Hale v. Hale

• Decision Date: 16 September 1981
• Citation: 429 N.E.2d 340,12 Mass.App.Ct. 812
• Parties: Daisy M. HALE v. Nathan B. HALE, Jr.
• Court: Appeals Court of Massachusetts

Page 340

429 N.E.2d 340

12 Mass.App.Ct. 812

Daisy M. HALE v. Nathan B. HALE, Jr.

Appeals Court of Massachusetts, Middlesex.

Sept. 16, 1981.

Decided Dec. 22, 1981.

Wayne Soini, Boston, for plaintiff.

C. David Grayer, Boston, for defendant.

Before DREBEN, KASS and SMITH, JJ.

DREBEN, Justice.

After a hearing on the wife's petition for separate support and her motion for leave to remove the children from the Commonwealth, a probate judge ruled that she had justifiable cause for living apart, ordered her husband to make child support payments, awarded her custody of the two minor children, ¹ but prohibited her from removing them to California. This appeal by the wife is from that portion of the judgment which prohibits her from taking the minor children to California. Because we are concerned that the judge may have had too narrow a focus in making this decision of critical significance to the lives of both of these parents and their children, we reverse and remand for further proceedings.

The judge made findings and we have a transcript of the evidence. Accordingly, all "questions of law, fact and discretion" are before us. Felton v. Felton, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 779, 786, 418 N.E.2d 606.

We state the facts as disclosed by the record. After their marriage in New York in 1961, the parties, because of the husband's career assignments in the Air Force, lived in various places including New York, Oklahoma and Germany. While the husband was in Vietnam, the wife lived with her aunt in New Jersey. Three daughters were born to the couple, one in 1962, one in 1966 and the third in 1972. The family moved to Massachusetts in 1971 because of another service assignment of the husband. The husband and wife separated in 1972, the wife continuing to live on base until the husband's retirement from the Air Force in 1975.

The wife wishes to move to California where her sister lives with her husband and three children. Her sister is buying a new house in the community in which she now resides, and the wife intends to rent her sister's present home, which is a single family house considerably more spacious and comfortable than the wife's present high rise apartment in Lynn. The wife would like to be near her sister and considers the move advantageous to the children. She has investigated the school system, and her sister has had good experience with the local schools. One of the minor daughters has school problems; the other is an excellent student.

The wife, a career civil servant, considers her present job in Massachusetts a "dead end," yet very demanding. She is eligible for a transfer to a Federal field office in California where the atmosphere is less pressured. The move would enable the wife to change careers and become a food program specialist. While the salary in California would be approximately the same as the salary she is now earning ($15,300), the wife views the California opportunity as a career advancement.

The husband is opposed to the move. After his retirement from the Air Force, the husband continued his education and is now a consultant to the Massachusetts Housing Finance Agency. His annual income, including his Air Force pension, is about $25,000. While he was in school, the children were on welfare, and the husband did not see them frequently. He, however, now has an excellent relationship with his minor daughters and visits with them about once a week. The eldest daughter, who is over eighteen, lives with her father. She previously had a strained relationship with her mother and had run away from home several times.

All three daughters testified. The oldest indicated that she did not want her sisters to leave, and that she could help the sister who is not doing well in school. Christy, age thirteen, said that she did not want to go to California because her friends and family are here. Leslie, age nine, also stated, "(I)t would be better if we stayed right here and see Shelley (oldest sister) and our father."

