of the mother in that the child witnessed at least one
serious act of domestic violence. Moreover, the judge explained
that, due to the father's chronic misbehavior, any contact
25
during at least a period of one year between the father and the
child will cause the child to suffer serious emotional harm.
For these reasons, the judge did not err in including a one-year
suspension of visitation in the permanent abuse prevention order
under G. L. c. 209A.
b. The removal order. The judgment provision in question
is as follows: "The mother is granted the right to remove [the
child] from the Commonwealth of Massachusetts to the State of
New York or another state if the opportunity for employment and
security is more readily available elsewhere. . . . The mother
shall keep her attorney informed of any changes in her address."
On several occasions during these proceedings, the mother sought
permission to move with the child to New York.
A request for removal is governed by G. L. c. 208, § 30,
which states that "[a] minor child of divorced parents who is a
native of or has resided five years within this commonwealth and
over whose custody and maintenance a probate court has
jurisdiction shall not, if of suitable age to signify his
consent, be removed out of this Commonwealth without such
consent, or, if under that age, without the consent of both
parents, unless the court upon cause shown otherwise orders."
G. L. c. 208, § 30, as amended by St. 1986, c. 462, § 9. The
statutory standard of "upon cause shown" means that removal must
be in the best interests of the child. Yannas v. Frondistou-
26
Yannas, 395 Mass. 704, 711 (1985). In Yannas, the court held
that the judge must determine whether the proposed move
represents a "real advantage" to the custodial parent. Id. at
710. Yannas interpreted G. L. c. 208, § 30, to require the
judge to conduct a two-stage analysis to determine whether to
permit a custodial parent to move with the child or children to
another jurisdiction. In the first stage, the custodial parent
must demonstrate, and the judge must find, that the custodial
parent has set forth a "good, sincere reason for wanting to
remove to another jurisdiction," id. at 711, and that the
custodial parent is not motivated by a desire to deprive the
noncustodial parent of reasonable visitation. Ibid. See
Murray, 87 Mass. App. Ct. at 149-150. If the judge makes these
threshold determinations, the judge then moves to the second
stage of the analysis. In the second stage, the question is
whether on balance, taking into consideration the interests of
the custodial and noncustodial parents, and the impact of such a
move on the child, removal is in the best interests of the
child. Yannas, 395 Mass. at 711-712. No single factor is
"controlling in deciding the best interests of the child, but
rather they must be considered collectively." Id. at 712.
We recently explained that the real advantage test does not
mean that so long as the custodial parent is advantaged by a
move to another State, a judge is required to approve the
27
request. Murray, 87 Mass. App. Ct. at 153. Ultimately, the
judge must determine that removal is in the best interests of
the child. Id. at 150. See Dickenson v. Cogswell, 66 Mass.
App. Ct. 442, 447 (2006).
