Opinion
13-P-1683
05-13-2015
HEATHER J. HUE v. EVAN A. SODERSTROM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
We will not rehearse in detail the unfortunate facts of this case, which are set out in detail in the ninety-five page single-spaced report of the guardian ad litem (GAL). The parties, Heather Hue (mother) and Evan Soderstrom (father), moved to Massachusetts from Oregon about four months after their child was born. After the birth of the child, custody of and visitation with whom are the subjects of this case, the relationship between the parties, both medical doctors who were married at the time, disintegrated. The father criticized the mother extensively, complaining about sounds she would make including the noises of her chewing, kissing, and typing. He claimed subsequently to have a condition known as "selective sound sensitivity syndrome" or "misophonia," though these were apparently the only sounds annoying to him. He also criticized the way the mother walked. Whatever the root of this critical behavior, the mother reasonably felt it to be demeaning. The father's anger with the mother grew over the first few months they lived in the Commonwealth, and the father acknowledged breaking things and "punch[ing] stuff" including a glass clock face in the bathroom. When the mother told the father she needed a break from the relationship, the father, who was extremely distressed, left the mother upstairs and returned from the kitchen, wearing a clown nose and holding a twelve-inch carving knife. He displayed the knife, pointing it at himself and saying that the mother might as well cut his heart out; he subsequently explained that the clown nose was supposed to signify that he felt she had made a fool of him. The father knocked a glass vase off the dresser, which shattered on the floor, and either threw or tossed a box containing an anniversary locket at or toward the mother.
The father admits to both displaying the knife and wearing the clown nose, but asserts that these behaviors occurred at different times. Neither the GAL report nor the judge's findings explicitly resolve such discrepancy, and our decision does not depend on either construction; either way, the behavior is very disturbing.
The mother obtained a G. L. c. 209A restraining order against the father on October 31, 2009, and he was arrested. The mother filed for divorce and ultimately the parties entered a separation agreement, the terms of which form the background to the present matter.
With respect to custody and visitation, the parties agreed that the mother would have "sole legal and physical custody of the minor child." They also agreed that the mother "shall not relocate from the State of Rhode Island, or the Commonwealth of Massachusetts, without prior court approval, unless the parties can agree on a new visitation schedule involving longer periods of time during the summer months and school vacations." The father agreed "that at no time shall he contact or approach the [mother] for any reason" and that "no contact is permitted or required except as herein provided. However, by mutual agreement, the parties may modify or terminate this provision by written, signed and notarized agreement." The parties agreed that "[f]or purposes of sharing the child's feeding and sleeping schedule, her daily care, medical information and other child-related issues, the parties shall exchange a notebook to be furnished by the [mother], to be exchanged between the parties at the time of visitation, through the child's nanny, daycare providers or other third party designated by the [mother]. The [mother] shall provide the [father] with the names and telephone numbers of the nannies and daycare providers in order that he may contact them directly to discuss the visitation schedule."
Arrangements for visitation were to be made through and with the child's nanny or other daycare providers, and the father's visitation was to consist "of one weekday each week from 2:00 P.M. to 6:00 P.M., and every Saturday or Sunday from 10:00 A.M. to 5:00 P.M., or such other days and times of similar periods in accordance with the parties['] employment schedules and the child's feeding schedule." Further, "[c]ommencing September 1, 2010, in addition to the weekday visit, the [father's] weekend visitation shall be alternating weekends from Saturday morning to Sunday afternoon, or such other similar days and times mutually agreed to, in accordance with the parties' employment schedules if the [father] is not available on the weekend."
In this agreement, which, again, included a no-contact provision, the mother agreed that her pending c. 209A order would be "vacated concurrent with the approval of this Agreement by a Justice of the Probate and Family Court," and that "[a]s to the pending related criminal actions against the [father], the [mother] shall invoke her spousal privilege as to the same thereby facilitating the dismissal of said criminal proceedings and shall provide such further reasonable cooperation as is necessary to facilitate the dismissal of the criminal proceedings." The separation agreement was approved by the trial court and the provisions involving the child and health insurance merged into a judgment, with the remaining provisions surviving as an independent contract. The c. 209A order was vacated, and ultimately the criminal charges against the father were dismissed.
The ensuing years were difficult. As per the agreement, the parties communicated only through a purple notebook carried by the child between them. The mother was rigid about visitation. The father was unhappy with the amount of visitation he was receiving. He also, despite the clarity of the mother's position -- and in a way that suggests a lack of insight into the degree to which his actions had traumatized the mother, and at least arguably in violation of the no-contact provision -- included messages to the mother in the purple notebook that sought a renewed relationship with her. These had the consequence only of further traumatizing her. The father wound up having less visitation with the child than provided for in the agreement, as described in further detail below.
The judgment primarily at issue here purports to resolve four complaints. The first was the father's complaint for modification, requesting joint legal custody and an expansion of his parenting time, filed on August 6, 2010. The parties signed a stipulation on the father's motion for temporary orders on that complaint for modification which appointed a parenting coordinator.
