Kayla St. George v. Stewart Burlingame.

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

22-P-136

KAYLA ST. GEORGE

vs.

STEWART BURLINGAME.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother appeals from an October 29, 2021, modification

judgment issued by a judge of the Probate and Family Court

insofar as the judge denied her request for joint legal custody

of the parties' minor child. We affirm.

Background. We summarize the facts as the judge found

them, supplemented by undisputed evidence from the trial,

reserving certain facts for later discussion. See Pierce v.

Pierce, 455 Mass. 286, 288 (2009). The parties were never

married and have one child together, born May 7, 2014. A

judgment entered in November 2016 granting the father sole legal

and physical custody of the child and allowing the mother

supervised visits with her.1 The mother had a history of

1 The father has since married and has another child from that
marriage; the mother has another child of whom she has custody.
substance use, but by 2018 the mother was free of illegal drugs,2

had obtained an apartment, and was working. On March 12, 2018,

the parties entered a stipulated judgment (2018 judgment)

granting the mother a dinner visit one night per week, and a

visit on Saturday from 5 P.M. to 7 P.M. The stipulation also

contained provisions for holidays.

The mother maintained her sobriety, apartment, and job.

She also successfully completed a drug court program through the

District Court.3 Accordingly, in September 2018 the parties

reached an informal, verbal agreement that increased the

mother's parenting time to two dinners per week and visits every

other weekend. In July 2020, an incident at the child's

gymnastics recital led the father to rescind the informal

The father, his wife, and child live with the paternal
grandmother.
2 The mother was prescribed suboxone and held a medical marijuana

card. The clinical supervisor of the program who oversaw the
mother's suboxone use testified that the mother had been
undergoing drug testing through her program since at least 2017
and had consistently tested negative for illicit drugs. She was
aware that the mother sometimes used marijuana. The mother
testified that she used marijuana products to manage stress.
The mother's clinical supervisor testified that she had never
seen the mother "sedated or impaired," but based on a lack of
adequate clinical research on potential interactions between
marijuana and suboxone, could not testify about the risk, if
any, associated with the overlapping use of those drugs.
3 At trial, the mother introduced a letter of support from the

presiding justice of the drug court in which she participated.
In his letter, the judge noted that the mother not only
completed the program but acted as a mentor and role model for
other participants.

2
agreement. The mother, who understood that the gymnastics

facility's COVID-19 protocols limited the child to a single

guest at the facility itself, was watching the event via Zoom

when she saw not only the father, but also the father's wife and

mother in physical attendance at the event. In response, the

mother became disproportionately angry, and immediately drove

from her home to the gymnastics facility. As the children and

parents were escorted to the facility's lobby at the conclusion

of the event, there was an altercation between the mother and

the family group, including the father. According to a staff

member credited by the judge, the mother yelled aggressively,

flailed her arms, and called the father a "scumbag." The

confrontation continued in the parking lot, where the mother

blocked the father's car in with her car, got out, and began

"screaming and swearing" at the father, drawing the attention of

other children and their guests. The mother subsequently

"screeched" out of the parking lot. The incident left the child

in tears. The following day, the father had a no-trespass order

served on the mother.4

In August 2020, the mother filed a complaint for

modification of the 2018 judgment; on September 17, 2020, she

4 At some point prior to trial in April 2022, however, once the
mother "had calmed down," the informal arrangement made in
September 2018 was reinstated by the father.

3
filed the amended complaint for modification at issue in this

appeal (amended complaint). In the mother's amended complaint,

she sought joint legal and physical custody of the child based

on, among other alleged changes in circumstance, the mother's

graduation from drug court and continued sobriety, and the May

2020 closure of a pending case brought by the Department of

Children and Families (DCF) involving the mother and child. The

trial was held over three days on October 4, 5, and 18, 2021,

where the judge heard from six witnesses.

