K.A. v. T.R. ( 2014 )

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13-P-108 Appeals Court
K.A. vs. T.R.1
No. 13-P-108.
Norfolk. April 9, 2014. - October 31, 2014.
Present: Vuono, Meade, & Carhart, JJ.
Parent and Child, Custody. Divorce and Separation, Child
custody, Findings. Evidence, Child custody proceeding.
Probate Court, Custody of child. Practice, Civil,
Contempt.
Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on April 16, 2010.
The case was heard by John D. Casey, J.
Michael J. Traft for the mother.
VUONO, J. Cases concerning the custody of children are
often difficult and emotionally charged, and may be rendered
even more complex when domestic violence is involved. This
appeal presents us with such a case.
1
We use fictitious initials for the parties. See T.M. v.
L.H., 50 Mass. App. Ct. 856, 856 n.1 (2001).
2
Following a five-day trial on a complaint for divorce filed
by K.A. (the former husband; hereinafter, the father), a Probate
and Family Court judge concluded that although the father had
engaged in a pattern of abuse towards T.R. (the former wife;
hereinafter, the mother) within the meaning of G. L. c. 208,
§ 31A, it was in the best interests of the parties' children
that their primary physical custody be with the father, with
substantial parenting time for the mother. The mother has
appealed from the custody orders in the amended judgment of
divorce.2 She also has appealed from those provisions of the
amended judgment that adjudicated her complaints for contempt.
While we are sensitive and sympathetic to the mother's position,
for the reasons that follow, we affirm the amended judgment.
1. Procedural history. We recite the lengthy procedural
history in detail as it informs our discussion of the issues.
On April 16, 2010, the father filed a complaint for divorce and,
claiming that the parties' two minor children were at risk, an
ex parte motion, supported by affidavit, requesting that the
mother be required to vacate the marital home and that he be
given temporary legal and physical custody of the children. The
motion was allowed, and a temporary order granted the father the
relief he requested. Shortly thereafter, the parties entered
into a stipulation, incorporated in a court order, in which they
2
Other aspects of the divorce action are not in issue.
3
agreed to joint legal and physical custody of the children, and
that the mother was to have sole and exclusive use of the
marital home.
A guardian ad litem (GAL) subsequently was appointed to
investigate and to report on the custody of the children, and to
supply recommendations. The GAL filed a comprehensive report on
November 18, 2010.
Following the entry of additional orders, the mother filed
complaints for contempt against the father on July 23, 2010,
September 23, 2010, and January 13, 2011, alleging that the
father had failed to comply with certain provisions of the court
orders.
The trial of the father's complaint for divorce (which
centered largely on the custody of the children) and the
mother's complaints for contempt was held on various days
between May 31, 2011, and August 24, 2011. Following trial, but
before the entry of judgment, the parties filed numerous
pleadings and motions, including the father's emergency motion
for temporary physical custody of the children. That motion
resulted in an order extending on an emergency basis the
father's parenting time with the children.
By a judgment of divorce dated June 22, 2012, the father
was designated the primary care parent of the children and, as
we shall discuss more fully infra, the mother was given
4
substantial parenting time. The parties were to share legal
custody of the children. The father was ordered to pay alimony
to the mother, and the mother was directed to pay child support
to the father.
The father was adjudged not guilty of contempt with respect
to the mother's complaints filed July 23, 2010, and September
23, 2010, the judge noting that the mother had failed to sustain
her burden of proof. Although the father was adjudged not
guilty on the mother's complaint for contempt filed January 13,
2011, he was ordered to make a specified payment to the mother.
2. The judge's findings. We summarize the judge's
extensive findings and, where appropriate, make reference to
evidence adduced at trial.3
The parties were married in May, 1997, and last lived
together in April, 2010. Two children, a son and a daughter,
were born of the union. At the time of trial, the parties' son
was thirteen years old and their daughter was ten years old.
The father long has worked as a police officer, most
recently in a town near Boston. The mother, at the time of
3
In his findings of fact, the judge stated that "[d]ue to
the large volume of pleadings that were filed after the
conclusion of the trial, the Court has included them in the
procedural history, when possible." However, the judge stated
that in making his findings of fact and ordering judgment, he
did not consider the information contained in any pleadings
filed after the last day of trial. The judge noted that the
father had been the primary caretaker of the children since
October, 2011.
