Sher v. Desmond

• Court: Appeals Court of Massachusetts
• Writing for the Court: Duffly
• Citation: Sher v. Desmond, 874 N.E.2d 408, 70 Mass. App. Ct. 270 (Mass. App. 2007)
• Decision Date: 27 September 2007
• Docket Number: No. 06-P-1556.,06-P-1556.
• Parties: Marjorie SHER v. Robert DESMOND.

874 N.E.2d 408

70 Mass. App. Ct. 270

Marjorie SHER v. Robert DESMOND.

No. 06-P-1556.

Appeals Court of Massachusetts, Middlesex.

Argued May 9, 2007.

Decided September 27, 2007.

Elizabeth M. Clague & Wendy J. Murphy for the plaintiff.

Barbara Equen Rodriguez, Boston, for the defendant.

Present: PERRETTA, DUFFLY, & KAFKER, JJ.

DUFFLY, J.

The maternal grandmother of a child of parents not living together brought a complaint in the Probate and Family Court pursuant to G.L. c. 119, § 39D,¹ seeking visitation with the child after her attempts to communicate with him were rebuffed by the child's father. The father filed a motion to dismiss and, following a hearing, a Probate Court judge dismissed the grandmother's complaint with prejudice. In this appeal we are asked to decide whether the grandmother's complaint and the affidavit attached to it comport with the heightened pleading standard applicable to complaints for grandparent visitation, as set forth in Blixt v. Blixt, 437 Mass. 649, 774 N.E.2d 1052 (2002), cert. denied, 537 U.S. 1189, 123 S.Ct. 1259, 154 L.Ed.2d 1022 (2003) (Blixt). We decide that they do, and reverse the judgment of dismissal.

1. Background. We begin by reciting certain background facts alleged in the grandmother's complaint and affidavit, the propriety of which are not assailed, at least for purposes of this appeal. The plaintiff, Marjorie Sher (grandmother), has a daughter, Amy Sher (mother), who, sometime prior to March of 1992, began a relationship with the defendant, Robert Desmond (father). The grandmother and other members of the mother's immediate family did not approve of her relationship with the father. In June of 1994, following allegedly abusive, threatening, and harassing telephone calls made to her by the father, the grandmother obtained a restraining order prohibiting him from contacting her or other members of her family (presumably with the exception of the mother). In October, 1994, the father and the mother were married in New Hampshire; no one from the mother's family was invited to the wedding and, in the years following the marriage, there was no contact between the grandmother and the mother.

In June, 2002, the grandmother hired a private investigator to locate the mother in an attempt to effect a reconciliation with her. The investigator learned that the mother had given birth to a son on July 28, 1996. The investigator approached the mother on October 9, 2002, in the parking lot of her place of employment. The mother told the investigator that she did not wish to reconcile with her family. Shortly after speaking to the investigator, the mother disappeared. Upon learning in the spring of 2004 that the mother was missing, the grandmother alerted local police, who initiated a formal investigation. Subsequently, the grandmother consulted with a medical professional to seek guidance as to how best to contact the child. She eventually sent two notes to the child by certified mail, both of which were rejected by the father and returned to her.

It is not disputed that the mother no longer resides with the father and the child. As the father asserted in his motion to dismiss, the son "resides with his Father.... The Mother left the family home in 2002, and there has been no further contact."

2. Facts asserted in the affidavit. On November 9, 2005, the grandmother, now residing in Florida, filed a complaint for grandparent visitation to which she attached an affidavit, supported by exhibits. In addition to the foregoing assertions, the affidavit also contains numerous allegations that the father had committed serious acts of physical violence against the mother over a prolonged period of time and reflects the grandmother's belief that the father may have been responsible for the mother's disappearance. As to the allegations of domestic violence, the grandmother's affidavit relies extensively on letters attached thereto purportedly written by two of the mother's managers at her former place of employment and addressed to a police detective, apparently as part of the investigation into the mother's disappearance.² The father argues that the heightened pleading requirement in Blixt requires that the verified complaint or affidavit essentially meet a summary judgment standard, setting forth material facts to support the complaint that are based on personal knowledge, and that the grandmother's affidavit largely fails in this respect. Because, as we discuss, infra, we decide that the requirements of Blixt were met in this case, we consider additional assertions made by the grandmother, including the factual material she attached to her affidavit and from which her assertions, made on information and belief, substantially are drawn. "Accordingly, we accept as true the [grandmother's] allegations and summarize the relevant facts." Brodeur v. American Rexoil Heating Fuel Co., 13 Mass.App.Ct. 939, 939, 430 N.E.2d 1243 (1982).