The single-page judgment document in question, dated January 10, 2013, is entitled "judgments," but for convenience we shall refer to it as the judgment throughout our discussion. There are also two supplemental judgments before us, which we discuss below.
On August 9, 2011, the father filed the second matter, a complaint for contempt alleging he had been denied visitation on various dates and times and that the mother had failed to comply with the basic parenting scheduling and had failed to utilize properly the parenting coordinator. A temporary order was issued on that complaint stipulating as to its consolidation with the modification complaint and the appointment of a GAL for purposes of investigating and making recommendations with respect to legal custody and a parenting plan. (Although the later judgment purported to include the contempt complaint in its ambit, the trial court, in the record before us, appears to have neither made a finding of contempt nor dismissed the complaint.)
Third, on May 9, 2012, the mother filed a complaint for modification requesting that she be allowed to remove the minor child to another jurisdiction so that she could find suitable employment in her career field and better the lives of the child and herself. On May 16, 2012, the mother was offered a job as an oncology-hematology physician at a Colorado hospital beginning January 7, 2013; on June 14, 2013, she moved for an expedited pretrial conference, informing the court that she had accepted the position in Colorado.
Finally, in June, 2012, the father filed a counterclaim seeking shared legal custody, sole physical custody, and child support.
Trial was held in November and December, 2012. The mother's position in essence was that she had found her "dream job" in Colorado -- it was precisely suited to her specialized training in genital-urinary oncology and had predictable and family-friendly hours -- and that no such jobs existed in the Massachusetts area, so relocating would provide a real advantage to her and the child. (There is no dispute that the parties had initially thought they would move back to Oregon after the mother completed her three-year training fellowship here in New England.)
After trial, the timeline is complicated. First, the father filed on January 14, 2013, an emergency motion for return of the minor child to the Commonwealth and for sole legal and physical custody. In the motion, the father cites an electronic mail message (e-mail) from the mother (attached to his motion, but not provided to this court) to support his assertion that "the [m]other has removed herself permanently from the Commonwealth to Colorado, and has no intention of returning." Meanwhile, the judgment on the four complaints detailed above was dated January 10, 2013, but entered on the docket on January 15, 2013. The judgment mainly provided for shared legal custody, primary physical custody to the father, in-person and electronic visitation for the mother, and child support to the father.
Entries on the docket suggest the existence of four separate judgment documents dated January 14, 2013 -- one for each complaint -- but these do not appear in the materials before us, and other materials more strongly suggest that there was, other than the two supplemental judgments discussed later, only a single original judgment document entitled "judgments" and purporting to dispose of all four complaints. We proceed on the latter basis. See note 2, supra.
In response to the father's emergency motion, a supplemental judgment dated January 14, 2013, but entered on January 15 nunc pro tunc to January 10, 2013, implemented a ruling of partial allowance of the motion, requiring the mother's immediate return of the child to the Commonwealth. That ruling appears by order dated January 14, 2013, entered on January 15, 2013, allowing the emergency motion "as in accordance with judgment of [January 10, 2013,]" but maintaining shared legal custody instead of the requested sole legal custody.
The mother also filed a motion to alter or amend judgment on January 22, 2013, seeking certain adjustments to the communication provisions and visitation schedule. The motion was denied except in one particular, which resulted in a second supplemental judgment dated February 1, 2013, and entered February 5, 2013, nunc pro tunc to January 10, 2013, expanding the parties' child-related communications from e-mail to "all reasonable methods." Because the mother identified the second supplemental judgment in her notice of appeal but raises no argument concerning it, we affirm it without further discussion.
The trial judge in some sense merged the two separate issues before the court. The first is whether the mother's complaint for modification -- which, as the parties do, we treat as a request for removal, see Rosenthal v. Maney, 51 Mass. App. Ct. 257, 261 (2001) would be allowed. This requires (as a threshold inquiry) examination under the familiar "real advantage" test. Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). There is then a separate question, whether the father's request for modification seeking both legal and physical custody of the child should be allowed.
The judge found both that the mother's move would not be a "real advantage," and that it would not be in the child's best interests. She found that the mother "has used the court process since the parties separated to marginalize [the father's] role in [the child's] life, and . . . that the dream position in Colorado is just another step" in that effort. The judge also found that if the mother were permitted to take the child to Colorado -- as per her proposal -- the father would permanently have much less of a role in the child's life than any significant unrelated third party. The judge also discredited the mother's professed sincerity in her willingness to follow even her proposed plan for visitation.
These determinations are based in large part on the judge's assessments of credibility, which we are not empowered to second guess, and the determinations are supported by the evidence. Consequently, we cannot say any of them is clearly erroneous. We think that these facts are adequate to support the determination that there was no "real advantage" to the mother in the move. "[A] supportable finding that there is no 'real advantage' to the custodial parent from the contemplated move ends the [removal] analysis." Altomare v. Altomare, 77 Mass. App. Ct. 601, 604 (2010) (citation omitted). Therefore, to the extent the judgments deny the mother's complaint for modification, they are affirmed.
