Colleen E. Mothander v. Matthew Mothander. ( 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-755
COLLEEN E. MOTHANDER
vs.
MATTHEW MOTHANDER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff mother appeals from judgments on a complaint
for modification and a complaint for contempt. We affirm.
Background. The mother and defendant father were divorced
in 2019. They had entered into a separation agreement including
child-related provisions that merged into the judgment of
divorce. As to the children's education, the separation
agreement provided as follows:
"[W]hile the children are currently enrolled in private
school for the academic year 2019-2020, it is the intention
of the Husband and the Wife for the children to explore
Boston Public School options for the academic year 2020.
Enrollment in choice Boston Public Schools is by lottery,
and Husband and Wife understand enrollment is not
guaranteed. Neither party shall unilaterally, without the
written agreement of the other parent, enroll the children
in any Public school or other private school. If the
Husband and Wife jointly agree to keep the children in
private school, prior to such enrollment they shall attempt
to agree on the allocation of the cost for such private
school education."
Consistent with the agreement, the parties entered the
children's names in the Boston public school system's lottery.
Only one of the children was awarded a seat, at the Henderson
School. Because it was important to the parties that their
children attend the same elementary school, they declined the
seat and did not enroll their child in that school.
Due to the COVID-19 pandemic, the mother lost her
employment, could no longer afford to live in her apartment in
the Dorchester section of Boston, and moved back into the
Wellesley home where her mother, the maternal grandmother,
lived. At all relevant times, the father remained a resident in
Boston, in the South Boston section of the city, in the former
marital home.
In June of 2020, the mother filed a complaint for
modification seeking permission to enroll the children in
Wellesley public schools. They were then enrolled in South
Boston Catholic Academy, the private school in which they had
been enrolled at the time of the separation agreement and to
which the separation agreement made reference.
The mother also appropriately filed a motion for temporary
orders, seeking approval to enroll the children in the Wellesley
public school system. That motion was denied, and the court
ordered that the "[c]hildren shall remain at school attended for
2019-2020 academic year at Father's expense."
2
Two months before the trial, in March 2021, the father re-
enrolled the children in South Boston Catholic Academy for the
2021-2022 academic year. It is clear that this was permitted by
the separation agreement, which prohibited unilateral enrollment
of the children only "in any [p]ublic school or other private
school" (emphasis added).
The next month, the mother enrolled both children in
Wellesley public schools for the upcoming 2021-2022 school year.
We may assume without deciding that she took this step purely as
a protective measure in order to ensure that the children would
have guaranteed seats at the elementary school nearest to her
residence, in the event that her complaint for modification was
allowed; in any event, that enrollment did not bind the children
to attend the Wellesley public schools in the fall, nor impose
any impediment to their return to the South Boston Catholic
Academy. The children at no time actually attended any
Wellesley public school.
The father filed two complaints for contempt, dated May 13,
2021, and June 10, 2021. Service of neither complaint was
perfected. These complaints, the second one of which was a
duplicate of the first, asserted that mother violated a clear
and unequivocal court order by enrolling the children in the
Wellesley public schools.
3
After trial on the complaint for modification, the judge on
November 9, 2021, entered a judgment and findings, concluding
that there had been a material change in circumstance, but
allowing only in part and otherwise denying the mother's
complaint for modification. The judge wrote, "As the [p]arties
are unable to come to an agreement regarding where the children
shall attend school, the Court orders that the [c]hildren shall
either remain at South Boston Catholic Academy until the sixth
(6th) grade or they shall be enrolled in the Boston Public
Schools utilizing [f]ather's address for the current academic
year and subsequent years through high school. . . . Nothing in
this [j]udgment prevents the parties from mutually agreeing in
writing to enroll the children in another private or public
school system." The mother filed a timely notice of appeal.
The trial judge also found the mother in contempt in a
single judgment on the father's duplicate complaints. The
mother filed a timely notice of appeal of that judgment as well.
The mother subsequently filed a motion to vacate the contempt
judgment due to the failure of service. The judge stayed the
contempt judgment only. The second complaint for contempt was
finally served in March, 2022. The judge allowed the motion to
vacate the contempt judgment, and, in light of service being
perfected, set the matter for hearing.
