Karoline Hill v. Sean Del Plato.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-744

KAROLINE HILL

vs.

SEAN DEL PLATO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother, Karoline Hill, appeals from a modification

judgment issued by a judge of the Probate and Family Court that

awarded primary physical custody to the father, Sean Del Plato,

and set the mother's child support obligations. We conclude

that the trial judge acted within her discretion in relying on

the court appointed probation officer's report and the child's

statements found therein and that the evidence supported her

determination that primary custody by the father was in the

child's best interest. Further concluding that the trial judge

acted within her discretion in ordering the mother to pay child

support based on the mother's gross income at the time of the

trial, we affirm.
1. Custody.1 To obtain a custody modification, the

requesting party "must first establish that a material and

substantial change in circumstance has occurred to warrant a

change in custody, and that the change is in the child's best

interests." E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020).

See G. L. c. 208, § 28. "[T]he best interests analysis is a

child-centered one that focuses on the specific needs and

interests of a child and how these might best be met." Charara

v. Yatim, 78 Mass. App. Ct. 325, 336 (2010). "The judge is

afforded considerable freedom to identify pertinent factors in

assessing the welfare of the child and weigh them as she sees

fit." Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019),

quoting Smith v. McDonald, 458 Mass. 540, 547 (2010).

"We review the judgment and the subsidiary findings of fact

for abuse of discretion or other error of law." Murray v.

Super, 87 Mass. App. Ct. 146, 148 (2015). "A trial judge's

findings of fact will not be set aside unless clearly

erroneous." Altomare v. Altomare, 77 Mass. App. Ct. 601, 602

(2010). "[A] judge's discretionary decision constitutes an

abuse of discretion where we conclude the judge made 'a clear

error of judgment in weighing' the factors relevant to the

1 We agree with the parties that the issue of the removal of
the child from the State was rendered moot by the mother's
relocation to Massachusetts in 2025.

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decision, such that the decision falls outside the range of

reasonable alternatives." E.K., 97 Mass. App. Ct. at 409,

quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the trial judge properly concluded that a material

and substantial change had occurred since the 2019 custody

judgment and that modification was in the best interest of the

child. The trial judge found that, since the previous judgment

granting the mother sole physical and legal custody, the child

spent "significant periods of time residing primarily with both

parties" and that, since June 2023, the child has "resided

primarily with Father and has expressed a preference to continue

doing so."2 The trial judge appropriately considered not only

the child's stated preference to continue to live with the

father during the academic year but also the benefits this

setting offered the child. The judge found that, while in the

father's primary care, the child had excelled academically and

2 The trial judge detailed that the child "lived primarily
with Mother from April 18, 2019 until March of 2020; she lived
with the maternal grandfather from March of 2020 to May of 2020;
she lived primarily with Father from May of 2020 to November of
2020; she lived primarily with Mother from November of 2020 to
May of 2021; she lived primarily with Father from May of 2021 to
October 2021; she lived with [the mother's former partner] from
November of 2021 to December 25, 2021; she lived primarily with
Father from December 25, 2021 to August of 2022; she lived
primarily with Mother from August of 2022 to June of 2023; and
she has lived primarily with Father from June of 2023 to the
present."

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had maintained consistent extracurricular activities,

accomplishments assisted by the father's hiring of private

tutors. See Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262

(2001), quoting Tolos v. Tolos, 11 Mass. App. Ct. 708, 710

(1981) ("The uprooting of a child . . . should be done only for

compelling reasons").

The judge further determined that it was in the child's

best interest for the father to have primary physical custody as

the father "is able to provide [the child] with a stable

environment in which she is comfortable and able to be herself."

See Custody of Kali, 439 Mass. 834, 843 (2003) ("Stability is

itself of enormous benefit to a child, and any unnecessary

tampering with the status quo simply increases the risk of harm

to the child"). This determination was properly informed by the

child's conversation with a court appointed probation officer in

August 2023.3 During this conversation, the child reported that

she is comfortable with her father as she is able to "be myself

and not just one side but all sides." Although the child also

described her relationship with her mother as "comfortable," she

3 The parties stipulated to the admittance of the probation
officer's report as an exhibit at trial subject to cross
examination. For this reason, the mother's argument that the
child's statements amount to inadmissible hearsay is waived.
See Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538, 542-543
(2023).

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noted the mother's yelling and threatening behavior, including

the mother's threat to get rid of the child's dog and her

telling the child that she will not be able to see her maternal

relatives if she were to live primarily with the father. See

Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting G. L. c. 208,

§ 31 ("The judge shall consider 'whether or not the child's

present or past living conditions adversely affect his physical,

mental, moral or emotional health'"). The child also described

the mother's attempts to weaken the child's relationship with

her father, telling her that the father "left us" and he

"doesn't care about us." See Malachi M., 483 Mass. at 740,

quoting Hunter, supra (judge may consider "whether one parent

seeks to undermine the relationship a child has with the other

parent"). Nothing required the judge to find that the mother's

cooperation with the father's parenting time outweighed her

statements undermining the child's relationship with the father.

