Murray v. Super

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14-P-518 Appeals Court
DAWN MICHELLE MURRAY vs. JONATHAN S. SUPER.
No. 14-P-518.
Worcester. December 2, 2014. - March 16, 2015.
Present: Cypher, Wolohojian, & Blake, JJ.
Divorce and Separation, Child custody, Child support,
Modification of judgment. Minor, Custody. Parent and
Child, Custody, Child support.
Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on January 30, 2009.
After consolidation, complaints for modification, filed on
July 10, 2012, and October 2, 2013, were heard by Lucille A.
DiLeo, J.
Nicholas J. Plante for the mother.
Christine D. Anthony for the father.
BLAKE, J. The mother, Dawn Michelle Murray, appeals from a
judgment of the Probate and Family Court dismissing her
complaint for modification, which sought to remove the minor
children of the marriage to the State of California. Where the
parent seeking to move has primary physical custody of the
2
children, the standard governing removal of the minor children
from the Commonwealth requires a determination of whether there
is a real advantage to the custodial parent and consideration of
the best interests of the children and the interests of both
parents. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-
711 (1985) (Yannas). Where the real advantage to the custodial
parent is at odds with the best interests of the children, the
children's interests are paramount. Concluding that the judge
below did not err in placing the interests of the children
first, we affirm that part of the judgment denying the mother's
request to remove the children to California.
The mother also appeals from that portion of the judgment
reducing the child support obligation of the father, Jonathan S.
Super.1 We vacate the portion of the judgment related to child
support and remand the matter for additional findings on that
issue.
Background. We summarize the proceedings, setting forth
relevant background facts as determined by the judge,
supplemented by the record where necessary, and reserving other
facts for our later discussion of the issues. The parties were
divorced by judgment of divorce nisi on October 24, 2011, after
1
The father filed a subsequent complaint for modification
seeking a reduction in his child support obligation. The two
complaints were consolidated for trial in the Probate and Family
Court.
3
a contested trial. The divorce judgment provided, in pertinent
part, that the parties would share legal custody of their three
minor children,2 with the mother having "primary physical
custody" and the father having parenting time. When the
children are not in the care of the father, they are in the
mother's custody.3 The divorce judgment also ordered the father
to pay $830 per week in child support to the mother, plus
twenty-five percent of any net bonus received as additional
child support.
On July 10, 2012, the mother filed a complaint for
modification alleging, as a change in circumstances, that she
was to be married on August 3, 2012, to a resident of Danville,
California. For this reason, the complaint sought removal of
the minor children to California.4 Sometime thereafter, the
father filed his own complaint for modification, wherein he
sought to (1) reduce his child support obligation to the mother
due to the financial support she receives from her new husband;
2
Jonathan was born on May 3, 1997, and twins Nathan and
Christian were born on May 31, 2002.
3
The children are with the father on alternating weekends
from Friday evening to Monday morning and overnight each
Wednesday. The father has additional parenting time in the
summer and on some holidays. The remaining time is spent with
the mother.
4
The judge properly considered the complaint to be one for
removal pursuant to G. L. c. 208, § 30. See Tammaro v. O'Brien,
76 Mass. App. Ct. 254, 257-259 (2010).
4
and (2) establish a defined holiday and vacation schedule for
the parties' children. The cases were consolidated and tried
together.
In her findings and rulings, the judge entered 261 detailed
findings of fact as to both parents, the eldest child, Jonathan,
age seventeen at the time of trial, and the younger twins,
Nathan and Christian, age twelve at trial. Based on those
findings, the judge determined that a move to California would
be a real advantage to and in the interests of the mother. She
nevertheless dismissed the mother's complaint on the grounds
that the move was not in the best interests of the children or
the interests of the father. She also reduced the father's
child support obligation. This appeal followed.
Discussion. We review the judgment and the subsidiary
findings of fact for abuse of discretion or other error of law.
A trial judge's findings of fact will not be set aside unless
clearly erroneous. Barboza v. McLeod, 447 Mass. 468, 469
(2006). The reviewing court will give due regard to the judge's
assessment and determination of credibility of the witnesses in
making such findings. Custody of Eleanor, 414 Mass. 795, 799-
800 (1993). "[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, . . . such that the decision falls outside the range
5
of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas.