5
trial was working part time as a lunch room attendant in a
public school system. Both parties are in their forties.
During the marriage (until April of 2010), the mother was the
primary homemaker and caretaker of the children. As such, she
attended all of the children's medical and dental appointments,
extracurricular activities, and educational meetings. The
father was the primary financial provider for the family.
Although the demands of his work schedule (the father generally
worked overnight shifts as well as extra details) did not permit
him to attend many of the children's extracurricular and school-
related activities, the father maintained a close relationship
with the children.
The parties owned a home during the marriage and maintained
a lower middle class station. During the marriage, the parties
experienced financial difficulties that caused them to borrow
funds on their credit cards and resulted in their repeatedly
making late payments on their bills and receiving shut-off
notices from utility companies. The judge found that the
parties' financial difficulties were one of the main causes of
their marital problems and often led to arguments between them.
In addition, the father's work schedule, which limited the
amount of time he could spend with the family, and the mother's
assumption of nearly all aspects of the children's care,
6
contributed to the significant stress experienced by the
parties.
At trial, the mother testified to numerous incidents of
domestic violence perpetrated by the father against her between
May, 1997 (during the parties' honeymoon), and November, 2009.4
The incidents often took place during heated arguments between
the parties, at least some of which arose from the parties'
financial situation. While the judge did not find the mother
credible concerning some of the alleged incidents of abuse, he
found credible her general testimony about being physically
abused by the father on multiple occasions during arguments.5
The judge also credited the testimony of the GAL that the mother
had been the victim of domestic violence by the father.6
4
At one point in 2003, the parties separated.
5
The judge found that the physical force used by the father
against the mother included, but was not limited to, pushing,
restraining, slapping and grabbing her, and forcing his way past
her. In addition, the father often either threw or broke an
item during the course of arguments. The judge found
specifically that the father never punched the mother with a
closed fist.
The judge also found that the mother "verbally abused" the
father "on several occasions and hit him during at least one of
their heated disputes."
6
The GAL, an attorney and a former social worker, was
described by the judge as an "experienced and qualified expert
in her field . . . [who] has a thorough understanding of the law
as it relates to family matters and domestic violence."
7
Typically, following a heated argument between the parties,
the father would leave the marital home and "retreat" to his
parents' home for days or weeks at a time, resulting in his
having no contact with the mother or the children. The mother
did not report the incidents of domestic violence to the police
(and requested that her family not report said incidents)
because she did not want the father to lose his job as a police
officer. At times, the parties' children witnessed the domestic
violence between the parties. There was no evidence that the
father ever was verbally abusive or physically violent towards
the children.
Beginning in the winter of 2009-2010, the children
experienced a change in their relationship with the mother (and
with members of her family), a relationship, the judge found,
that certain witnesses had described as having been loving and
respectful. The father and the mother also began to disagree
over the mother's parenting of the children. Indeed, the judge
found that the father testified credibly that by December, 2009,
he had become so concerned about the "abusive manner" in which
the mother was treating the children that he instructed the
children to wake him up if they had an argument with the mother.7
7
This was not the first time the father had concerns with
respect to the mother's treatment of the children. The judge
credited the father's testimony that when the parties' son was
8
The children, in fact, began to seek solace in the father by
waking him up when they had disagreements with the mother.
By early 2010, the children appeared defiant and
disrespectful of the mother, and the mother had difficulty
controlling and disciplining them.8 There were arguments during
which the mother became physical with the children and, on one
occasion, a child physically attacked the mother. The parties
separated in April, 2010.
At trial, the mother's expert, a clinical and forensic
psychologist who holds a Ph.D, testified concerning domestic
violence and the "brainwashing" of the children by the father.9
The "red flags" for brainwashing, in the mother's expert's view,
in the third grade, the father was concerned about statements by
the mother to the son that undermined the son's self-esteem.
