Schechter v. Schechter
| Decision Date | 09 September 2015 |
| Docket Number | No. 13–P–1035.,13–P–1035. |
| Parties | Karina SCHECHTER v. Yan SCHECHTER (and a companion case). |
| Court | Appeals Court of Massachusetts |
Lawrence F. Army, Jr., Worcester (William S. Smith, Northboro, with him) for the father.
Alanna G. Cline, Brighton, for the mother.
Jerome Aaron, Newton, for National Parents Organization, Inc., amicus curiae, submitted a brief.
Present: RAPOZA, C.J., CARHART, & AGNES, JJ.2
AGNES
, J.
These are consolidated appeals by the defendant Yan Schechter (the father) from a judgment of divorce nisi and an abuse prevention order. One child, a son who is still a minor (the child), was born of the marriage. The judgment awarded sole legal and physical custody of the child to the plaintiff Karina Schechter (the mother). The father's appeal presents four principal issues for our consideration. First, we review the custody determination and the validity of a judgment provision suspending the father's visitation rights for one year, along with a corresponding G.L. c. 209A order precluding any contact between the father and child during that period. Second, we review the judgment's removal provision (see G.L. c. 208, § 30
), which provides that the mother has the right to remove the child “from the Commonwealth of Massachusetts to the state of New York or
another state if the opportunity for employment and security is more readily available elsewhere.” Third, we review the judge's determination that the parties' prenuptial agreement was not “fair and reasonable” at the time of its execution and was thus not valid. Finally, we consider the judge's award of attorney's fees to the mother. For the reasons that follow, we affirm the judge's orders relating to custody and visitation, the invalidity of the prenuptial agreement, and attorney's fees, but conclude that the removal provision was not in compliance with G.L. c. 208, § 30
, and that the issue must be reconsidered after an evidentiary hearing.3
Background. The consolidated trial in these cases occurred over eighteen days in 2010 and 2011, and included testimony from thirty-eight witnesses, and 132 exhibits. The conscientious judge made 330 findings of fact, as well as detailed rulings of law. We first summarize the judge's findings, setting forth other facts later in connection with the specific legal issues we address.
The father is a Ukrainian immigrant whose family initially lived in Israel and then moved to Boston in 1988 when he was nearly sixteen. The father and his family have lived in Boston for the past twenty years. The mother emigrated from Uzbekistan and eventually moved to Boston in 1999 at age twenty to pursue educational opportunities. The father graduated from Brandeis University and had early success in a small business and as a computer consultant. Throughout their relationship, there were numerous instances of emotional and economic abuse,5 as well as physical abuse and the threat of physical abuse, by the father against the mother.
The father and the mother began dating in the summer of 2001 while they were both living in New York City. That fall, they both relocated to Boston, where the mother began her final year of college while continuing to work as a dental hygienist. The father became involved in the residential real estate business and again met with success. Initially, the couple lived with the father's parents and then moved in with friends of the father. From the inception, it was evident that the father's family did not support the relationship. In December, 2001, the parties found out that the mother was pregnant. The father proposed marriage and the mother accepted. The father's family did not respond well to the engagement, and urged him to obtain a prenuptial agreement. The mother experienced a miscarriage in early 2002. The couple agreed to conceive another child. The mother learned that she was pregnant again in May of 2002. Meanwhile, the couple found a condominium unit they both liked in Brighton and the father purchased it in the name of his real estate company.
During that same month, the mother graduated from college and started preparing for the Dental Admission Test (DAT). The couple decided it was best for the mother not to work and to focus on studying for her DAT. In spite of this agreement, the father continually criticized the mother for avoiding work and implied that she was exaggerating her morning sickness. He made disparaging comments to her suggesting that she was worthless, and
did little to assist her with household chores.
1. Marriage. On December 18, 2002, days before their marriage, the parties signed a prenuptial agreement that the father had been discussing with lawyers since December of 2001. The father had real estate assets in the greater Boston area estimated to be worth over seven million dollars. They were married on December 22, 2002.
