G.M. v. M.S.

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-417

G.M.

vs.

M.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In February 2019, after hearing, a Probate and Family Court

judge approved the parties' agreement to settle the father's

child support obligation and entered a partial judgment of

divorce nisi incorporating and partially merging that agreement.1

The agreement was reached after a mediation wherein the mother

was represented by an attorney and the father was not. In

addition to paying the mother a weekly sum that was higher than

the presumptive amount under the Child Support Guidelines

(guidelines), the parties agreed that the father would pay

twenty-three percent of his future performance bonuses as

1 The agreement also settled issues of health insurance, past and
present alimony, and property division, with only those
provisions relating to the child merging with the partial
judgment. Left for trial were issues of custody, life
insurance, and future alimony.
additional child support (bonus provision). The mother and the

father attested they were "aware of [the] opportunity to obtain

legal advice by counsel of [their] own selection, and that each

believes this Agreement to be fair, just and reasonable, and

each signs this Agreement freely and voluntarily."

Both parties were represented by attorneys for trial on the

remaining issues, which took place before the same judge, in

January and November of 2020 and February and April of 2021. On

the February date, the father's attorney asserted that the bonus

provision was an issue for trial, but the judge disagreed and

instructed him to file a motion under Mass. R. Dom. Rel. P.

60 (b) (rule 60 [b]) if he wanted to challenge the partial

judgment. The attorney filed such a motion in March 2021 that

was supported by the father's affidavit and did not include a

request for hearing. In July 2021, the judge denied the rule

60 (b) motion by crossing out the word "allowed" in a preprinted

endorsement and circling the word "denied." He also entered a

supplemental judgment of divorce, resolving all remaining issues

except future alimony, which "remain[ed] open." The judge

awarded the mother sole legal and primary physical custody of

the parties' child, awarded the father visitation and contact

privileges with the child, modified a District Court G. L.

c. 209A order to allow the father to contact the mother using a

particular application so he could exercise those privileges,

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and ordered the father to maintain life insurance payable to the

mother to secure his child support obligation.

Once again acting pro se, the father appealed and claims

that the judge erred by not awarding joint legal custody, by

leaving future alimony open, by ordering only the father to

maintain life insurance, and by denying the rule 60 (b) motion

without a hearing or making findings.2 We affirm.

Discussion. 1. Custody. Legal custody means "the right

and responsibility to make major decisions regarding the child's

welfare including matters of education, medical care and

emotional, moral and religious development." G. L. c. 208,

§ 31. "[T]he happiness and welfare of the children" is the

primary consideration for whether legal custody should be "sole"

or "shared." Id. Determining which parent will promote the

child's best interests and whether joint custody is appropriate

are subjects peculiarly within the discretion of the judge,

whose findings must stand unless they are plainly wrong or

2 As specified in the notice of appeal appearing in the trial
court assembly, the father appears to have appealed only from
the denial of his rule 60 (b) motion and not from the
supplemental judgment in which the judge ruled on issues of
custody, alimony and life insurance. Although the father's
notice of appeal of his rule 60 (b) motion appears on the trial
court docket, there are indications in the record that other
notices may not have entered. Given the uncertainties with
respect to the docket and the lack of any objection from the
mother, and as both parties have fully briefed the issues, we
address them. See Fazio v. Fazio, 91 Mass. App. Ct. 82, 84 n.7
(2017).

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clearly erroneous. D.B. v. J.B., 97 Mass. App. Ct. 170, 181

(2020), and cases cited. "Joint custody may be awarded,

however, only if . . . the court finds the parents have

demonstrated an ability to cooperate in raising the child."

Smith v. McDonald, 458 Mass. 540, 545 (2010). See Mason v.

Coleman, 447 Mass. 177, 182 (2006).

The father claims that the judge abused his discretion in

awarding the mother sole legal custody based on contradictory

findings about the parties' inability to communicate and without

considering the father's testimony, the child's best interests,

or lesser alternatives such as an order requiring the parties to

communicate. We are not persuaded.

It is true that the judge found the parties had "some

ability to communicate" using the notebook but also that "[t]he

evidence at trial clearly demonstrated that the parties are

unable to effectively communicate" because the father viewed

himself as the final decision maker and was not tolerant of the

mother's opinions. These findings are "not internally

inconsistent or unsupported by the evidence," Mason, 447 Mass.

at 186-187, but are based on the judge's weighing of text

messages and emails he found "telling and disturbing"; his

assessment of the testimony and demeanor of the mother and

father and the testimony and report of a guardian ad litem

(GAL); and his decision to "credit[] the parties' testimony as

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to the challenges in communicating about [the child] through a

notebook." We do not agree with the father that the judge

"cherry-picked" the evidence to reach the conclusions he did.

Plainly he considered the father's testimony, because he did not

credit portions of it but did credit others, finding the father

to be "a loving and committed parent." Contrast Ventrice v.

