Imbrie v. Imbrie

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21-P-770 & 21-P-812 Appeals Court

ANNIKA KARIN IMBRIE1 vs. GREGORY ADAIR IMBRIE.

Nos. 21-P-770 & 21-P-812.

Middlesex. October 11, 2022. – May 2, 2023.

Present: Sacks, Hand, & Grant, JJ.

Divorce and Separation, Arbitration, Alimony, Child custody,
Child support, Division of property, Findings, Parent
coordinator. Arbitration, Divorce and separation, Judicial
review, Authority of arbitrator. Parent and Child,
Custody, Child support.

Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on November 28, 2016.

The case was heard on the report of an adjudicator by
Michael D. Anderson, J.

Martin F. Kane, II (Johanna Gibson also present) for the
wife.
Amanda Vanderhorst for the husband.

1 We acknowledge that the wife has resumed using her birth
name; however, we adhere to our practice of setting forth the
parties' names as they appear in the complaint for divorce.
2

HAND, J. These cross appeals stem from highly contentious

divorce proceedings between Annika Karin Imbrie (the wife) and

Gregory Adair Imbrie (the husband). By agreement, the parties

submitted the matter for "private adjudication" to a retired

Probate and Family Court judge (adjudicator), who heard evidence

and submitted a draft judgment and findings of fact for review

by a judge of the Probate and Family Court (judge). The judge

issued a judgment of divorce nisi (divorce judgment) adopting

nearly wholesale the adjudicator's draft findings and judgment,

making only minimal changes. Both parties contend, with one

exception discussed infra, that the judge, in reviewing the

adjudicator's draft judgment and findings, erroneously applied

the extremely deferential standard applicable to binding

arbitration under Gravlin v. Gravlin, 89 Mass. App. Ct. 363

(2016), rather than the less deferential standard applicable to

proceedings involving masters under Mass. R. Dom. Rel. P. 53

(rule 53).

We conclude that because the parties agreed to proceed

under the standard applicable to proceedings involving masters

under Rule 53 and did not agree to submit the case to binding

arbitration, it was error for the judge to defer to the

adjudicator's rulings under the standard applicable to binding

arbitrations. See Gravlin, 89 Mass. App. Ct. at 365-366. We

further conclude that the judge exceeded his authority in
3

adopting the adjudicator's ruling requiring the use of a

parenting coordinator (PC). Accordingly, we vacate so much of

the divorce judgment as pertains to legal custody regarding

medical decisions for the children, the PC, and the parenting

plan, and remand the case to the probate court for further

proceedings consistent with this opinion. The divorce judgment

is affirmed in all other respects.

Background. 1. General background. We summarize the

adjudicator's relevant findings, supplementing them with

undisputed facts in the record, and reserving other facts for

later discussion. See Pierce v. Pierce, 455 Mass. 286, 288

(2009). The parties were married in 2000 and had three children

together during the marriage (born in 2007, 2009, and 2013,

respectively). The wife is a patent attorney, and the husband

is a cardiologist. The parties enjoyed an upper middle-class

lifestyle during the marriage, in part because of generous

financial contributions from the wife's parents.2

2 The wife's parents paid for the parties' graduate school
educations and the children's private school tuition. The
parties also enjoyed regular vacations and the assistance of an
au pair during the marriage. In 2010, the parties bought a
"high end home" in Newton for $1.7 million with the help of a
$1.55 million private mortgage given to the wife's parents. The
parties made monthly mortgage payments of approximately $2,000,
and the wife's parents forgave approximately $20,000 in mortgage
principal each year.
4

In 2010, after the husband completed his medical residency,

the parties and their children moved to Massachusetts and the

husband began a fellowship position in the Boston area. In

2012, after the wife completed law school, she accepted an

associate position at a Boston law firm, with a reduced billable

hour requirement that enabled her to spend more time with the

children.

All three of the children have "medical conditions and/or

learning disabilities." The middle child suffers from

"debilitating" and "extreme sensory issues," the cause of which

has been difficult to diagnose. This child was treated by a

number of different behavioral health, traditional medical, and

nontraditional medical providers between 2013 and 2016; the wife

was responsible for scheduling and attending the vast majority

of these appointments. In November 2013, the wife left the law

firm and began working part-time from home so that she would

have more time to attend to the children's needs.

