Abbott v. Virusso

• Decision Date: 28 February 2007
• Docket Number: No. 05-P-1612.,05-P-1612.
• Citation: 862 N.E.2d 52,68 Mass. App. Ct. 326
• Parties: Rosalee A. ABBOTT<SMALL><SUP>1</SUP></SMALL> v. Michael A. VIRUSSO, JR.
• Court: Appeals Court of Massachusetts

862 N.E.2d 52

68 Mass. App. Ct. 326

Rosalee A. ABBOTT¹ v. Michael A. VIRUSSO, JR.

No. 05-P-1612.

Appeals Court of Massachusetts, Middlesex.

Argued September 19, 2006.

Decided February 28, 2007.

Thomas Paul Gorman Boston, for the plaintiff.

India L. Minchoff (Stephen J. Kuzma with her) for the defendant.

Present: DUFFLY, SMITH, & KANTROWITZ, JJ.

DUFFLY, J.

A judge of the Probate and Family Court denied Rosalee Abbott's request, set forth in a complaint for modification of a divorce judgment, that she be allowed to relocate with her son and fiancé from Newton to Tucson, Arizona. The judge's findings do not reflect whether he gave "continued consideration of the quality of life of the custodial parent," Pizzino v. Miller, 67 Mass.App.Ct. 865, 875, 858 N.E.2d 1112 (2006), in deciding as he did. In addition, certain findings appear to rely on statements of the child, then eleven years old, made in an unrecorded, in camera interview with the judge to which the mother objected. We therefore vacate the judgment and remand for further proceedings.²

Background facts and proceedings. The parties married in 1988 and have two children: a daughter, born October 31, 1989, and a son, born October 23, 1993. Following a "hotly contested trial," the parties were divorced in December, 2003. The divorce judgment provides that the parties were to "share physical custody of their children" in accordance with a court-imposed parenting schedule, pursuant to which the children were to reside primarily with the mother.³ The judgment and parenting schedule entered even though the divorce judge (not the same judge who heard the complaint for modification) was aware that at the time of trial the daughter was, in fact, living with the father in Newton. As the divorce judge found, this came about because of the father's anger with the mother, who was having an affair, which "caused him to seek an ex parte order for custody of [the daughter], removing the child from the marital home and separating her from her brother." The mother was found to have been "the primary homemaker and child rearing parent" during the marriage.

Since the divorce, the son has continued to reside primarily with the mother who, as found by the judge who presided over the modification action, is the son's "primary care parent," whereas the daughter continues to live with the father. The son visits with the father in accordance with the parenting schedule set forth in the divorce judgment. The mother has become engaged to marry James Seder and, as of September, 2004, they have resided together with the son in the former marital home.⁴ The father denied the mother's request to relocate with the son to Arizona, where her fiancé plans to move,⁵ and on August 25, 2004, the mother filed a complaint seeking authority to remove. The father filed a counterclaim for modification seeking physical custody of both children and an award of child support from the mother. After a three-day trial beginning on July 11, 2005, the judge dismissed the mother's complaint; denied the father's complaint as to physical custody of the son; amended the divorce judgment by awarding physical custody of the daughter to the father; and reduced the father's child support obligation from $400 to $200 per week. The trial judge's findings and conclusions of law supporting denial of the mother's request are set forth in an amended memorandum of decision,⁶ dated September 13, 2005.⁷

Discussion. Neither party maintains that the facts of the present case are governed by Mason v. Coleman, 447 Mass. 177, 178, 850 N.E.2d 513 (2006), where the parties had "joint physical and legal custody"⁸ of their children. During the marriage in the Mason decision, "each parent took the part of a `primary caretaker,'" and the "parents divided physical custody of the children approximately equally" after the divorce judgment entered. Id. at 178-179, 850 N.E.2d 513. The Mason case is relevant to circumstances where "neither parent has been exercising a clear majority of custodial responsibility." Id. at 185, 850 N.E.2d 513, quoting from the American Law Institute's (ALI) Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.17(1), (4)(c) (2002) (Principles of the Law of Family Dissolution).<sup>9</sup> In such a case, "the `best interest' calculus pertaining to removal is appreciably different," Mason v. Coleman, supra at 184, 850 N.E.2d 513, from those in which a primary custodial parent seeks removal, as here.

