Hunter v. Rose

• Decision Date: 28 September 2012
• Docket Number: SJC–11010.
• Citation: 463 Mass. 488,975 N.E.2d 857
• Parties: Amy E. HUNTER v. Miko ROSE (and a companion case ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 488

975 N.E.2d 857

Amy E. HUNTER

v.Miko ROSE (and a companion case ¹).

SJC–11010.

Supreme Judicial Court of Massachusetts, Essex.

Submitted May 8, 2012.

Decided Sept. 28, 2012.

John Foskett (Regina M. Hurley with him), Boston, for the defendant.

Karen L. Loewy, Boston (Patience W. Crozier, Cambridge, with her), for the plaintiff.

Ilona M. Turner & Catherine P. Sakimura, of California, & Neil Jacobs, Mary J. Edwards, & Darren T. Griffis, for Scott Altman & others, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & LENK, JJ.

IRELAND, C.J.

We granted an application for direct appellate review of the defendant, Miko Rose, to consider whether a judge in the Probate and Family Court erred when she recognized Rose's California registered same-sex domestic partnership (RDP) with the plaintiff, Amy Hunter, as the equivalent of marriage in the Commonwealth; determined that both parties were the legal parents of the child each bore; and, after dissolving the RDP, awarded physical custody of the two children as well as certain attorney's fees to Hunter. Because parties to California RDPs have rights and responsibilities identical to those of marriage, pursuant to our recent decision in Elia–Warnken v. Elia, 463 Mass. 29, 972 N.E.2d 17 (2012), the judge did not err in treating the parties' RDP as equivalent to marriage in the Commonwealth. We also conclude that the judge did not abuse her discretion in awarding physical custody of the children and attorney's fees to Hunter. Accordingly, we affirm.

Facts and background. We present the essential facts found by the judge in her extensive written findings, reserving details for our discussion of the issues raised.

Hunter and Rose began a dating relationship in Massachusetts in 2001. In the spring of 2002, they moved to California so that Rose could establish in-State residency and attend medical school. In the summer of 2003, the couple began to try to conceive a child; Hunter was the intended birth mother.

In September, 2003, the couple executed a declaration of domestic partnership that was registered in California in October, 2003. Important for our purposes is that, in September, 2003, the California Legislature amended its domestic partnership laws to grant same-sex domestic partners rights that are identical to those of marriage. 2003 Cal. Stat. 421, codified at Cal. Fam.Code § 297.5(a) (West Supp.2012). The law applied retroactively to all RDPs that were not terminated prior to the statute's effective date of January 1, 2005. Cal. Fam.Code § 299.3 (West Supp.2012). Hunter and Rose had notice of the change in the law; they did not dissolve their RDP, making them subject to the provisions of the 2003 statute.

In 2004, the couple bought a house. In 2006, after Hunter had several unsuccessful attempts to conceive a child that included undergoing medical procedures, the couple agreed that Rose would try to conceive. Her attempts were successful. While Rose was pregnant, the couple moved to Massachusetts, in part so that Hunter could obtain better health care coverage. Rose had obtained “medical rotations”on the east coast. Rose gave birth to a daughter, Jill,² in a hospital in Rhode Island in August, 2007.

Both women contributed to Jill's care. Because Hunter's work schedule was more flexible, she accommodated Rose's clinical rotations. In September and October, 2007, Hunter was Jill's primary caretaker; she took time off from work and worked from home to care for her. In January, 2008, Rose contacted an attorney to initiate Hunter's adoption of Jill and the couple began collecting supporting affidavits.

The couple also planned to have another child together. After several more fertility treatments, Hunter conceived a child in April, 2008, using the same sperm donor Rose had used. Shortly thereafter, the relationship between the couple deteriorated and ended in August, 2008, although they continued to live together. Because of Rose's rotation schedule, after the breakup, Hunter had an even greater parenting role.

In October, 2008, Rose and Jill moved out of the home they shared with Hunter, who continued to coparent Jill. Rose notified Hunter that she was accepting a four- to six-week rotation in Oregon and was taking Jill with her. She deceived Hunter by assuring her that she and Jill would return in late November or early December, and that she would provide regular updates about Jill as well as utilize a “Web camera” so that Hunter could see Jill.

