Angelone v. Angelone

• Decision Date: 14 May 1980
• Citation: 9 Mass.App.Ct. 728,404 N.E.2d 672
• Parties: Marie C. ANGELONE v. Gino I. ANGELONE.
• Court: Appeals Court of Massachusetts

Page 672

404 N.E.2d 672

9 Mass.App.Ct. 728

Marie C. ANGELONE v. Gino I. ANGELONE.

Appeals Court of Massachusetts, Middlesex.

Argued April 11, 1980.

Decided May 14, 1980.

Michael Wheeler, Boston, for defendant.

Diane Lund, Cambridge, for plaintiff.

Before ARMSTRONG, GREANEY, and PERRETTA, JJ.

GREANEY, Justice.

On August 21, 1979, Marie Angelone (Marie) was granted a judgment of divorce nisi from Gino Angelone (Gino) by a Probate Court on the ground of cruel and abusive treatment. Gino appeals from this judgment in so far as it: (a) awarded custody of the couple's four minor children (ages five to eleven) to Marie; (b) ordered Gino to pay Marie, as alimony and for maintenance of the children, the sum of $200 per week; and (c) ordered him to convey to Marie all his right, title, and interest in the marital home in Framingham. We have before us, for purposes of determining these issues, a transcript of the evidence and the judge's detailed findings of fact as to the "welfare of the children" (Masters v. Craddock, 4 Mass.App. 426, 428, 351 N.E.2d 217 (1976)) and as to her consideration of each of the mandatory factors enumerated in G.L. c. 208, § 34, as appearing in St. 1975, c. 400, § 33. Bianco v. Bianco, 371 Mass. 420, 423, 358 N.E.2d 243 (1976). Rice v. Rice, 372 Mass. 398, 401, 361 N.E.2d 1305 (1977). Putnam v. Putnam, --- Mass.App. ---, --- ^a, 389 N.E.2d 777 (1979). We turn directly to the challenged orders, examining them under the familiar rule that we will not reverse the orders of a probate judge in the areas of custody and support unless the judge's findings are clearly erroneous. Mass.R.Dom.Rel.P. 52(a) (1975). King v. King, 373 Mass. 37, 40, 364 N.E.2d 1218 (1977). Prindle v. Fisk, 2 Mass.App. 843, 844, 311 N.E.2d 586 (1974). Clarke v. Clarke, 3 Mass.App. 736, 737, 326 N.E.2d 722 (1975). Daigle v. Daigle, 5 Mass.App. 847, 363 N.E.2d 1353 (1977).

1. Custody. Gino argues that the judge erred in awarding custody of the children to Marie, who had been voluntarily hospitalized for short periods for emotional problems and whose therapist testified during the hearing that she had a "predisposition" to depression. He does not claim (nor could he on this record) that Marie's problems, or the fact that she has sought help for them, render her unfit as a parent. McMahon v. McMahon, 1 Mass.App. 647, 649, 305 N.E.2d 521, 523 (1973) (father's neurosis, for which psychiatrist is treating him, "does not impair his ability to function properly as a responsible parent"). He argues instead that a probate judge must award custody to the superior of two fit parents, and that he is the superior custodian by virtue of Marie's latent condition and his greater emotional stability. While it is true that in determining the question of custody "the rights of the parents shall . . . be held to be equal" (G.L. c. 208, § 31), the statutory focus remains that "the happiness and welfare of the children shall determine their custody or possession." Id. Obviously, the comparative emotional health of the parents is only one of several factors which can affect the well being of their children. See generally, Annot., "Mental Health of Contesting Parent as Factor in Award of Child Custody," 74 A.L.R.2d 1073 (1960). That is especially the case where, as here, the findings indicate that all professionals regard the mother as a fit and suitable parent, she has been the children's primary caretaker for most of their lives, and they live with her in a settled environment. See Stevens v. Stevens, 337 Mass. 625, 627-628, 151 N.E.2d 166 (1958); Fuller v. Fuller, 2 Mass.App. 372, 377, 312 N.E.2d 581 (1974); Prindle v. Fisk, 2 Mass.App. at 844, 311 N.E.2d 586. In addition to her own observations of the parents during their testimony (see Clarke v. Clarke, 3 Mass.App. 736, 737, 326 N.E.2d 722 (1975)), the judge had the benefit of the reports and testimony of a psychologist who was appointed to investigate the custody and visitation arrangements for the children. The psychologist talked with the parties, their counsel, the children, and the current therapists of both the husband and the wife. Both therapists also testified on behalf of their respective clients. There is ample evidence in the record to support the judge's comprehensive subsidiary findings, and we see no purpose in attempting to summarize them. Masters v. Craddock, 4 Mass.App. at 428, 351 N.E.2d 217. In our opinion, on the evidence before her, the judge could permissibly conclude; (a) that Marie is dealing successfully with her emotional problems; (b) that of the two parents "she despite her problems can offer the children more room for growth"; (c) that Gino has an "obsession with keeping control over the life of his wife and children" which causes much of her stress; and (d) that the welfare of the children will best be served by granting custody to their mother, with liberal and specific rights of visitation for the father.

2. Support. Gino contends that the $200 per week support payments ordered by the judge for his wife and children were clearly excessive because the award constitutes approximately thirty-seven percent of his gross weekly income and because Marie is also employed part-time and earning $141.70 per week gross income. Before making this order, the judge carefully considered the needs of the children, including the desirability that their mother only work part-time. She also considered the disparity between the couple's education and future earning capabilities, and all of their assets and liabilities. We cannot say that the judge abused her discretion in concluding...