Marcie E. Lombard v. Brian M. McCarthy.

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-916

MARCIE E. LOMBARD

vs.

BRIAN M. MCCARTHY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father, Brian McCarthy, appeals from (1) a Probate and

Family Court judgment regarding custody of a nonmarital child

and numerous related postjudgment orders1; and (2) a single

justice order denying his request for a stay of the judgment

pending appeal.2 We affirm.

Discussion. 1. Exclusion of evidence. Following a status

conference on November 27, 2023, the judge issued a trial

scheduling order (order) that the parties produce any documents

1The father appeals from orders dated May 16, 2024 (denying
his motions for relief from judgment and for evidentiary
hearing); May 29, 2024 (denying his motions for reconsideration
and to strike exhibits); and June 20, 2024 (denying his motion
for relief from judgment).

2The father's appeal from the single justice order was
consolidated with his appeal from the Probate and Family Court
judgment and orders.
they wished to present at trial "no later than December 15,

2023." During the status conference, the judge addressed the

father directly, explaining the importance of reading the order

thoroughly. Specifically, the judge stated,

"[W]hen you receive it, read it, all of it . . . [b]ecause
it has very tight deadlines, and very particular deadlines.
And if you don't follow them, there are evidentiary
sanctions meaning that you may not be able . . . to put
them in."

The father responded, "Yes, yes."

The father sent his evidence to the mother's attorney by e-

mail at or around 6:09 P.M. and 10:56 P.M. on December 15, 2023,

and 1:10 A.M. on December 16, 2023. In response, the mother's

attorney filed a motion in limine to exclude this evidence

arguing that it violated the deadline in the order. At the

pretrial conference on January 3, 2024, the mother's attorney

notified the judge that the father had sent his evidence after

5 P.M. on December 15. The judge then addressed the father:

"So the deadline, generally it's 4:00, even if I gave you until

5:00 which is end of business. Why was it not sent within the

deadline?" The father responded, "I thought we had until the

end of the day on the 15th." The mother's attorney also

explained that the evidence the father had produced on December

15 and 16 was "an absolute document dump." She stated that it

contained "700 text messages, 635 pages of [Our Family Wizard],

317 photographs . . . six videos . . . 207 pages of various

2
studies and reports he researched, letters from people," and

affidavits. She represented that the father had not created an

index or list of documents and media to facilitate the creation

of the joint exhibit list the judge had ordered the parties to

create. Nevertheless, the mother's attorney and her staff had

reviewed this information, identified documents that they agreed

were admissible, generated a list of these documents, and

notified the father. Moreover, pursuant to the scheduling

order, the mother's attorney created binders of these

uncontested items for the father and the judge.

The mother's attorneys also notified the father that they

would contest the admission of the remaining information he had

produced and explained that, pursuant to the order, it was his

obligation to generate a list of any contested exhibits he

wanted to introduce. The mother's attorneys then created

binders of the father's contested information and gave them to

him.

The judge then instructed the father to "pare down your

exhibits" before trial. The father responded that he did not

have any contested exhibits because he had sent them after

5 P.M. on December 15. The judge and the mother's attorney then

reminded the father that the mother's attorney had agreed that

he could introduce some of the evidence he had produced after

5 P.M. on December 15.

3
After the trial conference, the judge endorsed the mother's

motion in limine as follows: "Parties shall meet and agree on

the uncontested exhibits. Any exhibits forwarded after 5 P.M.

on 12/15/23, to which plaintiff does not agree, are precluded

from entry." Based on the judge's statements at the hearing and

this order, it appears that the judge expected that, if the

father wanted to introduce any of his "contested" evidence, he

could discuss it with the mother's attorney prior to the trial,

and if she agreed, he could introduce it. The father contends

that the judge erred by granting the mother's motion in limine

to exclude his trial exhibits and the exclusion of this evidence

violated due process and his right to present a defense.

"Trial judges have broad discretion to make discovery and

evidentiary rulings conducive to the conduct of a fair and

orderly trial" (quotation and citation omitted). Mattoon v.

Pittsfield, 56 Mass. App. Ct. 124, 131 (2002). A trial judge's

ruling on the exclusion of evidence as a sanction is reviewable

for an abuse of discretion. Commonwealth v. Sanford, 460 Mass.

441, 445 (2010). A reviewing court will not find an abuse of

discretion unless "the judge made a clear error of judgment in

weighing the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

4
The father argues that he complied with the order by

providing his materials before 11:59 P.M. on December 15, 2023.

Assuming without deciding that the father was permitted to

submit evidence to the mother's attorney until midnight on

December 15, 2023, we disagree that he complied with the order.