The first of the mother's managers said he had been trained to recognize victims of domestic violence and observed in the mother the signs and symptoms of a person suffering from "significant and severe physical and emotional abuse." Among other things, the mother frequently was observed with swollen, cut, and bruised hands (which she often tried to hide). Her face, at times, appeared bruised; at other times, she was seen to limp visibly as she walked. The mother had numerous unexplained absences and wore full-length wool sweaters and skirts with heavy, dark stockings in the middle of summer. It was a regular occurrence that the mother was overheard sobbing, pleading, and begging on the telephone to the extent that it disturbed her coworkers. These coworkers divulged to the first manager that there was a "history of abuse concerns" with respect to the mother and that, although she never talked about the father, she "share[d] stories about her son and the joy he brought to her life."

The mother's second manager had known the mother for five years at their place of employment. He related that he personally had observed "horrible conditions" involving the mother, whose life was totally controlled by the father. The mother, who received constant and excessive calls from the father while she was at work, appeared uncomfortable when away from her desk and could not attend meetings without one day's notice. On one occasion when the mother was away from her desk, the father called repeatedly, screaming at a secretary that the mother was not at her desk. The mother left work on that occasion to go home; when she returned she had a bruise on her cheek and a black eye. The mother was frequently absent from work and often would return with injuries (including a severely damaged leg). She was observed with black eyes, broken eye glasses, and hands that were swollen, scratched, and, at times, burned; on one occasion, the mother came to work with a large gash on her head and "the hair around the injury was missing, either shaved or perhaps ripped out." The second manager and others, who often overheard the mother on the telephone "pleading for forgiveness and promising to be a better person," approached the mother with offers to help her but she turned down their offers of assistance and would not state that she had been abused. The second manager reported that one of the mother's coworkers had put brochures discussing battered women in the ladies' room and in office mail slots and counselors were called into the workplace to help staff understand what they could and could not do to assist the mother.³,⁴ In the period shortly before the mother abruptly resigned from her job in October, 2002, the mother's "physical appearance had greatly deteriorated." She had lost a significant amount of weight and did not appear to eat regularly when at work; her facial color was gray and her eyes blank. The second manager stated that by the end of her employment, the mother did not discuss her son, whereas she previously had "beam[ed]" when discussing him.

Both managers cite circumstances of the mother's departure from her employment as uncharacteristic and worthy of note.⁵ The grandmother also asserts that the father gave differing accounts regarding the circumstances of the mother's departure from the family home.⁶

The father moved to dismiss the grandmother's complaint and to strike her affidavit. In support of his motion he stated, among other things, that the mother left the family house in 2002 and the child resides with him; the mother and the grandmother long had been estranged; the grandmother had had no relationship with the child (and did not know of the child's existence until he was six years old); the father did not wish for the grandmother to visit with the child; the grandmother's affidavit was replete with "hearsay and inadmissible speculation"; and the grandmother had failed to make the showing required by Blixt, 437 Mass. at 659, 774 N.E.2d 1052, that the failure to grant the grandmother visitation would cause the child significant harm by adversely affecting his health, safety, or welfare. The father filed a memorandum in support of the motion to dismiss, to which he attached a letter dated April 20, 2005, from a case worker at the Department of Social Services (DSS), which recites that, upon investigation, "the Department has found no reasonable cause to support the allegation(s) that your child(ren) has been abused and/or neglected."⁷

After a hearing on the motion to dismiss,⁸ the judge dismissed with prejudice the grandmother's complaint without findings or explication.

3. Discussion. a. Governing law. The due process clause of the Fourteenth Amendment to the United States Constitution protects "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Blixt, 437 Mass. at 655-656, 774 N.E.2d 1052, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (Troxel). At the...