Rosenthatl v. Maney

• Decision Date: 06 October 2000
• Docket Number: P-943
• Parties: (Mass.App.Ct. 2001) AMY P. RAWSTRON ROSENTHAL vs. PAUL S. MANEY. 99-
• Court: Appeals Court of Massachusetts

745 N.E.2d 350 (Mass.App.Ct. 2001)

AMY P. RAWSTRON ROSENTHAL vs. PAUL S. MANEY.

99-P-943

Court of Appeals of Massachusetts

October 6, 2000.

April 5, 2001.

County: Worcester.

Present: Greenberg, Kaplan, & Duffly, JJ.

Divorce and Separation, Child custody, Modification of judgment. Parent and Child, Custody. Minor, Custody.

Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on October 17, 1995.

A complaint for modification, filed on June 23, 1997, was heard by Susan D. Ricci, J.

Carol A. Erskine for the plaintiff.

James D. O'Brien, Jr., for the defendant.

DUFFLY, J.

A judge of the Probate and Family Court denied the request of the plaintiff, Amy P. Rawstron Rosenthal (mother), who had been adjudicated the primary custodial parent in an earlier divorce judgment, to relocate with the parties' minor child from the Commonwealth. In the same proceeding, the judge changed physical custody from the mother to the defendant, Paul S. Maney (father), pursuant to his request for modification of custody. From these judgments the mother appeals.

The mother claims that the change in custody was not, as is required by G. L. c. 208, § 28, supported by a material and substantial change in the circumstances of the parties. She argues that neither a custodial parent's relocation, nor a temporary change in custody that was judicially imposed on the parties during the pendency of the proceedings, constitute changes warranting modification of a previously adjudicated custody arrangement. We agree. We also decide that the mother has established a "good, sincere" reason for moving to Rhode Island (to join her new husband, who is employed there), evidencing a "real advantage" for the move. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985) (Yannas). This, in combination with the judge's failure to assess or give appropriate weight to other relevant factors, requires reversal.

Background and proceedings.

We summarize the proceedings, setting forth "relevant background facts as determined by the probate judge . . . supplemented by the record where necessary," A.Z. v. B.Z., 431 Mass. 150, 151 (2000), reserving other facts for our discussion of the issues. The parties were married in Worcester on November 22, 1987, and resided during the marriage in Northborough, where their extended families, including both sets of parents, also live. Their only child, Caleb Page Maney (Caleb), was born June 16, 1991. During the marriage, both parties provided for Caleb's care, but the mother was his "primary caretaker and [saw] to the child's daily needs." Since 1990, the mother has been employed as principal second violinist for the Rhode Island Philharmonic Orchestra, commuting to Providence from Northborough during the concert season. The father is, and was throughout the marriage, employed as a service manager for a business owned by his family. In October, 1995, the parties separated. The father moved into an apartment in his parents' home in Northborough. The mother moved with Caleb into an apartment in Shrewsbury, where Caleb attended preschool, then kindergarten. During the parties' separation, the mother began to date Perry Rosenthal.

The parties were divorced by a judgment of divorce nisi entered on January 16, 1997. The divorce judgment incorporated and, with respect to child-related issues, merged the parties' agreement, which was found to be fair and reasonable by a probate judge. Under this agreement, the mother had sole physical custody of Caleb. The father was entitled to visits on alternating weekends from Friday at 5:30 P.M. until Sunday at 7:30 P.M., overnight every Monday and Wednesday, and on specified holidays and observances.

On June 23, 1997, the mother filed a complaint for modification of the divorce judgment in which she sought leave to remove Caleb from Shrewsbury, to Providence, Rhode Island. On July 4, 1997, she married Rosenthal.

The father filed an answer and counterclaim to the complaint for modification on July 8, 1997, alleging that removal would limit visitation with his son, "disrupt the warm and close personal relationship between the [father] and his son and is not in his son's best interests." On this basis he requested physical custody of Caleb. On July 28, 1997, the court appointed a guardian ad litem "to investigate -- evaluate -- and report in writing" on the issues of removal and custody; "to act as . . . next friend to represent [Caleb's] interests"; and to act as an "investigator to review the matter and report to the Court."