The order required much more than simply serving evidence

on the opposing party by a specific deadline. It also required

the parties to work together to determine what evidence they

could agree would be introduced at trial, and to develop a

process to introduce it in an orderly and efficient manner. To

the extent that the parties disagreed, the order required the

parties to generate a "joint contested exhibit list with binder

of exhibits all to be filed with the court at the trial status

conference."

The father failed to comply with the order in numerous

ways. First, he produced the evidence he intended to introduce

in a chaotic disorganized format that frustrated the judge's

intent that the parties work together in an orderly manner to

identify and address evidentiary issues prior to trial. Second,

he failed to work cooperatively with the mother's attorney to

resolve the disputes that his disorganized evidence production

created. Third, he failed to comply with the order's

requirement that, to the extent that he wanted to introduce

contested evidence as exhibits, he create a proposed exhibit

5
list by December 20, 2023, that was particularized and not

generic. Notwithstanding that the mother's attorneys worked

with the father to identify evidence that they would not

contest, assembled that uncontested evidence in a binder which

they presented to the judge,3 assembled the remaining contested

evidence in a second binder which they made available to the

father, and reminded him that it was his obligation, pursuant to

the scheduling order, to generate a particularized proposed

contested exhibit list for the court by December 20, 2023, he

failed to do so. In fact, he still had not generated the list

by the pretrial conference on January 3.

Finally, any prejudice from the judge's exclusion of the

father's evidence was mitigated by the fact that the mother's

counsel reviewed as much of it as she could, identified

documents that appeared admissible, and included them in the

uncontested evidence binder she prepared for the judge. Beyond

that, the judge reminded the father that, even after January 3,

he could "pare down [his] exhibits" (presumably contested) and

"work together" with the mother's counsel to agree on other

uncontested exhibits prior to trial. For all of these reasons,

3 Given that the mother's counsel agreed not to contest some
of the evidence the father disclosed on or after December 15,
2023, the judge did not exclude all of that evidence.

6
the judge did not abuse her discretion in excluding the father's

evidence.

Additionally, the father has failed to demonstrate that he

suffered any prejudice from the exclusion of his evidence. The

father has not identified any specific evidence which the judge

excluded and which the father claims was both admissible and

material. An appellant bears the burden of presenting appellate

arguments and producing a record appendix that are adequate for

appellate review. See Mass. R. A. P. 16 (a) (9), as appearing

in 481 Mass. 1628 (2019); Mass. R. A. P. 18 (a), as appearing in

481 Mass. 1637 (2019). The rule "is more than a 'mere

technicality. It is founded on the sound principle that the

right of a party to have this court consider a point entails a

duty; that duty is to assist the court with argument and

appropriate citation of authority.'" Cameron v. Carelli, 39

Mass. App. Ct. 81, 85-86 (1995), quoting Lolos v. Berlin, 338

Mass. 10, 14 (1958). While we recognize the inherent challenges

in proceeding pro se, both parties represented by counsel and

pro se litigants are required to present materials necessary for

appellate review. See Brown v. Chicopee Fire Fighters Ass'n,

Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990) ("Although

some leniency is appropriate in determining whether pro se

litigants have complied with rules of procedure, the rules

nevertheless bind pro se litigants as all other litigants").

7
The father has not identified any specific evidence which he

provided to the mother's counsel, which the mother's counsel

contested, and which he believes is admissible. Therefore, we

cannot determine whether the judge erred in excluding any of the

father's contested evidence and whether any error was

prejudicial.

2. Factual errors. "Findings of fact shall not be set

aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge . . . the

credibility of the witnesses." R.D. v. A.H., 454 Mass. 706, 718

(2009), quoting Mass. R. Dom. Rel. P. 52(a). We will not

disturb the trial court's judgment based on minor factual errors

where the judge's overall conclusion is fully supported by the

record. See Adoption of Sherry, 435 Mass. 331, 336 (2001)

(although some of judge's findings were erroneous, judgment not

dismissed "when error did not affect the outcome"); Adoption of

Helen, 429 Mass. 856, 859 (1999) (notwithstanding that some of

judge's subsidiary findings were erroneous, judgment was

affirmed because he amply supported his overall conclusion).

None of the factual findings that the father contests go to

the heart of the judge's rationale. For example, the father

disputes finding 45, which states, "In April of 2022, as a

result of a missed Soberlink test, Father did not see [child]

for 9.5 weeks. During that time, he had no contact with his

8
son." The father contends that this period of no contact with

his son was because of a conflict between himself and the

mother's family, and not because of a missed Soberlink test.4

The fact that the father had no contact with the child for

nine and one-half weeks from April to June in 2022 because of

conflict with the mother's family rather than a missed Soberlink

test was not important to any of the judge's ultimate rulings.

Indeed, the judge found that there was conflict between the

father and the mother's family that resulted in lost parenting

time for the father. Moreover, the judge found, correctly, that

the father later lost parenting time because of missed Soberlink

tests. Both of these findings were supported by the record.

