Colleen E. Mothander v. Matthew Mothander.

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-755

COLLEEN E. MOTHANDER

vs.

MATTHEW MOTHANDER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff mother appeals from judgments on a complaint

for modification and a complaint for contempt. We affirm.

Background. The mother and defendant father were divorced

in 2019. They had entered into a separation agreement including

child-related provisions that merged into the judgment of

divorce. As to the children's education, the separation

agreement provided as follows:

"[W]hile the children are currently enrolled in private
school for the academic year 2019-2020, it is the intention
of the Husband and the Wife for the children to explore
Boston Public School options for the academic year 2020.
Enrollment in choice Boston Public Schools is by lottery,
and Husband and Wife understand enrollment is not
guaranteed. Neither party shall unilaterally, without the
written agreement of the other parent, enroll the children
in any Public school or other private school. If the
Husband and Wife jointly agree to keep the children in
private school, prior to such enrollment they shall attempt
to agree on the allocation of the cost for such private
school education."
Consistent with the agreement, the parties entered the

children's names in the Boston public school system's lottery.

Only one of the children was awarded a seat, at the Henderson

School. Because it was important to the parties that their

children attend the same elementary school, they declined the

seat and did not enroll their child in that school.

Due to the COVID-19 pandemic, the mother lost her

employment, could no longer afford to live in her apartment in

the Dorchester section of Boston, and moved back into the

Wellesley home where her mother, the maternal grandmother,

lived. At all relevant times, the father remained a resident in

Boston, in the South Boston section of the city, in the former

marital home.

In June of 2020, the mother filed a complaint for

modification seeking permission to enroll the children in

Wellesley public schools. They were then enrolled in South

Boston Catholic Academy, the private school in which they had

been enrolled at the time of the separation agreement and to

which the separation agreement made reference.

The mother also appropriately filed a motion for temporary

orders, seeking approval to enroll the children in the Wellesley

public school system. That motion was denied, and the court

ordered that the "[c]hildren shall remain at school attended for

2019-2020 academic year at Father's expense."

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Two months before the trial, in March 2021, the father re-

enrolled the children in South Boston Catholic Academy for the

2021-2022 academic year. It is clear that this was permitted by

the separation agreement, which prohibited unilateral enrollment

of the children only "in any [p]ublic school or other private

school" (emphasis added).

The next month, the mother enrolled both children in

Wellesley public schools for the upcoming 2021-2022 school year.

We may assume without deciding that she took this step purely as

a protective measure in order to ensure that the children would

have guaranteed seats at the elementary school nearest to her

residence, in the event that her complaint for modification was

allowed; in any event, that enrollment did not bind the children

to attend the Wellesley public schools in the fall, nor impose

any impediment to their return to the South Boston Catholic

Academy. The children at no time actually attended any

Wellesley public school.

The father filed two complaints for contempt, dated May 13,

2021, and June 10, 2021. Service of neither complaint was

perfected. These complaints, the second one of which was a

duplicate of the first, asserted that mother violated a clear

and unequivocal court order by enrolling the children in the

Wellesley public schools.

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After trial on the complaint for modification, the judge on

November 9, 2021, entered a judgment and findings, concluding

that there had been a material change in circumstance, but

allowing only in part and otherwise denying the mother's

complaint for modification. The judge wrote, "As the [p]arties

are unable to come to an agreement regarding where the children

shall attend school, the Court orders that the [c]hildren shall

either remain at South Boston Catholic Academy until the sixth

(6th) grade or they shall be enrolled in the Boston Public

Schools utilizing [f]ather's address for the current academic

year and subsequent years through high school. . . . Nothing in

this [j]udgment prevents the parties from mutually agreeing in

writing to enroll the children in another private or public

school system." The mother filed a timely notice of appeal.

The trial judge also found the mother in contempt in a

single judgment on the father's duplicate complaints. The

mother filed a timely notice of appeal of that judgment as well.

The mother subsequently filed a motion to vacate the contempt

judgment due to the failure of service. The judge stayed the

contempt judgment only. The second complaint for contempt was

finally served in March, 2022. The judge allowed the motion to

vacate the contempt judgment, and, in light of service being

perfected, set the matter for hearing.

