Murray v. Super
| Decision Date | 16 March 2015 |
| Docket Number | No. 14–P–518.,14–P–518. |
| Citation | 26 N.E.3d 1116,87 Mass.App.Ct. 146 |
| Parties | Dawn Michelle MURRAY v. Jonathan S. SUPER. |
| Court | Appeals Court of Massachusetts |
Nicholas J. Plante, Worcester, for the mother.
Christine D. Anthony, Framingham, for the father.
Present: CYPHER, WOLOHOJIAN, & BLAKE, JJ.
The mother, Dawn Michelle Murray, appeals from a judgment of the Probate and Family Court dismissing her complaint for modification, which sought to remove the minor children of the marriage to the State of California. Where the parent seeking to move has primary physical custody of the children, the standard governing removal of the minor children from the Commonwealth requires a determination of whether there is a real
advantage to the custodial parent and consideration of the best interests of the children and the interests of both parents. See Yannas v. Frondistou–Yannas, 395 Mass. 704, 710–711, 481 N.E.2d 1153 (1985) ( Yannas ). Where the real advantage to the custodial parent is at odds with the best interests of the children, the children's interests are paramount. Concluding that the judge below did not err in placing the interests of the children first, we affirm that part of the judgment denying the mother's request to remove the children to California.
The mother also appeals from that portion of the judgment reducing the child support obligation of the father, Jonathan S. Super.1 We vacate the portion of the judgment related to child support and remand the matter for additional findings on that issue.
Background. We summarize the proceedings, setting forth relevant background facts as determined by the judge, supplemented by the record where necessary, and reserving other facts for our later discussion of the issues. The parties were divorced by judgment of divorce nisi on October 24, 2011, after a contested trial. The divorce judgment provided, in pertinent part, that the parties would share legal custody of their three minor children,2 with the mother having “primary physical custody” and the father having parenting time. When the children are not in the care of the father, they are in the mother's custody.3 The divorce judgment also ordered the father to pay $830 per week in child support to the mother, plus twenty-five percent of any net bonus received as additional child support.
On July 10, 2012, the mother filed a complaint for modification alleging, as a change in circumstances, that she was to be married on August 3, 2012, to a resident of Danville, California. For this reason, the complaint sought removal of the minor children to California.4 Sometime thereafter, the father filed his own complaint
for modification, wherein he sought to (1) reduce his child support obligation to the mother due to the financial support she receives from her new husband; and (2) establish a defined holiday and vacation schedule for the parties' children. The cases were consolidated and tried together.
In her findings and rulings, the judge entered 261 detailed findings of fact as to both parents, the eldest child, Jonathan, age seventeen at the time of trial, and the younger twins, Nathan and Christian, age twelve at trial. Based on those findings, the judge determined that a move to California would be a real advantage to and in the interests of the mother. She nevertheless dismissed the mother's complaint on the grounds that the move was not in the best interests of the children or the interests of the father. She also reduced the father's child support obligation. This appeal followed.
Discussion. We review the judgment and the subsidiary findings of fact for abuse of discretion or other error of law. A trial judge's findings of fact will not be set aside unless clearly erroneous. Barboza v. McLeod, 447 Mass. 468, 469, 853 N.E.2d 192 (2006). The reviewing court will give due regard to the judge's assessment and determination of credibility of the witnesses in making such findings. Custody of Eleanor, 414 Mass. 795, 799–800, 610 N.E.2d 938 (1993). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27, 20 N.E.3d 930 (2014), quoting from Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir.2008).
1. Removal. “The removal from the Commonwealth of children of divorced parents is governed generally by G.L. c. 208, § 30, as amended through St. 1986, c. 462, § 9, which provides that such children, if less than an age at which they are capable of granting or withholding consent themselves, may be removed by consent of both parents or, failing that, by order of the court ‘upon cause shown.’ ” Pizzino v. Miller, 67 Mass.App.Ct. 865, 869, 858 N.E.2d 1112 (2006).5 , 6 “The purpose of the statute is to preserve the rights of
the noncustodial parent and the child to maintain and develop their familial relationships, while balancing those rights with the right of the custodial parent to seek a better life for himself or herself in another State or country.” Wakefield v. Hegarty, 67 Mass.App.Ct. 772, 775, 857 N.E.2d 32 (2006).