8
The judge found that the mother had been prescribed
antidepressant medication, but that she did not take the
medication. The judge found that the mother was experiencing
mental health problems that, he stated, could explain why she
was struggling to discipline the children prior to the parties'
separation.
9
The mother's expert testified to her substantial
experience in domestic violence cases, and stated, among other
things, that the main component of domestic violence was
"coercive control" by the perpetrator. She also testified
regarding the concept of brainwashing, a general term describing
acts by a perpetrator to undermine the children's relationship
with the other parent (including denigrating the other parent).
The expert stated that in a family "where there's been domestic
violence, [the children] may well feel that it's a lot safer to
take total sides with the perpetrator, because the perpetrator
is going to use the same kind of techniques on [the children]
that they have [on] the other parent."
9
included the sudden change in the children's behavior and their
hostile and disrespectful treatment of the mother during the
winter of 2010. The mother's expert recommended that the mother
have sole legal and physical custody of the children10 and that
the father, initially, be given supervised parenting time with
the children.
Pointing to certain evidence at trial, including the report
and the testimony of the GAL, the judge rejected the opinion of
the mother's expert, finding that there was no credible evidence
that the children's disobedience of and alienation from the
mother was caused by the father.11 To the contrary, the judge
10
With respect to physical custody, the mother's expert
testified at one point that she did not think that "the
perpetrator [of domestic violence] should ever have physical
custody."
11
The judge found that there was credible evidence
presented at trial that directly contravened the mother's
expert's assessment concerning brainwashing. Among other
things, the judge credited the GAL's report where it provided
that "[b]oth of the children's therapists are confused by the
children's extreme alienation from [the mother], and neither can
point to anything the children say that [the father] has said or
done, or anything that they as therapists have seen [the father]
say or do, that would create or perpetuate this alienation."
The judge also credited the GAL's testimony that she believed
the father had not intentionally alienated the children from the
mother and that the children have not been coerced or coached by
the father.
The judge found further that unlike the GAL, who was an
"impartial witness" whom the parties mutually had selected, and
who had interviewed the father, the mother, and the children on
multiple occasions as well as the children's teachers and other
collaterals, the mother's expert interviewed only the mother,
10
found that the father supported the mother, instructed the
children to behave and obey the mother, and did not undermine
the mother's role as a parent.
3. The law. "The best interests of a child is the
overarching principle that governs custody disputes in the
Commonwealth." Charara v. Yatim, 78 Mass. App. Ct. 325, 334
(2010). See Loebel v. Loebel, 77 Mass. App. Ct. 740, 747
(2010). Generally, "[w]hat is in a child's best interest
depends upon the particular needs of the child, and is left
largely to the discretion of the judge, who 'may consider any
factor pertinent to those interests.'" Charara v. Yatim, supra,
quoting from Houston v. Houston, 64 Mass. App. Ct. 529, 535
(2005). See El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506
(2010) (referencing "constants," or factors, often considered by
judge in determining best interests of child). "A custody
determination requires a 'realistic, commonsense judgment,'
which takes account of the fact that the 'determination of
custody is a choice among limited alternatives, all of which,
reviewed the GAL report, and listened to the trial testimony.
The judge found that the mother's expert's recommendations
concerning custody "contain[ed] limitations" and that he (the
judge) placed "greater emphasis" on the GAL's testimony and the
GAL's report with respect to custody. (The GAL recommended that
the parties have shared legal and physical custody of the
children, and that if that did not work, then the father should
have physical custody of the children.) The judge also found
that much of the mother's expert's testimony was not credible
because he did not find factual support in the foundation of her
opinion.
11
invariably, have imperfections' and evaluates them in light of
the 'well-being of the child[ren] and [their] future
development.'" Murphy v. Murphy, 82 Mass. App. Ct. 186, 193
(2012), quoting from B.B.V. v. B.S.V., 68 Mass. App. Ct. 12, 18
(2006).
When domestic violence is involved, however, the
Legislature has determined that a particular analysis must be
followed.12 General Laws c. 208, § 31A, inserted by St. 1998,
c. 179, § 3, requires the judge to "consider evidence of past or
present abuse toward a parent or child as a factor contrary to
the best interest of the child" when issuing any temporary or
permanent custody order. See Maalouf v. Saliba, 54 Mass. App.
