Odessa v. Paulo

Decision Date03 May 2022
Docket Number21-P-709
PartiesODESSA[1] v. PAULO.[2]
CourtAppeals Court of Massachusetts

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a custody modification trial in the Probate and Family Court Paulo (father), the former husband of Odessa (mother) appeals from an amended judgment that awarded him two hours' weekly supervised parenting time with the parties' children, which would increase and become unsupervised if he met certain goals including undergoing therapy with a licensed clinician. The father argues that his due process rights were violated when, for reasons including his failure to comply with the judge's pretrial discovery order (discovery order), he was not permitted to call witnesses whose testimony he maintains would have contradicted the report of a guardian ad litem (GAL) that was admitted as a trial exhibit. Based on our review of the record including the discovery order and the GAL report, we discern no prejudice, and so we affirm.

Background.

In 2018, the judgment of divorce nisi entered incorporating the parties' separation agreement which, among other things, awarded the father visitation with the children, increasing the frequency and duration of visits on a set schedule, and entitled either party to have "direct access to all of the [c]hildren's . . . mental health records." All provisions relating to the children merged into the judgment.

On January 18, 2019, the mother filed a complaint for modification which alleged that the children had reported that the father had confronted each of them with notes from their respective therapists, causing the children concern that their therapy was not confidential. The judge temporarily suspended the father's visitation with the children. After a hearing, the judge entered an order that permitted the father two hours' supervised visitation with the children each week; precluded either parent from accessing the children's therapy records; and prevented either parent from discussing issues of custody, parenting time, the children's therapy disclosures, or their therapy records with or in front of the children.

The judge appointed the GAL to investigate and evaluate the parties' custody and parenting plan and assess issues of domestic violence and mental health. See G. L. c. 215, § 56A.

As part of her assessment, the GAL interviewed fifteen witnesses, including the parties and the children; conducted parent-child observations; and considered results of psychological testing on both parties.

On May 15, 2019, the judge entered the discovery order requiring that at least three days before the July 19 pretrial conference, the parties file pretrial memoranda that set forth "[a] list of all people each party intends to call as witnesses at the trial, including for each person a brief statement identifying the person." On July 15, the father filed his pretrial memorandum, listing as witnesses the names of the children's two therapists and the therapists' supervisor, as well as "[a]ny people listed on the GAL interview list." The judge appointed another GAL (privilege GAL) for the purpose of determining whether it was in the children's best interests to waive or assert their therapeutic privileges.

About four weeks before trial, the mother's counsel moved to quash subpoenas for depositions by written questions, Mass. R. Dom. Rel. P. 31 (a), that the father had served on the therapists, their supervisor, and two persons who had monitored the children's transitions from the custody of one parent to the other (transition monitors). The judge postponed ruling on the motion as to the therapists and their supervisor until after the privilege GAL filed her report. The judge ruled that the father could depose the transition monitors, who "may respond in writing" by the previously set discovery deadline, October 16, 2019. However, the father never deposed the transition monitors; as he later explained, "[t]here was not enough time for me to send them the questions and have them send me back . . . by the time I mailed it to them." Instead, on October 16, the father sent the mother's counsel a revised witness list, again including the names of the therapists and their supervisor, and now including the names of the transition monitors and also two daycare providers, whom the father had never sought to depose.

Trial took place on October 30, 2019. The father represented himself; the mother was represented by counsel. On the mother's motion in limine, the judge precluded the father from calling as witnesses the therapists, their supervisor, the transition monitors, or the daycare providers. After the privilege GAL asserted the children's privileges, the judge allowed the mother's motion to quash trial subpoenas on the therapists and their supervisor. As to the transition monitors and daycare workers, the judge ruled that the father had not complied with the discovery order to include their names on the witness list in his pretrial memorandum, and so "it would be prejudicial to permit [their] testimony at this stage." Neither party called the GAL to testify, but the GAL report, which was eighty-five pages long, single-spaced, was admitted as an exhibit at trial.[3]

In her memorandum of decision and findings of fact, the judge credited the GAL report. The judge awarded joint legal custody of the children to both parents, and primary physical custody to the mother. The judge ordered that the father was to continue with two hours' supervised parenting time weekly and also to undergo therapy with a licensed clinician to address certain issues; once he had satisfactorily completed five supervised visits with the children and at least five sessions with a licensed clinician, the father would have unsupervised parenting time with the children for up to six hours per week. Now represented by counsel, the father appeals.

Discussion.

1. Due process.

The father argues that his due process rights were violated when the judge prevented him from obtaining pretrial discovery from the therapists, their supervisor, and the transition monitors, and then precluded him from calling them and the daycare providers to testify at trial.

He also argues that his due process rights were violated when the judge cut short his direct testimony and allocated only one day for trial although he had requested three.

a. Preclusion of testimony from therapists, transition monitors, and daycare providers.

The father claims that the judge improperly prevented him from obtaining discovery from the therapists, their supervisor, and the transition monitors, and precluded him from calling them and the daycare providers to testify at trial. The father argues that it was necessary for him to call those persons as witnesses to question them about "what they may or may not have said to a GAL." Because the modification judgment and findings of fact were based on ample evidence, including the testimony of both parties and the thorough and detailed GAL report, the father was not prejudiced by the lack of trial testimony from collateral sources.

As to the therapists, the judge acted within her discretion in excluding their testimony on privilege grounds based on the privilege GAL's report.[4] The father had no standing to challenge the recommendation of the privilege GAL. "General Laws c. 233, § 20B, makes clear that the privilege may be asserted only by the patient, or, if the patient is incompetent, by a guardian appointed to act on his or her behalf." Adoption of Diane, 400 Mass. 196, 201 (1987). "In a case such as this, where the parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent's ability to further the child's best interests, it would be anomalous to allow the parent to exercise the privilege on the child's behalf." Id. at 202.

As to the therapists' supervisor, the father told the judge that she would testify about "the nature of the therapy" and that it is "harmful what they do to kids." That testimony would have been cumulative of the GAL report, which included the supervisor's description of the therapists' trauma-based treatment modality.[5] Based on evidence including the father's beliefs that the therapists focused the children too much on a single incident of domestic violence between the parties, the GAL recommended that the children transition to therapists specializing in a different treatment modality, one for children in families experiencing high-conflict divorce. The judge adopted that recommendation, which was based on ample evidence. See D.B. v. J.B., 97 Mass.App.Ct. 170, 182 (2020).

As to the transition monitors and daycare providers, the judge acted within her discretion in precluding the father from calling them as witnesses because he had not complied with the discovery order to include their names in his pretrial memorandum. See Hernandez v. Branciforte, 55 Mass.App.Ct. 212, 222 (2002). "Trial judges have broad discretion to make discovery and evidentiary rulings conducive...

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