Redding v. Redding

• Decision Date: 17 July 1986
• Citation: 495 N.E.2d 297,398 Mass. 102
• Parties: John A. REDDING v. Myrtle V. REDDING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 297

495 N.E.2d 297

398 Mass. 102

John A. REDDING v. Myrtle V. REDDING.

Supreme Judicial Court of Massachusetts,

Middlesex.

Submitted April 9, 1986.

Decided July 17, 1986.

Ruth R. Budd (Kathleen A. Bryan, Boston, with her), for defendant.

Paul D. Pearson (Michael Fredrickson, Boston, with him), for plaintiff.

Marilyn Ray Smith, Boston, pro se & others, amici curiae.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

On August 6, 1984, by a judgment nisi of divorce, a Probate and Family Court judge (1) awarded the wife legal and physical custody in Georgia of the parties' daughter, Jessica, (2) divided the parties' assets, (3) ordered that the husband pay child support, and (4) left each party to pay his or her own attorney's fees. On appeal, the wife challenges the Probate and Family Court's jurisdiction to determine custody and contests the division of assets, the amount of weekly child support payments, and the judge's determination not to order the husband to pay her attorney's fees. We transferred her appeal to this court. We reject the wife's challenge to the jurisdiction of the Probate Court to determine custody, but we remand the case for redetermination of the issues of property division, child support, and allocation of legal fees.

We summarize certain of the judge's findings. The parties were married in Maryland in 1979 and moved into a house the husband had recently purchased in Carlisle, Massachusetts. Jessica was born in January, 1980. The wife, who had been an associate in a Washington, D.C., law firm before her marriage, enrolled in the LL.M. tax program at Boston University in September, 1980. They continued to live in Carlisle until December, 1981, when the wife and Jessica went to Georgia where the wife's parents lived. The wife and Jessica returned to Carlisle and stayed from mid-March, 1982, until late July, 1982, and again from late May to late July, 1983. The husband, who has a master of science degree in electrical engineering from the Massachusetts Institute of Technology, started his own business in May, 1980. The wife, a graduate of the Hastings College of Law, became an assistant professor of law at Mercer University in Macon, Georgia, in July, 1982 (one month after she received her master's degree).

1. The wife challenges the court's jurisdiction to enter any child custody order in this proceeding. ¹ The husband has not appealed, and the wife acknowledges that the terms of the custody order are satisfactory. ² Nevertheless, for some tactical reason the wife wants the custody portion of the judgment vacated. After entry of the judgment nisi, at the husband's request the judge made supplemental findings of fact which demonstrate on the record a basis for jurisdiction.

The husband filed his complaint for divorce in October, 1983, and amended it in December, 1983, to include a prayer for joint legal custody of Jessica. The wife filed a custody action in Georgia in May, 1984. A hearing in the Georgia proceeding was held on July 20, 1984. The husband questioned the Georgia court's jurisdiction in light of the pending prior Massachusetts custody proceeding. After the judge heard one day's evidence on the custody issue, he said he would prepare a transcript of that proceeding and would advise the Massachusetts judge that the transcript was available. He added that he would withhold any decision on custody and whether to receive further evidence until he discussed the matter with the Massachusetts judge.

Four days later trial began in Massachusetts. Here the wife asserted that the court lacked jurisdiction to determine custody. We know from the judge's supplemental findings that, after the trial concluded on July 31 and before his findings and rulings were entered, the judge spoke on the telephone at least twice with his Georgia counterpart concerning the jurisdictional issues and the substance of the custody provisions to be included in the judgment nisi. According to the judge's supplemental findings, the two judges agreed that the Massachusetts court "was the more appropriate forum for making the initial custody and visitation determination, and that the Georgia court was the more appropriate forum for dealing with any problems of enforcement or modification thereof." They considered that proceedings were pending first in Massachusetts and that bifurcation of divorce and custody proceedings would be wasteful and dilatory. The parties had agreed that Massachusetts should resolve all property and financial issues, including child support. Quite rightly, the two judges agreed that child support could not be determined without first deciding custody.