Ct. 547, 549 (2002); Care & Protection of Lillith, 61 Mass. App.
Ct. 132, 142 (2004). A 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." G. L. c. 208, § 31A. "Such presumption may be
12
The peculiar harm suffered by those who experience, or
witness, domestic abuse is discussed in Custody of Vaughn, 422
Mass. 590, 595-596 (1996), and Opinion of the Justices, 427
Mass. 1201, 1203 (1998), as well as Sher v. Desmond, 70 Mass.
App. Ct. 270, 280 n.12 (2007). The seriousness with which our
society views domestic violence also is reflected in our
statutory law, including the recent "Act relative to domestic
violence." St. 2014, c. 260.
12
rebutted by a preponderance of the evidence that such custody
award is in the best interests of the child." Ibid. Section
31A further provides: "If 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,[13] 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."14 Ibid.
13
The effects of abuse on the child include, but are not
limited to, "the child is afraid of the abusive parent; the
child is having problems with his or her performance at school;
the child has exhibited regressive behavior; the child has
problems with peer or family relationships; the child has been
experiencing nightmares and sleep disturbances; the child has
frightening memories from witnessing the abuse, the child
exhibited extreme distress at the time of the incident from
witnessing the abuse; or, the child has exhibited hostile or
aggressive behavior toward others." Commentary to § 12:05A of
the Guidelines for Judicial Practice: Abuse Prevention
Proceedings (2014). These same effects are listed in Probate
and Family Court Form CJ-D 121 (2000), entitled "Findings
Relating to the Issuance of a Custody Order to the Abusive
Parent." Additional examples of possible findings regarding the
effect on a child of the abuse of a parent are discussed in
Quirion, Increased Protection for Children From Violent Homes,
16 Mass. Fam. L.J. 67, 73 (1998). See Maalouf v. Saliba, 54
Mass. App. Ct. at 550-551.
14
The Commentary to § 12:05A of the Guidelines for Judicial
Practice: Abuse Prevention Proceedings (2014), further
provides: "There will be instances, however, when the child has
been impacted by the pattern or serious incident of abuse, but
notwithstanding these effects, the best interest and the safety
and well being of the child necessitate that the court grant
custody to the abusive parent. Some of these instances include:
the child poses a threat to the safety of the non-abusive parent
13
4. The custody orders and rationale. Having found that
there was a pattern of abuse by the father against the mother
within the meaning of G. L. c. 208, § 31A, giving rise to the
statutory presumption, the judge nonetheless concluded that the
father had rebutted the presumption that it was not in the
children's best interests to be in his primary physical custody.
In arriving at his decision, the judge considered, among other
things, the children's antagonism toward, and alienation from,
the mother; the mother's inability to control or discipline the
children; the potential for violence between the mother and the
children if the mother were to have primary physical custody of
the children; and the children's feelings of safety when they
were with the father.15
or the other children in the household of the non-abusive
parent; the non-abusive parent's parenting ability is
compromised such that the child is presently at risk of danger
in his or her care; the child demonstrates a substantial
emotional connection to the abusive parent; or custody to the
non-abusive parent currently poses a serious risk to the child's
psychological development." The foregoing instances are set out
substantially in Probate and Family Court Form CJ-D 121 (2000).
15
On these points, the judge often credited and quoted from
portions of the GAL's report and her testimony. See J.S. v.
C.C., 454 Mass. 652, 654-655 (2009); Pizzino v. Miller, 67 Mass.
App. Ct. 865, 875-876 (2006). See also Gilmore v. Gilmore, 369
Mass. 598, 604-605 (1976). Among other things, the judge found
that the parties' son had reported to the GAL that when he was
with the father he felt "100% safer" than when he was with the
mother because the mother could get "mad" or "out of control" at
"any minute." The judge noted the statement of the GAL that the
children were calmer with the father and, as a result, could
"focus their energy more productively on academic/social/
14
The judge placed significant emphasis on the GAL's
testimony regarding her concern that if the children were placed
primarily with the mother, the parties' daughter could
physically attack the mother or run away from home, and the
parties' son, who was in an emotionally vulnerable state, could
commit suicide. The judge also credited the GAL's report where
it provided that "[n]ow that the parties are separated the issue
of physical abuse between the parties going forward becomes less
of an issue."