Additionally, the father contends that finding 33

erroneously states that he "took steroids and injected himself

with Human Growth Hormone." Given that there is nothing in the

record that indicates the father was taking steroids, we agree

the court erred in this regard. However, the fact that there is

no evidence that the father was taking steroids is immaterial to

the judge's rationale which ultimately turned on her conclusions

that the father does not have a "serious plan to understand his

addiction, regulate his emotions, and maintain his sobriety."

4 We agree with the father that this finding of fact was
erroneous. The trial court did not order the father to begin
Soberlink testing until June 13, 2022.

9
By contrast, findings 25 and 26, also disputed by the

father, were important to the judge's rationale. Finding 25

states, "Mother testified credibly that Father would drive while

alcohol impaired." Given that the mother did testify to this,

we find no error. Finding 26 states, "Father's medical records

confirm that he consumed 10 to 15 vodka drinks per day." Again,

this finding is supported by the record and thus not erroneous.

Further, the father claims that the judge demonstrated a

clear bias in favor of the mother by "mischaracterizing" and

"ignoring" certain evidence. These claims are meritless.

"[T]he judge's assessment of the weight of the evidence and the

credibility of the witnesses is entitled to deference." Custody

of Eleanor, 414 Mass. 795, 799 (1993). The father's

dissatisfaction with the judge's credibility determinations does

not create a cognizable claim of judicial bias. See Adoption of

Jacob, 99 Mass. App. Ct. 258, 266 (2021).

3. Refusal to release the GAL report. The father also

argues that the court's refusal to release the GAL report to him

to use in his appeal was a violation of due process because it

"obstruct[ed] the appellate court's ability to evaluate whether

the custody decision was fair and impartial." The record

contradicts this claim.

The trial court's order denying the release of the report

to the father states that the report "shall be included by the

10
Middlesex Registry in the Exhibits compiled and forwarded to the

Appeals Court." Indeed, we received the report and have

reviewed it.

4. Custody determination. The father argues that the

court erred in awarding sole legal custody to the mother because

there was not clear and convincing evidence of the father's

unfitness. The father relies on an incorrect legal standard.

"[C]ustody orders and judgments [including those under G. L.

c. 209C] are made on the basis of a determination of the best

interests of the child . . . and a judge may consider any

factors found pertinent to those interests in the circumstances

of the dispute." Custody of Zia, 50 Mass. App. Ct. 237, 243

(2000). This standard vests the trial judge with considerable

discretion. See Charara v. Yatim, 78 Mass. App. Ct. 325, 334

(2010) ("What is in a child's best interest depends upon the

particular needs of the child, and is left largely to the

discretion of the judge"). The trial judge's custody

determination correctly focused on the best interests of the

child and was well-supported by the record. We discern no abuse

of discretion.

5. Other constitutional claims. The father contends that

the judge's order requiring him to remove his firearms from his

home violates his right to bear arms under the Second Amendment

to the United States Constitution. The GAL proposed this

11
requirement in her report. In the order, the judge announced

the GAL report would be entered as an exhibit at trial. The

judge then reminded the father of this fact at the final trial

conference. Therefore, the father had clear notice of this

recommendation but did not challenge it at trial or assert that

it would violate his constitutional rights. Accordingly, the

father has waived this claim. See Care and Protection of Zeb,

489 Mass. 783, 787 (2022) (mother's claim that plan for

permanent guardianship was too vague was waived when mother

failed to object to permanency plan at trial); Adoption of

Willow, 433 Mass. 636, 651 (2001) (claim that separation would

not be in children's best interest was waived; "it was

abundantly clear the department was recommending separate

placements," and mother failed to object to this at trial).

Further, the father argues that the admission of the GAL

report violated his right to confrontation under the Sixth

Amendment to the United States Constitution because he was not

provided an opportunity to cross-examine the GAL. "There is no

right of confrontation in civil proceedings." Covell v.

Department of Social Servs., 439 Mass. 766, 788 (2003).5

5 In light of the above, we discern no error in the single
justice's denial of the father's request for a stay pending
appeal on the basis that the father failed to establish a
likelihood of success on the merits.

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Conclusion. The judgment dated March 12, 2024, is

affirmed. The orders dated May 16, 2024, May 29, 2024, and June

20, 2024, denying the father's postjudgment motions, are

affirmed. The single justice order dated February 13, 2025,

denying the father's request for a stay, is affirmed.6

So ordered.

By the Court (Ditkoff,
D'Angelo & Wood, JJ.7),

Clerk

Entered: December 18, 2025.

6 The mother's motion for appellate attorney's fees is
denied.

7 The panelists are listed in order of seniority.

13