In determining whether cause for removal by the parent with primary physical custody has been shown under the statute, the judge must consider the custodial parent's request under the familiar two-prong “real advantage” test set forth in Yannas, 395 Mass. at 710–712, 481 N.E.2d 1153, and Hale v. Hale, 12 Mass.App.Ct. 812, 818–819, 429 N.E.2d 340 (1981). “[T]he first consideration is whether there is a good reason for the move, a ‘real advantage.’ ” Yannas, supra at 711, 481 N.E.2d 1153. Second, if the real advantage test is satisfied, the judge must consider whether the move is in the best interests of the children. Ibid. See Wakefield v. Hegarty, supra at 776, 857 N.E.2d 32 ; Pizzino v. Miller, supra at 870–871, 858 N.E.2d 1112 ; Altomare v. Altomare, 77 Mass.App.Ct. 601, 604, 933 N.E.2d 170 (2010). We address each prong in turn.
a. Real advantage to the mother. To satisfy the real advantage test, the custodial parent must demonstrate “the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Yannas, 395 Mass. at 711, 481 N.E.2d 1153.
Here, the judge found that moving to California would be a real advantage to the mother. In reaching her decision, the judge generally considered the mother's remarriage,7 the emotional difficulty and sadness she experiences from being separated from her new husband, and the social and emotional benefits she would experience if she lived with her husband in California. On these bases, and the evidence presented, the judge found that the mother's remarriage was not a sham, was not contracted for some unlawful purpose, and that she had demonstrated that the reasoning behind the requested move was sound.
The record supports the judge's findings. The mother has extended family in California.8 Her new husband is unable to move from California because he shares caregiving responsibilities for his twelve year old daughter, who has significant disabilities, with his former wife. If she were able to move, the mother's financial situation would improve due to her new husband's considerable wealth, and she would not need to work outside the home. The judge's finding that these advantages would have a positive trickle-down effect on the children is supported by the record. Further, there was no evidence that would support a finding that the proposed move was designed to deprive the father of his parenting time with the children. In short, we discern no error or abuse of discretion in the finding of a real advantage to the mother.
b. Best interests of the children. In discussing the best interests standard, the court in Yannas observed that “[i]f the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively.” 395 Mass. at 711–712, 481 N.E.2d 1153. The relevant factors are: (1) whether the quality of the children's lives will be improved, including any improvement that “may flow from an improvement in the quality of the custodial parent's life”; (2) any possible “adverse effect of the elimination or curtailment of the child[ren]'s association with the noncustodial parent”; (3) “the extent to which moving or not moving will affect the [children's] emotional, physical, or developmental needs”; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent. Dickenson v. Cogswell, 66 Mass.App.Ct. 442, 447, 848 N.E.2d 800 (2006), quoting from Yannas, supra at 711–712, 481 N.E.2d 1153. Applying these factors, we agree with the judge that the proposed move was a real advantage for the mother, but not in the best interests of the children or the interests of the father.9
i. Quality of the children's lives. At the time of trial, Jonathan was a junior in high school; the twins were in the sixth grade. Jonathan will turn eighteen in May, 2015, and the twins will turn thirteen also in May, 2015. In considering whether the quality of their lives would be improved by the proposed move, the judge found that their currently stable lives would suffer, “as they would [lose] the structure and support of regular weekly contact with Father, [as well as] the peer groups that they have developed at school, church and through their other activities.” All three children have lived in Bolton their entire lives and have attended public school in Bolton. Jonathan plays trumpet in the advanced jazz band. The twins play instruments in both the concert band and the jazz band. Christian also plays piano and...
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