In addition, the judge considered the children's positive
relationship with the father (and their lack of behavioral
issues when they were with him), the children's consistent
statements of preference to live with the father, and the
changes the father had made in his lifestyle, including changing
his work shift from night to day.
emotional pursuits." The judge also credited the GAL to the
extent she stated that the children are at risk with the mother
"not because she will hurt them, but rather [because] she and
the children will get into an argument that will escalate and
turn physical. There have been incidents such as this in the
past." In addition, the judge credited the GAL when she wrote
in her report: "In the event a shared physical custody
arrangement does not work, and [the mother] is unable to control
the children for whatever reason, the children and [the mother]
would be at risk if [the father] were not the primary custodian.
This is not a 'victory' for [the father] or a denial of the
abuse, physical and emotional, that was a part of the [parties']
marriage, it is simply a statement that the children and [the
mother] cannot be exposed to escalating physical events if [the
mother] cannot control the children. This result would be the
worst outcome for this family."
15
The judge also credited the GAL report when it provided
that the "parenting arrangements going forward cannot be about
punishment for past behavior" but must look to what is best for
the children, including the children's safety.16 In achieving
that goal, the judge, as we have stated, found that it was in
the best interests of the children to be in the primary physical
custody of the father, with substantial parenting time for the
mother.
5. Discussion. The mother argues generally that the
judge's determination that the father had overcome the
presumption against primary physical custody with him was not
supported by adequate findings or the evidence. We turn first
to the mother's claim that the judge failed to make findings, as
required by G. L. c. 208, § 31A, see Custody of Vaughn, 422
Mass. 590, 599-600 (1996), concerning the effects of the
father's abuse of the mother, on the children.17
16
The judge elaborated further, crediting so much of the
GAL report as provided: "Presently [the son] and [the daughter]
reject [the mother] and want to live with [the father]. It is
not clear how the children came to this place, but this is where
they are. The arrangements that are made need to recognize the
children's current needs, not the needs of [the mother], who has
been the children's primary parent up until April, 2010, or [the
father], who is now actively involved with the children's
lives."
17
We note that several of the incidents of abuse described
by the mother at trial took place before the births of the
children.
16
Here, the judge was cognizant of, and made reference in his
findings to, the significant impact of domestic violence on its
victims and the children who may be exposed to it. The judge
also made findings that reflect the effects of the abuse on an
individual level. Specifically, the judge found that after an
incident of domestic violence in the spring of 2006, the
parties' son reported to a school adjustment counselor that he
had heard his parents arguing and was concerned for his mother's
safety. The judge also noted the mother's testimony that after
the son's pediatrician appeared concerned about the son's
"sadness," the mother reported the parties' domestic violence to
the pediatrician. In addition, the judge found that as a result
of the parties' heated (and, at times, violent) confrontations,
the father left the marital home for days or weeks at a time,
during which periods he had no contact with the children. The
judge also found that both children had been in therapy and that
they would continue to require therapy "arising out of the
conduct of the parties during the marriage." Such conduct
clearly would include the father's abusive actions to which the
children were exposed. We perceive no reason to disturb the
custodial orders for the reason of a lack of findings of the
effects of the abuse.
The mother argues next that a "perpetrator who refuses to
acknowledge any fault cannot overcome the presumption against an
17
award of primary custody simply because the minor children
express a preference." We think the mother reads too narrowly
the judge's findings and rationale. As we have indicated supra,
this is not a case in which the judge awarded custody to the
father simply because of preferences expressed by the children.
