Paul Chesler v. Victoria Ivanova.

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-1309

PAUL CHESLER

vs.

VICTORIA IVANOVA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The mother, Victoria Ivanova, appeals from a Probate and

Family Court modification judgment that gave the father, Paul

Chesler, sole legal custody of the parties' daughter and

terminated the father's obligation to pay child support. The

mother also appeals from a separate judgment that found the

father not guilty of contempt for his previous failure to pay

child support. We affirm both judgments.

Background. After a brief relationship between the

parties, the child was born in 2010. The father obtained

adjudication of his paternity in 2011. The trial judge found

the parties' difficulty in communicating created a risk that, if

the mother were granted sole legal custody, she would allow the
father only whatever input into the child's life she believed

was appropriate, and that she would attempt to control his

parenting time. The trial judge thus ordered a paternity

judgment giving the parties joint legal custody, with primary

physical custody to the mother, substantial parenting time for

the father, and a requirement that he pay child support.

In late 2021, the mother filed a complaint for contempt

alleging, as relevant here, that the father had failed to pay

child support. Shortly thereafter, the father filed a complaint

for modification of the paternity judgment, alleging that

changed circumstances warranted giving him legal custody and

primary physical custody of the child. He also sought

elimination of his child support obligation.

After a two-day trial in 2023, a different judge found

changed circumstances, described further infra, and entered a

modification judgment granting the father sole legal custody and

ordering shared physical custody with the parties having

approximately equal parenting time. The judge also terminated

the father's child support obligation, while preserving existing

arrears. The judge issued a thorough rationale and,

subsequently, 101 findings of fact. The judge also entered

judgment for the father on the mother's contempt complaint,

finding as relevant here that, although child support had not

been current, the father's nonpayment was "not found to be

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willful [but] due to unemployment and lack of income." The

judgment was silent on the issue of attorney's fees. The mother

appealed from both judgments.

1. Modification judgment. We review a modification

judgment (1) to determine whether the factual findings are

"'clearly erroneous,' giving 'due regard . . . to the

opportunity of the trial court to judge of the credibility of

the witnesses,' Mass. R. Dom. Rel. P. 52 (a) (2008)"; (2) for

"errors of law"; and (3) for abuse of discretion. Pierce v.

Pierce, 455 Mass. 286, 293 (2009). "The standard of review

reflects substantial, but not unlimited, deference to the judge

who saw the witnesses and heard the evidence." Id. We address

in order the modification judgment's changes in legal custody

and in child support.

a. Legal custody. Modification of the custody provisions

of an existing paternity judgment may be ordered if a judge

"finds that a substantial change in the circumstances of the

parties or the child has occurred and finds modification to be

in the child's best interests." G. L. c. 209C, § 20. Here, the

judge ruled that both criteria were met. 1

1 Although the judge's rationale quoted the modification
standard applicable to divorce cases, G. L. c. 208, § 28, on
appeal neither party suggests that the result would be any
different under G. L. c. 209C, § 20. The mother's brief relies
on the divorce standard. In this decision we refer to the

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He found that on four occasions between 2017 and 2021, the

mother had become frustrated with the child and dropped her off

for indeterminate stays with the father. On at least one of

those occasions, over a period of eight days in September and

October 2021, the mother made no effort to have contact with the

child or the father and ceased responding to texts from either

of them. The judge found the mother's explanation -- that the

father had blocked the child's telephone -- not to be credible.

The mother also made statements to the child suggesting that the

mother was going to leave her and return to the mother's native

country. And she "sent the child an ultimatum about where she

would live and followed up with countdown texts," her

explanation for which the judge again found not credible.

The judge further found that because of the parties'

continuing difficulties in communicating with each other and

making decisions together regarding the child, "shared legal

custody is not appropriate." Although many of the parties'

disputes had "fault on both sides," the judge found "troubling"

the mother's lack of candor and her attempts to blame the father

for her own poor decision-making. Under the original paternity

judgment, the mother had been solely responsible for medical and

dental care; the father told the mother it was a mistake not to

"substantial change in the circumstances" standard of G. L.
c. 209C, § 20.

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take the child to the dentist, but the mother thought dental

appointments were unnecessary. This resulted in the child's

dental health being "nothing short of disastrous," including

"roughly a dozen cavities," and required the father to arrange

for the child to have a root canal, extractions, and other

restorative procedures. The father "was also the moving force

concerning getting the child needed therapeutic services and an

educational evaluation."

