S.N.B. v. P.K.M.

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

23-P-939

S.N.B.

vs.

P.K.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

S.N.B. (wife), the former spouse of P.K.M. (husband),

appeals from a judgment of divorce nisi (divorce judgment)

issued by a judge of the Probate and Family Court, challenging

the property division, the amount of income attributed to the

husband for purposes of child support, and certain provisions

relating to custody and parenting time for the parties' two

minor children. We vacate the portions of the divorce judgment

pertaining to child support and the father's parenting time, and

remand those matters for further proceedings consistent with

this memorandum and order. The divorce judgment is otherwise

affirmed.
Background. We summarize the trial judge's relevant

findings, supplementing them with undisputed facts in the

record, and reserving other facts for later discussion. See

Pierce v. Pierce, 455 Mass. 286, 288 (2009).

The parties' marriage was arranged by their families. When

they met in late 2004, the husband was living in New Jersey and

the wife was living in Iowa. They were married in India in May

2005, and returned to Iowa after the wedding. In 2006, after

the wife obtained her master's degree, the parties moved to

Massachusetts, and the wife obtained her doctorate degree in

2011. The parties' eldest son was born in 2012, and their

youngest son was born in 2015.

The husband was emotionally and physically abusive toward

the wife and children during the marriage. In August 2019,

after the wife and children returned from a trip to India, the

wife discovered that the husband had started using a highly

concentrated form of marijuana that caused significant changes

in his behavior. After an incident in December 2020, during

which the husband was "out of control" and physically assaulted

the wife and the eldest child, the wife fled with the children

to Connecticut to stay with her friends. The wife and the

children remained in Connecticut until February 2021, after

2
which they stayed with the wife's brother in Texas for

approximately six months.1

The wife filed a complaint for divorce in May 2021, and

obtained a G. L. c. 209A abuse prevention order in June 2021.

The husband was ordered to vacate the marital home in July 2021,

enabling the wife and children to safely move back into the

marital home in August 2021 prior to the start of the new school

year.

A one-day trial was held on July 8, 2022. The wife, who

was represented by counsel, testified at the trial. Although

the husband, who was self-represented, indicated that he

intended to testify, he declined to do so. The judge then

requested the wife's counsel to give her closing argument. The

wife's counsel then asked the judge for permission to reopen the

evidence to address issues about which she had expected to

cross-examine the husband. The judge, however, denied that

request. Prior to trial, the husband ignored numerous discovery

orders and failed to file mandatory financial statements. On

the day of trial, he submitted an incomplete financial statement

that he filled out while sitting in the courtroom. He declined

The children were still attending school remotely during
1

this period because of the COVID-19 pandemic.

3
to present any other evidence,2 and largely refused to agree to

otherwise uncontested exhibits.

On July 14, 2022, the judge issued the divorce judgment and

accompanying findings. With respect to the children, the

divorce judgment provided, in relevant part, that (1) the wife

shall have sole legal and physical custody; (2) the husband

shall have three hours of supervised parenting time per week;

(3) the parties shall communicate about the children in writing;

and (4) the husband shall pay child support of $100 per week.

With respect to the property division, the wife was permitted to

retain the marital home, her retirement accounts, and certain

other property, subject to paying the husband a lump sum of

$93,500. The wife moved to amend the judgment but the judge

denied it. The present appeal by the wife followed.

Discussion. 1. Property division. "Our review of a

judgment pursuant to the equitable distribution statute, G. L.

c. 208, § 34, proceeds under a two-step analysis. 'First, we

examine the judge's findings to determine whether all relevant

factors in § 34 were considered.'" Adams v. Adams, 459 Mass.

361, 371 (2011), quoting Bowring v. Reid, 399 Mass. 265, 267

(1987). "The second tier of our review requires us to determine

2 Indeed, the husband even refused to disclose his current
address to the court, as noted by the judge in her findings.

4
whether the reasons for the judge's conclusions are 'apparent in

[the judge's] findings and rulings.'" Adams, supra, quoting

Redding v. Redding, 398 Mass. 102, 108 (1986). "A judge's

determinations as to equitable distribution will not be reversed

unless 'plainly wrong and excessive.'" Adams, supra, quoting

Redding, supra at 107.