Based on the trial evidence, the judge concluded that,

while the mother had "taken positive steps" by obtaining work

and an apartment, and in maintaining her sobriety, she did not

recognize the impact of her earlier failures to do so on the

child. Additionally, the judge concluded that the parents'

continued inability to communicate directly about the child and

the mother's "lack of impulse control," as highlighted by her

conduct at the gymnastics event, indicated that she was still

unable to put the child's interests first. Ultimately, the

judge concluded that it was not in the child's best interests to

grant joint custody. The judge did, however, acknowledge the

mother's progress by formalizing the portion of the parties'

2018 verbal agreement that provided the mother with expanded

parenting time.

4
The mother appeals from the posttrial judgment. As we

explain, we do not agree that the judge committed any reversible

error.

Discussion. 1. Standard of review. 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).

"When determining . . . modifications of custody awards
based on changed circumstances, the guiding principle
always has been the best interests of the children. . . .
The decision of which parent will promote a child's best
interests is a subject peculiarly within the discretion of
the judge. Discretion allows the judge when determining
the best interests of children, to consider the widest
range of permissible evidence, including the reports and
testimony of a court appointed investigator or [guardian ad
litem], evidence of the history of the relationship between
the child and each parent, evidence of each parent's
present home environment and over-all fitness to further
the child's best interests, and the judge's own impressions
upon interviewing the child privately in chambers"
(quotation omitted).5

Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010), quoting

Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996).

"In reviewing a modification judgment, we examine whether

the factual and legal bases for the decision are in error, or

5 In this case, there was no guardian ad litem appointed and the
judge was neither asked to interview the child in chambers nor
did so sua sponte.

5
whether the judge otherwise abused his discretion." Flor v.

Flor, 92 Mass. App. Ct. 360, 363 (2017). "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 of

the credibility of the witnesses" (citation omitted). J.S. v.

C.C. 454 Mass. 652, 657 (2009).

2. Child's best interests. The mother argues that the

judge erred in denying her amended complaint insofar as he

denied joint custody. In our assessment of the record as a

whole, there was no abuse of discretion in the judge's

conclusion. We recognize, as did the judge, that at the time of

trial, the mother had been sober6 for approximately six years,

was working, and had an apartment. We assume that the judge

concluded that the mother's continued success in recovery for

the three years between the 2018 judgment and her complaint for

modification was a "change in circumstances" for the purposes of

the mother's request. Even so, there was no abuse of discretion

in the judge's refusal to grant joint custody of the child to

the mother where the judge found that at the time of trial, (1)

the parents remained unable to get along and (2) as a result,

joint custody was not then in the child's best interests. See

6 We are aware that the mother used suboxone and marijuana while
in recovery, but as nothing suggests that mother ever abused
either of those drugs, we consider it appropriate to refer to
the mother as "sober."

6
Smith v. McDonald, 458 Mass. 540, 547 (2010) (trial judge has

"considerable freedom to identify pertinent factors in assessing

the welfare of the child and weigh them as [he or] she sees

fit"). We are not persuaded that the judge's conclusion was the

result of unfair bias against the mother, or that to the extent

the judge erred in his findings, that the errors required

reversal.

The judge's determination that the parents could not

"communicate and plan with each other concerning the child's

best interests," G. L. c. 209C, § 10 (a), was amply supported by

the evidence. We consider this aspect of the judge's decision

with particular care, aware that there was evidence (which the

judge did not specifically discredit) to support the conclusion

that the father bore at least some responsibility for the

parties' history of poor communications. At trial, there was

evidence before the judge that the parenting time exchanges took

place not at the parties' homes, but at the Charlton police

station, and that the parties relied almost exclusively on the

paternal grandmother and the father's wife to communicate with

each other about even routine matters. These facts, coupled

with the evidence described above about the public incident at

the child's gymnastics event, supported the judge's decision.

