Robert L. Sullivan v. Lyndsay A. Schmidt.

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-411

ROBERT L. SULLIVAN

vs.

LYNDSAY A. SCHMIDT.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties are the mother and father of a minor daughter.

The father appeals from a judgment of the trial court allowing

the mother to remove the daughter to Kentucky, arguing, among

other things, that the judge abused her discretion by precluding

him from presenting any witness testimony. We agree, and

therefore vacate the judgment and remand for a new trial,

leaving undisturbed (pending retrial) the current custody

arrangement.

Background. We summarize the procedural history and the

relevant facts as found by the judge, reserving additional facts

for later discussion. The parties' relationship began when they

met in Florida. When the mother eventually became pregnant, the

parties moved to Kentucky, where they lived with the mother's

mother (maternal grandmother). Their daughter was born in
Kentucky. About four months later, the parties moved to the

father's hometown in Massachusetts where they lived with the

father's father (the paternal grandfather), the father's

grandparents, and the paternal grandfather's girlfriend. The

father got a job outside the home while the mother stayed home

with the daughter.

The parties' romantic relationship ended in June 2020 and

that fall, the mother moved into her own apartment with the

daughter.

Procedural History. In August 2020, the father filed a

complaint for custody, support, and parenting time. The mother

filed a complaint seeking to remove the daughter to Kentucky

pursuant to G. L. c. 208 § 30. Months later, the parties filed

motions for temporary orders, by which the mother sought sole

legal and physical custody and removal of the child to Kentucky,

and the father sought joint legal and physical custody of the

child. After a hearing on these motions, the judge reserved the

removal issue for trial and entered a temporary order that,

among other things, scheduled a pretrial conference ("pretrial

conference order") for June 3, 2021.1

The pretrial conference order required the parties to file

a pretrial memorandum that included "[a] list of all people each

1 The order also designated the mother as primary caretaker of
the daughter, a ruling that we do not disturb.

2
party intends to call as witnesses at the trial" at least three

days before the pretrial conference. The mother filed her

pretrial memorandum on May 28, 2021, and the pretrial conference

was held as scheduled. On June 3, the judge issued an order

("final order")2 scheduling the trial for September 24, 2021, and

setting new deadlines: a July 1 deadline for the completion of

discovery and deadlines of (1) ten days before trial ("or at the

status conference") for motions in limine, and (2) fourteen days

before trial for the exchange of proposed exhibits, witness

lists, and exhibit lists. The order closed with a warning, in

capital letters, that "FAILURE TO COMPLY WITH THE PROVISIONS IN

THIS ORDER SHALL BE GROUNDS FOR IMPOSITION OF APPROPRIATE

SANCTIONS, COSTS AND EVIDENTIARY RESTRICTIONS." The father, now

apparently pro se,3 filed his pretrial memorandum on June 21,

2021.4

2 An earlier, temporary scheduling order was entered by a
different judge. That order is not at issue in this appeal.
3 The father's counsel moved to withdraw on April 12, 2021. The
docket does not reflect that any action was taken on that order.
The father's pretrial memorandum, which refers to the father in
the first person, evidences that, regardless of the still-
pending motion, the father had a heavy hand in his
representation by at least late June. On August 4, the father
filed a pro se notice of appearance. On August 6, the father's
lawyer again moved to withdraw; this motion was allowed the same
day.
4 The father's pretrial memorandum is undated and bears no

certificate of service. The docket reflects its filing on June
21, 2021, and the mother makes no argument that she did not
receive it on or about that date, but she maintains on appeal
that the memo she received contained no witness list. The

3
The mother served her witness list on the father on

September 9, 2021. The father's witness list was served on the

mother at approximately 3:29 P.M., on September 10, 2021. On

September 15, 2021, the mother filed a motion in limine to

exclude testimony by all of the father's witnesses, taking the

position that the witnesses had been disclosed too late. The

mother noted that, "[o]f the nine witnesses on the plaintiff

father's witness list only [two] were disclosed at the time of

the pre-trial hearing in this matter."

As scheduled, the parties convened for trial on September

24 and the judge addressed the mother's motion in limine. The

judge heard from the mother's lawyer and from the father, who

sought the judge's help in understanding the mother's motion.

