J.F. v. J.F.

• Decision Date: 09 October 2008
• Docket Number: No. 06-P-2011.,06-P-2011.
• Parties: J.F. v. J.F.
• Court: Appeals Court of Massachusetts

894 N.E.2d 617

72 Mass. App. Ct. 782

J.F. v. J.F.

No. 06-P-2011.

Appeals Court of Massachusetts, Hampden.

Argued March 11, 2008.

Decided October 9, 2008.

James M. Smith for the father.

Thomas A. Kenefick, III, Springfield, for the mother.

Present: LENK, GELINAS, & FECTEAU, JJ.¹

GELINAS, J.

Less than five months after the entry of a judgment of divorce nisi that incorporated an agreement of the parties providing that the defendant (mother) was to have physical custody of the parties' two minor children, Molly and Tom,² the plaintiff (father) filed a complaint for modification alleging various changes in circumstances and requesting (1) that the divorce judgment be modified by transferring to him physical custody of Tom and (2) that Tom be allowed to relocate to the State of Connecticut where the father resided. The mother responded with a motion for summary judgment, which was allowed by the judge. As we agree with the father that summary judgment should not have entered for the mother, we vacate the judgment dismissing the father's complaint for modification and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion.

1. Background. The parties were married in 1984 and were divorced by a judgment of divorce nisi dated January 30, 2004. During the divorce proceedings the parties executed a separation agreement, which provided that they would share legal custody of the minor children and that the mother would have sole physical custody of the children.³ The judgment of divorce nisi appears to have incorporated that provision of the agreement.

On or about June 11, 2004, the father filed a complaint for modification alleging, as changes in circumstances, that the mother was neglecting, abusing, or otherwise ignoring Tom, that Tom had "become extremely lonely and depressed" as a result of the lack of attention, and that Tom, on numerous occasions since the divorce, had expressed his desire to live with the father.⁴ The father requested that the court modify the divorce judgment so as to award him physical custody, or "at least shared physical custody," of Tom and that Tom be allowed to relocate to Connecticut. Thereafter, the judge appointed counsel for the children and, on the father's motion, a guardian ad litem to investigate and make findings concerning the physical custody of the minor children and a visitation schedule for the children.

2. The guardian ad litem's reports. The guardian ad litem, Linda Cavallero, Ph.D.,⁵ submitted a thirty-three page initial report in November, 2005, and a supplemental report in February 2006. Both reports are included in their entirety in the summary judgment materials and are relied on by the parties. Doctor Cavallero interviewed both the parties and the children on multiple occasions. In addition, she spoke with numerous "collateral contacts," including Helena Friedman, the children's (former) attorney; Peter G. Grey, Ph.D., a psychological consultant retained by the parties to help them "work out" an agreement on child issues; the children's former and present nannies; the children's pediatrician; and a number of educators at the children's schools. Doctor Cavallero also conducted psychological testing on the parties and reviewed dozens of "records," including a letter of Dr. Grey to the parties dated October 21, 2004 (discussed infra).

Doctor Cavallero indicated that the parties are well educated successful professionals. Their divorce was a bitter one. The father reported to Dr. Cavallero that since the divorce Tom has repeatedly requested to live with him. The father also voiced his concern that the mother paid little attention to Tom and that Tom was "lonely" at her home. Tom reported to Dr. Cavallero that his mother leaves for work in the morning before he leaves for school; the nanny drops him off at the bus stop and picks him up later. Continuing, Tom stated that although he sometimes "do[es] things" with his mother in the evening, they really do not "do much." Tom acknowledged that, on occasion, he goes for a bicycle ride or plays golf with his mother. Tom indicated that he would like to try living with his father and "thinks" that his mother told him it would be all right with her. Tom stated that the "bad side" of such an arrangement would be that he would not see his mother as much. Tom reported that he was not really close to his sister. School personnel reported to Dr. Cavallero that Tom was doing well in school and was a "pleasure" to have in class. The children's current nanny, a college student and friend of Molly, "expressed no concern about the children."