In 2015, the husband accepted a full-time position as an

interventional cardiologist in New Hampshire. Although the wife

originally agreed to move to New Hampshire for two years, the

eldest child was not accepted at the school desired by the

parties in that State. As a result, the parties decided that

the wife would remain in Newton with the children, and the

husband would commute from Newton to New Hampshire. At some
5

point, the husband began residing with his parents in New

Hampshire during the week and returning to Newton on the

weekends. The marriage subsequently deteriorated, and the

parties last lived together in November 2016. As the marriage

declined, the parties' views diverged on medical treatment for

their children, particularly for the middle child. The husband

preferred traditional, evidence-based medical treatment, and the

wife preferred nontraditional treatments such as alternative,

homeopathic therapies.

2. Divorce proceedings. a. Custody and parenting issues.

On November 28, 2016, the wife filed a complaint for divorce,

requesting, among other things, primary physical custody and

shared legal custody of the children, alimony, and child

support. In January 2017, the parties executed a stipulation

agreeing, among other things, to the appointment of a PC to

resolve disputes regarding nonfinancial parenting issues, with

the fees to be shared equally between the parties. With respect

to custody and parenting time, the stipulation provided that the

children would reside primarily with the wife, subject to the

husband's parenting time every other weekend and two weekday

dinner visits each week. The stipulation further provided that

the parties would have shared legal custody, subject to certain
6

notice provisions regarding the children's medical care.3 This

stipulation was incorporated into an order issued on February

28, 2017, which order required the husband to pay base

unallocated support of $1,942 per week4 and additional

unallocated support equivalent to twenty percent of any bonus

received by the husband in 2017.

On August 30, 2017, the husband filed an amended answer and

counterclaim for divorce, seeking, inter alia, sole legal

custody as to medical and school related decisions concerning

the children (with shared legal custody for all other matters),

and permission to remove the children to New Hampshire.

On September 27, 2017, the parties executed a stipulation

agreeing to the appointment of a Guardian Ad Litem (GAL) to

evaluate, investigate, and file a written report (including

recommendations) on the issues of custody, the parenting plan,

and the children's medical care. On the same day, an order

3 The parties acknowledged that all three children were on
an "established non-traditional dietary and medicinal and
nonmedicinal protocol" and agreed that they would provide each
other with at least one week's notice of any scheduled medical
appointments for the children.

4 The base unallocated support represented thirty-five
percent of the difference between the parties' incomes, after
deducting their respective financial contributions to the
children's au pair.
7

issued appointing Mira Levitt, Ph.D., as a "Guardian ad litem -

Evaluator" or "Category E GAL."5

On January 20, 2018, the parties agreed to the appointment

of Robin M. Deutsch, Ph.D., as PC to resolve any parenting

disputes for a period of two years, with the opportunity for the

parties to sign a new PC agreement after the two-year period

concluded; and that the PC's recommendations would be binding

"until the [c]ourt enters an order [or] [j]udgment altering,

modifying or rejecting her recommendation." The parties further

agreed that once the PC's total fees exceeded $15,000 (based on

an hourly rate of $375), they would continue PC services only by

agreement.

On May 7, 2018, the GAL filed a seventy-four page report

wherein she recommended that the children continue to reside

primarily with the wife during the school year and spend three

weekends per month (and up to two dinner visits per week) with

the husband. The GAL acknowledged that although the parties'

disagreements regarding the children's medical care might

warrant assigning one parent decision-making authority, such a

solution might not be in the children's best interests. The GAL

5 In addition to investigating and reporting factual data to
the court, a Category E GAL develops clinical opinions to assist
the judge (or adjudicator) in making custody and visitation
decisions. See Care & Protection of Jamison, 467 Mass. 269, 288
n.30 (2014).
8

stated that while it would be impractical to grant the husband,

rather than the wife, medical decision-making authority given

that the wife is the children's primary caretaker, the wife's

authority should not remain unchecked.6

b. Agreement for private adjudication. On March 6, 2019,

the parties executed and filed with the court a stipulation

providing, among other things, that they "agree to submit . . .

an [o]rder of [r]eference for the [c]ourt's approval to submit

the matter to private adjudication . . . for a trial on the

merits." The stipulation was incorporated into a temporary

order, stating that an "order of reference to

[a]rbitrator/[m]aster shall be issued."