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After hearing, the judge found the mother guilty of

contempt "for having willfully neglected and refused by clear

and convincing evidence to abide by Parties['] Separation

Agreement. Mother unilaterally enrolled the children in a

public school. The judgment is a clear and unequivocal order.

Mother did not discuss with Father enrolling children in

Wellesley Public prior to doing so. Nor did father agree with

enrolling the children in public school."

The mother filed a notice of appeal from the judgment on

the complaint for contempt.

Discussion. On appeal, the mother argues that the trial

judge failed to properly determine whether enrollment in the

Wellesley public school system was in the children's best

interests as required by the statute. See G. L. c. 208, § 28.

We disagree. Even assuming that, as the mother asserts, the

academics of the Schofield School in Wellesley are stronger than

those of the South Boston Catholic Academy -- which we certainly

do not decide -- that is not the only consideration in assessing

the children's best interests. For example, differences in

commuting time, difficulties imposed on one or another parent by

the change of school, reduction in the father's time at home

with the children due to an increased commute, alterations in

the children's schedules with respect to the amount of time they

would have in the father's home with the father (or before

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having to leave the house for their hockey practice), the impact

on their friendships and participation in other sports -- to

name just a few -- all are proper considerations in making a

determination of the children's best interests. Indeed, the

fact that South Boston Catholic Academy was agreed on by the

parents as the appropriate school for the children at a time

when they both lived in Boston is evidence relative to the

children's best interests.

The details of the "pros and cons" for the children of

enrollment in the Schofield School in Wellesley and in South

Boston Catholic Academy are well known to the parties and will

not be repeated here. The mother argues that the trial judge

erred because she did not accept the mother's conclusion that

the shortcomings of South Boston Catholic Academy with respect

to each child compelled a finding that the school was "not

meeting the children's needs." See Hunter v. Rose, 463 Mass.

488, 494 (2012) ("the judge must weigh all relevant factors in

determining the best interests of the child" [quotation and

citation omitted]). We see no error; the fact that one school

might offer certain advantages over the other does not, in and

of itself, require a conclusion that the other school does not

meet the children's needs. Nor was the judge required to

determine as the mother suggests that it was in the children's

best interests to attend the Schofield School because of the

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cost savings to the father that would result from enrollment at

a public rather than a private school.

The mother challenges the judge's treatment of her claim

that diversity of the student body is important to her, and that

the diversity at the Schofield School is more robust than that

of South Boston Catholic Academy. We do not read the judge to

have said, as the mother contends, that if she wanted a diverse

environment for her children, she should not have moved from

Dorchester to Wellesley. Rather, the judge appears to have been

suggesting that the credibility of the mother's expression of

concern about ensuring an ethnically diverse environment for her

children was undermined by her decision to move from the more

ethnically diverse Dorchester to Wellesley. Nor do we agree

with the mother's characterization of the judge's opinion as

asserting that the mother had to obtain the father's permission

before moving. Rather, the judge noted that there was no

discussion of the consequences on the joint parenting of the

children before the mother moved to Wellesley without previously

informing the father that she intended to do so.

In the end, therefore, we see no abuse of discretion or

other error of law in the trial judge's determination that a

change of enrollment to the Wellesley public schools was not in

the children's best interests.

7
As to the contempt, although the mother did not in fact

ultimately send the children to the Wellesley public schools

without the father's assent, her enrollment of the children

there was a "clear and undoubted disobedience" of the clear

language of the settlement agreement. Shaw v. Commonwealth, 354

Mass. 583, 587 (1968). The question of contempt does not depend

on whether the children attended the Wellesley public schools;

under the express terms of the parties' agreement, it was a

violation for either party "unilaterally, without the written

agreement of the other parent, [to] enroll the children in any

[p]ublic school or other private school." Indeed, the previous

year, rather than taking unilateral action, the mother had

properly sought temporary orders in order to protectively enroll

her children in the Wellesley public schools, although it was

denied. When it comes to violating a clear judicial command,

seeking forgiveness rather than permission is not an appropriate

approach. We see no abuse of discretion in the judge's finding

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of contempt. See Smith v. Smith, 93 Mass. App. Ct. 361, 363

(2018).

The judgments on the complaint for modification and

complaint for contempt are affirmed.

So ordered.

By the Court (Green, C.J.,
Rubin & Massing, JJ.1),

Clerk

Entered: June 28, 2023.

1 The panelists are listed in order of seniority.

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