Julie A. Johnston v. Matthew Ashe.

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-648
JULIE A. JOHNSTON
vs.
MATTHEW ASHE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Julie A. Johnston, mother, appeals from a judgment on her
complaint for custody, support, and parenting time entered by a
judge of the Probate and Family Court, which, among other
things, denied mother's request to remove her two children from
Massachusetts to Florida. The mother claims that the judge
abused her discretion or otherwise erred in denying the mother's
request based on the determination that removal is not in the
best interests of the children. 1 We affirm.
1 The mother also purports to appeal from a May 31, 2022 order
denying her motion to alter the judgment. Because she makes no
discernable argument addressing this order in her brief, and as
she conceded at oral argument, this claim is waived and we need
not consider it further. See Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019) ("The appellate court need
not pass upon questions or issues not argued in the brief").
Discussion. We review an order addressing a request to
remove children from the Commonwealth for "'abuse of discretion
or other error of law,' accepting the judge's findings unless
shown to be clearly erroneous." E.K. v. S.C., 97 Mass. App. Ct.
403, 411-412 (2020), quoting Murray v. Super, 87 Mass. App. Ct.
146, 148 (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 . . . such that the decision falls
outside the range of reasonable alternatives." Dolan v. Dolan,
99 Mass. App. Ct. 284, 290 n.6 (2021), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
"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." G. L. c. 208, § 30. This rule
also applies to nonmarital children with two legal parents. See
Smith v. McDonald, 458 Mass. 540, 546 (2010).
"If the party seeking removal is the sole physical
custodian of the children, then the judge must consider the
request under a two-prong test set forth in Yannas." Altomare
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v. Altomare, 77 Mass. App. Ct. 601, 603 (2010). See Yannas v.
Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). The first
prong considers "whether there is a good reason for the move, a
'real advantage.'" Yannas, 395 Mass. at 711. If the custodial
parent satisfies the "real advantage" test, then the question
becomes whether removal is in the best interests of the
children, which is the court's "paramount concern." Id. at 710.
In evaluating the best interests of the child, a court
considers "whether the quality of the child's life may be
improved by the change (including any improvement flowing from
an improvement in the quality of the custodial parent's life),
the possible adverse effect of the elimination or curtailment of
the child's association with the noncustodial parent, and the
extent to which moving or not moving will affect the emotional,
physical, or developmental needs of the child." Yannas, 395
Mass. at 711.
Here, the judge determined that although the mother
established a "real advantage" for the move, removal is not in
the best interests of the children. On appeal, the mother
claims that the judge abused her discretion or otherwise erred
by (1) dismissing the potential improvements to the children's
quality of life, (2) failing to consider the extent to which
moving or not moving will affect the children's emotional,
physical, or developmental needs, and (3) placing
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disproportionate weight on the effect of the children's
relationship with their father and his family if they moved to
Florida. We disagree.
In her detailed factual findings, the judge specifically
noted the potential improvements to the children's quality of
life if they moved to Florida -- mainly, they would live in a
bigger home, see their maternal family members more frequently,
be cared for daily by family members instead of a childcare
service or provider, and have indirect benefits flow from the
benefits to the mother. On the other hand, the judge considered
how the children presently "have a consistent weekly parenting
schedule and enjoy the time they spend with each extended side
of their family," and how "uprooting the children and relocating
to Florida would be disruptive to their lives." Notably, the
judge found that removal would negatively impact the children's
relationship with the father and his side of the family and that
the amount of travel contemplated by the mother's proposed
travel schedule to alleviate this concern would be "burdensome,
exhausting and disruptive."
Rather than dismissing or failing to consider the
improvements and benefits to the children in moving to Florida,
as the mother claims, the judge appropriately weighed these
factors against the countervailing factors: "While the Court
considers the benefits to Mother and the children of Mother's
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support system and a more spacious home in Florida, the Court
finds that these benefits do not outweigh the cost to the
children of reducing their time with Father and disrupting their
well-established and thriving lives in Massachusetts."
Accordingly, we reject the mother's claim that the judge abused
her discretion or otherwise erred in concluding that removal is
not in the children's best interests.
Judgment affirmed.
Order entered May 31, 2022,
denying motion to alter or
amend affirmed.
By the Court (Meade,
Hershfang & D'Angelo, JJ. 2),
Clerk
Entered: September 19, 2023.
2 The panelists are listed in order of seniority.
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