On March 7, 2019, before the parties submitted a draft

order of reference as contemplated in their stipulation, the

6 Specifically, the GAL recommended that (1) there be a
clear structure by which medical decisions are made, with the
parties settling on a team of agreed-upon medical providers for
the children and, in the event that the parties cannot agree on
a provider, the husband should make a final decision as to a
provider in light of his medical training and knowledge of
evidence-based treatments; and (2) the PC should continue to
address parenting issues between the parties and, where the
parties are unable to agree on a child's medical treatment, the
PC should consult with the child's medical providers and defer
to evidence-based treatments and standards of the American
Academy of Pediatrics to make a provisional recommendation
(which recommendation may be reviewed by a judge).
9

first judge assigned to the case7 issued sua sponte an order of

reference, providing, in relevant part, that:

"all issues in the pending [c]omplaint for [d]ivorce
[shall] be heard for final ruling through private
adjudication on the merits with an agreed upon [a]rbitrator
. . . . The [a]rbitrator will hear the parties, examine
their evidence, make findings of fact, and set them forth
in her adjudication. Said [a]rbitrator shall make a
judgment supported by findings on each issue tried. The
parties agreed to be bound by any finding, award or
decision of arbitration, except to the extent that the
award is modified by the court after review or to the
extent that the controlling law may permit either party or
both parties to seek judicial review of the arbitration
award under applicable princip[les] of law. . . . The
parties and [a]rbitrator/[m]aster are referred to Rule 53
of the Massachusetts Rules of Civil Procedure and Rules 20,
21 and 24 of the Probate Rules and Uniform Practice XXVIII
which govern this procedure."

On May 28, 2019, the parties executed an "arbitration

agreement" providing, inter alia, that the matter would be

referred to the adjudicator "to hear the dispute as ARBITRATOR

pursuant to Rule 53 of the Mass. Rules of Domestic Relations

Procedure." See generally Mass. R. Dom. Rel. P. 53 (rule

governing proceedings before masters).

A two-day hearing was held before the adjudicator on August

29 and 30, 2019. On December 20, 2019, the adjudicator

circulated her first draft judgment, rationale, and findings of

fact to the parties; these documents were not filed with the

7 We understand that, based on the usual rotations in
judicial scheduling, at least three judges have been assigned to
these cases at different times.
10

Probate and Family Court. Among other things, the December 2019

draft judgment proposed to grant the wife sole decision-making

authority regarding the children's medical care, to which the

husband submitted his objection; the wife opposed the husband's

objection. On February 7, 2020, the adjudicator filed with the

Probate and Family Court an amended draft judgment and amended

findings, proposing to reassign sole medical decision-making

authority to the husband. The wife filed an opposition to the

amended draft judgment while the husband moved to adopt it.

Following a hearing, a second judge issued an order recommitting

the matter to the adjudicator and directing her to "make

additional subsidiary findings as she deems appropriate and/or

otherwise amend/modify the 'Draft Amended Judgments, Rationale

and Findings of Fact' regarding the limited issues of legal

custody regarding medical decision-making authority."8

In September 2020, after the adjudicator heard the

recommitted matter, she issued to the parties further amended

draft judgments and findings, which were not filed with the

8 Although the December 2019 draft judgment was not
separately filed with the court, the parties referred to the
adjudicator's findings and judgment in their subsequent
pleadings. Considering those pleadings, the judge stated that
the adjudicator's December 2019 findings appeared to support the
grant of medical decision-making authority to the wife and noted
that the adjudicator's February 2020 amended findings reflected
changes to only eight of 458 findings, none of which pertained
to medical decision-making.
11

Probate and Family Court (September 2020 drafts). The September

2020 drafts reaffirmed the February 2020 drafts, proposed

providing the husband with final medical decision-making

authority, and addressed several other matters that were outside

the scope of the recommitment order. The wife objected to

certain aspects of the September 2020 amended drafts.

On December 2, 2020, the adjudicator issued an order

concluding that the recommitment order limited her review to the

issue of medical decision-making authority only, and that the

only changes between the February 2020 and December 2020 drafts

would relate to medical decision-making authority, as other

changes contained in the September 2020 drafts exceeded the

scope of the recommitment order.9

c. Adjudicator's December 2020 drafts. The adjudicator

filed the second amended draft judgments, findings, and

rationale with the Probate and Family Court (December 2020

drafts). The draft proposed to award the wife physical custody,

establish a parenting plan for the husband, continue the

appointment of the PC for three years, and grant shared legal

custody of the children subject to the husband's final medical

9 The adjudicator also made some additional changes that she
characterized as the correction of scrivener's errors, none of
which bear on the issues in this appeal.
12

decision-making authority. As to the latter, the December 2020

draft judgment provided that:

