H.B. v. D.B. ( 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
21-P-1168
H.B.1
vs.
D.B.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
At the conclusion of a four-day trial, a judge of the
Probate and Family Court issued a final judgment of divorce
granting primary physical and sole legal custody of the parties'
minor daughter to the father, D.B. The mother, H.B., appeals,
arguing that the judge erred by (1) failing to adequately
consider evidence of domestic violence in the household and
alleged sexual abuse of the daughter by the father; (2)
declining to apply a rebuttable presumption against granting
custody to the father under G. L. c. 208, § 31A; (3) exhibiting
bias in favor of the father; (4) denying the mother's motion to
appoint new counsel for the children; and (5) allowing a nurse
who examined the daughter to testify as an expert. We affirm.
1 We use the initials for the name appearing in the complaint for
divorce.
Background. The following facts are drawn from the
findings of the Probate and Family Court judge. The parties
were married in 1999. Over the course of the marriage, the
parties had three sons and adopted a daughter. In 2012, after
the mother had a stroke, the parties' relationship began to
deteriorate. In 2014, the parties had a dispute over a $100
gift that escalated into a physical altercation in which the
father grabbed the mother. On another occasion, the mother
pointed a finger in the father's face, and the father grabbed or
twisted the mother's hand. Thereafter, the mother sought and
received an abuse prevention order, and the father did not see
the children "for a span of months."
At around the same time, the mother began to suspect that
the father was sexually abusing their daughter. In September
2014, the mother discovered that the daughter, who was seven
years old at the time, had been looking up pornography on her
tablet. The mother then took the daughter to two separate
therapists, one of whom was treating the mother. The daughter
disclosed that she had been sexually abused by the father, which
led to the filing of various G. L. c. 119, § 51A reports with
the Department of Children and Families (department). The
department investigated and ultimately concluded that the
allegations were unsupported.
2
During the course of the investigation, the department
became concerned that the mother was bringing the daughter to
multiple therapists, continuing to question her regarding
alleged incidents of abuse, and continuing to subject her to
medical examinations, and as a result, the department filed a
care and protection petition. The record is not entirely clear
as to what transpired thereafter, however, there is no dispute
that the daughter has resided primarily with the father since
2016.
As noted, the parties subsequently divorced and a trial on
the issues of custody and child support was held in the Probate
and Family Court. The judge found, based on "the totality of
the circumstances," that the aforementioned incidents of
domestic violence between the parties did not constitute a
serious incident or pattern of abuse under G. L. c. 208, § 31A.
The judge generally credited the testimony of the father and not
the mother where their testimony conflicted. The judge found
that the father had developed a stable home environment for the
daughter and noted that the mother often made parenting
decisions that were not always in the daughter's best interests.
For example, the judge determined that the mother failed to
respect the daughter's privacy and did not always understand her
social and emotional needs.
3
Discussion. We review custody determinations for an abuse
of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239,
245 (2015). "In custody matters, the touchstone inquiry [is]
. . . what is 'best for the child,'" and "[t]he determination of
which parent will promote a child's best interests rests within
the discretion of the judge . . . [whose] findings . . . 'must
stand unless they are plainly wrong.'" Hunter v. Rose, 463
Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834,
840, 845 (2003). While there is no "definitive list of
criteria" for the judge to consider when assessing the
children's best interests, "[certain] constants are revealed in
our [cases]," including "the need for stability," "the decision-
making capabilities of each parent to address the child's needs,
and the living arrangements and lifestyles of each parent and
how such circumstances may affect the child" (citation omitted).
El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010). See
G. L. c. 208, § 31. "The judge is afforded considerable freedom
to identify pertinent factors in assessing the welfare of the
child and weigh them as [he] sees fit." Smith v. McDonald, 458
Mass. 540, 547 (2010).
The judge must, however, "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. A
judge's finding that a pattern or serious incident of abuse has
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occurred creates 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. Id. See Custody of Vaughn, 422 Mass. 590, 599-600
(1996). A serious incident of abuse is
"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.
1. Evidence considered by the judge. The mother first
argues that many of the judge's findings were clearly erroneous
primarily because, she asserts, he did not consider evidence
that favored her position. Our review of the record does not
support this assertion. To begin with, the findings challenged
by the mother were based on the judge's assessment of the
credibility of the witnesses who testified at trial -- including
both parties and several doctors and mental health
professionals. As there is nothing in the record that
demonstrates those credibility determinations were "plainly
wrong," we decline to disturb them. Zaleski v. Zaleski, 469
Mass. 230, 237 (2014), quoting Felton v. Felton, 383 Mass. 232,
239 (1981). Indeed, "[i]n this situation, '[t]he opportunity
which the judge had to observe and appraise both parents is
particularly important.'" Bak v. Bak, 24 Mass. App. Ct. 608,
5
616 (1987), quoting Stevens v. Stevens, 337 Mass. 625, 627
(1958).
