A.W. v. K.W.

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-394

A.W.

vs.

K.W.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties were married in 2011. In 2019, citing an

irretrievable breakdown of the marriage, the plaintiff filed for

divorce. After a trial, the judge awarded the plaintiff sole

legal and physical custody of the parties' two children and

ordered the defendant to pay the plaintiff twenty-five dollars

weekly in child support. No alimony was awarded. The defendant

maintains that the trial judge erred, both in granting sole

custody to the plaintiff and in not addressing the division of

the marital estate. Because the judge failed to make the

statutory findings required by G. L. c. 208, §§ 34, 53 (a), and

the judgment is silent on the division of the marital estate, we
remand that portion of the judgment. We affirm the judgment of

divorce in all other respects.

Background. The plaintiff filed for divorce and the

defendant counterclaimed. At trial, four witnesses testified

(both parents, a court clinician, and the defendant's romantic

partner). The clinician, who was appointed by the judge,

interviewed both parents, both children, the defendant's

partner, the defendant's mother, and the defendant's therapist.

She submitted a twenty-page report detailing her findings and

conclusions about the parties' individual and family histories

and the children's needs. The judge found the clinician's

report and testimony credible and had "no hesitation in adopting

and incorporating [her] [r]eport of events and her overall

conclusions."

The plaintiff filed for divorce in September 2019 after an

incident in July of that year that resulted in the defendant's

being admitted to an inpatient psychiatric unit. The plaintiff

sought and was issued a G. L. c. 209A abuse prevention order

(209A order) in connection with this incident. In part because

of the COVID-19 pandemic, and partly due to the provisions of

the 209A order, the defendant did not see the children in person

for almost two years after the separation.

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While the children were in the plaintiff's sole custody,

the clinician noted concerns with both school attendance (during

the 2020-2021 school year, which was affected by the COVID-19

pandemic) and the plaintiff's diligence in following up on

recommendations from the children's healthcare providers. In

examining these concerns, the clinician testified (and, in

adopting her conclusions, the judge found) that both children

required additional educational support, which made virtual

learning during the pandemic "significantly challenging" for

them. She also reviewed documentary evidence demonstrating the

plaintiff's follow-up with providers and reported that the

delays in follow-up were "understandable" because the plaintiff

was adjusting to being the sole caretaker for the children. The

clinician also concluded (and the judge found) that the

plaintiff was able to advocate for the children's best interests

and had ensured that they continued to see their providers.

Both parties have struggled with substance misuse. The

plaintiff reported being sober from alcohol since 2018 when she

entered an inpatient detoxification program. As to the

defendant, the clinician concluded that alcohol has likely

played a role in exacerbating the defendant's mental health

difficulties; the defendant has been diagnosed with serious

mental health disorders and takes prescribed psychiatric

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medication. The clinician viewed it as a strength that the

defendant recognized the need for professional support and has

been involved with treatment providers since before the parties

separated. The clinician testified that when she interviewed

the defendant, the defendant evidenced no mental health concerns

and seemed to be much more stable. In adopting the clinician's

report and conclusions, the judge so found.

Notwithstanding the issuance of a 209A order following the

defendant's hospitalization, the clinician concluded that the

defendant had a minimal history of aggression toward others.

There was one incident in which an argument between the parties

became physical, but the judge (adopting the clinician's report)

concluded that both parties played a role in that situation.

The clinician reported no evidence -- outside of the plaintiff's

report -- of the defendant's displaying aggressive, threatening,

or violent behaviors toward anyone. The children denied having

been physically threatened or injured by either parent.

At the time of trial, the parties' two children were living

with the plaintiff; each had a weekly Zoom call with the

defendant and they visited with her each weekend for a day and,

once a month, spent the night with her. The clinician reported

that earlier, supervised visits were successful, and the

children enjoyed spending time with the defendant. The older

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child expressed a desire to spend more time at the defendant's

home. The clinician noted that, particularly for the older

child, it was important to know that each parent supports his

relationship with the other parent.

The clinician's conclusion, adopted by the judge, was that

the children asked for more time with the defendant. There was

no evidence to suggest the defendant would harm the children and

unsupervised parenting time was recommended. The clinician

recommended that both parents have access to the children's

educational and medical information, including the ability to

speak with providers.

The parties' home was sold by agreement and the proceeds

divided as they stipulated.1 The parties' financial statements,

as per Rule 401 of the Supplemental Rules of the Probate Court

(2012), reflect additional assets and debts that the judge did

not allocate in the judgment.2 The defendant requested alimony

due to her prior financial reliance on the plaintiff.

1 Following remand, the judgment should reflect
incorporation and consideration of the terms of the parties'
stipulation.

2 The defendant filed a contempt complaint alleging that the
defendant had failed to make certain payments on the house and
had improperly encumbered a retirement account, thus affecting
the total sum available. The parties agreed that this complaint
would be resolved by the division of assets after trial. The
record reveals no ruling on this contempt complaint; "[c]ontempt
proceedings must satisfy the strictures of due process."

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Discussion. 1. Child custody. "The determination of

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

the discretion of the judge . . .[whose] findings in a custody

case 'must stand unless they are plainly wrong.'" Rosenberg v.

Merida, 428 Mass. 182, 191 (1998), quoting Prindle v. Fisk, 2

Mass. App. Ct. 843, 844 (1974). "[W]e will not sustain an award

of custody unless all relevant factors in determining the best

interests of the child have been weighed" (quotation omitted).

In re Custody of Kali, 439 Mass. 834, 845 (2003), quoting

Rosenberg, supra.