The wife contends that the judge erred by failing to make

findings on several of the mandatory factors under § 34, despite

insufficient evidence at trial regarding those factors. The

wife asserts that the lack of evidence was attributable to the

husband's incomplete financial statement and refusal to testify,

and the judge improperly denied her request to reopen the

evidence once it became apparent that the husband would not be

testifying. We are not persuaded.

The wife was aware that the parties had only been allotted

one day for their divorce trial, and she was capable of

providing evidence regarding the relevant § 34 factors through

her own direct testimony. To the extent that she may have made

a strategic decision to elicit testimony regarding certain

factors through cross-examination of the husband, the judge was

not obligated to relieve her of the consequences of that

decision by reopening the evidence after she had already given

her closing argument. Weber v. Coast to Coast Med., Inc., 83

5
Mass. App. Ct. 478, 481 (2013) ("The decision whether 'to admit

additional evidence after a party has rested lies in the sound

discretion of the trial judge'" [citation omitted]); Caffyn v.

Caffyn, 70 Mass. App. Ct. 37, 43-44 (2007) (judge did not abuse

discretion in denying wife's request to reopen evidence on issue

of property valuation where case had "already been tried to a

conclusion" and, during trial, wife made "presumably strategic

decision to rely upon the husband's testimony and to forgo

expert testimony"). Accordingly, we cannot fault the judge for

not making findings on § 34 factors for which the wife could

have, but failed to, present sufficient evidence. See Putnam v.

Putnam, 7 Mass. App. Ct. 672, 674 (1979) ("when parties decline

to offer evidence on [§ 34] factors . . . consideration of the

factors thereby omitted can properly be deemed waived").

We are likewise unpersuaded by the wife's assertion that

the judge erred by failing to (1) ascribe specific values for

certain assets,3 (2) provide a "chart or detailed analysis of the

3 The wife also claims that the judge erred in omitting
certain assets altogether: (1) land in India owned by the
husband, and (2) the contents of a safe deposit box in India
coowned by the parties. The only evidence pertaining to land in
India owned by the husband was a passing reference made by the
wife during her testimony. She did not describe the land in any
detail, nor did she provide any values for same. Given the
minimal evidence regarding that land, the judge did not err in
omitting it from the property division. As for the safe deposit
box in India, the parties executed a stipulation on the day of
trial assigning sole ownership of the box and its contents

6
division of assets," and (3) provide "any explanation for the

basis of the $93,500 lump sum" that the wife was ordered to pay

to the husband. The judge was not required to provide a

specific value for every single asset or a "chart or detailed

analysis" of the property division. See Ross v. Ross, 50 Mass.

App. Ct. 77, 81 (2000) ("Mathematical precision is not required

of equitable division of property" [citation omitted]). The

judge's findings reflect appropriate consideration of the § 34

factors on which sufficient evidence was submitted, and the

ultimate distribution of property flowed rationally from those

findings. See Williams v. Massa, 431 Mass. 619, 631 (2000).

The wife retained the marital home (having an equity value of

approximately $77,000), an apartment in India purchased by the

parties during the marriage (valued at approximately $120,000),

her retirement accounts, a Honda minivan, bank accounts, and

other miscellaneous personal property.4 The husband retained a

(including jewelry and other valuables) to the wife. The
stipulation was expressly incorporated into and made a part of
the divorce judgment.

4 The parties purchased the marital home in August 2016 for
$795,000. The wife testified that the home had recently been
appraised at $1,030,000. However, the husband insisted on
stipulating to a lower value of $700,000, which the wife agreed
to. Sometime between 2006 and 2009, the parties purchased an
apartment in India that had been built by the wife's
grandfather. The judge appeared to credit the wife's testimony
that the property was worth around $120,000 at the time of
trial.