"The parties shall initially address the medical treatment
options with the Parenting Coordinator. . . . In the case
of an inability of the parties to agree to medical
treatment, the [husband] shall have the final decision
making authority. . . . [The] [w]ife may only schedule
medical appointments for the children only after advance
notice to the [h]usband. Failure to provide advance notice
shall be cause to readdress who shall make medical
appointments. If the parties cannot agree, the [h]usband
shall make the decision on the particular appointment.
Neither party is to impose any dietary restrictions on the
children without the expressed consent of the other party.
Neither party is to administer any prescribed or over the
counter medications without the expressed consent of the
other party. The children are to be administered any and
all prescribed or over the counter medications to which
both parties have agreed acknowledged in a written email."

Fifteen new findings pertaining to medical decision-making were

included in the adjudicator's December 2020 draft findings.

With respect to support and child-related expenses, the

December 2020 draft judgment provided, in relevant part, that

(1) the husband shall pay base unallocated support of $1,986.38

per week, until the first to occur of either party's death, the

wife's remarriage or cohabitation (as defined in G. L. c. 208,

§ 49), or 160 months from the date of divorce; and (2) the

husband shall pay additional unallocated support equivalent to

twenty percent of the husband's gross bonus income. With

respect to the property division, the December 2020 draft

judgments allocated the parties' assets so as to effectuate an

equitable and nearly equal distribution.
13

On December 21, 2020, the husband filed in the Probate and

Family Court a motion requesting several modifications to the

December 2020 draft judgments and findings concerning the

parenting plan, unallocated support, and property division. On

December 23, 2020, the wife filed a motion requesting that the

December 2020 draft judgments and findings be adopted as-is,

except that she requested final medical decision-making

authority be granted to her instead of the husband.

d. Ruling on the adjudicator's submissions. On April 27,

2021, the judge entered an order on the parties' motions,

largely accepting and adopting the December 2020 draft judgments

and findings (April 2021 order). Relying on Gravlin, 89 Mass.

App. Ct. at 367-368, the judge concluded that the parties

"agreed to binding arbitration," thus he was "strictly bound" by

the adjudicator's findings and conclusions of law "even if they

are in error," and further, that he was required to give

"extreme deference" to the adjudicator's findings, rationale,

and judgment in the exercise of his "nondelegable duty to review

and assess the same." The judge concluded that "there is no

evidence, or even an allegation, that the [adjudicator]: (1)

exceeded her authority by granting relief beyond that to which

the parties bound themselves or awarded relief prohibited by

law; and/or (2) decided the matter based on 'fraud, arbitrary

conduct, or procedural irregularity in the hearings.'"
14

With respect to medical decisions, the judge found that the

findings and rationale of the adjudicator were clear and

supported her decision. He acknowledged that there were

sufficient findings to justify an order giving the wife final

decision-making authority, but that the adjudicator's decision

giving that authority to the husband was supported by the

record. He adopted the adjudicator's decision regarding medical

decision-making, with one modification allowing for the parties

to unilaterally administer over-the-counter medication to the

children in the event of an "emergency."

The judge accepted and adopted the December 2020 draft

findings and rationale in full and issued a divorce judgment

adopting the December 2020 draft judgment in its entirety

(except for the change related to over-the-counter medication,

and a correction of a clerical error not pertinent here). The

present cross appeals followed.

Discussion. 1. Standards of review. a. Standard

applicable to judge's review. As an initial matter, we agree

with the parties that the judge, in reviewing the adjudicator's

December 2020 drafts, improperly applied the Gravlin standard

(which adopted the standard applicable to binding arbitrations

under the Uniform Arbitration Act for Commercial Disputes, G. L.

c. 251 [UAACD]), rather than the standard applicable to

proceedings involving masters under Mass. R. Dom. Rel. P. 53.
15

There is a significant difference between the standards. A

judge reviewing a binding arbitration award "is confined to

determining whether the arbitrator (1) exceed[ed] h[er]

authority by granting relief beyond the scope of the arbitration

agreement, . . . by awarding relief beyond that to which the

parties bound themselves, . . . or by awarding relief prohibited

by law, or (2) decided the matter based on fraud, arbitrary

conduct, or procedural irregularity in the hearings" (quotations

omitted). Gravlin, 89 Mass. App. Ct. at 367-368. The judge

typically does not review the arbitrator's findings and

conclusions of law for clear error. Id. at 368. "This strict

standard of review is highly deferential to the decision of an

arbitrator" (emphasis added). Id., quoting School Comm. of

Lexington v. Zagaeski, 469 Mass. 104, 110 (2014).