Co., 512 F.3d 9, 15 (1st Cir. 2008).
1. Removal. "The removal from the Commonwealth of
children of divorced parents is governed generally by G. L. c.
208, § 30, as amended through St. 1986, c. 462, § 9, which
provides that such children, if less than an age at which they
are capable of granting or withholding consent themselves, may
be removed by consent of both parents or, failing that, by order
of the court 'upon cause shown.'" Pizzino v. Miller, 67 Mass.
App. Ct. 865, 869 (2006).5,6 "The purpose of the statute is to
preserve the rights of the noncustodial parent and the child to
maintain and develop their familial relationships, while
5
General Laws c. 208, § 30, provides that "[a] minor child
of divorced parents who is a native of or has resided five years
within this commonwealth and over whose custody and maintenance
a probate court has jurisdiction shall not, if of suitable age
to signify his consent, be removed out of this commonwealth
without such consent, or, if under that age, without the consent
of both parents, unless the court upon cause shown otherwise
orders."
6
The father argues that we may affirm the judge's decision
on the alternative ground that none of the children, who were of
suitable age, consented to the move. The record supports the
judge's conclusion that there was insufficient evidence to
support a finding that the children did not consent to the move.
Although not applicable here, an analysis of "suitable age
to signify his consent," G. L. c. 208, § 30, should take into
account the child's age, maturity, intellect, skill, and
academic ability. See Ardizoni v. Raymond, 40 Mass. App. Ct.
734, 738-739 (1996); Altomare v. Altomare, 77 Mass. App. Ct.
601, 609-610 (2010).
6
balancing those rights with the right of the custodial parent to
seek a better life for himself or herself in another State or
country." Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775
(2006).
In determining whether cause for removal by the parent with
primary physical custody has been shown under the statute, the
judge must consider the custodial parent's request under the
familiar two-prong "real advantage" test set forth in Yannas,
395 Mass. at 710-712, and Hale v. Hale, 12 Mass. App. Ct. 812,
818-819 (1981). "[T]he first consideration is whether there is
a good reason for the move, a 'real advantage.'" Yannas, supra
at 711. Second, if the real advantage test is satisfied, the
judge must consider whether the move is in the best interests of
the children. Ibid. See Wakefield v. Hegarty, supra at 776;
Pizzino v. Miller, supra at 870-871; Altomare v. Altomare, 77
Mass. App. Ct. 601, 604 (2010). We address each prong in turn.
a. Real advantage to the mother. To satisfy the real
advantage test, the custodial parent must demonstrate "the
soundness of the reason for moving, and the presence or absence
of a motive to deprive the noncustodial parent of reasonable
visitation." Yannas, 385 Mass. at 711.
Here, the judge found that moving to California would be a
real advantage to the mother. In reaching her decision, the
7
judge generally considered the mother's remarriage,7 the
emotional difficulty and sadness she experiences from being
separated from her new husband, and the social and emotional
benefits she would experience if she lived with her husband in
California. On these bases, and the evidence presented, the
judge found that the mother's remarriage was not a sham, was not
contracted for some unlawful purpose, and that she had
demonstrated that the reasoning behind the requested move was
sound.
The record supports the judge's findings. The mother has
extended family in California.8 Her new husband is unable to
move from California because he shares caregiving
responsibilities for his twelve year old daughter, who has
significant disabilities, with his former wife. If she were
able to move, the mother's financial situation would improve due
to her new husband's considerable wealth, and she would not need
to work outside the home. The judge's finding that these
advantages would have a positive trickle-down effect on the
children is supported by the record. Further, there was no
7
The mother married William Murray (Murray) on August 3,
2012. This is the second time the mother and Murray were
married. Their first marriage in 1988 ended in divorce in 1990.
Murray did not testify at this trial.
8
The mother's only sibling and his family live in Danville,
California, and her parents live two hours from Danville.
Neither the mother nor the father has extended family in
Massachusetts.
