Pizzino v. Miller

• Court: Appeals Court of Massachusetts
• Writing for the Court: Cowin
• Citation: Pizzino v. Miller, 858 N.E.2d 1112, 67 Mass. App. Ct. 865 (Mass. App. 2006)
• Decision Date: 26 December 2006
• Docket Number: No. 05-P-1254.,05-P-1254.
• Parties: Angela PIZZINO<SMALL><SUP>1</SUP></SMALL> v. Patrick MILLER.

858 N.E.2d 1112

67 Mass. App. Ct. 865

Angela PIZZINO¹ v. Patrick MILLER.

No. 05-P-1254.

Appeals Court of Massachusetts, Plymouth.

Argued May 5, 2006.

Decided December 26, 2006.

COPYRIGHT MATERIAL OMITTED

Elaine Epstein, Boston (Maureen McBrien with her) for the mother.

John E. Studley, Jr., Middleborough, for the father.

Present: GRASSO, COWIN, & KAFKER, JJ.

COWIN, J.

Applying Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712, 481 N.E.2d 1153 (1985) (Yannas), a judge of the Probate and Family Court denied the request of the divorced plaintiff, Angela Pizzino (the mother), for permission to leave the Commonwealth with her minor children, ages eight and seven at the time of trial.² The mother appeals, arguing essentially that (1) the judge misconstrued the legal criteria applicable to the removal of children by a custodial parent postdivorce; (2) the judge's findings of fact are either clearly erroneous or against the weight of the evidence; and (3) the judge relied too heavily on the report of a guardian ad litem whose own findings and recommendations accorded insufficient weight to the changed circumstances created by the mother's remarriage. The defendant, Patrick Miller (the father), asserts that the judge correctly applied the so-called "real advantage" test of Yannas, supra; his subsidiary findings are not clearly erroneous and are entitled to deference; and his ultimate determination that the proposed move is not in the children's best interests is not the product of an abuse of discretion. Recognizing the difficulties inherent in these cases, we conclude that the judge misapplied certain principles. This influenced, or may have influenced, the findings to an extent that a remand is required.

1. Background. We state certain background facts based on findings of the trial judge that are supported by the evidence. The parties were married on January 12, 1991. Two sons were born of the marriage: the first on May 14, 1996, and the second on July 22, 1997. At the time of trial, the mother was employed as an environmental analyst by the Massachusetts Department of Environmental Protection, while also working as a reservist with the Air National Guard at Otis Air Force Base on Cape Cod, an aerobics instructor and a yard and landscaping worker. The father is employed as a dental hygienist. He was also employed by the Air National Guard at Otis Air Force Base, but retired from that service in November, 2003.

The couple's older son was reported by his teacher to be "making progress academically, but ... at the bottom of his class and still behind the other students both academically and behaviorally." He received federally funded supplemental services to assist him with "math word problems" and reading comprehension. The second son, about a year younger, was diagnosed at the age of sixteen months with pervasive developmental disorder, not otherwise specified, and received intensive services for his special needs until he was three years old. He was reported to be performing at grade level, and an evaluation indicated that he no longer had academic special needs.³ The mother and father each appear to be caring and effective parents, and the children enjoy close relationships with each parent.

The mother met Steven Pizzino, her present husband, in May, 2001, while she participated in Air National Guard training in Georgia. Pizzino has been a member of the United States Air Force since 1988, held the rank of technical sergeant E-6 at the time of trial, and was stationed at Shaw Air Force Base in South Carolina. He was scheduled to be promoted to master sergeant in January, 2005. Divorce proceedings between the mother and father ensued, culminating in a judgment of divorce nisi entered on August 9, 2002. The judgment assigned physical custody of the children to the mother while providing for reasonable visitation by the father, and placed legal custody of the children in the parents jointly. The judgment incorporated a separation agreement⁴ that, among other things, prohibited removal of the children from Massachusetts by either parent without the prior written agreement of the other parent or permission of the Probate and Family Court.