As to the father's request for a change of custody, before a court can enter a judgment modifying an earlier one, it must find "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[]." Katzman v. Healy, 77 Mass. App. Ct. 589, 593 (2010), quoting from G. L. c. 208, § 28, as amended by St. 1993, c. 460, § 60.
In ruling on the father's request, the judge concluded that there were multiple "advantages to the child's remaining in Massachusetts with her father while her mother transitions to a new life in Colorado." As a matter of law, the mother's request to relocate cannot itself be the material change in circumstances warranting allowance of the father's request for modification of custody provisions. See Rosenthal v. Maney, 51 Mass. App. Ct. at 261 ("[A] request for modification of custody is distinct from a request to relocate and must be based on a material and substantial change in circumstances other than the move"). And even assuming the mother actually moved to Colorado during the pendency of this case -- something perhaps implied by the judge's allowance of the father's emergency motion for return of the child to Massachusetts -- because the mother could move back in the event her request to relocate was denied, such move would not have constituted a material and substantial change in circumstance. In Rosenthal, this court reversed a modification that granted custody to the father based on the mother's request for modification (to relocate), even though the mother had moved into an out-of-State house with her new husband while the case was ongoing. See id. at 259-260. Here, the only concrete evidence the father can proffer of a change in circumstances prior to judgment is the mother's move to Denver with the child, but such move is legally insufficient under Rosenthal.
It would be a different story if the mother had told the court she intended to move regardless of the judge's decision. The denial of the request for relocation then would, indeed, have left a changed circumstance. There was no support in the record before the trial judge to support her apparent conclusion that the mother would indeed move regardless of the court's decision on her complaint for modification. Rather, the mother testified that she did not know what she would do in the event the judge ruled against her on her claim for modification seeking authority to remove the child.
The father cites evidence from after the judge's decision that indicates the mother resided in Colorado after issuance of the judgments, but this evidence is irrelevant to the instant proceeding as it was not before the court at the time of decision.
In the absence of support for the judge's implicit finding that the mother intended to move to Colorado regardless of the outcome of her request for relocation, there is no basis for concluding that there was a changed circumstance warranting allowance of the father's request with respect to custody, and, to that extent, the judgments cannot stand.
The father does also argue that the limited visitation he received amounted to a change in circumstance warranting the allowance of his request. Though she did not rely upon it, the judge did find that one of the tools used by the mother to marginalize the father was a narrow "interpretation" of the parenting plan of the separation agreement that was incorporated in the divorce judgment. And there were long stretches when the father did not in fact visit with his daughter.
The judge, however, did not draw any conclusion whether the father's limited visitation was attributable to the mother's failure to comply with the parenting plan itself, or whether, even if it were, it warranted the remedy of a change of custody. The mother admitted to canceling a scheduled visit on a single Wednesday, because the daughter had, among other things, suffered a serious injury the day before at the father's apartment, requiring eight stitches on her eyebrow. While that may have been a violation of the provisions with respect to visitation, standing alone it would not warrant a change of custody.
At argument, father's counsel was unable to point to any other days on which there was no visitation due to a violation by the mother of the divorce judgment, though we make no determination on the issue. While it is true that the mother insisted that the father's visitation day be on the same day each week, which may indicate unreasonable inflexibility (an issue we do not decide), we cannot tell whether the father may in fact have agreed to this plan. It may be that the father agreed to visitation dates and then, because of his work schedule, was unable to keep them, and the mother refused to reschedule -- but it has not been explained to us how that amounted to a violation of the agreement. It is also true that the father wanted visitation beyond what was set out in the agreement, for example, at times when a nanny was caring for the child. But those were not days to which he was entitled, and the agreement itself envisages child care by a nanny or the use of daycare. That a parent holds a parent to the terms of an agreement he has entered cannot amount to a changed circumstance, nor could it support an order changing custody. Whether something beyond that happened here, and what, if any, relief might be warranted under the appropriate legal standard is not for us to determine in the first instance.
In sum, we vacate so much of the judgments and supplemental judgments as adjudicated the father's claims for modification of custody, visitation, and child support. The judgments and supplemental judgments are otherwise affirmed, including their denial of the mother's request for removal of the child.
In light of the need to prevent undue disruption to the life of the child, we will, however, direct the entry of a temporary order preserving the status quo with respect to physical and legal custody, visitation, and child support, pending further proceedings in the Probate and Family Court consistent with this memorandum and order.
We wish to make clear that we do not mean to say that in these circumstances the decision of the mother, after being deprived of physical and legal custody, to move to or remain in Colorado automatically amounts to the kind of change in circumstance warranting a change in custody in favor of the father. Nonetheless, if an appropriate complaint is filed, a judge will have to consider all the facts and circumstances as they then currently exist, including, but not limited to, the quality and quantity of the mother's visitation and relationship with the child in the ensuing time, and how it compares with what would have been possible had the mother remained in the area. These are issues about which we have no information and express no opinion. In light of all that has transpired we think that a fresh look is appropriate, and accordingly direct that the matter be considered by a different judge on remand. We trust that in the proceedings before him or her the judge will examine with sensitivity the facts and law, as well as the best interests of the child.
So ordered.
By the Court (Rubin, Brown & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 13, 2015.