In the present case, the judge did make findings of fact
that are relevant to a proper determination whether removal
would be a real advantage to the mother. These include many of
the findings that are enumerated above in connection with our
consideration of the issues of custody and visitation. The
judge made additional findings relating to the mother's interest
in establishing a dental practice. However, the order entered
by the judge does not satisfy the requirements of § 30. The
statute requires a judicial determination that removal will be a
real advantage and ultimately in the child's best interests.21
And that judicial determination of real advantage must be with
reference to a specific location in another State. The order in
this case impermissibly leaves the decision whether to remove
and to where to remove solely in the hands of the mother. Under
the terms of the order, the mother could choose to remain in
Massachusetts for an indefinite period of time and then, without
notice to the court or the father, relocate to another
21
When the stage one analysis is a close question, it is
helpful for the judge to conduct the stage two analysis
involving the "collective balancing of interests." Dickenson,
66 Mass. App. Ct. at 448-449.
28
jurisdiction of her choosing, or continue to move from one
location to another as she sees fit. The judge failed to
determine that there is a real advantage to the custodial parent
to relocate her home to another specific State outside of
Massachusetts (stage one of the analysis), and that on balance,
considering all of the relevant factors, this would be in the
child's best interests (stage two of the analysis). See Murray,
87 Mass. App. Ct. at 150 (at the second stage of the analysis,
"[t]he relevant factors are: [1] whether the quality of the
children's lives will be improved, including any improvement
that 'may flow from an improvement in the quality of the
custodial parent's life'; [2] any possible 'adverse effect of
the elimination or curtailment of the child[ren]'s association
with the noncustodial parent'; [3] 'the extent to which moving
or not moving will affect the [children's] emotional, physical,
or developmental needs'; [4] the interests of both parents; and
[5] the possibility of an alternative visitation schedule for
the noncustodial parent" [citation omitted]). See also
Dickenson, supra at 449-452.
Despite the judge's decision documenting the father's abuse
of the mother and concluding that the father's visitation with
the child should be suspended, the judge did not terminate the
father's parental rights, and clearly left open the possibility
of a modification of his order precluding visitation. In a case
29
such as this, the father's constitutional rights as a parent
require that the judge considering a request for removal take
into account the potential for the father to seek a resumption
of visitation. See Blixt v. Blixt, 437 Mass. 649, 653 (2002),
cert. denied, 537 U.S. 1189 (2003), quoting from Troxel v.
Granville, 530 U.S. 57, 66 (2000) ("[T]he Due Process Clause of
the Fourteenth Amendment [to the United States Constitution]
protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children").
In light of the fact that more than three years have passed
since the judgment was entered and the mother and the child
relocated to Illinois, we conclude that a further evidentiary
hearing is required to enable a judge to make a decision whether
the mother's request for removal to a specific State is
warranted on the basis of a contemporaneous record. In
determining the best interests of the child, weight, of course,
should be given to the fact that "[s]tability is itself of
enormous benefit to a child, and any unnecessary tampering with
the status quo simply increases the risk of harm to the child."
Custody of Kali, 439 Mass. 834, 843 (2003).22
22
Although we vacate the judge's permanent removal order,
pending a further interim or permanent order the mother and the
child may continue to reside in Illinois. The trial judge in
this case has retired and thus the matter will have to be
assigned to another judge. Notwithstanding the preservation of
the status quo, we express no opinion of the merits of any
30
3. The prenuptial agreement. The judge ruled that the
prenuptial agreement signed by the mother on December 18, 2002,
just days before her marriage and while she was seven months
pregnant, was unfair and unreasonable at the time it was
executed, and thus was void. See DeMatteo v. DeMatteo, 436
Mass. 18, 31-33 (2002). The judge found that the father's
parents did not trust the mother, did not want her to share in
the ownership of the father's assets, and were the driving force
behind the agreement. Although each party was represented by
counsel, the evidence supports the judge's finding that the
negotiation was brief and one-sided. The mother first met with
her attorney on October 31, 2002. In mid-November, the mother's
attorney sent a series of draft proposals to be included in the
agreement to the father's attorney. The father rejected the
proposed terms and on December 16, 2002, the father's attorney
sent the father's terms by electronic mail to the mother's
attorney with a message that due to the wedding scheduled for
the following week the father "would like to sign this tomorrow
as relatives are arriving on Wednesday and . . . schedules will
be quite hectic after that." Although the mother's lawyer
informed the father's lawyer that the father "ha[d] to put
something on the table" in light of the enormous disparity in
future decision that may be made with regard to removal,
custody, or visitation.
31
the assets of the parties, the father did not alter his
position. The mother agreed to the terms of the proposed
agreement.
The terms of the prenuptial agreement are not in dispute.
As summarized by the judge, it provides in substance as follows:
"a. The parties desire to fix the rights and claims of
each that would accrue by reason of marriage in the event
the marriage is terminated by death or divorce.
"b. The parties would not marry without such an agreement
being in place.
"c. The parties are aware of the relevant law and of the
rights to which they might become entitled after marriage
with regard to estate of the other, alimony and
distribution of property upon a divorce.
"d. All assets acquired before the marriage shall belong
to the person who acquired them.
"e. Any assets, except the marital home, acquired after
the marriage in the name of one person shall be presumed to
be the sole property of that person.