See Mason v. Coleman, 447 Mass. 177, 182 (2006) (joint custody

appropriate "only if the parties demonstrate an ability and

7
desire to cooperate amicably and communicate with one another to

raise the children"). Additionally, where the mother's

testimony about the event diverged sharply in all important

details from the evidence the judge credited, the judge's

findings include his implicit conclusion that the mother either

lied about her conduct or was unable to perceive the events of

that day accurately. Although we are mindful that a single

instance of the mother's poor judgment -- even a dramatic one --

might not be dispositive of whether joint custody would be in

the child's best interests, a judgment granting joint custody

requires an affirmative finding of the parties' ability "to

communicate and cooperate concerning major decisions affecting

[the child]." In re Odette, 61 Mass. App. Ct. 904, 905 (2004),

citing G. L. c. 209C, § 10 (a). To be successful, such an

arrangement requires not only both parents' interest in doing

what is best for the child -- and here, there is no question but

that both parents want what is best for their child -- but also

the ability to work together in an amicable way to achieve that

goal, even when there is conflict or a parent's patience is

tried. See Mason, 447 Mass. at 182. In the circumstances of

this case, we cannot say that the judge abused his discretion in

concluding that the mother had failed to carry her burden on the

issue.

8
To the extent that the mother takes issue with the judge's

rationale, her challenges are primarily to the judge's

assessments of the weight and credibility of the evidence,

assessments to which we defer. See J.S., 454 Mass. at 656 ("The

determination of which parent will promote a child's best

interests rests within the discretion of the [trial] judge"

[citation omitted]). "Absent clear error, we will not

substitute our weighing of the evidence for that of a trial

judge who had the opportunity to observe the witnesses and form

conclusions about their credibility, even if our weighing of the

evidence might have differed from that of the judge." A.H. v.

M.P., 447 Mass. 828, 838 (2006).

Although the mother challenges a handful of the judge's

factual findings as clearly erroneous, to the extent we agree,

we conclude that the errors were not significant to the judge's

decision. Notably, while we agree that the evidence at trial

was that the mother consumed marijuana "gumm[ies]," and did not

"smok[e]" it, as the judge found, and that another witness, and

not the paternal grandmother, testified that the mother yelled

during the gymnastics incident, the judge's decision did not

turn on the erroneous details. The judge's findings that the

mother used marijuana products for stress and that the mother

yelled in a way that visibly upset the child were not clearly

erroneous and to the extent the judge relied on them, his doing

9
so was not improper. We are not persuaded that reversal is

required in these circumstances.7 See Care & Protection of Olga,

57 Mass. App. Ct. 821, 825 (2003) (decision affirmed where

erroneous findings not central to ultimate conclusion).

Our conclusion that the judge did not abuse his discretion

does not undermine our recognition of the significant strides

the mother has made in recovery, the amount of hard work the

mother has devoted to her recovery, her love for her child, and

the importance of her progress in recovery to the continuing

relationship between the mother and the child. Nor does our

current determination, or that of the trial judge, preclude the

possibility of shared custody in the future, should

communication between the parties improve.

3. Evidentiary rulings. a. Text messages. On the first

day of trial, the mother's counsel proffered as a trial exhibit

a series of text messages between the mother and others,

including the paternal grandmother. The father's counsel

7 Although on the bare transcript, the basis for the judge's
finding that the mother treats the father and his family with
"disdain" is not immediately apparent, we recognize that the
trial judge not only heard the testimony of the witnesses, but
also saw their demeanor and interaction during the trial. He
thus "had the unrivaled benefit of observing the parties at
close hand, with the commensurate ability to evaluate their
credibility, in light not only of their testimony but also of
their demeanor in court." Ginsberg v. Blacker, 67 Mass. App.
Ct. 139, 147-148 (2006). In any event, we discern no clear
error in this finding.

10
objected on the grounds that, contrary to the judge's order that

the parties disclose their exhibits several days in advance of

trial, the mother had not disclosed the texts -- which numbered

in "[the] hundreds" -- until 6:30 P.M. on the previous day.

