S.P. v. S.A.R.

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-1455

S.P.

vs.

S.A.R.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother, S.A.R., appeals from a divorce modification

judgment that awarded the father, S.P., sole legal custody of

the parties' minor child. The mother contends that the judge

erred by (1) finding a material change in circumstances that

required, in the child's best interest, a modification of the

divorce judgment; (2) reaching issues of legal custody, physical

custody, and child support without providing notice to the

mother; and (3) admitting into evidence a medical report,

without limitation on its use. We affirm.

Background. We summarize the relevant facts as found by

the judge after trial, supplementing them with undisputed facts

in the record. In 2016, the parties married, and their child
was born in 2017. In November 2020, the child was diagnosed

with global developmental delay and autism spectrum disorder

requiring substantial support. The child's physician

recommended that the child receive fifteen to twenty hours of

applied behavior analysis therapy (ABA therapy) weekly.1 In

November 2021, the parties divorced. The mother parented the

child every week from Wednesday night to Friday before school,

and every other weekend. The father parented the child at all

other times and had dinner with him on alternating Thursdays.

Under the judgment of divorce nisi, the father paid child

support to the mother in the amount of $1,024 per week. From

March 2021 through September 2022, the child received five hours

of ABA therapy weekly. The child received ABA therapy less

often than his physician had recommended, largely because the

mother wanted the child to receive only five hours of ABA

therapy per week, including only two hours per week while she

had physical custody of the child. When the child received only

five hours of ABA therapy per week, he engaged in obsessive

behavior that his ABA therapy was designed to address.

1 ABA therapy teaches the child how to do daily activities,
like using the bathroom and communicating both verbally and
nonverbally. ABA therapy also teaches the parents how to
address the child's sensory overload and obsessive behavior.

2
At his school, the child's teachers used rewards, such as

hugging and allowing the child to sit on a teacher's lap, to

reinforce positive behaviors. The mother objected to this type

of positive reinforcement, and around May 2022, she directed the

school to discontinue it. The father approved of this method of

positive reinforcement and observed that, after the

discontinuation of these practices, the child regressed and

frequently exhibited self-injurious behavior, including hitting

his own head with his hands.

In May 2022, the father filed this complaint for

modification of the divorce judgment. The father alleged that

the child's regression was caused by the mother's obstruction of

the recommended amount of ABA treatment and her interference

with school providers. Accordingly, the father sought sole

legal custody of the child as well as primary physical custody.

In October 2022, while the father's complaint was still pending,

the child's five hours of weekly ABA therapy was discontinued

due to staffing issues. The child did not receive any in-home

therapy until the father secured a new therapist approximately

three weeks before the August 28, 2023 trial. The new therapist

provided the child fifteen hours of services per week when the

father had weekend parenting time and nine hours per week on

weeks when the mother had parenting time, as the mother wanted

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to continue to limit in-home services to two hours during her

parenting time. Following trial, a modification judgment issued

that (1) granted the father sole legal custody as it relates to

educational and medical decisionmaking, (2) granted the father

physical custody of the child from Monday afternoon until Friday

morning and every other weekend, (3) granted the mother physical

custody of the child every other weekend, and (4) ended the

father's child support payments to the mother.

Discussion. 1. Best interests of the child. "[A]

transfer of custody from one parent to another must be based on

some material and substantial change in circumstances since the

divorce," and "the change must be of sufficient magnitude to

satisfy the governing principle, namely, whether the transfer is

in the best interests of the child." Hernandez v. Branciforte,

55 Mass. App. Ct. 212, 220 (2002). "[T]he determination of

which parent will promote a child's best interests rests within

the discretion of the judge . . . [whose] findings . . . must

stand unless they are plainly wrong" (quotation and citation

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

Despite the mother's assertions to the contrary, the judge did

not err by finding that a material change in circumstances

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occurred.2 The judge credited the father's and a behavior

analyst's testimony that the child's behavior had worsened and

that his school progress had declined. The child's behavioral

decline was a change in circumstance that coincided with fewer

hours of ABA therapy than the child's physician recommended and

a lack of physical positive reinforcement at school.