Ventrice, 87 Mass. App. Ct. 190, 196 (2015). And he was not

required to adopt the GAL's recommendations, a point the father

acknowledges. D.B., 97 Mass. App. Ct. at 182. Finally, where

the father offered no evidence "equating a personality disorder

to Alzheimer's" disease, the GAL's failure to assess the mother

for a personality disorder because her father was diagnosed with

that disease was immaterial.

As there was ample record support for the judge's view, we

defer to his evaluation of the evidence, Ventrice, 87 Mass. App.

Ct. at 195, which showed that "[t]he parties argued frequently

and had communication issues throughout the marriage,"

culminating in a G. L. c. 209A order protecting the mother from

the father's abuse that was extended several times.3 After each

3 As required by G. L. c. 208, § 31A, and Custody of Vaughn, 422
Mass. 590, 599-600 (1996), the judge acknowledged the evidence
of domestic violence, credited the mother's allegations against
the father, but found that the father was "a loving and
committed parent." Though legal custody was awarded to the
mother, the judge entered a shared parenting plan as requested
by both parties. We infer from these findings that (assuming
the court found the mother's allegations of abuse to constitute

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extension, the father filed a motion to vacate that was denied.

The father disputes the 209A order's validity here despite

saying at trial that he was "not contesting that," and even

though he (1) did not include the order in the record, and (2)

never appealed the 209A order, the extensions, or the denials of

his motions to vacate. Where the father "had the right to be

heard in this court on the issue whether [each of those]

decision[s] was proper" but chose not to exercise it, he may not

relitigate the issue in this appeal. C.R.S. v. J.M.S., 92 Mass.

App. Ct. 561, 565 (2017).

In light of the 209A order and the father's contention in

his proposed findings and rationale that "[t]he [mother] craves

total control, cannot tolerate differences, nor communicate

effectively, nor take accountability for shortcomings, or

empathize with others," the judge acted within discretion in

concluding that neither an order for joint custody nor one

requiring the parties to communicate would be appropriate.

Smith, 458 Mass. at 553. See Rolde v. Rolde, 12 Mass. App. Ct.

a pattern or to include a serious incident) the father
successfully rebutted the presumption that it would not be in
the best interest of the child to be placed in the father's
custody. See Malachi M. v. Quintina Q., 483 Mass. 725, 738-739
(2019). We note, however, that the findings should be made
explicit. See id. at 739-740 ("moving forward, when parties
present evidence of abuse, judges should explicitly state on the
record that they have considered whether the parties have met
the preponderance standard for the presumption to apply and, if
so, whether the abusive parent has rebutted the presumption").

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398, 405 (1981) (joint custody requires parents have some degree

of respect for one another and willingness and ability to work

together on major decisions). We are confident that the judge

applied the correct standard in reaching this conclusion, from

his reference to "the child's best interest" and his statement

that, "In legal custody determinations, like physical custody

determinations, the guiding principle is the best interests of

the children." That the judge "ultimately reached a conclusion

that is contrary to the father's own view of the pertinent facts

and circumstances" does not mean there was an error of law or

abuse of discretion. J.S. v. C.C., 454 Mass. 652, 659 (2009).

We have carefully reviewed the record, and the judge's decision

to award the mother sole legal custody did not fall outside the

range of reasonable alternatives. L.L. v. Commonwealth, 470

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

2. Future alimony. The father claims that the judge

abused his discretion by leaving future alimony open where the

parties agreed that the issue would be decided at trial. The

short answer to this is that the judge did decide the issue at

trial and opted to leave it open. Neither the Alimony Reform

Act (act) nor our case law prohibits that course of action. See

Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 772 (2014)

(judgment nisi addressed issue of future alimony by reserving

it). See also Snow v. Snow, 476 Mass. 425, 425 (2017) (act's

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durational limits and wife's failure to pursue alimony during

divorce did not preclude her from seeking it after more than

four years); Cherrington v. Cherrington, 404 Mass. 267, 270 n.6

(1989) (alimony not waived for failure to request it during

divorce, and judge not precluded from awarding it in future if

warranted); Clement v. Owens-Clement, 98 Mass. App. Ct. 632, 640

(2020) ("Legislature did not intend to prohibit a judge from

deviating from the act's presumptive durational limits simply

because the modification complaint was filed after the

presumptive durational period had expired"). The father's

challenge to the appropriateness of alimony "[a]t this point" is

premature where the initial award did not require him to pay

alimony. See Clement, supra at 636. In the future, if the

mother seeks alimony, it will be her burden to establish that

deviation from the durational limits is necessary in the

interests of justice. G. L. c. 208, §§ 49 (b), 53 (e). "This

is not a hollow test, nor is it an easy burden to meet, . . .

and it requires the judge to consider both parties'

circumstances at the time that deviation is sought" along with

many other factors, including the passage of time. Clement,

supra at 640.

3. Life insurance. The father is correct that both

parents have an equal obligation to support their child.