"f. With regard to the marital home, [the father] is
credited with full equity at the date of marriage and the
parties share equally in any net increase in value
thereafter.
"g. Assets acquired by joint means or by a mix of each
party's separate means shall be deemed joint property.
"h. In the event of divorce, the net value of jointly
owned assets shall be divided equally between the parties.
"i. Liabilities incurred by either party individually
remain the obligation of that party; liabilities incurred
jointly are joint obligations.
"j. Alimony in the form of a lump sum payment capped at
$5,000/year times the number of full years of marriage."
32
The father maintains that the judge disregarded DeMatteo,
supra, by concluding that the prenuptial agreement was void ab
initio simply or principally because there was a significant
disparity in the net worth of the parties. See Bruno, Insuring
the Knot: The Massachusetts Approach to Postnuptial Agreements,
45 Suffolk U.L. Rev. 397, 410 (2012) ("[A]n [antenuptial]
agreement need not and should not be considered unfair and
unreasonable simply because it is one-sided"). In DeMatteo, the
parties' disclosures indicated that the wife's assets were
approximately $5,000 while the husband's assets were between 108
and 133 million dollars. 436 Mass. at 21 n.4. The Supreme
Judicial Court concluded that the judge erred in determining
that the prenuptial agreement was void from the outset, even
though it provided that upon divorce the husband would retain
most of the assets he acquired prior to the marriage.23 Id. at
34. In reaching this result, the court was guided by the rules
that require an examination of whether "(1) [the agreement]
contains a fair and reasonable provision as measured at the time
of its execution for the party contesting the agreement; (2) the
23
The agreement provided that upon termination of the
marriage by divorce, "the wife would receive the marital home
free of encumbrance, yearly support of $35,000 until her death
or remarriage with an annual cost-of-living increase, an
automobile, and medical insurance until her death or remarriage.
All property jointly acquired during the marriage would be
divided between the parties in equal shares." DeMatteo, 436
Mass. at 22 (footnotes omitted).
33
contesting party was fully informed of the other party's worth
prior to the agreement's execution, or had, or should have had,
independent knowledge of the other party's worth; and (3) a
waiver by the contesting party is set forth." Id. at 26,
quoting from Rosenberg v. Lipnick, 377 Mass. 666, 672 (1979).
In DeMatteo, the court noted that the judge found that the
wife was "fully informed" of her husband's net worth before the
agreement was signed, and that she had the advice of independent
counsel. 436 Mass. at 27. Although the judge described the
negotiations that led to the agreement as minimal, the court
found this fact insufficient to invalidate the agreement. "The
parties reached agreement after full disclosure of their
respective financial positions and after negotiations during
which they exchanged offers and counteroffers." Id. at 28.
In the present case, unlike in DeMatteo, the judge found a
lack of full disclosure. For example, the father claimed during
the divorce proceedings and represented to the mother during
their marriage that his primary asset, his real estate company
Millennium R.E. LLC (Millennium), is a partnership in which his
parents own a one-half interest. The father attempted to make a
fifty-percent, retroactive distribution of Millennium's assets
to his parents during the divorce proceedings.24 See Rostanzo v.
24
The judge noted that financial transactions involving
Millennium were exceedingly complex and not fully disclosed.
34
Rostanzo, 73 Mass. App. Ct. 588, 598 (2009) ("'Full and fair'
financial disclosures are a 'significant aspect' of fair
dealings between parties entering into an antenuptial agreement
and an essential prerequisite for a meaningful waiver of marital
rights") (citation omitted).
The judge also identified other reasons why the prenuptial
agreement was unfair and unreasonable at the time of its
adoption. In particular, the judge reasoned that
"[the father] had over $7.5 [m]illion in equity when the
agreement was signed and [the mother] had $2[,]500.00 in
equity. The provision for [the mother] to receive, upon a
divorce, a lump s[um] payment of alimony at the rate [of]
$5,000.00 for each full year of marriage is well below
fair. When her lawyer tried to negotiate it up a little,
[the father] said no. He negotiated himself out of a fair
agreement. The property division agreement is also unfair
when viewed from the date of signing. The agreement gives
the wife one-half of the increase in the equity, if any, in
the marital home from the date of the agreement less
mortgages and encumbrances. If the parties lived in a
rental home or an apartment the wife would receive no
assets. If the equity in the home did not go up, the wife
would receive no assets. If the husband chose to encumber
the home to the maximum extent possible, the wife would
receive no assets."
