KATZMAN v. HEALY

• Decision Date: 07 September 2010
• Docket Number: No. 09-P-2341.,09-P-2341.
• Citation: 77 Mass.App.Ct. 589,933 N.E.2d 156
• Parties: Anna KATZMAN v. Timothy HEALY.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 589

933 N.E.2d 156

Anna KATZMAN ¹ v.Timothy HEALY.

No. 09-P-2341.

Appeals Court of Massachusetts,Suffolk.

Argued April 8, 2010.

Decided Sept. 7, 2010.

Michael P. Friedman, Boston (Ann Wagner with him), for the mother.

Wendy H. Sibbison, Greenfield, for the father.

Present: DUFFLY, DREBEN, & KAFKER, JJ.

KAFKER, J.

The mother, Anna Katzman, who has sole physical custody of her two children, appeals from a Probate and Family Court amended modification judgment. The judgment modified the custodial arrangements to provide the father, Timothy Healy, essentially equal parenting time without finding a substantial and material change in circumstances, denied the mother and children's removal to New York or Connecticut, and increased child support less than the mother requested. The father cross appeals contending that the increased child support order was not justified. We conclude that the trial judge erred by disregarding, or at least discounting, the significance of the mother's sole physical custody of the children, both in his modification of the custodial arrangements or parenting time and his denial of removal. In so doing, he blurred the distinction between the removal tests set forth in Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985), and Mason v. Coleman, 447 Mass. 177, 850 N.E.2d 513 (2006). We do, however, affirm the judge's order increasing the amount of child support, as it was contemplated in the separation agreement and justified by the substantial increase in the father's salary and the disparity in the parties' respective life styles.

Background. The parents in the instant case were married in 1995. They have two children, Hunter, born April 6, 2000, and Kierstin, born September 13, 2001. The parents separated in May, 2003, and in January, 2004, the mother filed a complaint for divorce. In January, 2006, a judgment of divorce nisi issued (subsequently corrected), which incorporated into the judgment a thirty-nine page separation agreement. ²

Under the terms of the separation agreement, the mother and father were to have joint legal custody of the children and the wife was to have sole physical custody and act as primary child care provider. The children were to be with the mother at all times unless otherwise specified. The children were to be with the father every other weekend and Tuesday and Thursday after school or camp until 6:45 P.M. on Tuesdays and 7:15 P.M. on Thursdays. Holidays and vacations were alternated.

Pursuant to the separation agreement, the father was to pay the mother the sum of $2,903.33 per month as child support. This amount was based upon the father's weekly income at the time, “exclusive of bonuses,” as set forth in his financial statement. The separation agreement further provided, “[i]n the event that he receives a cash bonus during any year then he shall pay to the wife within 45 days from his receipt of said bonus a sum equal to 20% of the net bonus amount as additional child support.” ³ The husband was, at the time of the divorce and trial, the founder and chief executive officer of EnerNOC, Inc. (EnerNOC), a company providing energy consulting services to commercial industrial facilities. At the time of the divorce, he was earning $150,000 per year and the company had not yet gone public. The mother was employed as a clinical nurse specialist earning $42,000 per year. The parents then had a negative net worth of $34,000. The father did own substantial stock in EnerNOC. Pursuant to the separation agreement, the mother received forty-five percent of the father's stock, which amounted to 605,535 shares.

In March, 2007, the mother filed a complaint for modification, essentially seeking an increase in child support. As of March 30, 2007, the father's base salary had risen to $325,000. The father filed a cross complaint requesting increased time with the children. By this point the father had married Jaimee Manninen and had his first child in the new marriage.

In May, 2007, EnerNOC's initial public offering occurred with a closing price of $30.16 per share. Also, in May, 2007, the mother met Robert Katzman, a Federal Bureau of Investigation (FBI) agent living in New Jersey and working in New York city. In August, 2007, the mother became engaged to Mr. Katzman. Mr. Katzman did not “wish to transfer from the New York office of the FBI to any other location because the Public Corruption Squad in New York is dedicated exclusively to that work ... and he has contacts there which make him more effective in his work.” He also believed that he lacked the seniority to transfer to the Boston office.