See Malachi M., supra.4

In light of these facts, we see nothing unreasonable in the

judge's assigning the father "final decision-making authority"

4 The mother's attempt to tease out evidence of the father's
undermining the child's relationship with the mother is
unpersuasive. The judge could well have determined that the
minor breakdowns in communication cited by the mother are
nothing like the mother's statements to the child and to the
father.

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if a disagreement persists after the father "confer[s] with

Mother in good faith." See D.B. v. J.B., 97 Mass. App. Ct. 170,

181-182 (2020). That a requirement to confer in good faith

might be difficult to enforce by contempt does not make it

improper; if the requirement proves unworkable, the mother can

request a different process by a modification complaint.

The mother argues that the trial judge abused her

discretion in relying on the court appointed probation officer's

report as the child's statements reflected the father's coaching

and the probation officer's questions effectively made the child

compare her parents to each other. We disagree. The court's

assignment of the probation officer followed the father's

complaint for modification that cited the child's preference to

live with the father as a change in circumstance. Given this

claim, the judge appropriately instructed the probation officer

to interview the child "regarding her wishes as to school

enrollment commencing September 2023."5 As such, it was natural

that the child would be asked to state her custody preferences,

5 At the hearing on the father's motion for the appointment
of a guardian ad litem (GAL), the mother's counsel characterized
the appointment of a GAL as "premature at this point." The
mother thereafter filed nothing objecting to the appointment of
the probation officer or joining the father's request for a GAL.
Accordingly, the mother's argument that a GAL should have been
appointed is waived. See Rabinowitz, 103 Mass. App. Ct. at 542-
543.

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explanations of such preferences, and other relevant information

that would better inform the trial judge's decision. It was

within the judge's discretion to rely on the probation officer's

report and the child's stated preferences therein. See R.D. v.

A.H., 454 Mass. 706, 718-719 (2009).

The mother's contention that the child's statements

reflected coaching by the father is unsupported by the record.

The probation officer's report begins by detailing that the

child "was asked if she knew why she was meeting with this

Officer. She reported 'my dad wants custody of me, and I want

to live with him.' [The child] further added that she was

supposed 'to tell you my side of the story and where I want to

live.'" The child subsequently informed the probation officer

that she wanted to continue to live with the father and to

continue to attend the local public school as she was interested

in becoming a veterinarian and the father's town had good

veterinarian schools and programs. There is nothing in the

remainder of the child's interview to suggest the father unduly

influenced the child's responses, and we defer to the trial

judge's credibility determination. See Malachi M., 483 Mass. at

741.

4. Child support. "[T]he central inquiry in a case

involving modification of . . . child support . . . is whether,

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and to what extent, the parties' financial circumstances have

changed since the entry of the prior judgment." Dolan v. Dolan,

99 Mass. App. Ct. 284, 290 (2021), quoting Emery v. Sturtevant,

91 Mass. App. Ct. 502, 508 (2017). "In the case of an order of

child support governed by the Child Support Guidelines, 'orders

of maintenance and for support of minor children shall be

modified if there is an inconsistency between the amount of the

existing order and the amount that would result from application

of the child support guidelines.'" Feinstein v. Feinstein, 95

Mass. App. Ct. 230, 234 (2019), quoting G. L. c. 208, § 28.

Here, the judge found that the mother had a "gross weekly

income from employment in the amount of $3,601.75, and she has

weekly rental income of $207.87, resulting in total gross weekly

income of $3,809.62." Given that the father's gross income was

calculated as $2,135 per week, the trial judge set the mother's

child support obligation at $578 per week, retroactive to August

17, 2023.

The mother's argument that the trial judge abused her

discretion in including the mother's temporary travel allowance

in the child support calculations is without merit. In her

findings, the trial judge noted that the mother's 2023 paystub

included a travel allowance of $1,498, an allowance the mother

characterized as a weekly payment she received to cover living

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expenses during her employment. As the mother acknowledges,

income is defined broadly by the child support guidelines to

include "gross income from whatever source." Child Support

Guidelines § 1(A) (July 2023). Although the mother was on a

temporary employment contract and this travel allowance was

contingent on the mother remaining with her then employer, the

trial judge properly considered the travel allowance within her

calculations as it reflected the mother's income at the time.

Nothing precluded (or precludes) the mother from seeking a

modification of child support at the time the travel allowance

ended. See Morales v. Morales, 464 Mass. 507, 511-512 (2013);

G. L. c. 208, § 28.6

Judgment affirmed.

By the Court (Ditkoff,
Singh & Smyth, JJ.7),

Clerk

Entered: July 22, 2025.

6 The father's request for appellate attorney's fees is
denied. "Although the . . . appeal is unsuccessful, it is not
frivolous." Filbey v. Carr, 98 Mass. App. Ct. 455, 462 n.10
(2020), quoting Gianareles v. Zegarowski, 467 Mass. 1012, 1015
n.4 (2014).

7 The panelists are listed in order of seniority.

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