The defendant maintains that the judge's award of sole

legal and physical custody to the plaintiff was inconsistent

with the evidence (particularly the clinician's report and

recommendations) and unsupported by the record. We are not

persuaded. The clinician's testimony and report, adopted by the

judge, evidence that the children's needs are met in the

plaintiff's care, that she advocates for the children and

ensures that they see their providers, and that the plaintiff

has shielded the children from exposure to this litigation. The

clinician reported no concerns about the health and welfare of

Mahoney v. Mahoney, 65 Mass. App. Ct. 537, 540(2006). The
plaintiff (defendant in the contempt action) may waive her right
to an evidentiary trial, see id., but it does not appear
unequivocally that she did so.

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the children, who have been in the plaintiff's care since July

2019. She also reported that the defendant was loving toward

the children (as they were toward her), that she behaved

appropriately during visits, and that she should have increased

parenting time.

In making the custody determination, the judge considered

the fact that the defendant had been the primary parent since

the parties' separation.

"In most cases . . . if the child has been living with one
parent for some time, the child's needs are being
adequately met under that parent's care, and that parent is
capable of continuing to care for the child, it is not in
the child's best interests to disrupt that successful
arrangement. Rather, it is in the child's best interests
to preserve it."

Kali, 439 Mass. at 844. "Stability is itself of enormous

benefit to a child." Id. The judge also noted the parties'

difficulty in communicating with each other.3 Shared custody "is

generally appropriate only if the parties demonstrate an ability

and desire to cooperate amicably and communicate with one

another to raise the children" (citations omitted). Mason v.

Coleman, 447 Mass. 177, 182 (2006). "Joint custody is

3 The defendant maintains that the judge gave too much
weight to the 209A order because the record does not support a
conclusion that the relationship included physical violence.
The judge did not find that the relationship included physical
violence. We read the judge's reference to the restraining
order, rather, as support for his related comment about
communication difficulties between the parties.

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inappropriate for parents whose relationship to date has been

'dysfunctional, virtually nonexistent, and one of continuous

conflict.'" Smith v. McDonald, 458 Mass. 540, 553 (2010),

quoting Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998). The

judge addressed the geographical distance between the parties'

homes, which -- he found -- made it difficult to formulate an

easily workable regular shared parenting schedule.

The judgment serves the best interests of the children by

(1) giving the defendant the legal right to consult with and

receive information from those who provide educational, medical,

therapeutic, and religious services to the children,

(2) allowing the defendant parenting time every other weekend,

including overnight time, and (3) setting a parenting schedule

for holidays and school vacation weeks. The judge's

discretionary custody determination is not "plainly wrong," and

we will not disrupt it. See Rosenberg, 428 Mass. at 191.

2. Division of marital assets; alimony. "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), S.C., 466 Mass. 1015 (2013), quoting Bowring v.

Reid, 399 Mass. 265, 267 (1987).

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Section 34 provides,

"In fixing the nature and value of the property, if any, to
be so assigned, the court, after hearing the witnesses, if
any, of each of the parties, shall consider the length of
the marriage, the conduct of the parties during the
marriage, the age, health, station, occupation, amount and
sources of income, vocational skills, employability,
estate, liabilities and needs of each of the parties, the
opportunity of each for future acquisition of capital
assets and income, and the amount and duration of alimony,
. . . [as well as] the present and future needs of the
dependent children."

G. L. c. 208, § 34.

Although "a probate judge acting under G. L. c. 208, § 34,

has broad discretion to assign assets" (citation omitted),

Denninger v. Denninger, 34 Mass. App. Ct. 429, 430 (1993), such

discretion "is not unbounded" and "[i]t is the duty of a

reviewing court to consider whether the apportionment of assets

flows rationally from the judge's findings under § 34"

(citations omitted). Id. at 430-431.

Chapter 208, § 53, sets out the factors that apply to the

grant, amount, and duration of alimony, which the defendant

requested but did not receive. See G. L. c. 208, § 53 (a);

Zaleski v. Zaleski, 469 Mass. 230, 236 (2014). "Section 53 (a)

does not permit judges to deny a request for alimony without

making a fact-specific inquiry into the parties' circumstances,

as evaluated through the application of [the] mandatory

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statutory factors." Cavanagh v. Cavanagh, 490 Mass. 398, 409

(2022).

In this case, the judge made no findings under Section 34.

He also made no findings as to the request for alimony, only

concluding that, "Neither party shall pay alimony to the other

at the present time." Despite pretrial litigation related to

alleged waste of the marital estate, see note 2, and a dispute

at trial about assets in the plaintiff's retirement account, the

judge made no findings whatsoever. It "constitute[s] an abuse

of discretion if findings of fact [are] not supported by the

record or conclusions fail[] to reflect consideration of

applicable legal principles" (citations omitted). Greenberg v.

Greenberg, 68 Mass. App. Ct. 344, 348 (2007). Because of the

lack of findings and the judgment's silence on certain requested

relief, a remand is necessary.

Conclusion. So much of the judgment as pertains to alimony

and property division is vacated, and the case is remanded for

the judge to reconsider those issues, make findings required by

G. L. c. 208, §§ 34, and 53 (a), and issue an amended judgment

of divorce, consistent with this memorandum and order. The

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judgment of divorce is affirmed in all other respects. On

remand, the judge shall also address the contempt complaint.

So ordered.

By the Court (Meade,
Hershfang & Toone, JJ.4),

Clerk

Entered: October 23, 2024.

4 The panelists are listed in order of seniority.

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