2. Rebuttable presumption. The mother also argues that
the judge erred in declining to apply the rebuttable presumption
under G. L. c. 208, § 31A that granting custody to the father
was not in the best interests of the daughter. As stated above,
this rebuttable presumption must be applied where a judge finds
that a pattern or serious incident of abuse has occurred. See
G. L. c. 208, § 31A; Custody of Vaughn, 422 Mass. at 599-600.
In this case, the judge explicitly considered the
application of the rebuttable presumption, finding that "the
credible evidence before the [c]ourt does not demonstrate that a
serious incident or pattern of abuse occurred." The mother's
argument essentially amounts to a challenge to this finding.
Again, where the judge's finding is based largely on credibility
determinations and there is sufficient evidence to support his
conclusion, we cannot say that the judge abused his discretion.
3. Judicial bias. The mother also argues that the judge
engaged in "overzealous judicial questioning" and gave the
impression that he was advocating for the father. In support,
the mother points to two comments by the judge. First, in
response to an objection concerning the admissibility of
evidence regarding the criminal history of one of the parties'
sons, the judge stated, "[e]ven if I allowed it in, it would go
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to the issue of weight, and it would be very insignificant. If
the police interviewed him and there were no charges and no
issues -- I mean, you know, whatever happened to the concept of
innocent until proven guilty." Later, during the same exchange,
the judge stated:
"You know, let's look at this from the context of what the
issues are. The issues are current, best interests of the
children. Now granted historically I can evaluate and
assess what has gone on. Let all of us who have not had to
deal with adversities related to our children, you know,
and manage the behavior and conduct of young adults during
their adolescent, late teen and early twenty years -- you
know, this happens."
We are not persuaded that either comment was "overzealous"
or that the remarks indicate that the judge was advocating for
the father. Both comments addressed the relevance of evidence
pertaining to one of the sons. The judge simply explained that
little weight would be given to this evidence, because the issue
at trial was custody of the parties' daughter, not of their
older sons, and because the son was investigated and no charge
was brought.2 There was no error.
4. Denial of the mother's motion to appoint new counsel
for the children.3 Prior to trial, the mother filed a motion to
2 To the extent that the mother challenges the judge's
evidentiary rulings on this point, we discern no abuse of
discretion.
3 The motion concerns all the children of the parties, however,
as noted, this appeal only relates to the judge's determination
of custody as to the parties' daughter.
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appoint new counsel for the children. She alleged in her motion
that counsel for the parties' minor children was biased against
her and had a conflict of interest because he "helped found, and
is still affiliated with The Kid's Place, which has dismissed
allegations of abuse by the mother."4 There is no ruling evident
on the docket; however, the motion was implicitly denied, as new
counsel was not appointed. According to the trial transcripts
in the record, the mother did not press for a ruling before
trial commenced. We review the denial of the motion for an
abuse of discretion. See Steinert v. Steinert, 73 Mass. App.
Ct. 287, 288 (2008) (judge's decision on motion to disqualify
counsel reviewed for abuse of discretion).
On appeal, the mother has narrowed her claim slightly and
asserts that the attorney had "an interest in promoting the
legitimacy of his facility," and that this interest created a
potential conflict of interest. While it is true, as the mother
argues, that the attorney did not ask any questions of the
witnesses employed by The Kid's Place, the mother has not
articulated any basis for determining that such questioning by
4 The mother submitted an affidavit in support of the motion in
which she alleged that the attorney was involved with
establishing The Kid's Place and still supports it. There is
nothing in the record to support the mother's allegations nor
does she explain the basis for her assertions. In any event,
even if we were to assume that the mother is correct, the record
is not sufficiently developed to establish a conflict of
interest such that the attorney's disqualification was required.
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the attorney would have uncovered additional evidence of the
witnesses' biases. The witnesses were cross-examined at length
by the mother, and she does not point to any additional
favorable testimony that would have been gleaned from further
cross-examination. Accordingly, we cannot say that the judge
abused his discretion.
5. Expert testimony. At trial, the mother objected to the
testimony of Anne Hutchinson, a nurse practitioner, on the
grounds that she was providing expert testimony without having
previously been disclosed as an expert. The judge overruled the
objection but gave the mother the option of suspending the
testimony in order to question her about her qualifications.
The mother declined to do so, and now challenges the judge's
decision to allow Hutchinson to testify as an expert.
The father does not contest the fact that he failed to
disclose Hutchinson as an expert witness prior to trial.
Although the mother is correct that the father should have
disclosed Hutchinson as an expert, we cannot say that the judge
committed an abuse of discretion in allowing Hutchinson's
limited expert testimony. The mother was on notice that
Hutchinson would be called as a witness years before trial and
that she had expertise in her field of work. See Beaupre v.
Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485-486 (2000) (no
abuse of discretion where doctor allowed to testify as expert
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mid-trial; other party knew doctor would be key witness and had
opportunity to obtain substance of testimony prior to trial).
Furthermore, Hutchinson's testimony was primarily based on her
own observations, supplemented only by her expertise when
necessary to identify the differences and similarities between
the daughter's anatomy and that of other children. Therefore,
we conclude that the judge did not abuse his discretion in
allowing Hutchinson to testify about her examination of the
daughter.
Final judgment of divorce
dated September 15, 2021,
affirmed.
By the Court (Vuono, Henry &
Grant, JJ.5),
Clerk
Entered: April 24, 2023.
5 The panelists are listed in order of seniority.
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