The judge, after reciting some of the foregoing facts, initially made three findings and rulings as to removal ² on the basis of which he prohibited the wife from removing the children to California. After the wife moved for relief from judgment, the judge made some additional findings. ³

All of the findings and rulings concerning removal were directed to the husband's relationship with his children and the relationship between the sisters. The judge made no findings as to the relationship of the mother to the children, nor did he discuss the effect on the children of the advantages or disadvantages of the move except as it affected their relation to their father. There was also no mention of alternative visitation possibilities. From what we can ascertain, the judge recognized the importance of the " 'frequent and continuing contact' of the child with both its parents," Felton v. Felton, --- Mass. at ---, Mass.Adv.Sh. (1981) at 781, 418 N.E.2d 606, quoting from Cal.Civ.Code § 4600 (West 1981 Supp.), and entered his judgment prohibiting removal on the basis that the move would make visitation more difficult. We consider that factor not in itself conclusive. The best interests of children for purposes of deciding whether to permit removal are also interwoven with the well being of the custodial parent, and the determination, therefore, requires that the interests of the mother also be taken into account.

The Massachusetts authorities have not discussed in detail the factors to be weighed in deciding questions of removal. The words "upon cause shown" in the controlling statute, G.L. c. 208, § 30, set forth in the margin, ⁴ have been interpreted to permit removal if in the best interests of the child. Rubin v. Rubin, 370 Mass. 857, 346 N.E.2d 919 (1976). However, the criteria for determining such best interests have, as yet, not been established, and decisions of the trial court as to whether removal should be allowed have been upheld without much discussion. ⁵ See, e.g., Colopy v. Colopy, 348 Mass. 781, 203 N.E.2d 546 (1964) (father permitted "to remove the children (from a religious center where parents had lived) to another State to live near his father, a man of substance"); Keiter v. Keiter, 357 Mass. 772, 258 N.E.2d 778 (1970) (wife permitted to leave Massachusetts with the child to make a permanent home in New York where she had lived all her life and where her parents and other relatives lived); Rubin v. Rubin, 370 Mass. at 857, 346 N.E.2d 919 (denial of a petition by the wife to be allowed to move to New York where her ailing mother lived).

More recently, in a case involving another aspect of visitation, the Supreme Judicial Court discussed the meaning of best interests "when the parents are at odds" and "the attainment of that purpose" involves "some limitation of the liberties of one or other of the parents." Felton v. Felton, --- Mass. at --- - ---, Mass.Adv.Sh. (1981) at 780-781, 418 N.E.2d 606. The court required more consideration by the trial judge of the impact on the child of the father's visits and required demonstration in detail of the harm to the child from conflicting religious instruction. In reversing and remanding for further proceedings, the Supreme Judicial Court pointed out that general conclusions do not suffice and harm cannot be surmised without ground level facts. Because sensitive and significant child-parent relationships are affected by decisions concerning removal, we think that there is here also the need for comprehensive findings and that the interests of the child may be best served by an accommodation "which intrudes least on the (liberties) of either parent and is yet compatible with the health of the child." Id. at 782. ⁶

Other jurisdictions have had occasion to discuss removal more fully. ⁷ In reaching the conclusion that the well-being of the custodial parent must be considered in determining the best interests of the child, we are much influenced by a case in New Jersey, D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (Ch. Div.), aff'd per curiam, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976). New Jersey has a statute, almost identical to G.L. c. 208, § 30, which precludes removal in the absence of consent of a noncustodial parent "unless the court, upon cause shown, shall otherwise order." N.J.Stat.Ann. § 9:2-2 (West, 1976). In D'Onofrio, the court analyzed the differences between the relationship of a child to a custodial and to a noncustodial parent, saying:

"Even under the best of circumstances and where the custodial parent is supportive of a continuing relationship between the child and the noncustodial parent, the nature of a parental relationship sustainable by way of visitation is necessarily and inevitably of a different character than that which is possible where the parents and children reside together as a single-family unit. The fact remains that ordinarily the day- to-day routine of the children, especially young ones, and the quality of their environment and their general style of life are that which are provided by the custodial parent and which are, indeed, the custodial parent's obligation to provide. The children, after the parents' divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered."

D'Onofrio, 144 N.J.Super. at 204-206, 365 A.2d 27.

The court also discussed the factors which should be weighed in determining whether removal should be allowed. We agree that these should include:

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