For all of these reasons, the judge ruled that "since

shared legal custody is not appropriate, the [c]ourt will grant

sole legal custody of [the child] to the [f]ather, which the

[c]ourt finds to be in her best interests. The [m]other shall

continue to have the right to communicate with providers, to

access information regarding the child, and to give input on

major decisions concerning her." In addition, as mentioned, the

judge ordered a parenting plan under which the parties would

have approximately equal time with the child.

On appeal, the mother argues that no change in

circumstances sufficient to support a modification had occurred.

She argues that the parties had always had communication

difficulties, as recognized by the original trial judge, and

that their parenting had not changed by the time of the

modification trial.

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What the mother's argument overlooks is that the

consequences for the child had grown more serious over time.

The father had to arrange dental care to remedy conditions

resulting from the mother's position that, despite the father's

urgings, dental visits were unnecessary. After the mother's

actions in September and October 2021, the child stated that she

wanted to die or run away, but the mother made no attempt to

arrange mental health care for the child; the father did so.

Even if one took the view that the parents' own circumstances

had not changed over time, modification is justified where a

judge finds "a substantial change in the circumstances of the

parties or the child has occurred and finds modification to be

in the child's best interests" (emphasis added). G. L. c. 209C,

§ 20.

The mother's argument also overlooks that parents'

"continued inability to communicate," as illustrated by

significant and recent incidents, may itself constitute a

"material and substantial change in circumstances" supporting a

conclusion that it is "in the child's best interests to grant

[one parent] sole legal custody." Macri v. Macri, 96 Mass. App.

Ct. 362, 370 (2019). In that case, we rejected one parent's

argument that "there was no material change in circumstances

because the parties' communication issues already existed at the

time of the [original] judgment," id., under which the parents

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had joint legal custody. Id. at 363. Instead, we held, a judge

"permissibly found that the parties' ongoing conflict had become

contrary to the child's best interests [in the intervening

years], thus warranting a modification of legal custody." Id.

at 370. The mother offers no reason why Macri should not apply

here.

The mother also argues that the judge "placed all the blame

on [her] for the troubles the parents encountered." We cannot

agree. The judge referred to both parties as "not respectful of

each other's abilities," "unwilling[] to compromise," and

responsible for "significant actions to increase the acrimony in

this matter." But he found that the mother's conduct was

particularly damaging to the child's best interests and that the

father had taken steps to remedy the resulting harm.

Finally, the mother suggests that the award of sole legal

custody to the father infringed, without sufficient

justification, on her fundamental parental right to be involved

in decisions affecting the child's education and religious

upbringing. But, as the mother acknowledged at oral argument,

she made no such claim to the judge. The issue is therefore

waived. See Albert v. Municipal Court of Boston, 388 Mass. 491,

493-494 (1983). In any event, the modification judgment

provides that the father must inform the mother in advance of

any major religious, educational, or medical decisions involving

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the child, and certain other matters such as a change in school,

in time for the mother to provide input.

Accordingly, we see no error of law or abuse of discretion

in the judge's decision to grant the father sole legal custody.

b. Child support. A judgment providing "for support of

minor children shall be modified if there is an inconsistency

between the amount of the existing order and the amount that

would result from application of the child support guidelines."

G. L. c. 209C, § 20. "There shall be a rebuttable presumption

that the amount of the order which would result from the

application of the guidelines is the appropriate amount of child

support to be ordered." Id. "If, after taking into

consideration the best interests of the child, the court

determines that a party has overcome the presumption, the court

shall make specific written findings" addressing, among other

things, the justification for departing from the guidelines.

Id.

Here, the judge found that "the child support guidelines

indicate a very small payment from [m]other to [f]ather when the

parents equally share costs and parenting time. At trial,

[f]ather did not seek to be paid support and the court finds

that the best interest of this child is served by no child

support order." The judge therefore terminated the father's

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previous obligation to pay child support and did not enter any

order that the mother pay child support to the father.

On appeal, the mother argues that the judge's findings were

insufficiently specific, particularly with regard to the

parties' incomes and expenses, to satisfy the requirements of

G. L. c. 209C, § 20. For illustrative purposes, the mother

includes as an addendum to her brief a child support guidelines

worksheet, completed by her using income figures from the

parties' trial financial statements, showing that the father

should pay $128 per week in child support.