In September, 2007, the mother amended her complaint to seek removal, which the father opposed. The father also sought primary physical custody. A judge of the Probate and Family Court appointed a guardian ad litem in October, 2007, to report to the court on custody, visitation, and removal. In February, 2008, three days before trial, the mother married Mr. Katzman; they were expecting their first child in October, 2009. The father and Ms. Manninen's second child was born in June, 2008.

Trial on the complaint for modification lasted twenty-three days. Both parents were found to have good parenting skills and positive, nurturing relations with the children. Hunter was found to be strongly attached to his mother, “especially strongly attached to his father,” and “strongly attached to Ms. Manninen.” He also “gets along well with Mr. Katzman ... [and] [h]is attachment to Mr. Katzman is newer and not as strong as his attachments to his parents and to Ms. Manninen.” The judge found that Hunter “wishes to continue to spend extensive periods of time in both households, and he does not wish to move from the area where his father and step-mother live.” The judge found that Hunter's “fear of having less time with his father in the future is a significant element of his anxiety.” The judge found Hunter's anxiety about the family situation to be severe.

Kierstin was found to be “clearly emotionally attached” to the mother, Mr. Katzman, the father, and Ms. Manninen. Kierstin was also found to “prefer that the present parenting arrangement stay the same.”

The mother's motivation for removal was to be “able to live with her husband, their baby ... and the parties' children within commuting distance of Mr. Katzman's job.” The mother was “not motivated by any wish to less[e]n the father's relationship with the children.”

Finally, from the time of the divorce until trial, the parties' finances substantially changed. As of March, 2007, the judge found that “the father's base salary had increased to $325,000 ... and it remained at that level through the beginning of the trial ... in February of 2008.” The value of EnerNOC stock had fluctuated, but the judge found the closing price to be $32.76 per share on February 12, 2008. Also, at the beginning of trial, the mother was earning $85,000 from her employment as a clinical nurse specialist. In June, 2008, the project the mother was working on ended, and the mother became voluntarily unemployed.

Discussion. 1. Parenting time. The father sought increased parenting time with the children and physical custody, at least if the mother insisted on removal. The judge, without finding a change in circumstances, essentially transformed the wife's sole physical custody of the children into a joint physical custody arrangement. This was error.

As provided by G.L. c. 208, § 28, as amended by St.1993, c. 460, § 60, “the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.” In the instant case, the separation agreement provided that the mother “shall have sole physical custody of [the] children and act as primary child care provider.” The children were to be with her except every other weekend, blocks of time after school and summer camp on Tuesdays and Thursdays, and alternate holidays and vacations. The judge, however, without finding a change in circumstances, adopted a “5/2 split” recommended by the guardian ad litem. The children would essentially be with the mother Tuesdays and Wednesdays, and the father would have them Thursdays and Fridays. The parents would alternate having the children on weekends, meaning from Friday until Tuesday morning.

According to the judge, this “recommendation of the guardian ... [was] that the children continue to spend what she deem[ed] to be approximately equal time with the parents but with fewer transitions and minimized parent contact at the transitions.” The judge and the guardian considered this significant change to be a continuation of “approximately equal time” because of their focus on time spent with the parent when the children were not at school, camp, or asleep. ⁴ The judge described this approximate equality as follows: during the “28 day rotation ..., the mother's approximate percentage of awake time with the children would go from 42% to 36%, and the father's from 22% to 28%.” ⁵ The judge did not consider it important for his equality analysis that the mother originally had eighty-two percent of the sleep time while the father only had eighteen percent. Under the new schedule, the mother's sleep time percentage would drop to fifty-seven percent while the father's would increase to forty-three percent.

The law has not, however, neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it. Disregarding sleep or school time ignores that children get sick, have nightmares, and otherwise require their parent's assistance at unexpected times. See Kawatra v. Kawatra, 182 S.W.3d 800, 803 (Tenn.2005) (“The responsibilities of a parent do not end when a child is asleep,...