On August 15, 1997, the mother and Rosenthal moved into the house they had purchased in Providence. On August 25, 1997, pursuant to a "Motion For Further Temporary Order" filed by the father requesting that the mother be prohibited from removing Caleb from the Commonwealth until the completion of the guardian ad litem's report¹ and a hearing on the merits, the motion judge (who was also the trial judge) modified the existing divorce judgment that gave physical custody of Caleb to the mother, and ordered that the child "reside with the father from Monday after school through Friday delivery to school," and with the mother on weekends.² This was a change in custody during the pendency of a complaint for modification of a prior custody order, and must therefore have been based on "specific findings of fact . . . which clearly demonstrate the injury, harm or damage that might reasonably be expected to occur if relief pending a judgment of modification is not granted." G. L. c. 208, § 28A.³ The record reflects no reason for the order changing custody other than the mother's motion to remove the child to Rhode Island. The order should not have been made.

In the mother's motion for reconsideration of the August 25 order, filed September 18, 1997, she sought reinstatement of the original custody arrangement on the basis that she would be able to reside with her parents in Northborough until a hearing on the merits, and that Caleb's schooling would therefore not be interrupted. The motion was denied without explanation by endorsement on September 26, 1997. The mother's motion requesting that Caleb temporarily be allowed to relocate to Providence was denied on October 9, 1997. Pursuant to subsequent temporary orders, the parties established a schedule for holiday and vacation visitation.

Trial on the parties' claims took place on October 2, October 5, and November 12, 1998, well over a year following the entry of the temporary order modifying custody. On January 20, 1999, the court entered a judgment denying the mother's request to relocate and modifying custody in conformity with the temporary orders already in place.

Modification of custody. Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move. See, e.g., Hersey v. Hersey, 271 Mass. 545 (1930); Usen v. Usen, 359 Mass. 453 (1971); Yannas, 395 Mass. 704; Williams v. Pitney, 409 Mass. 449 (1991); Haas v. Puchalski, 9 Mass. App. Ct. 555 (1980); Signorelli v. Albano, 21 Mass. App. Ct. 939 (1985).⁴ Our decision today, that a request for modification of custody is distinct from a request to relocate and must be based on a material and substantial change in circumstances other than the move, is consistent with these decisions and with G. L. c. 208, § 28 ("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 circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children"). The custody claim must be considered in light of established principles governing custody determinations. See, e.g., Hersey v. Hersey, supra at 554; Grandell v. Short, 317 Mass. 605, 607 (1945); Yannas, supra at 711-712; Haas v. Puchalski, supra at 557; Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).

The original judgment awarded sole physical custody to the mother, and "must be presumed to have been right." Hersey v. Hersey, supra at 554. See Delmolino v. Nance, supra at 211. The probate judge's finding that the mother was the child's primary caretaker during the marriage is consistent with the original award of physical custody to the mother. A judgment modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances "of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]." Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974). "The uprooting of a child . . . should be done only for compelling reasons." Tolos v. Tolos, 11 Mass. App. Ct. 708, 710-711 (1981) (citation omitted).

We have reviewed the extensive findings (entitled "Findings of Fact on the Issue of Removal") and summarize below those that arguably could be said to support the judgment. Although it is nowhere stated in her findings that a material change in circumstances had occurred,⁵ that conclusion may be inferred from the judge's finding that "the minor child's best interests dictate that . . . the Judgment [of divorce] be modified to include shared physical and legal custody," and her passing reference to the relevant changed circumstances standard.

The probate judge found that, following the divorce, "[b]ecause both parties were working full-time . . . the minor child was in need of and received daycare." She also found that "[t]he Mother's work schedule was quite hectic. . . . [Her] schedule is a combination of odd hours and concert schedules. The Father has some flexibility in his work schedule . . . [as] he is employed by a family-owned business and works in the same town where he lives."

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