Guardianship of Shanice.

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-817

GUARDIANSHIP OF SHANICE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The appellant Addie Roberge (guardian) successfully

defended against a petition, filed by Wesley LaCroix

(petitioner), to remove Roberge as guardian of a minor child

(the child). The Probate and Family Court judge entered a

decree dismissing LaCroix's petition, but in doing so the judge

denied the guardian's request for attorney's fees and costs that

she incurred in her defense. The guardian appeals from the

denial of fees and costs, arguing that the judge abused her

discretion -- in particular, that the judge erred when she based

her denial on determinations that LaCroix's petition was neither

meritless nor brought in bad faith. We discern no abuse of

discretion and accordingly, affirm the decree.

Background. The child that is the subject of the

guardianship was born in 2012. The petitioner was the sometimes

1 A pseudonym.
boyfriend of the child's biological mother. The petitioner

lived with the child and the child's mother on and off from the

child's birth until late 2015, when the child's mother was

arrested in connection with her substance misuse and the child

moved in with her maternal grandparents. Prior to the mother's

arrest, she had sole custody of the child. The relationship

between the petitioner and the child's mother was volatile, with

the petitioner engaging in violence toward the mother while the

child was in the home.

The child's maternal grandparents became the child's

permanent guardians on January 4, 2016. The maternal

grandparents allowed the petitioner to visit with the child

while they remained the child's guardians, but the grandparents

ended the visits in the late spring of 2021 due to the

petitioner's behavior toward them. In March of 2021, the

child's maternal aunt, Addie Roberge, assumed the role of the

child's permanent guardian due to the maternal grandparents'

advancing age. The child has not seen or communicated with the

petitioner since May 2021.

In December 2021, the petitioner filed a petition for

removal of guardian and a petition for appointment of guardian

of minor, seeking to have the child's maternal aunt removed and

to have himself appointed the child's new guardian. The judge

held a two-day trial in January 2023, after which she found that

2
it was not in the child's best interests to remove the maternal

aunt as guardian. While the judge found that the petitioner had

been a father figure to the child for a time, she also found

that the care the child received during that period was contrary

to the child's best interests, and that the petitioner had

failed to present sufficient evidence that he was a de facto

parent to the child. Furthermore, the judge found that the

petitioner had failed to present evidence that the child's needs

were not being met while under the care of her current guardian,

the maternal aunt.

Prior to trial, on December 27, 2022, the guardian filed a

motion for attorney's fees and costs with the probate court.

After trial the judge denied the request in her decree,

reasoning in toto that "[t]he [c]ourt cannot find the action was

brought in bad faith or that the [p]etition to [r]emove was

without legal merit." The guardian filed a timely notice of

appeal to challenge the denial of her request for attorney's

fees. The petitioner did not cross-appeal.

Discussion. The guardian argues that the judge abused her

discretion when she denied the guardian's request for attorney's

fees and costs under G. L. c. 215, § 45. That statute provides

that "[i]n contested cases before a probate court . . . costs

and expenses in the discretion of the court may be awarded to

either party . . . as justice and equity may require." G. L.

3
c. 215, § 45. The probate court judge thus has the discretion

to determine whether, under the circumstances, fees should be

allowed, see Greene v. Cronin, 314 Mass. 336, 345 (1943), and

our review of an order denying a requested fee award is for

abuse of discretion. See Matter of the Estate of King, 455

Mass. 796, 805 (2010). We will reverse only on a finding that

the judge made a "'clear error of judgment in weighing' the

factors relevant to the decision" (citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here the guardian takes issue with the judge's rationale,

wherein the judge stated that the petition was not brought in

bad faith, and was not devoid of legal merit. She suggests that

the judge's rationale is inconsistent with the judge's findings

that the petitioner (1) failed to present sufficient evidence

that he was the child's de facto parent, (2) failed to prove

that the maternal aunt was unfit, and (3) failed to prove that

removing the maternal aunt as guardian would be in the child's

best interests. However, given the discretion conferred on the

probate judge, her "award or denial [of fees] may be presumed to

be right and ordinarily ought not to be disturbed." Old Colony

Trust Co. v. Third Universalist Soc'y of Cambridge, 285 Mass.

146, 151 (1934). Furthermore, while it is true that the scope

of discretion under § 45 is broad, it is also the case that

"[s]ome judges have used bad faith, or its absence, as a

4
touchstone in determining whether to make an award under § 45."

Matter of the Estate of King, 455 Mass. at 804. In other cases,

"the reasons for the trial judge's award of fees and costs has

not been indicated, although on appeal, the court has stated

that its review found no abuse of discretion in the award." Id.

at 805, and cases cited.

In light of our relatively undemanding standard of review,

we conclude the judge acted within her discretion in not

ordering payment of fees. We do not read the judge's fee

rationale as inconsistent with her prior findings, but merely as

a discretionary judgment that given the facts relevant to the

petitioner's challenge, justice and equity did not require an

award of fees. The judge said as much in denying the guardian's

request. We do not read the judge's rationale as applying an

incorrect legal standard, but merely as using the absence of bad

faith, and her conclusion that the petition to remove was not

devoid of legal merit, as guideposts. Accordingly, we affirm

the denial of the guardian's request for fees.

The guardian also requests attorney's fees for this appeal,

as well as costs incurred in defense of the petitioner's motion

for leave to file a supplemental appendix.2 As the guardian has

been unsuccessful on appeal, her request for appellate

2 The petitioner's motion for leave to file a supplemental
appendix is denied.

5
attorney's fees is denied, with one exception. The petitioner-

appellee's principal appellate brief made arguments that were

not responsive to the single appellate issue that the guardian

raised, and that instead contained inappropriate requests for

alternative, affirmative relief. Inasmuch as there was no cross

appeal, this aspect of the appellee's briefing (which

constituted most of the brief) was entirely without merit, and

the guardian filed an appropriate reply brief to point out same.

Accordingly, we award the guardian appellate fees incurred

in connection with the filing of the appellant's reply brief.

The guardian shall file with this court and serve on the

petitioner a submission detailing and supporting the amounts of

reasonable attorney's fees and costs incurred in connection with

the filing of her reply brief, in accordance with the procedure

described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004).3

Decree affirmed.

By the Court (Rubin,
Englander & D'Angelo, JJ.4),

Assistant Clerk

Entered: May 28, 2024.

3 The petitioner shall have fourteen days thereafter to
respond.

4 The panelists are listed in order of seniority.

6