By contrast, "there is no requirement that a master's

recommendations be given total deference." Ross v. Ross, 385

Mass. 30, 38 (1982). "The main object of referring a suit to a

master is to have the facts settled by [her] . . . . [I]t

remains for the trial judge to enter the proper judgment on the

facts as found and on the law as applied thereto" (quotation and

citation omitted). Hardiman v. Hardiman, 11 Mass. App. Ct. 626,

628 (1981). "The master's conclusions of law do not determine

the legal effect of the facts found by h[er] and, a fortiori, do

not determine the choice of remedy where such choice lies within
16

the discretion of the trial judge." Id. Thus only "[t]he

master's findings of fact are binding on the probate judge and

on this court," Osborne v. Osborne, 384 Mass. 591, 601 (1981),

quoting Chase v. Pevear, 383 Mass. 350, 359 (1981) -- unless

they are "clearly erroneous, mutually inconsistent, unwarranted

by the evidence before the master as a matter of law or are

otherwise tainted by error of law." Mass. R. Dom. Rel. 53 (h)

(1). "With respect to the master's ultimate conclusions, . . .

'[w]e must apply our own view of the law, and we must consider

whether the master's general findings, on a correct view of the

law, are consistent with his subsidiary findings.'" Osborne,

supra, quoting Chase, supra at 359-360.

Here, the parties stipulated that they would submit the

matter for "private adjudication" and would file a draft order

of reference to the court. Before they could do so, a judge

issued a sua sponte order referring the matter to "arbitration."

Although the judge's order of reference submitted the matter to

"arbitration," it is the content of the parties' stipulation and

subsequent agreement that controls. See Gravlin, 89 Mass. App.

Ct. at 365-366 ("A judge may not . . . order parties to submit

to binding arbitration absent their agreement, as such an order

would be an improper delegation of the judge's authority under

G. L. c. 208, § 34").
17

The parties here, unlike the parties in Gravlin, did not,

through their subsequent agreement regarding the proceedings to

be held before the adjudicator, submit the matter to "binding

arbitration." Gravlin, supra at 366. There is no reference to

"binding arbitration" in their stipulation or subsequent

agreement, and they did not reference the rules applicable to

binding arbitrations under Gravlin or the UAACD. Rather, the

parties' agreement provided, in relevant part, that the

adjudicator would "hear the dispute as ARBITRATOR pursuant to

Rule 53 of the Mass. Rules of Domestic Relations Procedure"

(emphasis added). The agreement further provided that:

"[t]he parties agree to be bound by any finding, award or
decision of arbitration, except to the extent that the
award is modified by the court after review . . . . The
parties and Arbitrator/Master are referred to Rule 53 of
the Massachusetts Rules of Civil Procedure and Rules 20, 21
and 24 of the Probate Rules and Uniform Practice XXVIII
which govern this procedure. . . . [T]he Arbitrator will
issue an arbitration decision in writing and deliver a copy
of the decision to each party . . . . The decision shall
be binding upon both parties, subject only to the
applicable rules and law in the Commonwealth of
Massachusetts for arbitrations (specifically, Rule 53 of
the Mass. Rules of Domestic Relations Procedure)" (emphasis
added).

Thus, notwithstanding the parties' use of the terms

"arbitrator" and "arbitration" in the agreement, they intended

for the procedure to be governed by rule 53, which applies only

to proceedings involving masters. See Mass. R. Dom. Rel. P. 53

(a) (i) ("'master' shall mean any person, however designated,
18

who is appointed by the court to hear evidence in connection

with any action and report facts" [emphasis added]). Although

the parties stated that they would be "bound by any finding,

award or decision" made by the adjudicator, they also expressly

stated that the award could be "modified" by a judge "after

review" pursuant to rule 53. In the absence of clear,

unequivocal language stating that the parties intended to submit

the case to "binding arbitration," we cannot conclude that the

parties intended to be so bound.

Moreover, the parties' intent to proceed under Rule 53 can

be further gleaned from their conduct after executing the

agreement, as they followed the procedures set forth under rule

53 throughout the proceedings before the adjudicator and judge.10

See Springfield v. Department of Telecomm. & Cable, 457 Mass.

