Robert L. Sullivan v. Lyndsay A. Schmidt. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-411
ROBERT L. SULLIVAN
vs.
LYNDSAY A. SCHMIDT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties are the mother and father of a minor daughter.
The father appeals from a judgment of the trial court allowing
the mother to remove the daughter to Kentucky, arguing, among
other things, that the judge abused her discretion by precluding
him from presenting any witness testimony. We agree, and
therefore vacate the judgment and remand for a new trial,
leaving undisturbed (pending retrial) the current custody
arrangement.
Background. We summarize the procedural history and the
relevant facts as found by the judge, reserving additional facts
for later discussion. The parties' relationship began when they
met in Florida. When the mother eventually became pregnant, the
parties moved to Kentucky, where they lived with the mother's
mother (maternal grandmother). Their daughter was born in
Kentucky. About four months later, the parties moved to the
father's hometown in Massachusetts where they lived with the
father's father (the paternal grandfather), the father's
grandparents, and the paternal grandfather's girlfriend. The
father got a job outside the home while the mother stayed home
with the daughter.
The parties' romantic relationship ended in June 2020 and
that fall, the mother moved into her own apartment with the
daughter.
Procedural History. In August 2020, the father filed a
complaint for custody, support, and parenting time. The mother
filed a complaint seeking to remove the daughter to Kentucky
pursuant to G. L. c. 208 § 30. Months later, the parties filed
motions for temporary orders, by which the mother sought sole
legal and physical custody and removal of the child to Kentucky,
and the father sought joint legal and physical custody of the
child. After a hearing on these motions, the judge reserved the
removal issue for trial and entered a temporary order that,
among other things, scheduled a pretrial conference ("pretrial
conference order") for June 3, 2021.1
The pretrial conference order required the parties to file
a pretrial memorandum that included "[a] list of all people each
1 The order also designated the mother as primary caretaker of
the daughter, a ruling that we do not disturb.
2
party intends to call as witnesses at the trial" at least three
days before the pretrial conference. The mother filed her
pretrial memorandum on May 28, 2021, and the pretrial conference
was held as scheduled. On June 3, the judge issued an order
("final order")2 scheduling the trial for September 24, 2021, and
setting new deadlines: a July 1 deadline for the completion of
discovery and deadlines of (1) ten days before trial ("or at the
status conference") for motions in limine, and (2) fourteen days
before trial for the exchange of proposed exhibits, witness
lists, and exhibit lists. The order closed with a warning, in
capital letters, that "FAILURE TO COMPLY WITH THE PROVISIONS IN
THIS ORDER SHALL BE GROUNDS FOR IMPOSITION OF APPROPRIATE
SANCTIONS, COSTS AND EVIDENTIARY RESTRICTIONS." The father, now
apparently pro se,3 filed his pretrial memorandum on June 21,
2021.4
2 An earlier, temporary scheduling order was entered by a
different judge. That order is not at issue in this appeal.
3 The father's counsel moved to withdraw on April 12, 2021. The
docket does not reflect that any action was taken on that order.
The father's pretrial memorandum, which refers to the father in
the first person, evidences that, regardless of the still-
pending motion, the father had a heavy hand in his
representation by at least late June. On August 4, the father
filed a pro se notice of appearance. On August 6, the father's
lawyer again moved to withdraw; this motion was allowed the same
day.
4 The father's pretrial memorandum is undated and bears no
certificate of service. The docket reflects its filing on June
21, 2021, and the mother makes no argument that she did not
receive it on or about that date, but she maintains on appeal
that the memo she received contained no witness list. The
3
The mother served her witness list on the father on
September 9, 2021. The father's witness list was served on the
mother at approximately 3:29 P.M., on September 10, 2021. On
September 15, 2021, the mother filed a motion in limine to
exclude testimony by all of the father's witnesses, taking the
position that the witnesses had been disclosed too late. The
mother noted that, "[o]f the nine witnesses on the plaintiff
father's witness list only [two] were disclosed at the time of
the pre-trial hearing in this matter."
As scheduled, the parties convened for trial on September
24 and the judge addressed the mother's motion in limine. The
judge heard from the mother's lawyer and from the father, who
sought the judge's help in understanding the mother's motion.