8
evidence that would support a finding that the proposed move was
designed to deprive the father of his parenting time with the
children. In short, we discern no error or abuse of discretion
in the finding of a real advantage to the mother.
b. Best interests of the children. In discussing the best
interests standard, the court in Yannas observed that "[i]f the
custodial parent establishes a good, sincere reason for wanting
to remove to another jurisdiction, none of the relevant factors
becomes controlling in deciding the best interests of the child,
but rather they must be considered collectively." 395 Mass. at
711-712. The relevant factors are: (1) whether the quality of
the children's lives will be improved, including any improvement
that "may flow from an improvement in the quality of the
custodial parent's life"; (2) any possible "adverse effect of
the elimination or curtailment of the child[ren]'s association
with the noncustodial parent"; (3) "the extent to which moving
or not moving will affect the [children's] emotional, physical,
or developmental needs"; (4) the interests of both parents; and
(5) the possibility of an alternative visitation schedule for
the noncustodial parent. Dickenson v. Cogswell, 66 Mass. App.
Ct. 442, 447 (2006), quoting from Yannas, supra at 711-712.
Applying these factors, we agree with the judge that the
proposed move was a real advantage for the mother, but not in
9
the best interests of the children or the interests of the
father.9
i. Quality of the children's lives. At the time of trial,
Jonathan was a junior in high school; the twins were in the
sixth grade. Jonathan will turn eighteen in May, 2015, and the
twins will turn thirteen also in May, 2015. In considering
whether the quality of their lives would be improved by the
proposed move, the judge found that their currently stable lives
would suffer, "as they would [lose] the structure and support of
regular weekly contact with Father, [as well as] the peer groups
that they have developed at school, church and through their
other activities." All three children have lived in Bolton
their entire lives and have attended public school in Bolton.
Jonathan plays trumpet in the advanced jazz band. The twins
play instruments in both the concert band and the jazz band.
Christian also plays piano and sings in the choir. The judge
also found that the mother tended to present an optimistic
picture of the move that lacked insight. She focused on the
children's potential enjoyment of California while minimizing
9
In determining the proposed move was not in the best
interests of the children, the judge relied, in part, on the
testimony and report of the guardian ad litem (GAL), exclusive
of her recommendations. See Gilmore v. Gilmore, 369 Mass. 598,
604 (1976) (trial judge is permitted consider GAL report as
evidence). The GAL interviewed the three children separately,
interviewed the parents, observed the children with each parent,
and interviewed collateral witnesses, including the mother's new
husband and the children's teachers and medical professionals.
10
the difficulties that the transition would likely pose for them
and their ability to maintain a strong relationship with the
father. The mother selectively informs the father of the
children's activities. By way of example, the mother's husband
employs Jonathan, who works remotely from Massachusetts. The
father only learned this information at the trial. Yet another
example of this behavior is that despite the twins being invited
to play on a particular basketball team, the mother unilaterally
and without explanation declined the offer without consulting
the father. By contrast, the father objected to Christian
playing football, explaining to the mother his concern that the
four night per week time commitment would interfere with
Christian's school work. The judge also found that the mother
"lacks self-awareness and is self-referential. [She] focused on
superficial advantages to the children and . . . ignored the
dilemma poignantly described by all three children to the GAL,
namely that the children want their parents to be happy but do
not want them separated by 3,000 miles."
On appeal the mother argues that the judge erred in finding
that she had failed to show how the children's lives would be
improved by a move to California. That finding has little
significance, however, where both parties acknowledge that
neither has any concern with respect to the California schools
or the quality of education there. Indeed, the father did not
11
challenge the mother's assertion that the community and school
system the children would enjoy in California is equivalent to
the one in Bolton, where they have lived for their entire lives.
ii. The children's relationship with their father. The
judge found that the father has a strong bond with the children,
is an active and involved parent, coaches them in their athletic
activities, attends church regularly with them, and has never
missed parenting time with them. She further found that except
for two occasions, the father's requests for additional
parenting time have been rejected by the mother. All three boys
golf with the father and ski with both parents. The twins play
baseball both casually with the father and on organized teams.