He asked whether the mother was "trying to eliminate all of my

witnesses because I didn't have them on the pretrial list[]" to

which the judge responded, "Yes, because they weren't provided

. . . at least [fourteen] days, prior to today from what I

understand." The judge then asked counsel for the mother when

she received the list," and she responded, "a day after the

order so technically they were not within the [fourteen] day

version of the pretrial memorandum that is included in the
parties' record appendix contains both a witness list and the
affidavits of two anticipated witnesses. We need not resolve
this discrepancy given our ruling that the father's witness list
was timely disclosed.

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time." The father responded, "It was, what, Friday, so I think

Friday at 9:30 in the morning would have been your [fourteen]

days. I think it was at 3:30 when I got out of work to submit

them over to her." The judge replied, "Sir, the order is clear,

the order exists for a reason. Counsel has to be on notice so

the witnesses are excluded[,]" to which the father answered,

"All right."

After hearing from both parties and two of the mother's

witnesses, the judge allowed the mother to remove the child to

Kentucky. This appeal followed.

Discussion. "The purpose of a motion in limine is to

prevent irrelevant, inadmissible or prejudicial matters from

being admitted in evidence" (citation omitted). Commonwealth v.

Lopez, 383 Mass. 497, 500 n.2 (1981). "Trial judges have broad

discretion to make discovery and evidentiary rulings conducive

to the conduct of a fair and orderly trial" (quotation and

citation omitted), Mattoon v. Pittsfield, 56 Mass. App. Ct. 124,

131 (2002), and "we do not interfere with the judge's exercise

of discretion in the absence of a showing of prejudicial error

resulting from an abuse of discretion." Solimene v. B. Grauel &

Co., 399 Mass. 790, 799 (1987). See Commonwealth v. Rosa, 468

Mass. 231, 237 (2014) (evidentiary rulings on motion in limine

reviewed for abuse of discretion).

5
Rule 6 of the Massachusetts Rules of Civil and Domestic

Relations Procedure (rule 6) provides that "[i]n computing any

period of time prescribed or allowed . . . by order of court

. . . the day of the act, event, or default after which the

designated period of time begins to run shall not be included.

The last day of the period so computed shall be included." See

Mass. R. Civ. P. 6, 365 Mass. 747 (1974) (identical to Mass. R.

Dom. Rel. P. 6).5 Here, the final order scheduled trial for

September 24, 2021, and required the parties to exchange final

witness lists "at least fourteen (14) days before trial." The

father served his witness list on the mother on September 10,

2021. The father's list named nine witnesses; according to the

mother, two of them had been previously disclosed in his

pretrial memorandum.

Under rule 6, the requirement that the parties exchange

witness lists "at least fourteen days" prior to September 24

meant fourteen calendar days. Stevenson v. Donnelly, 221 Mass.

161, 164 (1915) (considering whether "days" refers to calendar

days or twenty-four-hour periods and concluding that, absent

anything to show that "'days' was used in any other than its

ordinary sense of entire days," "fractions of a day will not be

5 Rules 6 (a), (b), and (d) of the Massachusetts Rules of
Domestic Relations Procedure are identical to Mass. R. Civ. P. 6
(a), (b), and (d). See Mass. R. Dom. Rel. P. 6.

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considered"). The notion that the father's witness list was due

by 9:30 A.M. (the time the trial was scheduled to start) on the

fourteenth day is therefore unsupported by logic, law, or

fairness. The father's disclosure of his witness list on

September 10 was timely under the order. See Mass. R. Civ. P. 6

(a). Because the father timely disclosed his witness list, the

judge abused her discretion in excluding his witnesses. See

Monahan v. Washburn, 400 Mass. 126, 129 (1987) (dismissal of

complaint abuse of discretion where judge erred in denying

plaintiff's motion for continuance and did not consider

alternative sanctions).6 The father did not have the benefit of

counsel, and the judge should have been mindful of the principle

that "self-represented litigants must be provided 'the

opportunity to meaningfully present their cases.'" Carter v.

Lynn Hous. Auth., 450 Mass. 626, 637, n.17 (2008), quoting

Judicial Guidelines for Civil Hearings Involving Self-

Represented Litigants § 3.2 (2006). "Particularly in a case

such as this, one that relates solely to child custody, some

care should be taken to see that a litigant is fairly heard."