In cases such as the one before us, the "real advantage" test applies. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 705, 706, 711, 481 N.E.2d 1153 (1985) (parents had "joint legal custody," but mother had "physical custody"). Cf. Principles of the Law of Family Dissolution, supra at § 2.17(4)(a) ("The court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose"). Under the real advantage test, "[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the children's best interests. It is important to emphasize that consideration of the advantages to the custodial parent does not disappear, but instead remains a significant factor in the equation." Pizzino v. Miller, 67 Mass.App.Ct. at 870, 858 N.E.2d 1112.

a. Good, sincere reason to move. "[T]he first consideration [in the process of determining the best interests of a child] is whether there is a good reason for the move, a `real advantage.'" Yannas v. Frondistou-Yannas, supra at 711, 481 N.E.2d 1153. This requires that the custodial parent establish "a good, sincere reason for wanting to remove to another jurisdiction." Ibid. The judge must consider both "the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation." Ibid. See Rosenthal v. Maney, 51 Mass.App.Ct. 257, 267, 745 N.E.2d 350 (2001).

Here, the judge found that "if [the mother] marries Dr. Seder, [she] will have more economic security than she presently has,"¹⁰ and that "the [mother] would benefit emotionally and socially if she moved to Arizona because she wishes to reside with her fianc[é], and it would appear that she is looking for a fresh start away from her extended family." The judge did not find that the mother had any motive to deprive the father of reasonable visitation; indeed, the parties are in agreement that the father's time with the son has been consistently maintained in accordance with the court ordered schedule. The findings that the mother would "benefit emotionally and socially" from the move, as well as financially, establish that the mother had a good, sincere reason to move.¹¹

Despite these findings, the trial judge concluded that the Yannas standard did not focus sufficiently on the child's best interest which he felt should be "the sole focus." This view may have influenced the judge's ultimate determination that removal would not be in the son's best interest.

b. Collective consideration of remaining factors. "If 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." Yannas v. Frondistou-Yannas, 395 Mass. at 711-712, 481 N.E.2d 1153. Rosenthal v. Maney, 51 Mass.App. Ct. at 267-268, 745 N.E.2d 350. "[B]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account." Yannas v. Frondistou-Yannas, supra at 710, 481 N.E.2d 1153, quoting from Cooper v. Cooper, 99 N.J. 42, 54, 491 A.2d 606 (1984). See Hale v. Hale, 12 Mass.App.Ct. 812, 815, 429 N.E.2d 340 (1981); Rosenthal v. Maney, supra at 266, 745 N.E.2d 350. At this second stage, "[e]very person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding. . . ." Yannas v. Frondistou-Yannas, supra at 712, 481 N.E.2d 1153.

In addition to making findings relative to the initial "real advantage" determination, the judge stated:

"The Court finds that [the son] would not benefit from a move to Arizona as he does not wish to move to Arizona thereby being separated from the [father, his sister], his extended family and friends. If removal were granted, the Court finds that if [the son] were to visit the [father] and [his sister] on a monthly or bi-monthly basis as opposed to a daily or weekly basis, it would weaken his relationship with them.

"The Court finds that the educational system of the Newton public schools is superior to the educational system of the Tucson public schools, hence it is beneficial for [the son] to remain in the Newton system. . . .

"If removal were granted, the Court finds that reasonable alternative visitation would be problematic in that [the son] would be asked to perform most of the travel because [the daughter] refuses to live with Dr. Seder, and therefore she would be living in a motel during her visits with the plaintiff. Nevertheless, reasonable alternative visitation could be worked out with [the son] traveling to Newton. . . .

"The Court further finds that it would be in the best interest of [the son] to reside with either parent. Presently, [the son] has a shared living arrangement, wherein he spends more time with the [mother]. [The son] has a close relationship with the [father] and his sister. [The son] is a happy, intelligent, well-adjusted child who wishes to continue to reside in the Newton area."

The judge concluded that "it would be detrimental to...