Counsel for the mother conceded that she was in possession of

the text messages at issue prior to trial but did not disclose

them to opposing counsel because she had been occupied by

overlapping family matters, one of which she characterized as

"an emergency." The judge explained that, in keeping with his

pretrial order from April 29, 2021, he would not admit any

exhibits that had not been marked and exchanged prior to trial.8

Given the mother's failure to comply with the pretrial order,

the judge was within his discretion in ruling that the text

messages could not be used for substantive purposes. See Kace

v. Liang, 472 Mass. 630, 637 (2015) (recognizing judge's "broad

discretion" to admit or exclude evidence "the proponent has not

given proper notice of" [quotation and citation omitted]).

The judge did permit the mother's counsel to use the text

messages to refresh witness recollection during the trial, and

she did so when the paternal grandmother testified that she had

8 The father's attorney consented to certain text messages being
entered as exhibits. Additionally, the judge permitted the
mother to use the text messages for the nonsubstantive purpose
of refreshing the paternal grandmother's recollection, which she
did.

11
no present memory of sending messages to the mother suggesting

that she would help the mother obtain custody of the child.

When some of those attempts to refresh the witness's memory

failed, the mother's attorney sought to use the text messages to

impeach the witness. The father's counsel objected on the

grounds that the paternal grandmother had been called as a

witness by the mother, and "she can't impeach her own witness."

The judge sustained the objection.

While the judge was incorrect in stating that the mother

could not impeach her own witness, see Mass. G. Evid. §§ 607

& 613 (a) (1) (2022), the error was not a basis for reversal

because the mother was not prejudiced by it here. G. L. c. 231,

§ 119. This is because, the challenged ruling notwithstanding,

the paternal grandmother was impeached with the text messages.

The paternal grandmother initially denied that she "had [ever

had] a conversation with [the father] about [the] mother getting

custody." Mother's counsel then presented her with text

messages between herself and the mother; in response, the

paternal grandmother recanted her denial by admitting, "I may

have said that to him more than one time out of anger. . . .

More than one time out of anger, I'm sure." The statement came

in without objection. Where the judge heard the witness

acknowledge the prior inconsistent statement and the mother's

counsel stressed the discrepancy, we are satisfied that the

12
mother was not prejudiced by the erroneous ruling. See

Commonwealth v. Martin, 19 Mass. App. Ct. 117, 120 (1984)

(failure to instruct on impeachment by prior inconsistent

statements harmless where defense counsel thoroughly brought

fact-finder's attention to inconsistencies).9

We discern no error in the judge's refusal to categorize

the paternal grandmother as a hostile witness during the

mother's examination. "The 'decision whether to allow leading

questions [is] left for the most part to the wisdom and

discretion of the trial judge.'" Commonwealth v. Ridge, 455

Mass. 307, 326 (2009), quoting Commonwealth v. Flynn, 362 Mass.

455, 467 (1972). Although a parent's bias in favor of his or

her own child -- here, the father -- could be of concern in a

modification trial, that assessment was for the trial judge to

make. We are satisfied that the judge was within his discretion

in refusing to label the paternal grandmother as adverse

considering her generally neutral testimony.10

9 There was no abuse of discretion in the judge's rulings on
mother's offers of proof in light of the foregoing discussion,
because an offer of proof is not necessary where the context is
clear. See Commonwealth v. Donovan, 17 Mass. App. Ct. 83, 88
(1983). Even if it were error, there is no prejudice based on
both the level of context clear to us from the record and the
apparent limited impact of the paternal grandmother's
impeachment.
10 The mother urges us to liken the facts of this case to those

in Commonwealth v. Bates, 93 Mass. App. Ct. 1117 (2018), an
unpublished decision pursuant to our former rule 1:28, wherein
we affirmed a judge's decision to label a witness hostile where