Loebel v. Loebel, 77 Mass. App. Ct. 740, 743 n.4 (2010)

6 It bears noting that, although the pretrial conference order
had required an earlier disclosure of anticipated trial
witnesses, nothing in either that or the final order precluded
the parties from subsequently amending their lists.

7
Although this could conclude our analysis, with an eye

toward the future, we caution that a sanction for a discovery

violation must be proportional to the violation. See, e.g.,

Grassi Design Group, Inc. v. Bank of America, N.A., 74 Mass.

App. Ct. 456, 460 (2009) (sanctions imposed by trial judges

should be "appropriately punitive in relation to the

objectionable behavior, and appropriately remedial in relation

to the disadvantage visited"). Even had the father disclosed

his witness list late, as the mother maintained, excluding the

father's witnesses as a sanction would have been unreasonable on

this record. Monahan, 400 Mass. 126, 129 (1987) (where good

cause existed for granting continuance, dismissal of case was "a

serious injustice without consideration of alternatives");

Morgan v. Jozus, 67 Mass. App. Ct. 17, 24 (2006) ("While a

judge, in the exercise of discretion, may exclude expert

testimony for failure to comply with discovery, the judge must

consider other options, including a sua sponte continuance of

the trial"). There was no evidence of bad faith on the father's

part and there was no articulable prejudice to the mother, who

had notice of the issues being litigated from the pretrial

conference hearing and memoranda. Absent a showing of

prejudice, given the type of case, the designated witnesses, and

the parties' relationship to the witnesses and each other, this

delay in the disclosure of the father's anticipated witnesses

8
cannot be said to have prevented the mother from preparing

meaningful cross examinations of them for a trial starting two

weeks later. See Commonwealth v. Carter, 475 Mass. 512, 519

(2016), citing Commonwealth v. Lopez, 433 Mass. 406, 413 (2001)

("The relevant inquiry is whether the defendant has sufficient

time to investigate the proposed testimony"). Given the

severity of the sanction, the father's pro se status, and the

lack of prejudice to the mother, the judge erred by precluding

the father from calling so-called late disclosed witnesses

without considering lesser sanctions. See Commonwealth v.

Dranka, 46 Mass. App. Ct. 38, 41-42 (1998) (discretion to bar

testimony should be based on careful consideration of whether

party will suffer undue prejudice, whether lesser sanctions are

available, and how material testimony would be to case).

Our concern is heightened given the important interest at

stake and the father's allegations in his pretrial memorandum,

including that the mother was abusing alcohol, sometimes in the

child's presence, and that the mother behaved inappropriately

around the child. Under the circumstances, the potential need

for testimony on these issues outweighed any failure by the

father to make an offer of proof, which, while preferred, "has

not been required in circumstances where, as here, a judge has

excluded completely all of a witness's testimony on a particular

issue." Letch v. Daniels, 401 Mass. 65, 70 (1987). Included on

9
the father's witness list were the family members with whom the

parties lived while in Massachusetts, his coworker, and a

percipient witness named in his pretrial memorandum. The

relevance of those witnesses' anticipated testimony was apparent

from their relationship with the parties or from the father's

pretrial memorandum. Commonwealth v. Andrews, 403 Mass. 441,

462 (1988) (court weighs probative value of proffered evidence

against prejudicial effect on nonmoving party). Precluding the

father, a pro se litigant in a removal proceeding, from

presenting any testimony of witnesses who may have had personal

knowledge of issues relevant to the removal of his daughter -–

for example, the mother's caretaking capabilities and potential

substance abuse -- deprived him of a meaningful opportunity to

be heard. Brantley v. Hampden Div. of the Probate and Family

Ct. Dep't., 457 Mass. 172, 185 (2010) ("fundamental fairness, as

well as due process concerns, requires that a parent be given

the opportunity effectively to rebut adverse allegations

concerning his or her child-rearing capabilities" [citation

omitted]).

Because it was error to exclude the father's trial

witnesses, and because we cannot say that hearing these

witnesses would not have changed the judge's assessment, we

vacate the judgment and remand for a new trial consistent with

this memorandum and order. The current custody arrangement

10
shall remain in place as a temporary order pending the new trial

proceedings or until further order of the Probate Court.

So ordered.

By the Court (Wolohojian,
Henry & Hershfang, JJ.7),

Clerk

Entered: March 23, 2023.

7 The panelists are listed in order of seniority.

11