Opinion
19-P-167
04-30-2020
Esther YOON v. Christian NA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Christian Na (father) appeals from the decision of a Probate and Family Court judge, modifying the parties' New York divorce judgment to grant sole legal custody of the parties' two children to Esther Yoon (mother). Both parties agree that a mathematical error in the arrearage calculation resulted in an ordered overpayment of $151,666.76 in connection with the father's payment of spousal support. Accordingly, we vacate the judgment insofar as it includes the arithmetic error, modify it to correct the arrearage set forth infra, and otherwise affirm.
1. Legal custody. The father contends that the modification of legal custody was improper because the parties' inability to agree as to what he describes as "mechanical" aspects of the children's lives and their continued hostility does not constitute "a material and substantial change in circumstances" warranting the ordered modification in custody from joint legal to sole legal custody in favor of the mother. See G. L. c. 208, § 28. On appeal, we review the judge's factual finding that there has been a material change in circumstances for clear error and her custody determination for an abuse of discretion. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). The touchstone inquiry for custody determinations is what is in the best interest of the child. See Hunter v. Rose, 463 Mass. 488, 494 (2012).
See also G. L. c. 208, § 29 (providing that with regard to foreign divorce judgment regarding minors who thereafter become residents of Massachusetts, court "shall have the same power ... to revise and alter such judgments or make new judgments, as if the divorce had been adjudged in this commonwealth").
"A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ " Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). The judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference. See Schechter, 88 Mass. App. Ct. at 245.
Here, the judge did not clearly err in finding a material change in the parties' circumstances since the time of the divorce judgment. See Rosenthal v. Maney, 51 Mass. App. Ct. 257, 261-262 (2001), quoting Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974) (modification judgment must be based on findings that "since the date of the prior custody order, there has been a change in circumstances ‘of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]"). The judge found that the father failed to comply with the judgment insofar as he unilaterally extended his parenting time with the children in violation of the divorce judgment and often to the detriment of the children. In one particularly egregious example, the father (i) took the daughter, whom the father knew was under a strict nutritional schedule (requiring breast milk eight times per day), to New York without the consent of the mother, in contravention of the daughter's medical specialist's orders, (ii) refused to allow the mother access to the daughter for several days, and (iii) as a result of the ill-advised journey, caused the daughter to fall further behind in her development. During that same trip, the father caused the son (whom he also took without permission) to miss several days of school, in contravention of the divorce judgment. The record includes other examples of the father's failure to abide by the divorce judgment by deciding unilaterally to keep the children longer than allowed.
The father contends this incident was too remote from the date of the trial to justify the custody change; however, he continued to fail to comply with the parenting schedule thereafter, unilaterally determining to "make up" parenting time despite the parties' obligation to attempt to schedule make up sessions by agreement and in good faith.
In addition, the judge found that, despite the mother's efforts to improve communications between the parties and the parties' completion of high-conflict parenting programs, the parties were unable to cooperate and agree regarding child care decisions. Contrary to the father's contention on appeal, the continued inability to cooperate can constitute a material and substantial change in circumstances supporting a change in custody, where (as here) there is support in the record that the father's intransigence has been detrimental to the well-being of the children. See, e.g., Macri v. Macri, 96 Mass. App. Ct. 362, 369-370 (2019) (parties' "continued inability to communicate" and "ongoing conflict" constituted material and substantial change in circumstances justifying ordered custodial change [quotation omitted] ). The judge did not abuse her discretion in concluding that joint legal custody was not appropriate where, as here, "the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict." Id., quoting Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998).
Finally, while the judge did not find that the mother was blameless in this regard, she found that the mother attempted to communicate civilly with the father and put the children's interest first. On this record, the judge did not abuse her discretion in the ordered custody modification.
2. Spousal support. The judge ordered the father to pay $151,666.76; however, the judge did not credit the father for seven payments in the amount of $37,916.69. The parties, therefore, agree that the arrearage owed to the mother for spousal support should equal $113,750.07.
On appeal, the father also contends that he is entitled to an additional credit against the amount due for spousal support because he made payments of $12,136.55 for the mother's car. The divorce judgment provides that the mother would retain a "Mercedes Benz vehicle titled in [the father's] name and assume the financing on that vehicle if she can do so; if she cannot do so she shall indemnify the [father] with respect to the payments." Even if, pursuant to this provision, the father is entitled to indemnification, he is not entitled to "resort[ ] to self-help, unilaterally reducing the support payments and thereby flouting a valid order of the court." Heistand v. Heistand, 384 Mass. 20, 29-30 (1981).
3. Conclusion. So much of the judgment as awarded $151,666.76 to the mother for arrearage of spousal support is vacated, and the judgment shall be modified to award $113,750.07 to the mother for arrearage of spousal support. As so modified, the judgment is affirmed.
So ordered.
Affirmed as modified in part; vacated in part.