Freedman v. Freedman

Decision Date11 February 2000
Docket NumberP-1399
Citation49 Mass. App. Ct. 519,730 N.E.2d 913
Parties(Mass.App.Ct. 2000) ROGER A. FREEDMAN vs. IPPOLITA S. FREEDMAN. No.: 98- Argued:
CourtAppeals Court of Massachusetts

Norfolk County.

Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on March 8, 1994.

Divorce and Separation, Child custody, Alimony, Child support, Division of property, Agreement respecting life insurance. Parent and Child, Custody, Child support. Probate Court, Divorce, Custody of child.

Elizabeth R. Lewis for Roger A. Freedman.

James R. DeGiacomo (Joan P. Armstrong with him) for Ippolita S. Freedman.

Present: Kass, Greenberg, & Lenk, JJ.

The case was heard by Christina L. Harms, J.

KASS, J.

Both parties to a divorce action have appealed from the judgment. Of the various points they raise on appeal, the one with an element of novelty is whether a Probate Court judge may, as to the couple's minor child, order a joint legal custody arrangement that requires the child to change his primary residence on an annual basis. We affirm that order as well as the other contested elements of the judgment of divorce.

1. Facts. The trial judge made comprehensive findings of fact, for which there is support in the record. Roger A. Freedman (Roger) and Ippolita S. Freedman (Ippolita) met when she, age twenty, was a sophomore at Wellesley College and he, age thirty-nine, was a bachelor living in a house in Wellesley. The couple began living together in 1990 and were married May 28, 1992. At that time Ippolita had completed her bachelor of arts degree at Wellesley and planned to take an advanced degree in art history at Brown University. Their child, a son, was born the following October.

Roger had equity interests in a family real estate business (consisting of various partnerships and corporations) that was largely managed by his sisters and his mother. The business required little of Roger's time or attention, but the cash draws that the Freedman siblings made from time to time were significant. In the late 1980s, for example, each sibling drew approximately $300,000 per year for three successive years. In many years, however, it was the practice of the business partners to retain earnings against foreseeable business needs, so that there would be more taxable income than there was cash flow.

During the time they were together, the life style of the couple was markedly affluent. In addition to the Wellesley house, which had a swimming pool, they had a second house in Gloucester. They employed domestic help. Roger's taste in cars ran to Ferraris (he owned two), a BMW, and an Alfa Romeo.

The marriage soured quickly, and, by the spring of 1994, each brought a divorce action against the other, Roger having fired the first salvo in March, 1994. The divorce trial took place on five days in December, 1996, and two days in January, 1997. Judgment of divorce nisi entered on February 3, 1997.

2. The judgment. As both parents loved their child dearly and were good parents to him, the judge ordered joint legal custody. Roger, for the balance of the 1996-1997 school year and the entire 1997-1998 school year, was to have custody from the end of the school day on Friday to the beginning of the school day on Monday. For the 1998-1999 school year, the arrangement would reverse, with Ippolita to have custody during the Friday afternoon Monday morning span and Roger during the school week span. The idea was to give the child stability during each school year and to avoid the "today is Tuesday, I must be going to Mom's house" phenomenon. There were included in the custody orders detailed provisions for vacations, where the child would go to school, that neither parent would disparage the culture or religion of the other, and so forth.

Financial provisions in the judgment required (a) Roger to pay $400,000 to Ippolita as a lump sum property division; (b) Roger to pay $40,000 to Ippolita's counsel for counsel fees; (c) Roger to pay to Ippolita $1,000 alimony per month; (d) Roger to pay $3,000 per month to Ippolita for child support; (e) Roger to pay $36,000 to Ippolita for reasonable expenses incurred in obtaining her master's degree; (f) Roger to maintain comprehensive medical insurance for the child until his emancipation; (g) Roger to provide comprehensive medical insurance for Ippolita as long as he has an alimony obligation; and (h) Roger to maintain a $1,000,000 life insurance policy payable to Ippolita as long as he has financial obligations to her or the child.

3. Correctness of the custody order. The primary attack that Ippolita makes on the custody component of the judgment is that it is, in substance, a "shared legal custody" arrangement, a defined term in G. L. c. 208, 31, and that a judge may order shared legal custody only upon the submission by the parents at trial of a "shared custody implementation plan." See G. L. c. 208, 31, eleventh par.

We think that a too restricted reading of the statutory scheme. Within 31 itself, in the ninth paragraph, authority is conferred on the trial judge to make an order for shared legal custody, provided that such an order is supported by written findings. Moreover, G. L. c. 208, 28, as amended by St. 1975, c. 400, 29, authorizes a Probate Court judge, upon a judgment for divorce, to make "such judgment as [the judge] considers expedient relative to the care, custody and maintenance of the minor children of the parties." The powers conferred on Probate Court judges to make custody arrangements that are expedient are not impliedly limited by the option afforded to divorcing parents by 31 to proffer to the court a shared legal custody plan of their own devising.

Appellate courts have interpreted the statutory power to make expedient custody orders as conferring upon Probate Court judges broad discretion. To the exercise of that discretion appellate courts give deference, recognizing that the Probate Court judge has had the opportunity to observe and appraise both parents in custody matters. Stevens v. Stevens, 337 Mass. 625, 627 (1958). Vilakazi v. Maxie, 371 Mass. 406, 409 (1976). Kendall v. Kendall, 426 Mass. 238, 251 (1997), cert. denied, 524 U.S. 953 (1998). There are limits to appellate deference. Error of law apparent on the record, such as the failure of a judge's findings to support the judge's action or findings that have no support in the evidence, would constitute an abuse of discretion. Vilakazi v. Maxie, supra. The guiding principle in the exercise of discretion is the best interests of the child. Ibid. Rolde v. Rolde, 12 Mass. App. Ct. 398, 404-405 (1981).

Within the judge's careful findings are those that describe that the couple's son has done well in a de facto shared custody arrangement following the separation of the parents. Notwithstanding the hostility and tension attendant on their divorce, Ippolita and Roger were able to come to terms, albeit after some rancor about the subject, on where the child should go to preschool. Both parents are loving and capable. Consistency for the child, the judge wrote, would be accomplished by continuation of the sharing arrangement he had come to know, rather than the creation, by judicial order, of a "predominant parent" and a "visiting parent."1 Splitting the school week imposed difficulty on the child; hence a weekday custodian and a weekend custodian, but with alternation of those assignments to avoid the predominant parent and visiting parent dichotomy.

The potential practical difficulty in the custodial plan drawn by the judge is that one parent may move a significant distance from Wellesley, where the child was going to school at the time of trial. Arrangements for the care and custody of children of divorced couples, however, inevitably raise difficulties: the pressure for parents to stay geographically near one another...

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