Instead, in November, 2008, Rose ceased all communication with Hunter. Rose canceled her cellular telephone service (and has never given Hunter her new telephone number), and did not respond to Hunter's attempts to communicate “with [Jill] by sending [her] packages ... and home videos and [by] emailing and texting.” Rose refused Christmas gifts Hunter sent to Jill. She also made decisions about Jill's daycare and living arrangements without notifying or consulting Hunter. Even after a temporary court order issued in February, 2009, allowed Hunter contact with Jill, Rose demanded that Hunter not refer to herself as “mommy.” Rose also deliberately applied for medical rotations and clinical assignments to keep Jill as far away as possible from Hunter. In short, “she did everything she could to eradicate ... Hunter from [Jill]'s life.” In addition, after promising to proceed with Hunter's adoption of Jill, Rose ultimately refused to allow it. Rose denies that Hunter has a parental bond with Jill and would like any relationship Jill has with Hunter to cease.

At the end of November, 2008, Hunter filed a complaint for custody of Jill. In December, 2008, she filed an amended complaint in equity in which she sought sole physical custody of Jill and her unborn child, as well as a complaint for divorce.

Hunter gave birth to a daughter, Mia,³ in January, 2009. Rose has provided “little to no” child care to Mia, admits that she does not love Mia, and does not want legal or physical custody of her. In addition, although Rose admitted in an answer to the complaint for custody that Hunter used the same sperm donor as she had, she denies that Jill and Mia are sisters, has actively discouraged any relationship between the girls, and wants Jill's existing relationship with Mia terminated.

Hunter's complaint for divorce was dismissed, the two remaining cases were consolidated, and a bench trial took place over several days in November, 2010, and January, 2011.

In her written decision, the judge made 726 enumerated findings of fact, further findings of fact, and 152 rulings of law. She dissolved the parties' RDP, declared that the parties were legal parents of both children, and granted sole legal and physical custody of Mia to Hunter (which Rose does not challenge) and joint legal custody of Jill with primary physical custody to Hunter. The judge set a parenting schedule of visitation between Rose and Jill. In a separate order the judge granted Hunter $180,000 in attorney's fees.

Discussion. 1. Recognition of California domestic partnerships.⁴ Rose argues that the judge erred in determining that her California RDP was the equivalent of marriage in the Commonwealth and should be recognized under principles of comity. We considered the substance of Rose's arguments in our recent decision in Elia–Warnken v. Elia, 463 Mass. 29, 32–35, 972 N.E.2d 17 (2012). Here, it suffices to say that, as the judge found, California's domestic partnership law provides virtually identical rights as marriage. See Cal. Fam.Code § 297.5(a) (“Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law ... as are granted to and imposed upon spouses”).⁵ Moreover, failing to recognize a domestic partnership here would allow Rose to avoid obligations such as child support. Elia–Warnken v. Elia, supra at 34, 972 N.E.2d 17, quoting Singer, Same–Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 29, 36, 50 (2005) (“the ‘needs of the interstate and international systems are better served by having a single clear answer to the validity of marriage,’ because nonrecognition allows parties to avoid their obligations or leads to inconsistent legal obligations”). It also would harm Jill because a child's welfare is promoted by ensuring that she has two parents to provide, inter alia, financial and emotional support. See Adoption of Mariano, 77 Mass.App.Ct. 656, 661, 933 N.E.2d 677 (2010).

In addition, the judge did not err in determining that Hunter and Rose are the legal parents of both children under either Massachusetts or California law. Under Massachusetts law, children born into a legal spousal relationship are presumed to be the children of both spouses. G.L. c. 209C, § 6. Moreover, any child born as a result of artificial insemination with spousal consent is considered to be the child of the consenting spouse. G.L. c. 46, § 4B.

Although Rose does not assert that Hunter did not consent to Jill's conception, she claims that she did not consent to Mia's conception. The judge's conclusion that Rose consented to Mia's conception is fully supported in the record: in 2007, Rose signed three consent forms for one clinic ⁶ to administer artificial insemination to Hunter, and Rose provided blood for testing; after that attempt failed, Rose, among other things, accompanied Hunter to visits to another clinic and subsequent ultrasound and genetic counselling; she informed “others” that the plaintiff's pregnancy was “great news”; and she altered her rotation schedule to accommodate the pregnancy.⁷

Likewise, under California law, parties to an RDP are treated the same as spouses in determining the rights and obligations with respect to a child of either of them. Cal. Fam.Code § 297.5(d). A nonbiological mother is presumed to be a child's parent if the child is born during the ...