On the whole, the children spend nearly a third of the year with
the father. For these reasons, the judge found that a cross-
country move would impose significant stress on the children and
the father and negatively impact the frequency and quality of
his parenting time with them.
iii. Children's emotion, physical, and developmental
needs. Jonathan, Nathan, and Christian are well-adjusted, good
students who enjoy a close relationship with each of their
parents. None has special medical, educational, or
psychological needs. The children have deep roots in their
community and want for nothing in Massachusetts, a finding that
is not contested on appeal. Nor is there a question, as noted
12
supra, that the opportunities available to them in California
would be roughly equivalent to those they currently enjoy.
iv. Interests of the parents. The judge found that the
proposed move presented a real advantage to the mother.10 The
judge did not minimize the real advantage to the mother in any
way, but considered the apparent disregard she demonstrated as
to the impact the proposed move would have on the father and the
children.11 The judge's findings, amply supported by the record,
reflect that the mother did not investigate the opportunities
available to the children academically, musically, athletically,
or culturally. The judge's findings illustrate that the mother
is not a reliable evaluator of the interests of others, and in
particular, of the children. On the other hand, the quantity
and the quality of the father's parenting time with the children
10
The mother complains that the judge made exhaustive
findings about the father's interests and minimal findings about
her. The number of findings of fact relating to each parent is
of no significance; rather, the findings themselves control.
Further, as we have already stated, the factors in considering
the interests in a removal case "must be considered
collectively," and no one factor in particular controls the
outcome. Dickenson v. Cogswell, 66 Mass. App. Ct. at 448,
quoting from Yannas, 395 Mass. at 712.
11
It is commendable that the mother does not intend to move
to California if her request to remove is denied, deferring that
move until the twins graduate from high school. Moreover, the
mother and her husband have been maintaining a bicoastal
relationship for over eighteen months. The judge found that the
mother sees her husband "on a near monthly basis." The mother
will not be losing a job or housing if she remains in the
Commonwealth until the children graduate high school.
13
cannot be replicated if they are permitted to move. As such the
judge's finding that a cross-country move would not be in the
interests of the father is well grounded in the record.
v. Visitation. On appeal, the mother argues that the
judge failed to consider reasonable alternative visitation in
finding the proposed move was not in the best interests of the
children. "[T]he test is not whether there is no impact on the
father's association, but whether reasonable 'alternative
visitation arrangements' might achieve ongoing and meaningful
contact appropriate to the circumstances." Rosenthal v. Maney,
51 Mass. App. Ct. 257, 271 (2001). Here, the judge found that
the mother failed to make realistic suggestions as to how the
father and the children might achieve the ongoing and meaningful
contact they currently enjoy. That finding is not in error.12
ii. Balancing real advantage and best interests. We
acknowledge that prior cases affirm the allowance of a request
to remove children from the Commonwealth where the trial judge
12
The mother's visitation proposal at trial was de minimis.
She was also disingenuous in her suggestion that the father
could relocate to California because his employer is based
there. The judge found that the location of the father's
employer in California is an eight hour drive from Danville, and
that the father rarely traveled to California for business. The
judge did not abuse her discretion in rejecting this suggestion.
After trial, the mother offered a more detailed plan, generally
providing that the children could travel to Massachusetts during
their vacation time and that the father could see the children
whenever he is in California. The posttrial submissions of
counsel, including any proposed judgments, are not evidence and
we do not consider them when reviewing the judge's findings.
14
has found a real advantage exists for the custodial parent.
However, a finding that the proposed move presents a real
advantage to the physical custodian does not necessarily mean
that the move is in the best interests of the children. Here,
the real advantage to the mother does not align with the
children's best interests or the interests of the father. See
Dickenson v. Cogswell, 66 Mass. App. Ct. at 447, 452, quoting
from Yannas, 395 Mass. at 711 (effects of move on children are
"most important" and deferring to judge's view that it was not
in child's best interests to permit move to California where
"bicoastal existence" would be tiring and stressful, financial
security would diminish, and there would be negative impact on
important relationship with father); Rosenthal v. Maney, 51
Mass. App. Ct. at 266 ("best interests of the children always
remain the paramount concern").
The judge did not err in finding that the proposed move
would have clear and significant negative effects on the
children and the father which were not outweighed by the
benefits that would inure to the mother. That decision is
supported by the record and the judge's copious findings of
fact; we accordingly discern no error.