Helena Friedman, who was involved with the family as counsel for the children between August, 2004, and the spring of 2005, reported that Tom had told her that he does a lot of activities with his father and that with his mother he goes to the movies, shops, plays golf, and has friends over. Tom informed Friedman that he wanted to live with his father and included within his reasons that the "mother spent a lot of time going with [Molly] to the barn for horseback riding [counsel stated that Molly was involved with horseback riding on a daily basis; she apparently owns or has regular access to a horse], and that he had more fun at his father's house."

Doctor Peter Grey, who met with the parties and the children (on two occasions) to better understand the family situation, reported to the guardian ad litem that both parents are "very busy and stated that the children were raised by whoever was with them." He described Molly as "indulged" and "something of a `manipulator' " and stated that the mother's household "seemed to be set up around [Molly's] needs more than [Tom's]." He noted, for example, that when Molly went for riding lessons, Tom had to go along and spent his afternoon in the car rather than playing with peers. Doctor Grey reported that Tom "was not `the prize child' at least by the mother."

A nanny who had cared for the children for seven years (until the summer of 2002), but who had subsequently been given some access to the children by the father, expressed concern that Tom "does not seem happy and that other people who have known him for a long time report that he looks `sad.'"

Doctor Cavallero stated in her conclusions in her initial report that, in her opinion, "both parents are basically capable and love their children. [The mother's] strengths as a parent are her hard work and her commitment to her children." She noted, however, that the father appears to have a better appreciation of Tom's needs and experience, and that his "strengths are his empathy for both children, especially [Tom], and his willingness to adapt his current schedule to meet their needs." In contrast, the mother "tends to view the situation from her perspective" and in a "self-serving manner." Doctor Cavallero stated that the father "correctly notes that [Tom] is somewhat lonely in the mother's household, that his needs are not the priority and that [Tom] frequently comes second to the needs of his sister and his mother" (emphasis supplied). Doctor Cavallero also stated that Tom had consistently expressed his preference to live with his father to numerous individuals (including Dr. Grey, attorney Friedman, his parents, and the guardian ad litem) and had stated as reasons that he had a longing to spend more time with his father, that he had been unable to spend consecutive days with him, and that he enjoyed the activities that he engaged in with his father. Doctor Cavallero opined and recommended that "given [Tom's] long standing and developmentally appropriate request to live with his father and his apparently well-reasoned rationale, [Tom] should be allowed to move to the primary custody of his father with an access schedule with his mother comparable to what he has at the present with his father."

Pursuant to an order of the court directing the guardian ad litem to speak with the child's current therapist, Dr. Cavallero contacted Anthony Wolf, Ph.D., who had been seeing Tom since some time after November 10, 2004, and submitted a supplemental report. Doctor Wolf reported on February 18, 2006, that at the time therapy began, Tom was suffering from stomach aches that most likely were related to stress. Indeed, both parents had expressed their concern that Tom was in the middle of their contentious disagreements concerning the divorce and parenting plan. Continuing, Dr. Wolf reported that Tom's stomach aches had substantially diminished and that he appears to be a well-functioning child who has a good relationship with his mother and enjoys the time he spends with his father. He described Tom as "generally upbeat" and did not think that he was depressed. Doctor Wolf acknowledged that he generally hears about "issues" from the mother, not from Tom, but stated that Tom is "pretty open" if questions are asked. Doctor Wolf also stated that at an earlier point in time when he discussed with Tom the possibility of living with his father, Tom had expressed an interest in spending more time with his father, although Dr. Wolf was not sure that Tom had thought through the issues thoroughly. Doctor Cavallero declined to modify her conclusions or recommendations as stated in her principal report subsequent to her conversation with Dr. Wolf.

3. The motion for summary judgment and opposition thereto. On May 31, 2006, the mother filed a motion for summary judgment and an affidavit of undisputed facts (supported by numerous papers, including excerpts from the guardian ad litem's report, the guardian ad litem's supplemental report, excerpts from deposition transcripts, and school records). See Mass.R.Dom.Rel.P. 56(a) (1997). The mother averred in her affidavit that she did "not believe that anything [had] changed since the date of the divorce ... that would warrant a change in custody." She stated, among other things, that Tom was a well behaved and well adjusted...