J.S. v. C.C., SJC-10315

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBotsford
Citation912 N.E.2d 933,454 Mass. 652
PartiesJ.S. v. C.C.
Docket NumberSJC-10315
Decision Date10 September 2009
912 N.E.2d 933
454 Mass. 652
Supreme Judicial Court of Massachusetts, Suffolk.
Argued April 6, 2009.
Decided September 10, 2009.

[912 N.E.2d 935]

J. S., pro se.

Paul P. Perocchi, North Andover (Rachel Lipton, Boston, with him) for the mother.



454 Mass. 653

This case arises out of the parties' dispute over the custody of their child, Sapphire.1 A judge in the Probate and Family Court granted joint legal custody of Sapphire to the defendant (mother) and the plaintiff (father), and physical custody to the mother, subject to the father's right of visitation; the judge also ordered the father to pay child support in the amount of $1,000 per week, as well as various expenses related to the child. In addition, the judge ordered the father to pay a portion—$100,000—of the mother's attorney's fees.

The father has appealed, arguing that (1) the judge erred in the award of physical custody to the mother; (2) the judge erred in treating as available to the father, for purposes of determining child support, the father's entire share of the 2005 undistributed earnings of the Subchapter S corporation (S corporation) in which the father held a majority ownership interest; and (3) the judge erred in awarding attorney's fees and costs to the mother. We affirm the judge's physical custody and attorney's fee awards to the mother. We conclude, however, that the judge erred in her treatment of the S corporation's retained earnings for purposes of determining the father's child support obligation and remand the case for further consideration of that issue.

912 N.E.2d 936

1. Background. Sapphire was born to the father and mother, who never married, in 1997. The father and mother had a troubled relationship, and permanently ceased living together in 2002. In December, 2002, the parties retained a mediator to help them resolve issues regarding parenting and finances, and in connection with the mediation process, executed a written parenting agreement on March 21, 2003, that gave them shared legal and physical custody of Sapphire.

In August, 2003, the father filed a complaint for custody of the child pursuant to G.L. c. 209C, § 10 (a), prompted in large part by his belief that the child's maternal uncle was a pedophile.

454 Mass. 654

Thereafter, the mother counterclaimed for custody. The parties stipulated to the appointment of Dr. Robin M. Deutsch, a licensed psychologist and codirector of a program dealing with children and the law at Massachusetts General Hospital, to serve as guardian ad litem (GAL) to investigate the father's claim that the maternal uncle had engaged in inappropriate sexual behavior with Sapphire. The parties later agreed to expand Dr. Deutsch's duties to include evaluation of Sapphire's best interests in relation to custody. Dr. Deutsch's comprehensive investigation resulted in two lengthy reports.2

Between October and December of 2006, the judge conducted an eight-day trial on the issues of custody and support. In her decision issued in January, 2007, the judge found that from the time of Sapphire's birth, both parents were active in caring for her, although there were times in the child's life when one or the other of them took a more dominant role.3 Sometime in 2001, the father developed the belief that Sapphire's maternal uncle was a pedophile, based on (1) games she had played at the uncle's house a handful of times when she was around three years old (in any event not past the age of four) and always in the mother's presence4; and (2) a photograph of Sapphire and her cousin, taken at the uncle's house, which the father believed depicted Sapphire wearing makeup. As to the games, the judge credited

454 Mass. 655

the testimony of Dr. Deutsch, and of Dr. John Daignault, a licensed forensic psychologist who testified on behalf of the mother, that the games showed no indication of inappropriate sexual conduct on the part of the uncle; the judge, however, concluded independently that the games were inappropriate, but that they did not rise to the level of sexual abuse. As to the photograph, the

912 N.E.2d 937

judge credited the mother's testimony that Sapphire was not wearing makeup, and concluded that the photograph was not indicative of sexual abuse. The judge further credited Dr. Deutsch's conclusions that as a general matter, there was no evidence of sexual abuse of the child or of any threat posed by the uncle, but that the father had constructed an elaborate theory of abuse through "faulty reasoning, misinterpretation of data, and errors of attribution."