On May 5, 2003, the mother filed a complaint for modification of the divorce judgment wherein she sought permission to remove the children from Massachusetts to South Carolina and to alter the father's visitation rights accordingly. The father filed an answer opposing removal, as well as his own complaint for contempt (see note 2, supra).⁵ The judge appointed a guardian ad litem to investigate and report on the question of removal. Her report, which recommended against allowance of the removal request, was filed on December 17, 2003. At about this time, the mother accepted a position with Environmental Projects Group in South Carolina at a starting base salary lower than what she earned in her Massachusetts employment, but with opportunities for commissions and bonuses. She married Pizzino on August 28, 2004. Pizzino's military status precluded the possibility of a move to Massachusetts on his part.

A trial on the mother's complaint for modification and the alleged contempts was conducted in November and December, 2004. The judge found that there was no "real advantage" to the mother in moving away from Massachusetts, stating that she "has not shown a good and sincere reason for wanting to move to South Carolina. The only reason given to the Court was the Mother's new husband, Mr. Pizzino, currently resides on a military base in South Carolina." In so concluding, the judge found that Pizzino, a noncommissioned officer in the military, was subject to reassignment, thereby inviting one or more subsequent uprootings of the children; the mother would be likely to earn less money, and her job security would be lower, than was the case in her position in Massachusetts; and the mother, who had lived in Massachusetts her entire life, would be leaving an effective support system consisting of her mother and sister and entering an environment in which she had no other family.

In evaluating the mother's proposed move, the judge gave weight to the possibility that the move was inspired, at least in part, by the mother's desire to separate the children from the father. In this regard, the judge found that the mother kept the father uninformed on various subjects and did not encourage the children to communicate with him.⁶ The judge also quoted the opinion of the guardian ad litem that "Mother's desire to move is motivated by a desire to interfere with the relationship between [the two boys] and their father."⁷

Turning from the mother's reasons for moving, the judge concluded separately that "[a] move to South Carolina would not be in the best interests of these children." He rejected the mother's contention that the job in South Carolina would give her more time to be with the children, finding instead that the job's travel requirements would reduce the time available for her to care for the children.⁸ The judge found as well that the children would attend schools in South Carolina that were inferior to those they attended in Massachusetts; military base housing was not of a quality equal to the housing they enjoyed in Massachusetts; the South Carolina school system would not treat the children's special needs as effectively; and "[t]he socioeconomic level where the children would live in South Carolina is far below the neighborhood in which they currently reside." Finding that both boys "have demonstrated difficulty with transition both at home and at school," the judge expressed concern that the children would be separated both from their father, to whom they had a "strong attachment," and from their grandmother, who cared for the children when the parents were either working or on military assignment. In return, the children's only family contact in South Carolina other than their mother would be Pizzino, who had to date spent little time with them.

2. Discussion. 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."⁹ "The words `upon cause shown' mean only that removal must be in the best interests of the child...." Yannas, 395 Mass. at 711, 481 N.E.2d 1153. Determining the best interests of a child can be difficult under the best of circumstances, and the disruptions in a child's life as the result of divorce, or the separation of parents, obviously alter the situation for the worse. There must be a "realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce." Rosenthal v. Maney, 51 Mass.App.Ct. 257, 266, 745 N.E.2d 350 (2001), quoting from Yannas, 395 Mass. at 710, 481 N.E.2d 1153.

Since 1985, we have applied the criteria of the Yannas decision. Stated succinctly, we look first at the reasons underlying the desire of the parent with physical custody (usually the mother) to move. "[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. The advantage may be economic; it may be support of family residing in another jurisdiction; or it may be any other "good, sincere reason for wanting to remove." Ibid. "[T]he presence or absence of a motive to deprive the noncustodial parent of reasonable visitation" is also a relevant consideration. Ibid. It follows that a supportable finding that there is no "real advantage" to the custodial parent from the contemplated move ends the analysis, and requires a determination that the judgment shall not be modified to permit the removal.

Should it be found that there is a...