Alyssa Erhartic v. Christian Erhartic. ( 2024 )

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
23-P-1221
ALYSSA ERHARTIC
vs.
CHRISTIAN ERHARTIC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from a modification judgment, the plaintiff,
Alyssa Erhartic (mother), contends that a judge of the Probate
and Family Court erred by ordering continued shared legal
custody, appointing a parent coordinator, and requiring her to
pay child support to the defendant, Christian Erhartic (father).
We affirm.
Background. On April 19, 2016, the parties filed a joint
petition for divorce, and a judgment of divorce nisi entered on
May 19, 2016. That judgment incorporated a separation agreement
that included provisions related to their three year old child
merging with the judgment. By agreement, the parties maintained
joint legal custody of the child, with neither parent paying
child support, and established a detailed parenting plan.
On July 6, 2020, the mother filed a complaint for
modification seeking, among other things, sole legal custody, an
adjustment in parenting time, and child support. The father
answered and filed a counterclaim seeking, among other things,
legal and physical custody and child support. Following a trial
involving five witnesses, including a guardian ad litem (GAL),
and 108 exhibits, the judge issued a judgment of modification as
well as detailed findings of fact and rationale. The judge
concluded, "I do not find a material and substantial change in
circumstances and that it would be in [the child's] best
interests to grant either party's request for sole legal or sole
physical custody." The judge entered a child support order "in
accordance with the guidelines" and concluded that it was
"imperative" that the parties continue to work with the
parenting coordinator as agreed. The mother now appeals.
Discussion. "[T]he court may make a judgment modifying its
earlier judgment as to the care and custody of the minor child[]
of the parties provided that the court finds that a material and
substantial change in the circumstances of the parties has
occurred and the judgment of modification is necessary in the
best interests of the child[]." G. L. c. 208, § 28. "[I]n
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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." Schechter v.
Schechter, 88 Mass. App. Ct. 239, 245 (2015). "[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." Id., quoting
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We
discern no error.
The record shows that the judge carefully considered the
parties' relationships with the child as well as the child's
educational needs and physical, emotional, and mental health.
See G. L. c. 208, § 31. As the judge found, the father's
conduct was at times "unhelpful and stressful" to the mother,
delayed the child from receiving special education services,
slowed a productive decision-making process regarding the
child's needs, and caused the child "undue stress and worry."
Despite the father's shortcomings, "the parties have been able
to make joint decisions for [the child] albeit with some delay
at times." The parties have been able to reach agreements
regarding the child "on all major issues." "Overall [the child]
has done well under the current parenting plan. He transitions
easily between the homes, and is overall happy and well
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adjusted." "In these circumstances, there was no change 'of
sufficient magnitude' warranting a modification of joint legal
custody." Corte v. Ramirez, 81 Mass. App. Ct. 906, 908 (2012),
quoting Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220
(2002).
The mother contends that the judge applied the wrong legal
standard and further contends that the judge's conclusion about
insufficient changed circumstances is inconsistent with the
findings of fact that show the father was responsible for the
parties' dysfunctional relationship that was marked by
continuous conflict. To the contrary, the judge applied the
correct standard and exercised her discretion in determining
that joint custody continues to be the best path for
safeguarding the happiness and welfare of the child. See Carr
v. Carr, 44 Mass. App. Ct. 924, 924 (1998) (custody decision
"rests within the discretion of the trial judge"). We also note
that the judge rejected some of the GAL's harshest criticism of
the father and credited evidence showing that the father
demonstrated self-awareness of his shortcomings and made
significant efforts through therapy and medication to modify his
behavior. See Mason v. Coleman, 447 Mass. 177, 186 (2006)
(judge is not obliged to accept views of GAL). The judge also
found that the "parties are able to communicate about [the
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child] and make decisions for him," and the judge specifically
rejected any suggestion that the parties had an inability to
communicate or reach decisions in the child's best interest.
While the mother continues to view the evidence very differently
than the trial judge, we defer to the judge's assessment of this
evidence.
As her extensive and detailed findings show, the judge did
not condone, minimize, or overlook the father's conduct. "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 child[] going forward." K.A. v. T.R., 86
Mass. App. Ct. 554, 565 (2014). Nevertheless, the judge's
rationale makes clear that more is expected from the father
going forward. In particular, the judge noted that the father
"intends to continue in treatment" for his problematic
behavioral issues, and it is not in the child's best interest
"to keep his activities, friends and personal belongings in
Concord separate from those in Chelmsford." If shared physical
custody is to continue as the child grows older, the father
needs to accept the child's important social relationships in
Concord (with the mother) as well as in Chelmsford (with the
father).
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We also disagree with the mother's contention that the
judge lacked authority to require the parties to pay for a
parenting coordinator. A Probate and Family Court judge has the
"inherent authority" to appoint a parenting coordinator, but
requiring the parties to pay for the services of the coordinator
is not permitted without their consent. Bower v. Bournay-Bower,
469 Mass. 690, 698, 707 (2014). The record shows that the
parties consented. Through a stipulation dated September 30,
2022, the parties agreed to "employ" the services of a parenting
coordinator "until such time as the Court issues a final
Judgment of Modification in this matter, which does not
incorporate the present terms of this Stipulation." The
modification judgment here incorporated the terms of the
stipulation. We do not read any terms of the stipulation as
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limiting the parties' consent to a particular time frame as the
mother asserts in her brief.
Modification judgment
affirmed.
By the Court (Milkey,
Hodgens & Toone, JJ.1),
Clerk
Entered: July 26, 2024.
1 The panelists are listed in order of seniority.
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