562, 572 (2010), quoting Restatement (Second) of Contracts,

§ 202 (4) (1981) ("any course of performance accepted or

acquiesced in without objection is given great weight in the

interpretation of the agreement"); Lodge Corp. v. Assurance Co.

of Am., 56 Mass. App. Ct. 195, 197 n.4 (2002), quoting

Restatement (Second) of Contracts § 202 (5) (1981) ("Wherever

reasonable, the manifestations of intention of the parties to a

10On numerous occasions, the parties followed the Rule 53
procedures for suggesting amendments to the draft report, see
Mass. R. Dom. Rel. P. 53 (g) (2); and objecting to the report,
see Mass. R. Dom. Rel. P. 53 (h) (1)-(2).
19

promise or agreement are interpreted as consistent with each

other and with any relevant course of performance [or] course of

dealing").

In reviewing a master's report,

"the court shall accept the master's subsidiary findings of
fact unless they are clearly erroneous, mutually
inconsistent, unwarranted by the evidence before the master
as a matter of law or are otherwise tainted by error of
law. . . . The court may draw its own inferences from the
master's subsidiary findings. The court may make findings
in accordance with [Mass. R. Dom. Rel. P.] 52, which are in
addition to the master's findings and not inconsistent
therewith, based either on evidence presented to the court
or evidence before the master which was recorded by means
approved by the master before commencement of the hearing."

Mass. R. Dom. Rel. P. 53 (h) (1).

Accordingly, to the extent that the judge gave substantial

deference to the adjudicator's rulings, rather than employing

the less deferential review prescribed by Rule 53, this was

error. See Gustin v. Gustin, 420 Mass. 854, 857-858 (1995)

("Absent an agreement of the parties, by stipulation or

otherwise, the role of the intermediary . . . should be limited

to hearing the matter and making a recommendation to the Probate

Court judge. The judge . . . must promulgate the final, and

binding, disposition of the [case] consistent with the terms of

[the applicable] statute. The judge cannot delegate this

duty."); Hardiman, 11 Mass. App. Ct. at 628 ("To give the

master's disposition any weight beyond that of a recommendation

would be an abdication of the judicial function"). See also
20

Robbins v. Robbins, 16 Mass. App. Ct. 576, 577 n.2 (1983) ("The

master's 'ultimate findings' . . . are recommendations which are

not binding on the judge").

b. Appellate standard of review. Under rule 53, we review

a master's findings for clear error, while reviewing conclusions

of law de novo. See Pollock v. Marshall, 391 Mass. 543, 554-555

(1984). Where, however, the judge did not treat the

adjudicator's ultimate rulings as mere recommendations but

instead gave them "extreme deference," the judge improperly

delegated his duty to exercise his discretion in making a final

determination of the issues. See Bower v. Bournay-Bower, 469

Mass. 690, 707 (2014); Gravlin, 89 Mass. App. Ct. at 365-366.

In such circumstances, the improperly delegated issues must be

remanded to the judge for final determination by him. With

these principles in mind, we turn to the parties' individual

contentions.11

11We briefly address the husband's related contention that
the adjudicator, and by extension the judge, improperly
interpreted the recommitment order (which was issued by a
different judge) as being limited solely to the medical decision
issue. He claims that, as a result, the adjudicator failed to
correct errors in her findings and rulings pertaining to the
parenting plan, property division, and support, which errors
were then adopted by the judge. We do not discern any error in
the adjudicator's deference to the express language of the
recommitment order, which limited the scope of the recommitment
to the issue of medical decision-making. Because this was a
master proceeding under Rule 53, the judge who issued the
recommitment order had the discretion to limit the scope of the
recommitment. See Mass. R. Dom. Rel. P. 53 (h) (4) ("The court
21

2. Legal custody as to medical decisions. a. Clearly

erroneous findings. The wife asserts that the majority of the

findings underpinning the adjudicator's decision to grant the

husband medical decision-making authority were clearly

erroneous. "[W]e accept the . . . findings of fact as true

unless they are clearly erroneous. 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"

(quotations and citations omitted). Kendall v. Selvaggio, 413

Mass. 619, 620-621 (1992).

With the limited exceptions we discuss here, we discern no

error in the findings challenged by the wife. We agree that the

finding that the wife failed to timely notify the husband of the

eldest child's broken arm is clearly erroneous.12 We further

agree that the findings which state that the wife addressed a

package to the children referring to them by her surname instead

may adopt the report, strike it in whole or in part, modify it,
recommit it to the master with instructions or take any other
action that justice requires" [emphasis added]). The
adjudicator appropriately adhered to the instructions set forth
in the recommitment order.

