Fuller v. Fuller

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before HALE; KEVILLE
• Citation: Fuller v. Fuller, 312 N.E.2d 581, 2 Mass.App.Ct. 372 (Mass. App. 1974)
• Decision Date: 20 June 1974
• Parties: Constance FULLER v. Donald L. FULLER.

Page 581

312 N.E.2d 581

2 Mass.App.Ct. 372

Constance FULLER v. Donald L. FULLER.

Appeals Court of Massachusetts, Essex.

Argued May 16, 1974.

Decided June 20, 1974.

Rya W. Zobel, Boston (Alix Smullin, Weston, with her), for libellant.

David S. Mortensen, Boston, for libellee.

Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ.

KEVILLE, Justice.

On November 1m, 1970, Donald Fuller (Donald) was granted a decree of divorce nisi in a Probate Court from Constance Fuller (Constance) in an uncontested proceeding on the ground of gross and confirmed habits of intoxication. Donald also was given custody of their sons, Michael, who is now eight, and Mark, now six.

On March 14, 1972, Constance brought a petition for modification before another

On November 17, 1970, Donald Fuller custody of the children be transferred to her. By order of a single justice of this court, Donald was given leave to file a late appeal from the decree of modification and the operation of that decree was stayed until further order of this court. That appeal is now before us with a transcript of the evidence but without a report of material facts. ¹

In this situation, all questions of law, fact and discretion are presented for our decision. The entry of the decree imports a finding of every fact necessary to sustain it and such implied findings of fact, based wholly or partly upon oral testimony, are not to be set aside unless we are satisfied, after giving to the oral testimony all the weight that the trial judge could justifiably attribute to it, that, nevertheless, his findings are plainly wrong. Colbert v. Hennessey, 351 Mass. 131, 134, 217 N.E.2d 914 (1966). GANNON V. MACDONALD, --- MASS. --- , 279 N.E.2D 668 (1972)^A. Our examination of the evidence compels the conclusion that the ultimate finding of the judge, implicit in his decree, that it is in the best interests of the children that their custody be transferred from their father to their mother, is plainly wrong.

The pertinent facts appear to be largely undisputed. Constance and Donald were married in 1962. Following their marriage, Constance became increasingly addicted to alcohol. They were then living in Amesbury. While their younger son was still in diapers, Donald on several occasions was called home from his job by neighbors who had observed the children unattended on the street in various stages of dress. On these occasions he would usually find his wife unconscious in the house as a result of her drinking. During a five-week period in the early part of 1969 she had been arrested on three occasions for drunkenness and operating a motor vehicle while under the influence of intoxicating liquor. She was placed on probation upon the condition that she would consult a psychiatrist which she did until some time in 1970.

It was against this background that Donald took the children to live with his mother in Rochester, New York for a period of three weeks. He then returned to Amesbury where he and the children occupied an apartment. Baby sitters cared for the children during the day and he took care of them at night. That situation persisted until mid-1971. Then the company for which he works as a plant foreman moved to Hillsborough, New Hampshire. He and the children moved there where his mother continued to help take care of the children until he remarried on July 1, 1972. He continues to live in Hillsborough with his second wife, Lorna, and her five- year-old daughter by a prior marriage which terminated in divorce. At the time of the hearing on the petition for modification, they were expecting a child of their own.

They live in a rural area in a comfortable six-room house located several hundred feet from the nearest road. Donald works five days a week from forty to fifty hours and occasionally for a few hours on Saturday. He is active as a little league coach and in his church where the children go to Sunday school. The report cards of the older boy, Michael, indicate that he has gotten along well in the first grade of the local public school and is an excellent student. Both boys appear to be normal, well-adjusted children.

Donald's second wife is a chiropractor, and she has worked with her father in that profession in a nearby community on Saturdays. During the remaining time she is at home with the children. On the day she works, the children are either in Donald's care or in the care of a baby sitter. Donald has been completely cooperative in carrying out arrangements made for the children to visit their mother in Amesbury. These visits have been on a regular basis ever since the move to New Hampshire in 1971, and they appear to have given rise to but little friction.

Constance readily admits that she is an alcoholic and that during her marriage she was, on many occasions, hopelessly intoxicated until she became separated from her husband and the children. She jointed Alcoholics Anonymous (A.A.) in August of 1969, and after some initial difficulties, has been rehabilitated to the extent that she has remained sober since some time in the fall of 1970, She is an active member of A.A. She attends meetings of that organization during the evening on an average of three times a week and has made speeches at A.A. meetings in various communities in Massachusetts and New Hampshire. These meetings usually commence at 8:30 in the evening. She took the children to a few of these meetings until Donald objected.

She continues to reside in Amesbury in a three-bedroom house which she owns and which would provide adequate housing for her and the...