2. Child support. In support of his complaint for
modification, the father alleged as a material and substantial
change of circumstances the mother's remarriage. At the time of
15
the modification trial, the judge found that the father's income
had modestly increased,13 and that the mother's income remained
at zero. The judge further found, however, that the mother now
receives estimated contributions from her new husband in the
amount of $1,000 per week. Based on those changes, including
adding the new husband's voluntary contributions to the mother's
income into the child support calculation, the judge reduced the
father's child support obligation from $830 per week to $808 per
week. The judge also eliminated the obligation of the father to
pay to the mother twenty-five percent of his bonuses, reasoning
that the new child support order included the father's bonus
income.14 On appeal, the mother argues that the judge erred in
attributing income to her of $1,000 per week.
"Public policy dictates that children be supported by the
financial resources of their parents insofar as is possible."
M.C. v. T.K., 463 Mass. 226, 231 (2012. The Massachusetts Child
13
The judge found that the father's income at the time of
the divorce in 2011 was $3,154.46 per week, excluding bonuses.
At the time of the removal trial in 2013, the father's income
was $3,642.68 per week, including bonuses.
14
General Laws c. 208, § 28, as amended through St. 2011,
c. 93, § 37, provides that a child support order shall be
modified "if there is an inconsistency between the amount of the
existing order and the amount that would result from application
of the child support guidelines." Although the father alleged
that there had been a material change of circumstances, the
judge here was correct to apply those guidelines to the parties'
updated financial circumstances. See G. L. c. 119A, § 13(c);
Morales v. Morales, 464 Mass. 507, 512 (2013); Croak v.
Bergeron, 67 Mass. App. Ct. 750, 754 (2006).
16
Support Guidelines (2009) (guidelines) detail the types of
income that can be considered in calculating child support. See
guidelines § I-A. The father contends that the funds received
by the mother from her husband are specifically contemplated by
the guidelines, which provide that income may include "[s]pousal
support from a person not a party to this order." Guidelines
§ I-A(18) Alternatively, the father argues that the income
falls under the catch-all provision, covering "[a]ny other form
of income or compensation not specifically itemized above."
Guidelines § I-A(28). The mother contends that the guidelines
prohibit from consideration contributions of a present spouse in
calculating a child support obligation. Contrary to the
position of each party, the guidelines do not reflect a direct
prohibition on contributions from a present spouse, nor do they
include a direct command to include them.15 Rather, "[t]he
guidelines and our case law leave the definition of income
flexible, and the judge's discretion in its determination
broad." Casey v. Casey, 79 Mass. App. Ct. 623, 634 (2011).
Nevertheless, that discretion is not without bounds.
Here, the judge's findings do not include pertinent details
about the funds received by the mother from her new husband,
15
This stands in contrast to the Alimony Reform Act of
2011, St. 2011, c. 124, § 3, G. L. c. 208, § 54(a), which
precludes from consideration the income and assets of the
payor's spouse in a redetermination of alimony in a modification
action.
17
such as how those funds are expended. Additional findings that
would aid our analysis include, but are not limited to, the
costs associated with the mother traveling to and from
California, the lack of an obligation of the mother's husband to
support the children, the manner in which the mother's and the
children's lifestyles are altered by these funds, the discretion
that the mother's husband maintains in payment of these funds,
and the manner in which the mother would support her household
absent these funds. Without such findings, the facts as they
presently stand are insufficient to determine whether the new
husband's contributions should be included in the child support
calculations under the guidelines. Accordingly, that portion of
the judgment is vacated and the matter is remanded so the judge
may make additional findings with respect to this issue.
Because the matter must be remanded, we also address the
judge's sua sponte elimination of the father's obligation to pay
a portion of his bonus to the mother as child support. Doing so
was error where neither party so requested and the order has the
potential to reduce what the mother may otherwise be entitled to
if the father's bonus exceeds the amount of the bonus factored
into the guidelines. Similarly, the weekly child support order
could be deemed excessive if the father earns a bonus in a
lesser amount than that already applied to the guidelines. The
18
bonus component of the father's child support obligation shall
thus be reinstated.
4. Conclusion. The portion of the judgment dismissing the
mother's complaint for modification is affirmed. The portion of
the judgment reducing and restructuring the father's child
support obligation is vacated and the matter is remanded to
allow the judge to make additional findings and rulings
consistent with this opinion. Additional evidence may be taken
in the judge's discretion. The bonus component of the father's
child support obligation shall be reinstated. The father's
request for appellate counsel fees is denied.
So ordered.