The judge further found the following. The father did not report his suspicions of sexual abuse to law enforcement or confront the uncle directly, but he did begin to "stockpile and overanalyze any morsel of information that could profile [the mother's brother] as a pedophile."5 The father also secretly videotaped interviews with Sapphire, and, on March 21, 2003, the same day the parties executed the parenting agreement, conducted a secret "pre-briefing" with the parties' designated parenting coordinator where he presented claimed evidence of abuse but insisted that the mother not be informed of the evidence. The father also spoke about his beliefs of abuse with a number of people in Sapphire's and the mother's respective communities, including the head of Sapphire's former school, her then current teacher, and mutual friends of the mother and father. According to the father, the mother "suffered from serious mental health conditions including bipolar disorder," had issues with rage, and had reported hearing voices.6 Dr. Deutsch reported that the child was "acutely aware" of the father's scrutiny of the mother's actions, and the

454 Mass. 656

child twice had threatened to report the mother to the father if she did not get her way.

This case was filed when the father tried and failed to convince the parenting coordinator to block a trip by the mother and Sapphire to visit the mother's family outside the Commonwealth, claiming that the maternal uncle was dangerous, and that the mother suffered from mental illness and was trying to leave the State with Sapphire permanently—claims that the judge found were unsupported. When the parenting coordinator refused to forbid the trip, the father told the child he had a stomach ache, brought the child to the emergency room of Massachusetts General Hospital to avoid transferring Sapphire's custody to the mother at the scheduled time, and rescheduled the mother's airplane tickets without telling her so that he would have time to file for an emergency order to prevent the trip.

The judge credited and adopted Dr. Deutsch's conclusion that the father's unsubstantiated beliefs and attempts to prove those beliefs had interfered both with his ability to share custody with the mother, and with his ability to parent Sapphire effectively. As a result, the judge ordered that the mother have physical custody of Sapphire, subject to substantial rights of visitation by the father.7 The

912 N.E.2d 938

father appealed, and we transferred the case here on our own motion.

We reserve for later discussion facts specific to the judge's child support and attorney's fee orders.

2. Discussion. a. The custody decision. The father argues first that the judge erred in granting physical custody of Sapphire to the mother. The judge made her decision with reference to the best interests of the child, pursuant to G.L. c. 209C, § 10 (a). See Rolde v. Rolde, 12 Mass.App.Ct. 398, 402, 425 N.E.2d 388 (1981) (in deciding issues involving custody, overriding concern must be best interests of child). "The determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings in a custody case `must stand unless they are plainly wrong.'" Custody of Kali, 439 Mass. 834, 845, 792 N.E.2d 635 (2003), quoting Rosenberg v. Merida, 428 Mass. 182, 191, 697 N.E.2d 987

454 Mass. 657

(1998). See Matta v. Matta, 44 Mass.App.Ct. 946, 947, 693 N.E.2d 1063 (1998). "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mason v. Coleman, 447 Mass. 177, 186, 850 N.E.2d 513 (2006), quoting Mass. R. Dom. Rel. P. 52(a) (2006). "However, we will not sustain an award of custody `unless all relevant factors in determining the best interests of the child have been weighed.'" Custody of Kali, supra, quoting Rosenberg v. Merida, supra.

The father argues first that the judge failed to consider "overwhelming" evidence presented at trial and weighing in his favor. He asserts the evidence showed that he was Sapphire's primary caretaker for a significant part of her life and at least an equal caretaker for the rest, and the child thrived under his care; the mother had a history of mental health issues, inability to control her rage, and violence against the father and the child; the maternal uncle exposed the child to inappropriate, sexually tinged behavior; and the mother had exposed the child to unsafe conditions in the maternal grandmother's home.

The judge specifically considered and rejected the father's arguments, concluding that the mother and father had split custody equally since 2002; each had fully and adequately cared for Sapphire's physical needs when Sapphire was in each of their care; the father's claims about the mother's anger were not credible; and the mother had successfully dealt with some issues affecting her mental health, so that the judge had confidence in her ability to parent Sapphire going forward. The judge also found that the father's concerns about the uncle's behavior in relation to Sapphire—including, most prominently, the games that had not been repeated since Sapphire was four years old—were dramatically overstated. The judge...

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