As the father's brief points out, however, the income

figures do not account for the father's one-time signing bonus

and the mother's annual (albeit variable) bonus. When the

income figures are adjusted, the parties' incomes are nearly the

same. Moreover, the mother's illustrative worksheet appears not

to account for the fact that the modification judgment shifted

responsibility for paying the child's health insurance premium

from the mother to the father effective in 2024. At oral

argument, the mother had no explanation for how, after

considering those factors, application of the child support

guidelines nevertheless should have resulted in an order that

the father continue to pay child support.

Notably, the trial court docket shows that, in the two

months before trial, the parties filed their own child support

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guidelines worksheets, as well as proposed findings and orders.

We would expect that if the judge's finding varied significantly

and without basis from what the mother argued below was due, the

mother would have included these items in her record appendix,

yet she did not. It is "a fundamental and long-standing rule of

appellate civil practice" that the appellant has an obligation

"to include in the appendix those parts of the [record that] are

essential for review of the issues raised on appeal." Shawmut

Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373

(1991), S.C., 411 Mass. 807 (1992).

In these circumstances, the mother has shown no clear error

in the judge's finding that the child support guidelines

indicate only a very small payment would be due from her to the

father. "A finding is 'clearly erroneous' when although there

is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed." Marlow v. New Bedford, 369 Mass.

501, 508 (1976), quoting United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948). "It is the appellant's burden to

show that a finding is clearly erroneous." Allen v. Allen, 86

Mass. App. Ct. 295, 298 (2014). The mother has not carried her

burden here.

Therefore, accepting the judge's finding that the

guidelines indicated only a small payment by the mother, the

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judge departed from the guidelines only by relieving her of the

obligation to pay that amount. Accordingly, although that

departure was not supported by detailed findings as called for

by G. L. c. 209C, § 20, the mother has shown no resulting

prejudice from the absence of such findings. We see no basis to

remand for further findings or otherwise to disturb the judge's

determination that the father should no longer be required to

pay child support.

2. Contempt judgment. The mother's challenge to the

contempt judgment is that, although the father was found not

guilty of contempt, the judge should nevertheless have awarded

the mother her attorney's fees. She relies on the presumption

for fees established by G. L. c. 215, § 34A, but her brief, in

quoting that statute, omits critical language. The relevant

sentence of the statute provides:

"In entering a judgment of contempt for failure to comply
with an order or judgment for monetary payment, there shall
be a presumption that the plaintiff is entitled to receive
from the defendant, in addition to the judgment on monetary
arrears, all of his reasonable attorney's fees and expenses
relating to the attempted resolution, initiation and
prosecution of the complaint for contempt" (emphasis
added).

G. L. c. 215, § 34A. The mother overlooks the emphasized

language, which plainly limits the presumption to cases in which

a defendant is found in contempt.

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Recognizing that the judge found the father's previous

nonpayment of child support not to be willful, the mother also

suggests that caselaw makes a fee award proper "regardless of

whether the defendant's actions were willful." In one of the

two cases she cites, however, the defendant was found in

contempt, and the court commented that good faith was not a

defense. See Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 346,

349 (1946). The other case she cites, although not a contempt

action, cites an earlier decision recognizing that a fine

imposed in a contempt proceeding may include the plaintiff's

attorney's fees. See Grunberg v. Louison, 343 Mass. 729, 736

(1962), citing Root v. MacDonald, 260 Mass. 344, 362 (1927).

But in Root, the court was discussing relief available against

"the party in contempt." Root, 260 Mass. at 362. Root and

Grunberg thus have no application here. 2 Rather, the general

rule is that where a plaintiff has not prevailed in a contempt

proceeding, an award of the plaintiff's attorney's fees is not

appropriate. See Ventresca v. Town Manager of Billerica, 68

Mass. App. Ct. 62, 65-66 (2007).

Modification judgment
affirmed.

Contempt judgment affirmed.

2 The father's request for appellate attorney's fees is
denied.

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By the Court (Sacks, Shin &
Hershfang, JJ. 3),

Clerk

Entered: November 18, 2024.

3 The panelists are listed in order of seniority.

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