7
joint bank account containing slightly less than $30,000, his

retirement accounts, and a Honda sedan. To effectuate an

equitable division, the wife was ordered to pay the husband a

lump sum of $93,500. The judge's findings reflect that the

$93,500 lump sum was comprised of three amounts: $38,500

(representing approximately one-half of the marital home

equity), $50,000 (representing slightly less than one-half of

the value of the India apartment), and $5,000 (to adjust for the

disparate values of the parties' respective vehicles). The

property division was not plainly wrong and excessive, and we

therefore decline to disturb it. See Adams, 459 Mass. at 371.

2. Child support. The wife next contends that the judge

abused her discretion in attributing only minimum wage income to

the husband for purposes of calculating child support.5

"Income may be attributed where a finding has been made

that either parent is capable of working and is unemployed or

underemployed." Child Support Guidelines § 1(E)(1) (Oct. 2021).

If the judge determines that a parent "is earning less than he

. . . could earn through reasonable effort," the judge should

5 The judge found that, at the time of trial, the wife was
employed as an assistant professor earning approximately
$142,000 per year, and the husband was unemployed earning no
income. In calculating the child support order, the judge used
the wife's income and the husband's attributed "minimum wage"
income.

8
consider "potential earning capacity rather than actual earnings

in making its child support order." Id. at § 1(E)(2). We

review the judge's attribution of income for an abuse of

discretion. See Davae v. Davae, 100 Mass. App. Ct. 54, 57

(2021).

Here, the judge implicitly determined that the husband, who

was unemployed at the time of trial, was capable of earning more

with reasonable effort, as reflected by her decision to

attribute income to him. See Davae, 100 Mass. App. Ct. at 59

(accepting judge's "implicit finding that the husband had not

been using reasonable efforts to earn to capacity"). In

determining the husband's "potential earning capacity," the

judge was required to "consider a nonexclusive list of factors,

to the extent known and presented to the [judge]" (quotation and

citations omitted), id. at 57-58, including the husband's "past

employment and earnings history." Child Support Guidelines

§ 1(E)(3). Although the evidence on this issue was admittedly

sparse, the judge found that the husband was previously employed

by a company as a software engineer earning $130,000 annually.

The judge found that the last record of the husband's employment

with the company was in September 2021, approximately ten months

prior to trial, but "[t]here was no evidence offered as to why

or when he left that employment."

9
Instead of considering the husband's recent salary of

$130,000, however, the judge ultimately attributed minimum wage

income to him. In her subsequent order denying the wife's

postjudgment motion to amend, the judge stated that there was

"no evidence presented at trial as to what happened to husband's

employment," but the "[w]ife did testify that husband used THC

in wax form which caused changes in his demeanor and delusions

which reasonably render him unable to work at the level before."

The wife's testimony regarding the husband's marijuana use,

however, related solely to the increased intensity of his rages

and corresponding abusive behavior toward her and the children.

Neither the wife's testimony nor any other evidence at trial

suggested that the husband's work performance began to suffer

after he started using marijuana. To the contrary, after the

wife discovered the husband's marijuana use and accompanying

behavioral changes in August 2019, the husband remained fully

employed for at least two years thereafter, through September

2021. The judge's conclusory finding that the husband's use of

marijuana "reasonably" rendered him unable to work at his

previous level was not supported by evidence in the record. See

Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 142 (2009), S.C.,

81 Mass. App. Ct. 479 (2012) (judge's "ultimate conclusion" must

be based on "ground-level facts").

10
Accordingly, we conclude that the judge erred in

discounting the husband's recent employment and earnings history

when determining his present earning capacity for purposes of

child support. See Child Support Guidelines § 1(E)(3) (judge

"shall . . . consider . . . to the extent known and presented to

the [judge] . . . [the parent's] past employment and earnings

history" [emphasis added]). The child support order set forth

in the divorce judgment must therefore be vacated and the matter

remanded for redetermination of the husband's earning capacity.6

3. Husband's parenting time. The wife next contends that

the judge erred in granting the husband supervised parenting

time (rather than no parenting time) without making required

findings under G. L. c. 208, § 31A, addressing the effect of the

husband's abusive behavior on the children.

