John A. Celata v. Angela J. Celata.

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

24-P-1273

JOHN A. CELATA

vs.

ANGELA J. CELATA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial, a Probate and Family Court judge entered

a modification judgment awarding the mother primary physical

custody of the parties' child during the school year and

amending the father's parenting time. The father appeals,

arguing that the judge made certain procedural errors, relied on

erroneous findings of fact, and committed an abuse of discretion

in determining the best interests of the child. We affirm.

Background. We summarize the relevant facts as found by

the judge, supplemented where necessary by the record. The

parties were married in February 2018. The husband and wife

each retained their own residences after the marriage and, other

than a short period in July 2018, have resided in separate
homes. The mother lives in Amesbury in a condominium unit that

she owns, and the father lives in Gloucester in a two-family

home that he owns. The father is employed full-time, and the

mother is employed part-time.

The parties have one child, who was born in September 2018.

The same month that the child was born, the father filed a

complaint for divorce, and the mother filed an answer and a

counterclaim for divorce. The 2021 divorce judgment assigned

the parents shared legal and physical custody of the child and

instituted a shared parenting plan consisting of a 2-2-5-5

rotating schedule. 1 The judge acknowledged that the relationship

between the mother and the father had been "tumultuous at

times," but that they had "developed a system to effectively

communicate about [the child] by speaking primarily through

email or text message."

During the three years leading up to the modification

trial, the child thrived with the love and care of each parent.

However, the mother and the father struggled to communicate with

one another about matters concerning the child. In September

2021, for example, six months after the judgment of divorce, the

1 The 2-2-5-5 rotating schedule provides that the child will
be with the mother for two consecutive days, then with the
father for two consecutive days, then the child will return to
the mother for five days and return to the father for five days.

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father filed a complaint for modification requesting an order

that "Mother is not to harass Father or disparage Father in

front of [the] child." The mother, in turn, counterclaimed for

modification and filed a complaint for contempt. Her complaint

alleged that the father failed to communicate with her about the

child's health; that he refused to include the mother in his

choice of where the child would attend daycare while the father

was caring for the child; and that he interfered with her

FaceTime calls with the child. After a full hearing, the father

was adjudicated not in contempt of court.

In 2023, when the parties could not agree where the child,

by then five years old, should attend full-time kindergarten,

the father amended his complaint for modification. The mother

sought to have the child attend school in Amesbury, while the

father sought to have the child enrolled in school in

Gloucester. At that time, the child was attending a preschool

in Gloucester when in the care of the father.

The judge conducted a trial that lasted three days, heard

from four witnesses, and considered thirty-one exhibits. In a

thorough and comprehensive decision, the judge acknowledged that

both the mother and the father love the child and are good

parents. Despite their many positive parental attributes,

however, they could not agree where the child should attend

school. The judge noted that the parenting schedule then in

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effect was no longer in the child's best interest during the

school year because of the distance and travel time between the

parents' residences. The judge concluded that it was in the

best interest of the child to be in the primary care of the

mother during the school year and, as a result, attend school in

Amesbury. 2 The judge considered the fact that the mother was

able to take the child to school in the morning whereas the

father needed the assistance of his family due to his work

schedule; that the mother worked part-time and her place of

employment was located close to the Amesbury school that the

child would attend; and that, while the mother kept the father

informed about the child, the father had difficulty effectively

communicating with the mother about the child. Finally, while

acknowledging that both parents had enrolled the child in

extracurricular activities in Amesbury and Gloucester, the judge

held that, if the parties could not agree on the child's

activities, then each parent would be able to select one

2 Instead of the 2-2-5-5 parenting schedule, the father's
parenting time changed to every Wednesday after school (or
5 P.M. until 7:30 P.M.); every other weekend from Friday after
school (or 5 P.M.) until Monday morning return to school (or
5 P.M.); and Friday after school until Saturday at 4 P.M. on
weekends that the father does not have the child. When the
child was not in school, the 2-2-5-5 parenting plan set forth in
the Judgment of Divorce remained in effect.

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activity in Amesbury because the child would reside there for

most of the school year.

Discussion. We review a modification judgment pursuant to

G. L. c. 208, § 28, to determine "(1) whether the factual

findings are 'clearly erroneous,' giving 'due regard . . . to

the opportunity of the trial court to judge the credibility of

the witnesses'; (2) whether there were errors of law;" and

(3) whether the judge committed an abuse of discretion

(citations omitted). 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.

Modification of the custody provisions 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. See G. L. c. 208, § 28. In

this case, it is undisputed that the material change in

circumstances was that the child reached an age requiring full-

time enrollment in a school district, and the parents could not

mutually agree on the child's school placement. The father

disputes, however, that the child's best interests would be

served by attending school in Amesbury with the mother rather

than in Gloucester with him. To that end, the father claims

that, in deciding to award the mother primary physical custody

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of the child during the school year, the judge made several

erroneous findings of fact, committed an error of law by failing

to rule in the father's favor on claim preclusion, and abused

his discretion by penalizing the working father and failing to

adequately consider the best interests of the child.