We conclude that the judge did not err by finding that the

best interests of the child required a change in legal and

physical custody. The mother testified that she had never read

the physician's report about the child's behavioral needs,

rejected its recommendations in any event, and would not comply

with ABA therapy beyond two hours per week. The judge thus

found that the mother's perception of the child's behavior was

unreliable. We disturb neither this finding nor the finding

that "all of the credible evidence support[ed] the fact that

[the] child need[ed] more services, specifically ABA therapy at

home in addition to the skills he is taught at school." See

Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015) ("the

judge's assessment of the weight of the evidence and the

2 In the November 2021 judgment of divorce nisi, another
judge found that the mother's position that the child did not
need fifteen to twenty hours per week of ABA therapy was not
"unreasonable." The mother argues that this finding precluded
the litigation of issues related to ABA therapy hours at the
modification trial. Given the change of circumstances detailed
here, the mother is incorrect.

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credibility of the witnesses is entitled to deference" [citation

omitted]). We discern no abuse of discretion or other error in

the judge's conclusion that it was in the child's best interests

for the father to have sole legal custody as it related to

educational and medical decisionmaking. See E.K. v. S.C., 97

Mass. App. Ct. 403, 409 (2020). Finally, the judge did not err

by granting the father physical custody of the child on weekdays

and every other weekend in order for the child's educational and

medical needs to be met.3

2. Notice of issues at trial. The mother contends that

the judge abused her discretion by reaching issues of physical

custody and child support without providing notice to the

mother.4 We review a judge's decision to reach an issue not

delineated in a pretrial order for an abuse of discretion. See

Cavanagh v. Cavanagh, 490 Mass. 398, 426-427 (2022). "[O]nce

the issues are defined in a pretrial order, they ought to be

adhered to in the absence of some good and sufficient reason"

3 The mother also asserts that the judge admitted the
physician's report for the limited purpose of its effect on
Rahman, but improperly allowed the father to use the report for
a different purpose. To the contrary, the judge properly
admitted the physician's report, pursuant to the G. L. c. 233,
§ 79G exception to the hearsay rule, with no limitations on its
use.

4 The mother also contends that she did not have notice that
legal custody would be an issue at trial. Legal custody was
listed as an issue in the trial scheduling order.

6
(quotation and citations omitted). Id. at 426. In evaluating

the propriety of a judge's decision to reach issues not

delineated in pretrial orders, "courts have consistently focused

on the elements of surprise and unfairness." Slade v. Slade, 43

Mass. App. Ct. 376, 378-379 (1997).

The trial scheduling order stated that the issue was "legal

custody as it relates to the child's need for ABA therapy." The

judge concluded that, due to the mother's unequivocal testimony

that she would not participate in the recommended ABA therapy,

the best interests of the child required that the child reside

with the father during the week while he receives services.

That is, the child could only receive the recommended ABA

therapy if the parenting plan were modified. The judge thus

provided a good and sufficient reason to address the issue of

physical custody, as it was naturally related to the issue of

legal custody regarding the child's need for ABA therapy.

Contrast Cavanagh, 490 Mass. at 427 (judge exceeded scope of

pretrial order where she reached issue not "naturally related to

any of the issues that were enumerated"). In any event, even if

the mother lacked adequate notice that physical custody was at

issue, in the absence of a representation that she would be

willing to allow the recommended ABA therapy while the child is

in her physical custody, or proffer of some other basis for

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concluding that the change in legal custody in order to provide

the recommended ABA therapy would not necessitate a change in

physical custody, she has not demonstrated any prejudice from

that lack of notice. Because the father became the primary

physical custodial parent, he was no longer required to pay

child support to the mother. See G. L. c. 208, § 28.

Modification judgment
affirmed.

By the Court (Rubin, Hand &
Brennan, JJ.5),

Clerk

Entered: January 21, 2025.

5 The panelists are listed in order of seniority.

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