We review the judge's determination of custody and

parenting time for an abuse of discretion. See Schechter v.

Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody

matters, the touchstone inquiry [is] . . . what is 'best for the

6 On remand, the judge should make further findings
reflecting consideration of (1) the husband's recent employment
and earnings history, and (2) any appropriate inferences to be
drawn from the husband's evasiveness regarding his finances.
See Grubert v. Grubert, 20 Mass. App. Ct. 811, 821-822 (1985)
(where uncertainty surrounding husband's income was his own
doing, judge was entitled to draw all reasonable inferences
against him). Moreover, the judge may, in her discretion, take
additional evidence relevant to the husband's earning capacity.

11
child,'" Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting

Custody of Kali, 439 Mass. 834, 840 (2003), and the judge is

required to "consider evidence of past or present abuse toward a

parent or child as a factor contrary to the best interest of the

child." G. L. c. 208, § 31A. "If the [judge] finds that a

pattern or serious incident of abuse has occurred," the judge

must make findings "as to the effects of the abuse on the child,

which findings demonstrate that [the custody] order is in the

furtherance of the child's best interests and provides for the

safety and well–being of the child." Id. "If ordering

visitation to the abusive parent, the [judge] shall provide for

the safety and well–being of the child and the safety of the

abused parent," which may include, among other things, requiring

(1) the visitation to be supervised; (2) "the abusive parent to

attend and complete, to the satisfaction of the court, a

certified batterer's treatment program as a condition of

visitation;" and (3) "the abusive parent to abstain from

possession or consumption of . . . controlled substances during

the visitation and for 24 hours preceding visitation." Id. We

"examine the judge's findings to determine whether the

requirements of G. L. c. 208, § 31A, were met." Maalouf v.

Saliba, 54 Mass. App. Ct. 547, 550 (2002).

12
Here, the judge made the following relevant findings

regarding the husband's abusive behavior toward the wife and the

children. Throughout the marriage, the husband was "emotionally

abusive," he "became angry easily," and his "temper exploded."

The husband's anger was often expressed verbally, and sometimes

physically. During one incident, the husband became upset and

threw a laptop at the wife that hit her leg and caused bruising.

During another incident, the husband removed his shoe and raised

it to strike the wife but was stopped by his mother (who was

visiting the parties at the time). On another occasion, the

husband forced the wife to kneel on the floor and not move

because he was her "master." On yet another occasion, while

driving, the husband ordered the wife out of the car and told

her to walk home. After she got out of the car, the husband

"zoomed" forward and then backward, and told the wife to get

back into the car. The children, who were in the car and

witnessed the incident, were crying and calling out, "Mommy,

mommy."

In 2019, after the husband began using marijuana, he

stopped interacting with the children and his "rages" became

more frequent and intense. When disciplining the children, the

husband would use physical force against the wife's objection,

ordering her to not interfere and stating that it was "important

13
to instill fear in the children" and that his disciplinary

methods were "meant to hurt." The husband's disciplinary

methods included, among other things, grabbing the children by

the collar and shaking them, locking the eldest child in the

bathroom for over an hour, and hitting the children (which

caused the eldest child to develop a habit of covering his head

with his arms when summoned by the husband). In November 2019,

the husband became upset with the youngest child and choked him.

In December 2020, during a disagreement between the parties

regarding childcare duties, the husband became enraged, shoved

the wife (causing her to fall down), and dragged the eldest

child down the stairs. The judge credited the wife's testimony

that the husband was "out of control" and that she and the

children were frightened. The wife locked herself and the

children in the bedroom and called her friends from Connecticut

to pick them up. When the wife's friends arrived, the youngest

child expressed relief, jumping up and down and stating, "I'm

safe. I'm safe."

The wife and the children did not return to Massachusetts

until August 2021, after the 209A order issued and the husband

vacated the marital home. The husband did not see the children

at all between December 2020 and July 2022. The judge concluded

that it was "in the children's best interest to be re-introduced

14
to [the husband] in a setting where they feel comfortable and

with a third-party present." The judge ultimately granted the

husband three hours of supervised visitation once per week in

the presence of an agreed-on third party,7 with the ability to

seek modification of the parenting schedule "after a period of

successful parenting time with the third-party present."