13
4. Duration of trial. The mother further argues that the

judge imposed unfair time limits on the trial by forcing her to

rest her case once all properly-summonsed witnesses had

testified and incorrectly denying her motions for issuance of

witness subpoenas on the last day of trial. Neither part of

this argument is persuasive. The judge repeatedly warned the

attorneys that they should finish their cases within the

scheduled trial dates to avoid a serious scheduling delay, but

did not foreclose the possibility of scheduling additional trial

days if necessary.11 Early in the trial, the mother's counsel

indicated her intention to call the mother's probation officer

and a sitting District Court judge as trial witnesses; she did

not, however, take the necessary steps to summons or subpoena

the witness provided evasive answers and claimed a lack of
memory. Notwithstanding the lack of precedential authority of
that decision, it is readily distinguishable. There, we
approved of the judge's determination based on the witness's
"demeanor, . . . testimony [that day,] and the background in
[the] case [of which the judge was] aware," not just the content
of the witness's responses. Id. Nothing in the record here
suggests that the paternal grandmother's demeanor or background
indicated that she was hostile to the mother.
11 On the first day of trial, the judge warned the attorneys:

"Attorneys, this case from what I've seen so far should have
been tried in less than a day. You've got two. Finish in two.
If you don't, I can't even tell you what the next date you'll
get is. My trial dates are far out. Plan accordingly." On the
second day of trial, the mother's attorney told the judge she
would probably not finish that day, and the judge warned her
that the next trial date would not be for about six months.

14
either one of them.12 Instead, on the final day of trial, she

moved for process to bring the probation officer and judge in

for a date to be scheduled in the future. Where the mother's

counsel put forward no reason for her delay in attempting to

bring the additional witnesses into court, and where the judge

reasonably concluded that allowance of the mother's motions

attempting to do so would have created an unreasonable delay in

the trial, the judge was within his discretion in denying the

motions.13 See Beaupre v. Cliff Smith & Assocs., 50 Mass. App.

Ct. 480, 485 (2000) (noting "extensive discretion of trial

judges with respect to both the process of discovery and the

admission of evidence"); Clark v. Clark, 47 Mass. App. Ct. 737,

746 (1999) ("once time limits have been set it becomes the

obligation of the judge to ensure that the trial marches forward

without the parties engaging in repetitious and irrelevant

examination"). Even if the mother had followed a timely process

to have the subpoenas issued, the judge would not have abused

his discretion in denying the request, because so far as the

record shows, the judge's and probation officer's testimony

12 A subpoena to compel a judge or probation officer of the trial
court to testify must be accompanied by a court order approving
the subpoena. See Rule 1 of the Uniform Rules on Subpoenas to
Court Officials, Rule IX of the Rules of the Trial Court.
13 We are unpersuaded by mother's citation to Commonwealth v.

Conley, 34 Mass. App. Ct. 50, 62 (1993), where problems arose
"through no fault of counsel," and the defendant asked only to
recess ten minutes early to adjourn for the next scheduled day.

15
would have been merely cumulative of the information contained

in the judge's letter of support introduced as exhibit 7 at

trial.

The judge imposed no restrictions on the parties' ability

to call witnesses -- other than to follow the proper procedures

for doing so -- and did not impose time limits on the

examination of any witness. "A judge, as the guiding spirit and

controlling mind of the trial, should be able to set reasonable

limits on the length of a trial." Clark, 47 Mass. App. Ct. at

746.

To the extent that the mother raises other challenges to

the judge's evidentiary rulings, they do not rise to the level

of appellate argument, and we do not address them. See Mass. R.

A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

Conclusion. For the foregoing reasons, we conclude that

there was no abuse of discretion in the denial of joint custody.

Judgment affirmed.

By the Court (Sullivan,
Hand & Walsh, JJ.14),

Clerk

Entered: March 3, 2023.

14 The panelists are listed in order of seniority.

16