The wife properly points out that the judge indicated neither the basis on which he exercised jurisdiction nor the conclusions the Georgia judge had reached concerning jurisdiction under Georgia law. Each State has adopted a version of the Uniform Child Custody Jurisdiction Act (UCCJA). 9 U.L.A. 116 (1979). See G.L. c. 209B (1984 ed.); Ga. Code Ann. §§ 74-501-74-525 (Harrison 1981). The judge's findings indicate that, after consultation, the two judges agreed that the initial custody issues should be determined in Massachusetts. It would be strange if the UCCJA did not permit the implementation of that agreement. The uniform act and the Massachusetts act both encourage communication, cooperation, and mutual assistance between courts and seek to avoid jurisdictional competition and conflict. U.C.C.J.A. § 1(a). St. 1983, c. 680, § 2(a ). ³

The Massachusetts court had jurisdiction to determine custody of Jessica under G.L. c. 209B, § 2(a )(4), because "another state [here Georgia] has declined to exercise jurisdiction on the ground that the commonwealth is the more appropriate forum to determine the custody of the child, and [because] it is in the best interest of the child that a court of the commonwealth assume jurisdiction." The Georgia judge's agreement that Massachusetts was the more appropriate forum to make the initial custody determination (see G.L. c. 209B, § 2[a ] ) has a rational basis on the record and constitutes a declination of initial jurisdiction in Georgia. The Massachusetts judge did not explicitly find, as he should have (stating his reasons), that assumption of jurisdiction here was in Jessica's best interest. Although G.L. c. 209B, § 2(a )(4), does not set forth considerations relevant to whether the court's assumption of jurisdiction is in the best interest of the child, § 2(a )(2) does. The child and at least one parent must have a "significant connection" with the Commonwealth, and "substantial evidence concerning the child's present or future care, protection, training, and personal relationships" must be available here. The record, which includes a transcript of the Georgia custody hearing, warrants the judge's implicit finding that the assumption of jurisdiction here was in Jessica's best interest.

We need not pause to consider whether the Massachusetts court properly had jurisdiction of the custody aspect of this proceeding before the Georgia judge declined jurisdiction. We find no support either in G.L. c. 209B or in the UCCJA for the judge's view that the uniform act was never intended to restrict his jurisdiction to decide custody issues when both parties have appeared and have agreed that the court should decide all other aspects of their divorce proceeding. The decision of a Massachusetts court to exercise jurisdiction and to make a custody determination must be based solely on G.L. c. 209B. Nevertheless, by the time the judge made his custody determination, G.L. c. 209B, inserted by St. 1983, c. 680, had become effective and the conditions of § 2(a )(4) had been met. ⁴

2. In her challenge to the judge's division of assets, the wife argues that, as a result of the judgment nisi, the husband's assets are substantial and she is left in debt. After making findings on all elements he was required to consider under G.L. c. 208, § 34 (1984 ed.), the judge directed the husband to pay the wife $15,000 "in satisfaction of all claims for alimony or a division of property under M.G.L. c. 208, § 34." His only explanation as to how he arrived at the amount awarded was to state that the division of assets reflected his "assessment of what each party directly or through others contributed to the marriage and all the factors under M.G.L. c. 208, § 34."

The wife particularly complains that the judge overlooked (a) the substantial appreciation of the value of the marital home between the time of the marriage and the entry of judgment and (b) the value of the husband's business. The husband bought the house shortly before the marriage, investing approximately $12,000. At the time of the hearing, the value of the equity in the house exceeded $80,000. The husband's business, which he commenced during the marriage, was worth approximately $200,000 at the time of the hearing, but had little value in December, 1981, when the wife first went to Georgia with Jessica.

If a judge has made findings consistent with his obligations under G.L. c. 208, § 34 (Rice v. Rice, 372 Mass. 398, 402-403, 361 N.E.2d 1305 [1977] ), indicating that he has fairly considered all factors relevant under § 34 and has not considered any irrelevant matter, his determinations as to alimony and property division may not be reversed unless "plainly wrong and excessive." See Ross v. Ross, 385 Mass. 30, 37-38, 430 N.E.2d 815 (1982); Bianco v. Bianco, 371 Mass. 420, 422-423, 358 N.E.2d 243 (1976); Robbins v. Robbins, 16 Mass.App.Ct. 576, 579, 453 N.E.2d 1058 (1983). The judge's reasons for his conclusions, however, must be apparent in his findings and rulings. Any failure in the decision-making process to consider and explain the effect of an important fact may require reversal of the judgment in order to permit consideration and explanation of the omitted subject. See Putnam v. Putnam, 5...