Here, "[e]ven though the judge made detailed and

comprehensive findings, demonstrating close attention to the

record, this is not a case in which we may conclude that the

judge made implicit findings sufficient to satisfy the statute."

Maalouf, 54 Mass. App. Ct. at 550. Despite the judge's findings

describing numerous incidents of verbal, emotional, and physical

abuse -- including an incident where the husband choked the

parties' then five year old child -- the judge did not make an

express finding "that a pattern or serious incident of abuse

ha[d] occurred." G. L. c. 208, § 31A. Although such a finding

could reasonably be inferred from the judge's subsidiary

findings,8 "domestic violence is an issue too fundamental and

7 If the parties were unable to agree on a neutral third
party, they were directed to retain the services of a
professional parenting time supervisor to be paid for by the
husband.

8 At a minimum, the choking incident appears to qualify as
an incident of serious abuse. See G. L. c. 208, § 31A; G. L.
c. 265, § 13K.

15
frequently recurring to be dealt with only by implication."

Maalouf, supra, quoting Custody of Vaughn, 422 Mass. 590, 599

(1996).

Moreover, although the judge's findings reflect

consideration of the "effects of the abuse on the child[ren],"

the findings do not adequately "demonstrate that [the

visitation] order is in the furtherance of the child[ren]'s best

interests and provides for [their] safety and well–being."

G. L. c. 208, § 31A. The judge found that husband and the

children had an "estranged relationship" before the December

2020 incident, and that he "stopped interacting with the

children" after he began using marijuana in 2019. Although the

judge found that it was in the children's best interests to be

"re-introduced" to the husband, it is unclear what evidence in

the record supports this. For example, there is nothing in the

judge's findings demonstrating the existence of a previously

loving and appropriate relationship between the husband and the

children, like in Maalouf, 54 Mass. App. Ct. at 551, or a

willingness on the part of the husband to change his abusive

behavior.9

9 To the contrary, the husband told the judge at trial that
he would never attend counseling, even if it meant never seeing
the children again.

16
In the absence of the aforementioned findings, the

requirements of § 31A have not been satisfied. We therefore

vacate the portion of the divorce judgment granting the husband

supervised visitation and remand the matter for the judge to

make further findings and redetermine the issue of visitation in

light of such further findings. See Maalouf, 54 Mass. App. Ct.

at 550-551 (vacating visitation order and remanding matter due

to judge's failure to make express findings under § 31A as to

whether father's abuse of mother constituted "pattern or serious

incident," and effect of abuse on children).

4. Child-related communication and 209A order. Turning to

the wife's remaining contention, we agree that the provisions of

the divorce judgment requiring the parties to communicate about

the children and the "no contact" provisions of the 209A order

conflict with each other. "A c. 209A order entered by the

Probate and Family Court must be modified when a subsequent

custody or visitation order is entered by the Probate and Family

Court which conflicts with the c. 209A order. All orders must

be consistent" (citation omitted). Commonwealth v. Rauseo, 50

Mass. App. Ct. 699, 710 (2001). "[A] modification of a 209A

order initially issued by a Probate [and Family] Court [judge]

must be entered on the 209A form of order." Id. at 710-711.

Accordingly, on remand, the judge shall modify the "no contact"

17
provisions of the 209A order to be consistent with the child-

related communication provisions set forth in the divorce

judgment. See Id. at 710-711 & n.12.

Conclusion. So much of the divorce judgment, dated July

14, 2022, as pertains to child support and the husband's

parenting time is vacated, and those matters are remanded for

further proceedings consistent with this memorandum and order.

The divorce judgment is affirmed in all other respects.

During the pendency of the remand, the husband shall pay

temporary child support of $100 per week, unless otherwise

ordered by the judge.

So ordered.

By the Court (Rubin,
Desmond & Singh, JJ.10),

Clerk

Entered: December 18, 2024.

10 The panelists are listed in order of seniority.

18