To the contrary, the children's preferences were one of many
factors considered by the judge, and he stated specifically that
the children's preferences were not decisive. See J.F. v. J.F.,
72 Mass. App. Ct. 782, 795 (2008). To the extent the mother
also suggests that the children's preferences may not reflect
their true feelings, but rather are the product of the father's
control over the children, the judge found that there was no
credible evidence that the father coached the children to
express their desire to live with him. The judge also credited
the testimony of the GAL that she believed that the children's
"feelings of not being safe with [the mother] came from the
children."18
18
While the father testified that he could not recall being
physical with the mother on numerous occasions, he admitted, as
the judge found, to "being physical" with her on several
occasions. The mother also points to statements made by the
father in a so-called "affidavit" filed in this court that, the
mother states, indicate that the father continues to deflect
responsibility for his conduct during the marriage. There is
doubt whether the father's affidavit is properly before us. In
any event, the statements the mother references were not before
the trial judge and we need not consider them.
18
The mother argues, in addition, that the judge's findings
that the domestic violence essentially had ended when the
parties' separated and was not likely to pose an issue in the
future, represent a fundamental misunderstanding of the nature
of domestic violence and, based on the evidence, are clearly
erroneous. More specifically, the mother asserts that domestic
violence involves not simply physical assault but, in its
essence, constitutes an assertion of control and dominance over
the abused party. The mother states that when a domestic
partner is deprived of the opportunity to inflict physical
coercion safely behind closed doors, he may look to other ways
to exert influence, such as manipulation of the children to
support the perpetrator's agenda (e.g., here, the removal of the
mother's role in the family). Continuing, the mother asserts
that, "[r]elated to this misunderstanding" by the judge is his
rejection of her expert's conclusion that the "children had been
influenced by their experience of violence to support [the
father's] perspective and denigrate [the mother]." In the
mother's view, the judge's custody orders reward the father for
his negative and destructive behavior and "allow a perpetrator
of domestic violence to have his way."
At the outset, we agree with the mother's assertion that
domestic violence may continue after the parties' separation and
we acknowledge that the judge's findings that future violence
19
between the parties "is not an ongoing concern" (or is "less of
an issue") because the parties no longer live together appear to
minimize the risk of violence following a separation. However,
viewed in context, we believe that the judge was attempting to
emphasize the fact that there had been no physical violence
between the parties after their separation. The judge quoted,
for example, statements in the GAL report that there had been no
"actual or threatening behavior" between the parties since their
separation, and that the last act of physical violence between
the parties had occurred more than one year before the report
was prepared. Furthermore, the judge was well aware of the
mother's position concerning continuing abuse by the father,
referring to the testimony of the mother's expert and quoting
from the GAL's report that "[the mother] considers that [the
father's] abuse of her continues because she believes him to be
alienating the children from her . . . and because she believes
him to be controlling, by which she means that 'everything
always goes his way.'"
The problem with the mother's argument is that the judge,
upon consideration of all the evidence, rejected the mother's
position that the father had brainwashed, coached, or
intentionally alienated the parties' children from the mother.19
19
Contrary to the mother's suggestion, the judge did not
base his findings on this point solely on statements made to the
20
To the contrary, the judge found specifically that the father
had supported the mother's relationship with the children and
did not undermine her role as a parent. Those findings are
supported by the evidence, including the GAL's report and
testimony. The judge was not required to accept, and did not
accept, the testimony of the mother's expert to the contrary.
See Ulin v. Polansky, 83 Mass. App. Ct. 303, 307-308 (2013).
See also Adoption of Elena, 446 Mass. 24, 31 (2006) (judge's
assessment of credibility of witnesses and weight of evidence
entitled to deference).
The judge was presented with a difficult and highly
contentious custody case. Ultimately, he was charged with
rendering a decision that would protect the safety and the well-
being of the parties' children and would be in the best
interests of those children. The judge properly recognized that
the present case was not about punishing a party for past bad
behavior, but was about deciding what was best for the children
going forward. The judge's findings and rationale for placing
primary physical custody of the children with the father,
GAL by the children's therapists. (See note 11, supra.) The
judge also relied on the statements and the testimony of the GAL
who had interviewed the children (and others) on several
occasions. Furthermore, that the therapist for one of the
children reported to the GAL that she no longer would work with
the child alone (but would work with the child in a family
therapy setting) because the child allegedly had distorted
statements made to the child by the therapist does not render
the judge's findings erroneous.