The judge found that there was substantial evidence that
although his parents advanced monies to the father to enable him
to purchase real estate in the beginning, they did not own half
of Millennium, and that the father treated Millennium's assets
as if they were his own. The judge also noted numerous real
estate and bank transactions by the father both prior to and
subsequent to the prenuptial agreement that establish that the
father made inconsistent statements about who owned Millennium
and the true nature of his actual income.
35
The combination of the father's failure to make a complete
disclosure of his assets and income, the circumstances
surrounding the negotiation and execution of the agreement,25 and
the meager provision for alimony, satisfies the requirement in
DeMatteo that an agreement is unfair and unreasonable and thus
invalid ab initio when "the contesting party is essentially
stripped of substantially all marital interests." 436 Mass. at
31.
4. Attorney's fees. The defendant disputes the judgment
provision awarding $165,000 in attorney's fees to the mother.
In a divorce proceeding, the judge has discretion in awarding
attorney's fees in appropriate circumstances. Cooper v. Cooper,
62 Mass. App. Ct. 130, 141 (2004), citing G. L. c. 208, § 38.
If an award is within the range of reasonableness based on "an
objective evaluation of the services performed" it will be
affirmed on appeal. Ibid., quoting from Ross v. Ross, 385 Mass.
30, 38-39 (1982). The factors relevant to an exercise of
judicial discretion in determining an award of attorney's fees
in a case such as this include "the ability of the wife's
25
In Ansin v. Craven-Ansin, 457 Mass. 283, 297 (2010), the
court explained that, in determining whether a prenuptial
agreement is fair and reasonable when executed, a judge may
consider "other factors" including "the length of the marriage,
the motives of the contracting spouses, their respective
bargaining positions, the circumstances giving rise to the
marital agreement, the degree of the pressure, if any,
experienced by the contesting spouse, and other circumstances
the judge finds relevant."
36
counsel, the work performed, the results secured, the time
spent, the hourly rates, the existence of contemporaneous time
records, the financial positions of the parties, and the
husband's obstructionist conduct which prolonged the proceedings
. . . ." Ibid., quoting from Downey v. Downey, 55 Mass. App.
Ct. 812, 819 (2002). Here, the judge was intimately familiar
with the parties, the father's superior financial position, the
nature of the case, and the submissions of the parties. The
judge made specific findings that the father needlessly
complicated the mother's efforts to discover the facts and
severely and unnecessarily increased the amount of work
performed by the mother's attorney. See Hunter v. Rose, 463
Mass. 488, 502 (2012). At no time throughout the course of the
proceedings below did the father request a hearing on the matter
of attorney's fees. On the record before us, we conclude the
judge properly exercised his discretion.
Conclusion. For the reasons set forth above, the judge's
detailed findings of fact support his award of physical and
legal custody to the mother and his conclusion that a suspension
of visitation between the father and the child for a period of
one year was in the best interests of the child. As the judge
did not deprive the father of any procedural rights in the
conduct of the G. L. c. 209A case and did not err in including
the one-year suspension of child visitation in the abuse
37
prevention order, the order is affirmed. The judge was correct
in ruling that the prenuptial agreement was invalid at the time
of execution. We also uphold the provision with regard to the
payment of attorney's fees. The divorce judgment is therefore
affirmed except for the removal provision, which is vacated as
it does not comply with the requirements of G. L. c. 208, § 30.
The case is remanded for further proceedings consistent with
this opinion, including, but not limited to, an evidentiary
hearing on the mother's request for removal. As noted earlier,
see note 22, supra, pending a further interim or permanent order
by the judge assigned to this case, the mother and the child may
continue to live in Illinois.26
So ordered.
26
We deny the mother's request for appellate attorney's
fees.