12The remainder of that particular finding, that the wife
has sometimes failed to notify the husband of doctor's
appointments, is not clearly erroneous.
22

of their own,13 are clearly erroneous and inconsistent with other

findings that the husband overstated the incident to make it

appear that the wife was seeking to exclude him from the

children's lives. We need not, however, address the impact, if

any, of these erroneous findings because the trial judge must

first make a determination as to the children's best interests

based on all of the non-erroneous subsidiary findings made by

the adjudicator -- which the trial judge did not do here.

b. Standard applied to medical decisions issue. The wife

contends that the judge erroneously applied the highly

deferential Gravlin standard when reviewing the adjudicator's

ruling on the medical decision-making issue. The husband,

however, contends that the judge's evaluation of the

adjudicator's subsidiary findings regarding medical decisions

reflected a less deferential review that is more consistent with

what Rule 53 prescribes. For the reasons that follow, we agree

with the wife and disagree with the husband.

Here, the judge reviewed the adjudicator's subsidiary

findings not for clear error, but for the limited purpose of

ascertaining whether there was any support for the adjudicator's

medical decision ruling in her findings.

13 The children used the husband's surname.
23

Similarly, the judge did not draw his own legal conclusions

regarding the subsidiary findings -- apart from stating there

were findings that would support the grant of medical decision-

making authority to either parent -- and the judge did not make

his own discretionary determination regarding the best interests

of the children. See G. L. c. 208, §§ 28, 31; Kendall v.

Kendall, 426 Mass. 238, 251 (1997), cert. denied, 524 U.S. 953

(1998) ("The determination of custody rests within the

discretion of the judge"); Rolde v. Rolde, 12 Mass. App. Ct.

398, 402 (1981) ("in deciding issues involving custody, the

overriding concern of the [judge] must be the promotion of the

best interests of the children and their general welfare").

Because the judge did not treat the adjudicator's ruling as

a mere recommendation, and instead gave it unwarranted

deference, he improperly delegated his authority under G. L.

c. 208, § 28 and § 31. See Bower, 469 Mass. at 707.

Accordingly, the issue of medical decision-making must be

remanded to the judge for the purpose of reviewing the

adjudicator's findings and recommended rulings pursuant to rule

53, and for the judge to make the final discretionary

determination concerning which parent will promote the

children's best interests.14

14Of course, on remand the judge is free to consider
whether it would be in the children's best interests for the
24

We take this opportunity to comment on an issue that is

likely to arise on remand. We note that it is generally

inappropriate to grant shared legal custody to parents who

display a high level of acrimony that impedes their ability to

jointly make decisions about the children's welfare. See Carr

v. Carr, 44 Mass. App. Ct. 924, 925 (1998), cert. denied, 525

U.S. 1073 (1999). Notwithstanding that fact, where one parent

has primary physical custody of the children, we have concerns

about the practicality of granting partial sole legal custody

regarding medical decisions to the other parent -- particularly

where the children are in the custodial parent's care eighty

percent of the time, the children have extensive medical issues,

and the custodial parent is responsible for taking the children

to ninety percent of their medical appointments. Although there

is no statutory prohibition against granting sole legal custody

(partial or full) to a parent who does not have physical

custody, see G. L. c. 208, §§ 28, 31, we conclude that, based on

the particular circumstances presented here, the judge should

make specific subsidiary findings clearly demonstrating that, if

the judge grants partial sole legal custody regarding medical

decisions to the parent who does not have physical custody, the

decision is necessary to promote the children's safety and

parents to retain some form of joint authority for medical
decisions.
25

wellbeing. See G. L. c. 208, § 31. Accordingly, the judge to

whom the case is assigned on remand may make such additional

findings if the judge determines, in his or her sole discretion,

that they are warranted by the evidence. See Mass. R. Dom. Rel.

P. 53 (h) (1).

3. Parenting plan. The husband complains that the judge,

in applying the Gravlin standard, failed to properly consider

certain requested corrections to aspects of the adjudicator's

parenting plan that he asserts were contrary to the GAL's

recommendations. The husband's proposed changes included

increasing his parenting time to three weekends per month.