21
notwithstanding the pattern of abuse by the father towards the
mother, reflect consideration of relevant circumstances,
including the potential for violence between the mother and the
children, the mother's compromised parenting abilities, the
children's emotional connection and feelings of safety with the
father, and the potential risks to the children should the
father not have primary physical custody. Indeed, the reasons
set out by the judge in support of custody being with the father
track closely the circumstances listed in the Commentary to
§ 12:05A of the Guidelines for Judicial Practice: Abuse
Prevention Proceedings (2014), which may support custody to an
abusive parent.
We have scrutinized closely the custody orders and perceive
neither an abuse of discretion nor an error of law.
6. The contempt actions. a. The contempt action filed
January 13, 2011. After the mother filed an emergency motion to
access the father's deferred compensation plan to avoid
foreclosure on the marital home (and to pay additional
expenses), the judge found that there had been extraordinary and
unforeseen circumstances beyond the parties' control that had
caused them to be five months in arrears on their mortgage,
which was scheduled for foreclosure in October, 2010. The judge
ordered that the father "shall request that the sum of
$25,000.00 [so long as that amount does not exceed fifty percent
22
of his vested balance] be withdrawn from his [deferred
compensation plan] in order to avoid a foreclosure on the
marital home." The sum was to be considered a distribution
against the mother's G. L. c. 208, § 34, interest in the plan.
On January 13, 2011, the mother filed a complaint for
contempt alleging that the father had violated the court order
by requesting that his entire deferred compensation account be
liquidated (i.e., by requesting more than $25,000). The mother
further alleged that in November, 2010, the father violated the
order by remitting the sum of $20,135.18 to her, and retaining
the balance of the funds in the amount of $29,013.22.
The judge found that the father had liquidated the entire
available balance of the deferred compensation account (i.e.,
$49,148.40, after the withholding of Federal taxes in the amount
of $5,802.64 and State taxes in the amount of $3,075.40). Of
this amount, the mother received $20,135.18, but, the judge
stated, if the mother were to receive half of the net proceeds,
she would have received $24,574.20. The judge found that the
father withheld $4,439.02 from the mother and gave it to his
parents to hold in escrow.20 Continuing, the judge stated that
the court order provided that the father was to pay up to
$25,000 to the mother if it were available. But the judge found
20
The father testified that he withheld this amount in the
event there were any additional taxes.
23
that the mother used the monies received to repay family loans
and household expenses, despite noting in her emergency motion
that the funds were to be used to pay the mortgage arrears.21
The father used "his portion" of the liquidated proceeds, in
large part, to pay off significant marital debt. The judge
concluded that the father was not guilty of contempt, but
ordered him to pay to the mother $4,439, less fifty percent of
any additional Federal or State penalties or taxes that exceeded
the earlier withholdings.
"[A] civil contempt finding [must] be supported by clear
and convincing evidence of disobedience of a clear and
unequivocal command." Birchall, petitioner, 454 Mass. 837, 853
(2009). A judge's ultimate conclusion on the contempt finding
is reviewed under the abuse of discretion standard. See Halpern
v. Rabb, 75 Mass. App. Ct. 331, 334 n.6 & 336 (2009); Freidus v.
Hartwell, 80 Mass. App. Ct. 496, 504 (2011).
Contrary to the mother's assertion, we cannot say on the
evidence and findings that the judge abused his discretion in
determining that the father was not in contempt.
b. The contempt actions filed July 23, 2010, and September
23, 2010. The mother's terse and conclusory assertions
concerning the contempt actions filed July 23, 2010, and
21
The mother acknowledged at trial that the deferred
compensation funds received by her were not used to pay the
mortgage arrears.
24
September 23, 2010, do not rise to the level of reasoned
appellate argument as contemplated by Mass.R.A.P. 16(a)(4), as
amended, 367 Mass. 921 (1975), and we do not consider them. See
Adams v. Adams, 459 Mass. 361, 392 (2011); Poras v. Pauling, 70
Mass. App. Ct. 535, 546 (2007).
Amended judgment of divorce
affirmed.