He asked whether the mother was "trying to eliminate all of my
witnesses because I didn't have them on the pretrial list[]" to
which the judge responded, "Yes, because they weren't provided
. . . at least [fourteen] days, prior to today from what I
understand." The judge then asked counsel for the mother when
she received the list," and she responded, "a day after the
order so technically they were not within the [fourteen] day
version of the pretrial memorandum that is included in the
parties' record appendix contains both a witness list and the
affidavits of two anticipated witnesses. We need not resolve
this discrepancy given our ruling that the father's witness list
was timely disclosed.
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time." The father responded, "It was, what, Friday, so I think
Friday at 9:30 in the morning would have been your [fourteen]
days. I think it was at 3:30 when I got out of work to submit
them over to her." The judge replied, "Sir, the order is clear,
the order exists for a reason. Counsel has to be on notice so
the witnesses are excluded[,]" to which the father answered,
"All right."
After hearing from both parties and two of the mother's
witnesses, the judge allowed the mother to remove the child to
Kentucky. This appeal followed.
Discussion. "The purpose of a motion in limine is to
prevent irrelevant, inadmissible or prejudicial matters from
being admitted in evidence" (citation omitted). Commonwealth v.
Lopez, 383 Mass. 497, 500 n.2 (1981). "Trial judges have broad
discretion to make discovery and evidentiary rulings conducive
to the conduct of a fair and orderly trial" (quotation and
citation omitted), Mattoon v. Pittsfield, 56 Mass. App. Ct. 124,
131 (2002), and "we do not interfere with the judge's exercise
of discretion in the absence of a showing of prejudicial error
resulting from an abuse of discretion." Solimene v. B. Grauel &
Co., 399 Mass. 790, 799 (1987). See Commonwealth v. Rosa, 468
Mass. 231, 237 (2014) (evidentiary rulings on motion in limine
reviewed for abuse of discretion).
5
Rule 6 of the Massachusetts Rules of Civil and Domestic
Relations Procedure (rule 6) provides that "[i]n computing any
period of time prescribed or allowed . . . by order of court
. . . the day of the act, event, or default after which the
designated period of time begins to run shall not be included.
The last day of the period so computed shall be included." See
Mass. R. Civ. P. 6, 365 Mass. 747 (1974) (identical to Mass. R.
Dom. Rel. P. 6).5 Here, the final order scheduled trial for
September 24, 2021, and required the parties to exchange final
witness lists "at least fourteen (14) days before trial." The
father served his witness list on the mother on September 10,
2021. The father's list named nine witnesses; according to the
mother, two of them had been previously disclosed in his
pretrial memorandum.
Under rule 6, the requirement that the parties exchange
witness lists "at least fourteen days" prior to September 24
meant fourteen calendar days. Stevenson v. Donnelly, 221 Mass.
161, 164 (1915) (considering whether "days" refers to calendar
days or twenty-four-hour periods and concluding that, absent
anything to show that "'days' was used in any other than its
ordinary sense of entire days," "fractions of a day will not be
5 Rules 6 (a), (b), and (d) of the Massachusetts Rules of
Domestic Relations Procedure are identical to Mass. R. Civ. P. 6
(a), (b), and (d). See Mass. R. Dom. Rel. P. 6.
6
considered"). The notion that the father's witness list was due
by 9:30 A.M. (the time the trial was scheduled to start) on the
fourteenth day is therefore unsupported by logic, law, or
fairness. The father's disclosure of his witness list on
September 10 was timely under the order. See Mass. R. Civ. P. 6
(a). Because the father timely disclosed his witness list, the
judge abused her discretion in excluding his witnesses. See
Monahan v. Washburn, 400 Mass. 126, 129 (1987) (dismissal of
complaint abuse of discretion where judge erred in denying
plaintiff's motion for continuance and did not consider
alternative sanctions).6 The father did not have the benefit of
counsel, and the judge should have been mindful of the principle
that "self-represented litigants must be provided 'the
opportunity to meaningfully present their cases.'" Carter v.
Lynn Hous. Auth., 450 Mass. 626, 637, n.17 (2008), quoting
Judicial Guidelines for Civil Hearings Involving Self-
Represented Litigants § 3.2 (2006). "Particularly in a case
such as this, one that relates solely to child custody, some
care should be taken to see that a litigant is fairly heard."