The father's emotional abuse of the mother was constant and continued during their marriage. It is documented in the judge's findings of fact in great detail. The mother gave birth in February of 2003. During this time, the mother chose to pursue a degree as a dentist. By April of 2008, the stock market suffered a serious downturn and the father had a breakdown, becoming extremely anxious over his real estate business. He was hospitalized and constructively incapacitated.6
By September of 2008, the mother returned to school and the father became frustrated that the mother did not spend more of her free time with him. He did not approve of the mother's friendships with particular female friends. By the time the mother prepared to graduate from dental school,7 the father told the mother that he wanted her to stay home and care for the household. The mother started work as a dentist in the practice where she had previously been employed as a dental assistant for ten years. As a dentist she worked as an independent contractor, receiving forty percent commission.
2. Separation. On May 30, 2009, the father and the mother separated. Soon after the father left their home, he telephoned the mother and said that he intended to get a divorce and needed to speak with her that night after the child went to bed. She agreed to talk. The mother and child then went to visit a friend. As the mother was leaving to return home, she found that her car was being towed and saw the father emerge from the tow truck's passenger seat. He got into his own car and drove away, staring at her intently with an angry look as he passed. Afraid to go home, the mother and child spent the night at the friend's house. The father, by his own account, grew furious. He expected that the mother would get a ride home so that he could kiss the child
good night and have a discussion with her about the marriage. He failed to understand the natural response to the intimidation of having one's car towed.
While at the family home waiting for the mother, the father gathered up several pairs of her shoes, some boots, and a purse and put them in the oven. He turned the oven on and left. He stated that “[i]t seemed like the most harmless way to piss her off.” The father's father went to the home to shut the oven off.
The parties did not live together after the father moved out of the home. The father attempted to get key access to the building adjacent to and overlooking the marital home, but his request was not granted.
3. Legal proceedings. On June 8, 2009, the mother filed a complaint for divorce. On September 14, 2009, she filed a separate complaint in which she sought protection from abuse under G.L. c. 209A. In support of the protective order issued by the court, the judge cited an instance in which the father threatened, “I'm coming with an axe to chop you up,” after the mother would not agree to let the child have a sleepover.8 On another occasion months later, when the mother picked up the child from a supervised visit with the father, the supervisor witnessed as the father pulled up behind the mother's car, “revved” his engine, swerved his car back and forth, then accelerated around her car, completely crossing the double line in the street, and raced away.
During this time frame, the father transferred a significant interest in his business into his parents' names. He sought to give his parents retroactive distributions of his own personal share of profits. The father claimed his income was $580 per week, which the judge found was a “completely unreliable” estimation.
4. Guardian ad litem report. As part of the proceedings, a psychologist was appointed as guardian ad litem (GAL) on behalf of the child to evaluate the issues of custody and parenting time, and later the issue of removal. The GAL issued an extensive report dated April 15, 2010 (and supplemented that September), that detailed his observations and interactions with family members. The report concluded that the father dominates both the mother and the child with his words and actions. The father appeared to have agendas concerning information he wanted to discuss or disclose and rewarded the child when he cooperated. On the other hand, the GAL observed that “[the mother] allows
[the child] to be himself and have his own thoughts and feelings, and to express them without fear or reservation.” The GAL cited a number of parenting decisions that reflected poor judgment on the father's part. The GAL pointed out that there was extensive “mudslinging” by the father against the mother, while the mother focused only on trying to do what is best for the child.9
Discussion. 1. Standard of review. The judge's factual findings must be left undisturbed absent a showing that they are plainly wrong or clearly erroneous. This deferential standard applies to our review of cases involving custody and visitation, see Felton v. Felton, 383 Mass. 232, 239–240, 418 N.E.2d 606 (1981)
; Rosenberg v. Merida, 428 Mass. 182, 191, 697 N.E.2d 987 (1998) ; Loebel v. Loebel, 77 Mass.App.Ct....
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