Signorelli v. Albano

• Court: Appeals Court of Massachusetts
• Citation: Signorelli v. Albano, 486 N.E.2d 750, 21 Mass.App.Ct. 939 (Mass. App. 1985)
• Decision Date: 17 December 1985
• Parties: Mary Lou SIGNORELLI v. Dennis A. ALBANO.

Page 750

486 N.E.2d 750

21 Mass.App.Ct. 939

Mary Lou SIGNORELLI v. Dennis A. ALBANO.

Appeals Court of Massachusetts Worcester.

Argued Nov. 18, 1985.

Decided Dec. 17, 1985.

Gregory C. Howard, Boston, for plaintiff.

Frank S. Puccio, Jr., Worcester, for defendant.

Before DREBEN, KAPLAN and SMITH, JJ.

RESCRIPT.

This case involves the sensitive and difficult question whether a custodial parent may remove her seven-year-old son from the jurisdiction. A probate judge, prior to the recent decision of Yannas v. Frondistou-Yannas, 395 Mass. 704, 481 N.E.2d 1153 (1985), held that she may not. Since it appears that the judge may not have given sufficient consideration to the "real advantage" standard set forth in Yannas, we remand the matter for consideration in light of that case.

After learning that the mother intended to move to New Jersey, the father filed a complaint seeking modification of a judgment of divorce which gave the mother custody of the child. The mother counterclaimed, requesting permission to reside in New Jersey with the child and her new husband. Both parents have remarried. At the time of the hearing the mother was pregnant, expecting a baby in November, 1984. Her new husband had moved from Massachusetts to New Jersey because of employment (an increase in salary from $60,000 to $95,000 annually, plus a stock interest of $1,700,000).

The judge, in a careful and thoughtful memorandum, determined that both the mother and father are excellent parents, that both love the child, and that both are concerned with his welfare. He found the mother the "superior custodial alternative" but also found that the father was a substantial factor in the child's emotional well-being. The "mother encouraged and fostered an ongoing, continuous and regular relationship between [the child] and his father ...." Concluding that it is not in the child's best interests that he be separated by such a distance from his father, the judge denied the mother permission to remove the child to New Jersey.

In Yannas v. Frondistou-Yannas, 395 Mass. at 710-712, 481 N.E.2d 1153, the Supreme Judicial Court set forth the procedure for determining the "best interests" of a child in cases involving removal. Citing and quoting from Cooper v. Cooper, 99 N.J. 42, 53, 54, 56, 491 A.2d 606 (1984), the court adopted a standard, sometimes called the "real advantage" standard, which recognizes that, after a divorce, a child's subsequent relationship with both parents can never be the same as before the divorce and that the child's quality of life is provided by and is "interwoven with the well-being of the custodial parent." Yannas 395 Mass. at 710, 481 N.E.2d 1153. For this reason, Yannas states, "the first consideration" in determining whether the child's best interests are served, "is whether there is a good reason for the move, a 'real advantage.' If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively." Id. at 711-712, 481 N.E.2d 1153.

In this case the trial judge did not have the benefit of the Yannas case with its focus on the "real advantage" standard. Although he carefully considered many of the relevant factors discussed in Yannas (e.g., the "possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent," id. at 711, 481 N.E.2d 1153), he did not, we think, give sufficient consideration to the "real advantage" of the move. Although he found that the new husband and the child had "a good relationship" and that there was evidence of good schools in New Jersey, he did not appear to give much weight to the quality of life of the custodial parent by reason of the separations enforced on her, on her husband, and on her other child. The only mention of that issue appears in finding No. 15, which reads as follows:

"15. Apart from the convenience the New Jersey location is to her new husband's place of employment and the choice of Mary Lou Signorelli, the Court finds no other imperative...