Loebel v. Loebel, 77 Mass. App. Ct. 740, 743 n.4 (2010)
6 It bears noting that, although the pretrial conference order
had required an earlier disclosure of anticipated trial
witnesses, nothing in either that or the final order precluded
the parties from subsequently amending their lists.
7
Although this could conclude our analysis, with an eye
toward the future, we caution that a sanction for a discovery
violation must be proportional to the violation. See, e.g.,
Grassi Design Group, Inc. v. Bank of America, N.A., 74 Mass.
App. Ct. 456, 460 (2009) (sanctions imposed by trial judges
should be "appropriately punitive in relation to the
objectionable behavior, and appropriately remedial in relation
to the disadvantage visited"). Even had the father disclosed
his witness list late, as the mother maintained, excluding the
father's witnesses as a sanction would have been unreasonable on
this record. Monahan, 400 Mass. 126, 129 (1987) (where good
cause existed for granting continuance, dismissal of case was "a
serious injustice without consideration of alternatives");
Morgan v. Jozus, 67 Mass. App. Ct. 17, 24 (2006) ("While a
judge, in the exercise of discretion, may exclude expert
testimony for failure to comply with discovery, the judge must
consider other options, including a sua sponte continuance of
the trial"). There was no evidence of bad faith on the father's
part and there was no articulable prejudice to the mother, who
had notice of the issues being litigated from the pretrial
conference hearing and memoranda. Absent a showing of
prejudice, given the type of case, the designated witnesses, and
the parties' relationship to the witnesses and each other, this
delay in the disclosure of the father's anticipated witnesses
8
cannot be said to have prevented the mother from preparing
meaningful cross examinations of them for a trial starting two
weeks later. See Commonwealth v. Carter, 475 Mass. 512, 519
(2016), citing Commonwealth v. Lopez, 433 Mass. 406, 413 (2001)
("The relevant inquiry is whether the defendant has sufficient
time to investigate the proposed testimony"). Given the
severity of the sanction, the father's pro se status, and the
lack of prejudice to the mother, the judge erred by precluding
the father from calling so-called late disclosed witnesses
without considering lesser sanctions. See Commonwealth v.
Dranka, 46 Mass. App. Ct. 38, 41-42 (1998) (discretion to bar
testimony should be based on careful consideration of whether
party will suffer undue prejudice, whether lesser sanctions are
available, and how material testimony would be to case).
Our concern is heightened given the important interest at
stake and the father's allegations in his pretrial memorandum,
including that the mother was abusing alcohol, sometimes in the
child's presence, and that the mother behaved inappropriately
around the child. Under the circumstances, the potential need
for testimony on these issues outweighed any failure by the
father to make an offer of proof, which, while preferred, "has
not been required in circumstances where, as here, a judge has
excluded completely all of a witness's testimony on a particular
issue." Letch v. Daniels, 401 Mass. 65, 70 (1987). Included on
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the father's witness list were the family members with whom the
parties lived while in Massachusetts, his coworker, and a
percipient witness named in his pretrial memorandum. The
relevance of those witnesses' anticipated testimony was apparent
from their relationship with the parties or from the father's
pretrial memorandum. Commonwealth v. Andrews, 403 Mass. 441,
462 (1988) (court weighs probative value of proffered evidence
against prejudicial effect on nonmoving party). Precluding the
father, a pro se litigant in a removal proceeding, from
presenting any testimony of witnesses who may have had personal
knowledge of issues relevant to the removal of his daughter -–
for example, the mother's caretaking capabilities and potential
substance abuse -- deprived him of a meaningful opportunity to
be heard. Brantley v. Hampden Div. of the Probate and Family
Ct. Dep't., 457 Mass. 172, 185 (2010) ("fundamental fairness, as
well as due process concerns, requires that a parent be given
the opportunity effectively to rebut adverse allegations
concerning his or her child-rearing capabilities" [citation
omitted]).
Because it was error to exclude the father's trial
witnesses, and because we cannot say that hearing these
witnesses would not have changed the judge's assessment, we
vacate the judgment and remand for a new trial consistent with
this memorandum and order. The current custody arrangement
10
shall remain in place as a temporary order pending the new trial
proceedings or until further order of the Probate Court.
So ordered.
By the Court (Wolohojian,
Henry & Hershfang, JJ.7),
Clerk
Entered: March 23, 2023.
7 The panelists are listed in order of seniority.
11