We first address the father's claims that several of the

judge's findings of fact are clearly erroneous. "A finding is

clearly erroneous when there is no evidence to support it, or

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.'" Adoption of

Larry, 434 Mass. 456, 462 (2001), quoting Custody of Eleanor,

414 Mass. 795, 799 (1993). Specifically, the father contends

that the judge made the following erroneous findings of fact:

the specific location of the father's worksite; which elementary

school in Gloucester the child would attend if the child lived

with the father; the father's intolerance of inquiries by the

mother; and the father's failure to appropriately communicate

with the mother. The father also takes issue with the judge's

factual finding that the mother invited him to attend the

child's activities and that the mother works "mother's hours"

and will be available to care for the child after school.

We have reviewed the record and disagree with the father's

characterization of the judge's findings, concluding that they

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were not clearly erroneous. For example, the father testified

that his job as a utility worker for National Grid is primarily

based in Gloucester. On cross-examination, however, he also

testified that, at times, he is required to work in other

locations as need be. Thus, the judge's factual finding that

the father's worksite can vary depending upon the specific need

of his employer is not inaccurate or erroneous, even though the

father primarily reports to a job location in Gloucester.

Similarly, as it relates to the mother's work schedule, the

judge correctly noted that she works part-time at a company that

is located ten minutes from her house and plans on assuming

"mother's hours" when the child is enrolled in school and will

remain available to care for the child after school. Again,

this finding of fact is not erroneous, because, while the mother

was working approximately twelve hours per week at the time of

the modification trial, she planned to increase her hours but

would still be available to care for her child after school. We

also note that this is not a case where the judge ignored or

failed to consider both the mother's and father's circumstances

when determining which school district would be in the child's

best interests. In fact, the judge made specific and extensive

findings of fact about both parents' circumstances, of which the

father challenges fewer than ten.

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In short, the father's claims regarding the facts boil down

to disagreements about the judge's credibility determinations

and the weight the judge gave to the parties' testimony.

Determinations of credibility and evidentiary weight are matters

for the fact finder (here, the trial judge), "not an appellate

court." Patriot Power, LLC v. New Rounder, LLC, 91 Mass. App.

Ct. 175, 181 (2017). See Commonwealth v. Rivera, 482 Mass. 259,

269 (2019) ("fact finder must determine weight and credibility

of testimony" [citation omitted]). The judge, having heard the

parties' testimony and reviewed the evidence admitted during the

three day trial, was in the best position to determine the

parties' credibility and to weigh the evidence. There is no

support in the record to disturb his findings or determinations

of credibility.

Next, the father claims that the judge failed to give

preclusive effect, and thus committed an error of law, to the

facts determined in the 2021 divorce judgment and the 2022

contempt judgment. We disagree, as G. L. c. 208, § 28, permits

a modification of an earlier judgment, provided that the judge

finds that a material and substantial change in the

circumstances of the parties has occurred, and the judgment of

modification is necessary in the best interests of the children.

Accordingly, there was no error of law, and the judge

appropriately considered both the divorce judgment and the

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contempt judgment in his determination that the best interests

of the child would be served by attending school in Amesbury.

Finally, the father claims that the judge abused his

discretion in awarding primary physical custody to the mother

because the child was enrolled in preschool in Gloucester and,

he argues, the judge failed to consider the risks of disrupting

the child's life or balance the benefits and risks of the change

in school. The father also claims that the judge abused his

discretion by penalizing the working father. Abuse of

discretion is defined as "a clear error of judgment in weighing

the factors relevant to the decision, such that the decision

falls outside the range of reasonable alternatives" (quotation

and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

Here, the judge conducted a three-day trial and considered

thirty-one exhibits and the testimony of four witnesses. In the

end, the judge concluded that both parents were good parents and

loved the child and the parents should continue to share legal

custody of the child. The judge specifically found that there

was no credible evidence that one school district would be

superior to the other. Nevertheless, because the parents could

not agree on whether the child should attend school in Amesbury

or Gloucester, the best interests of the child required the

judge to make this determination. As the judge found, and the

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parties acknowledged, "the selection of one school district over

the other school district directly impacts the parenting

schedule and as a result of travel time, work schedules and [the

child's] best interests." The judge found that the distance

between the mother's and the father's homes made the existing

parenting plan unviable; that the school in Amesbury was less

than five minutes from the mother's home; that the mother's work

schedule allowed her to be available to care for the child after

school; and that -- while acknowledging that both parties at

times struggled to effectively communicate with one another --

the mother had demonstrated a far superior ability to keep the

father informed about the child. The judge also found that the

child participates in extracurricular activities and has friends

in both communities. In making these findings, the judge

implicitly considered the potential impact of departing from the

status quo on the child's interests. Furthermore, while the

judge determined that the best interests of the child would be

served by attending school in Amesbury, the judge did not

disturb the parents' shared legal custody arrangement. He also

limited the grant of physical custody to the mother to the

school year, keeping in place the prior custody schedule during

holidays and times that the child was not attending school.

In the end, the judge was tasked with making the difficult

decision of selecting which school district was in the child's

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best interest. The judge's choice between a school in

Gloucester and one in Amesbury would necessarily affect the

other parent's scheduled time, given the distance and travel

time between the two communities. On this record and based on

the thoughtful and considerate decision of the judge, we cannot

say that the judge abused his discretion.

Modification judgment, dated
June 25, 2024, affirmed.

By the Court (Desmond, Shin &
Walsh, JJ. 3),

Clerk

Entered: January 12, 2026.

3 The panelists are listed in order of seniority.

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