Department of Revenue v. Mason M., 439 Mass. 665, 675 (2003),

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and cases cited. The parties agreed, however, to a partial

judgment imposing an obligation on the father alone. Absent a

judgment requiring the mother to pay support, there was nothing

for a life insurance policy to secure. See G. L. c. 208, § 36;

Braun v. Braun, 68 Mass. App. Ct. 846, 856-857 (2007). Thus,

the contention that both parties should have been ordered to

maintain life insurance misses the mark. The judge found that

the mother relied on the father's child support payments to meet

the child's needs and would be unable to meet the child's needs

without the support. The father does not challenge that

finding. Where the father proposed that $250,000 was an

appropriate amount to secure his obligation and the mother

proposed $300,000, the judge's finding that $300,000 was

reasonable was not clearly erroneous. See Edinburg v. Edinburg,

22 Mass. App. Ct. 199, 203-204 (1986); Mass. R. Dom. Rel. P.

52 (a), functionally identical to Mass. R. Civ. P. 52 (a), as

amended, 423 Mass. 1402 (1996). There was no abuse of the

judge's "broad discretion." Pare v. Pare, 409 Mass. 292, 300

(1991).

4. Rule 60 (b) motion. Identical to Mass. R. Civ. P.

60 (b), 365 Mass. 828 (1974), rule 60 (b) allows for relief from

a judgment because of (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence; (3) fraud,

misrepresentation, or other misconduct of an adverse party; (4)

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the judgment is void; (5) satisfaction of the judgment or other

reasons making it "no longer equitable that the judgment should

have prospective application; or (6) any other reason justifying

relief." Subsection (b) (6) is a "catchall provision" that

applies only in "extraordinary circumstances" where relief is

"justified by some reason other than those set forth in rule

60 (b) (1)-(5)." Sahin v. Sahin, 435 Mass. 396, 406-407 (2001).

A rule 60 (b) motion "shall be made within a reasonable time"

and, for reasons (1) and (3), "not more than one year" after

judgment entered. Mass. R. Dom. Rel. P. 60 (b). What

constitutes "a reasonable time" to file a motion for reason (6),

and whether relief is justified under that subsection, are

matters "addressed solely to the judge's discretion" (quotation

omitted). Owens v. Mukendi, 448 Mass. 66, 72 (2006).

The father asserted that relief was justified because he

agreed to the bonus provision on the "mistaken belief" that the

bonus income was includable when calculating his child support

obligation, which belief he formed based on a

"misrepresentation" of the law by the mother's counsel during

the negotiation process. Setting aside that "bonus income is

specifically included in th[e] [guidelines'] definition" of

income, Zaleski v. Zaleski, 469 Mass. 230, 243 (2014), "[t]hese

are the reasons set forth in 60 (b) ([1]) and 60 (b) (3)."

Guardianship of Ingrid, 102 Mass. App. Ct. 1, 7 (2022). The

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father concedes as much by maintaining that he was entitled to

relief under those subsections even though only (b) (6) was

identified in the motion. "Under rule 60 (b), such a motion had

to be made within one year." Id. The father filed his motion

in March 2021, more than two years after the partial judgment

entered. To the extent the father sought relief under

subsections (b) (1) or (b) (3), it was too late. Sahin, 435

Mass. at 400. Guardianship of Ingrid, supra at 6-7.

As "the case law makes clear," Guardianship of Ingrid, 102

Mass. App. Ct. at 6, the father could not prevail under rule

60 (b) (6) if his proffered reasons for relief fell within

subsections (b) (1) and (b) (3) unless he showed "something more

. . . giving rise to extraordinary circumstances." Owens, 448

Mass. at 73 (quotation omitted). See Paternity of Cheryl, 434

Mass. 23, 35 (2001). He did not. Having had the opportunity to

obtain legal advice by counsel of his choosing, the father

"freely and voluntarily" agreed that a weekly amount higher than

his presumptive obligation under the guidelines, plus twenty-

three percent of future bonuses, was "fair, just and reasonable"

support for his child. The judge likely recognized that the

father's subsequent desire to retreat from that agreement was

not "extraordinary circumstances," Innis v. Innis, 35 Mass. App.

Ct. 115, 118 (1993), and that, even if it was, where the father

knew he was paying more than the presumptive amount and waited

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for two years to raise that perceived injustice, only doing so

because the judge refused to reconsider the issue midtrial, the

rule 60 (b) (6) motion "was filed far too late, and beyond the

limits that discretion might otherwise permit." Owens, 448

Mass. at 77. Accordingly, it was not made "within a reasonable

time." Mass. R. Dom. Rel P. 60 (b). See Owens, supra at 76-77,

and cases cited. Since no evidence could change this outcome,

the judge did not err by declining to hold a hearing no one

requested. Findings were "unnecessary." Mass. R. Dom. Rel. P.

52 (a).

Supplemental judgment of
divorce, entered August 30,
2021, affirmed.

Order denying motion for
relief from partial
judgment nisi, entered
August 30, 2021, affirmed.

By the Court (Sullivan,
Desmond & Singh, JJ.4),

Clerk

Entered: June 7, 2023.

4 The panelists are listed in order of seniority.

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