Opinion
14-P-68
02-02-2015
MARK SCANLON v. DEBORAH SCANLON.
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
The mother appeals from a Probate and Family Court judgment which modified an earlier custody order by awarding the father sole legal and physical custody of the couple's minor child. The mother argues that the probate judge erroneously relied on the report of a biased guardian ad litem (GAL) and failed to find a material and substantial change in circumstances. We affirm.
Background. The following pertinent facts are taken from the record and from the judge's findings in support of her memorandum of decision and judgment.
The minor child was born on March 19, 2002. The parents married on December 1, 2005, separated in January 2006, and were divorced in July, 2007. The mother was awarded sole legal and physical custody of the child, with the father having visitation. While the parties agreed over the course of the next few years to increase the father's visitation, the mother remained the primary caregiver.
The child began preschool with emotional and cognitive delays. The mother and the child's schools developed an individualized education program for the child, who repeated kindergarten and first grade. As early as preschool, teachers and doctors recommended that the child receive counseling, however, the mother never took him to therapy.
In November, 2011, the mother filed a complaint for modification of the existing custody arrangement to terminate the father's visitation, alleging that the father "has several people living with him" and the "[e]nvironment is not good for my son." The people to whom the mother's complaint referred were the father's wife and her daughter, and the father's teenage child from another relationship. The father counterclaimed for sole legal and physical custody and requested appointment of a GAL. The father's attorney suggested a GAL who had been recommended to him by another attorney. The mother, who was unrepresented at the time, asked whether the facts that the father was proposing the GAL and that he offered to pay her fees would create a bias against the mother. The judge advised the mother that the GAL would be appointed pursuant to a court order and was not working for either party, but that the mother was free to pay one-half of the GAL's retainer. The mother declined.
These individuals had resided with the father at least since 2009.
The GAL previously had been represented by the referring attorney, and the father consulted with the referring attorney on this case.
The mother did not cooperate in the GAL's investigation, and sought appointment of a new GAL on the basis of an alleged bias and conflict of interest by the GAL. Specifically, the mother noted that the GAL previously had been represented by the attorney who recommended her to the father's attorney. The mother's motion to appoint a new GAL on this basis was denied after an evidentiary hearing. The mother's subsequent motion to strike the GAL's report also was denied.
The same judge presided over all of the proceedings in this case.
The mother dismissed her complaint for modification before trial, which proceeded only on the father's counterclaim. The judge took testimony, considered the exhibits, which included the GAL report, and issued findings of fact and her judgment. The judge awarded physical and legal custody to the father, because "[t]hroughout the course of this litigation it became evident through [the] mother's own sworn testimony that she is chronically unable to separate her own needs from those of the child." The judge found that the "[m]other failed to respond throughout most of her direct testimony to almost any question in a way consistent with a knowledgeable parent who was informed on her child's life" and found the mother's testimony to be wholly incredible. The judge concluded that the "father has met his burden of proof that clearly demonstrates the injury, harm or damage that might reasonably be expected to occur if a judgment of modification is not granted"; namely, that the mother would continue "to stifle the child's natural desire to have a relationship with his half-sibling . . . and with his father."
The mother moved to stay the judgment pending appeal, on the basis that the judge's decision relied on the report of a biased GAL. In denying the motion, the judge stated that she "put practically no . . . reliance . . . on the guardian ad litem because [the mother's] statements herself put herself right in the wheelhouse of whether or not she was the parent that should have had primary custody or limited custody." The judge "went out of [her] way in [her] findings" to demonstrate that they were not based on the GAL report "because of the fact that it was such a hotly contested piece of the trial," and stated that her "findings are based upon [the mother]'s testimony, her own representations throughout the case in terms of her lack of cooperation, her lack of follow through, her demeanor, her conduct during the pendency of this case, vis-avis her parenting of this child."
Discussion. A judge may modify a divorce judgment providing for the custody of minor children if he or she "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 children." G. L. c. 208, § 28. "Whether such a change shall be ordered is a matter 'peculiarly within the province of the judge, who observed the witnesses, among whom were both parents.'" Palmer v. Palmer, 357 Mass. 764, 764 (1970), quoting from Grandell v. Short, 317 Mass. 605, 608 (1945). "The judge's decision will not be reversed unless erroneous and not supported by the evidence." Ibid. While it is true that the judge never expressly stated that there was a "material change in circumstances," even a cursory review of what she did say leaves no doubt that she implicitly found one.
While there is cause for concern in the manner in which the GAL was selected and her actions in reporting her findings to the parties, the record supports the judge's finding, without reference to the GAL's report, that sole custody in the father is in the best interests of the child. We do not condone the manner of the GAL's appointment or her conduct in the course of the investigation, but we are satisfied that her report had little, if any, effect on the judge's decision. There was evidence that the child had significant delays when he started school, that he had not been to the dentist or received an annual physical exam in over one year, and that he lied to the father at the mother's direction about where he was going to school and serious injuries he sustained while in the mother's care. "Such evidence is, of course, contrary to the mother's statements and evidence that the child is doing well in her household, that his needs are being met, and that he is not neglected." J.F. v. J.F., 72 Mass. App. Ct. 782, 794-795 (2008). The judge was not required to believe the mother's testimony that she took the child to therapy as recommended by his teachers and pediatricians, that she never told the child to lie, and that she did not sleep in the same bed as a virtual stranger with the child in the room, see Care & Protection of Three Minors, 392 Mass. 704, 711 (1984), which testimony was directly contradicted by the documentary evidence and other testimony at trial. "The relevant findings made by the judge, all of which had solid support in the record, include the abject breakdown in communication between the parties, which the judge was justified in ascribing to the mother's defiance[,]" and the record shows that the "mother's performance as the custodial parent demonstrated that she was not capable of separating her needs and interests from those of [the child]." Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220 (2002). The mother's failure to get the child into counseling, "combined with the breakdown in communication between the parties and the mother's failure to place the welfare of her son above her own, justified" the judge's order in this case. Id. at 221. "[T]he judge's decision, founded on a better knowledge of the parties than we can achieve from a cold record, is not plainly wrong[,]" Bak v. Bak, 24 Mass. App. Ct. 608, 617 (1987), and we will not disturb it.
Particularly concerning are the facts that the GAL provided an affidavit in support of the father's ex parte emergency motion for temporary orders before she had met with the mother or the child, and that she had direct electronic mail (e-mail) communication with the father's wife during the course of the investigation.
In particular, we do not condone the GAL asking the nine year old child whether he or his mother was lying.
Judgment affirmed.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 2, 2015.