4
After hearing, the judge found the mother guilty of
contempt "for having willfully neglected and refused by clear
and convincing evidence to abide by Parties['] Separation
Agreement. Mother unilaterally enrolled the children in a
public school. The judgment is a clear and unequivocal order.
Mother did not discuss with Father enrolling children in
Wellesley Public prior to doing so. Nor did father agree with
enrolling the children in public school."
The mother filed a notice of appeal from the judgment on
the complaint for contempt.
Discussion. On appeal, the mother argues that the trial
judge failed to properly determine whether enrollment in the
Wellesley public school system was in the children's best
interests as required by the statute. See G. L. c. 208, § 28.
We disagree. Even assuming that, as the mother asserts, the
academics of the Schofield School in Wellesley are stronger than
those of the South Boston Catholic Academy -- which we certainly
do not decide -- that is not the only consideration in assessing
the children's best interests. For example, differences in
commuting time, difficulties imposed on one or another parent by
the change of school, reduction in the father's time at home
with the children due to an increased commute, alterations in
the children's schedules with respect to the amount of time they
would have in the father's home with the father (or before
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having to leave the house for their hockey practice), the impact
on their friendships and participation in other sports -- to
name just a few -- all are proper considerations in making a
determination of the children's best interests. Indeed, the
fact that South Boston Catholic Academy was agreed on by the
parents as the appropriate school for the children at a time
when they both lived in Boston is evidence relative to the
children's best interests.
The details of the "pros and cons" for the children of
enrollment in the Schofield School in Wellesley and in South
Boston Catholic Academy are well known to the parties and will
not be repeated here. The mother argues that the trial judge
erred because she did not accept the mother's conclusion that
the shortcomings of South Boston Catholic Academy with respect
to each child compelled a finding that the school was "not
meeting the children's needs." See Hunter v. Rose, 463 Mass.
488, 494 (2012) ("the judge must weigh all relevant factors in
determining the best interests of the child" [quotation and
citation omitted]). We see no error; the fact that one school
might offer certain advantages over the other does not, in and
of itself, require a conclusion that the other school does not
meet the children's needs. Nor was the judge required to
determine as the mother suggests that it was in the children's
best interests to attend the Schofield School because of the
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cost savings to the father that would result from enrollment at
a public rather than a private school.
The mother challenges the judge's treatment of her claim
that diversity of the student body is important to her, and that
the diversity at the Schofield School is more robust than that
of South Boston Catholic Academy. We do not read the judge to
have said, as the mother contends, that if she wanted a diverse
environment for her children, she should not have moved from
Dorchester to Wellesley. Rather, the judge appears to have been
suggesting that the credibility of the mother's expression of
concern about ensuring an ethnically diverse environment for her
children was undermined by her decision to move from the more
ethnically diverse Dorchester to Wellesley. Nor do we agree
with the mother's characterization of the judge's opinion as
asserting that the mother had to obtain the father's permission
before moving. Rather, the judge noted that there was no
discussion of the consequences on the joint parenting of the
children before the mother moved to Wellesley without previously
informing the father that she intended to do so.
In the end, therefore, we see no abuse of discretion or
other error of law in the trial judge's determination that a
change of enrollment to the Wellesley public schools was not in
the children's best interests.
7
As to the contempt, although the mother did not in fact
ultimately send the children to the Wellesley public schools
without the father's assent, her enrollment of the children
there was a "clear and undoubted disobedience" of the clear
language of the settlement agreement. Shaw v. Commonwealth, 354
Mass. 583, 587 (1968). The question of contempt does not depend
on whether the children attended the Wellesley public schools;
under the express terms of the parties' agreement, it was a
violation for either party "unilaterally, without the written
agreement of the other parent, [to] enroll the children in any
[p]ublic school or other private school." Indeed, the previous
year, rather than taking unilateral action, the mother had
properly sought temporary orders in order to protectively enroll
her children in the Wellesley public schools, although it was
denied. When it comes to violating a clear judicial command,
seeking forgiveness rather than permission is not an appropriate
approach. We see no abuse of discretion in the judge's finding
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of contempt. See Smith v. Smith, 93 Mass. App. Ct. 361, 363
(2018).
The judgments on the complaint for modification and
complaint for contempt are affirmed.
So ordered.
By the Court (Green, C.J.,
Rubin & Massing, JJ.1),
Clerk
Entered: June 28, 2023.
1 The panelists are listed in order of seniority.
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