While a judge is not required to adopt a GAL's

recommendation, see Pizzino v. Miller, 67 Mass. App. Ct. 865,

876 (2006), where the judge rejects that recommendation, the

judge should explain his or her reason for doing so. See

Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 196 (2015). Here,

however, the judge did not explain the basis for departing from

the GAL's recommendation because he did not exercise his

discretion to determine an appropriate parenting plan. Rather,

he incorrectly applied the highly deferential Gravlin standard

and deferred to the adjudicator's determination.15 This was an

15 With respect to the parenting plan, the judge stated
that:
26

improper delegation of his judicial authority. Bower, 469 Mass.

at 707. Accordingly, so much of the divorce judgment as

pertains to the parenting plan must be vacated and remanded for

the judge to consider the adjudicator's findings and

recommendations and exercise his or her discretion to determine

an appropriate parenting plan in the children's best interests.

4. Parenting coordinator. The husband contends that the

judge erroneously adopted the adjudicator's ruling extending the

appointment of the PC to resolve parenting disputes. The

husband further contends that, in the absence of an agreement

between the parties to pay for the PC to mediate medical

disagreements going forward, it was improper to require the

parties to submit medical disputes to the PC in the first

instance before the husband could exercise final medical

decision-making authority. We agree with both contentions.

While judges "possess the inherent authority to appoint

parent coordinators in appropriate circumstances . . . the

appointment in this case exceeded the bounds of that authority."

"[The] [h]usband raises several parenting issues (primarily
logistical) that he does not like in the draft Amended
Judgment that he would like modified. Based upon the
[Gravlin] standard . . . they do not demonstrate that the
[a]rbitrator exceeded her authority or decide the matter
based upon 'fraud, arbitrary conduct, or procedural
irregularity in the hearings.' The issues raised are all
matters that can be presented to the Parent Coordinator
. . . . [T]he [a]rbitrator's ruling shall stand."
27

Bower, 469 Mass. at 698. First, absent the express agreement of

the parties, "a judge cannot shift the final decision-making

authority granted by statute to a third party." Id. at 707.

Second, "a judge may not require the parties to use the services

of the parent coordinator if the order would require one or both

parents to pay for the services without his or her consent."

Id. Here, the parties' January 2018 agreement to use the PC was

specific and detailed. Importantly, the parties only agreed to

the PC's appointment through January 2020. The divorce

judgment, however, extended the appointment by an additional

three years, through March 2024, thereby improperly requiring

the parties to pay the PC's fees for an additional three-year

period without the fee cap agreed upon by the parties. See id.

This was error.

Accordingly, so much of the divorce judgment as requires

the parties to continue using, and paying for, the PC must be

vacated.

5. Property division. The husband contends that the judge

erred when concluding that the adjudicator properly determined

the date for valuing the marital estate for purposes of

equitable division under G. L. c. 208, § 34. We disagree.

Here, the adjudicator valued the property contained in the

marital estate at the time of the divorce rather than at the

time of the parties' separation. She made detailed findings
28

regarding property acquired by the parties after their

separation. She found that the home in which the wife resided

had negative equity at the time of the hearing. The adjudicator

also found that the down payment for the husband's home was made

with marital funds and thus constituted a marital asset subject

to equitable distribution; however, the net equity in the

property (acquired by the husband in part through his mortgage

payments) was not includable in the marital estate.

Additionally, the adjudicator found that the husband purchased a

motorcycle during the pendency of the divorce proceedings, in

violation of the automatic restraining order, and therefore the

adjudicator treated the net equity as includable in the marital

estate. The adjudicator treated the husband's other individual

assets as marital property subject to equitable distribution.

Similarly, with the exception of two Swedish bank accounts

established by the wife's grandparents decades before the

parties were married, the adjudicator treated all of the wife's

individual assets as includable in the marital estate for

purposes of equitable distribution under G. L. c. 208, § 34.

The husband asserts that it was error to treat property

acquired postseparation as includable in the marital estate and

that the appropriate date for identifying marital assets was the
29

date of the parties' separation.16 The husband raised this issue

with the judge, who phrased the issue before him as "whether

applying the [a]rbitrator's [f]indings and [j]udgment result[ed]

in an inequitable division of assets that is contrary to [G. L.

c. 208, § 34]." The judge ruled that:

"Assets are typically valued and divided as of the date of
divorce. . . . Treating the [husband's] assets [acquired
postseparation] as marital assets subject to division
hardly results in an inequitable division of assets or
otherwise violate[s] public policy or dictate[s] a result
in violation of [G. L. c. 208, § 34]. Even assuming that
the funds as set forth by [the] [h]usband were all
accumulated post separation and after paying support to
[the] [w]ife, [the] [h]usband was able to [] accumulate
those assets because [the] [w]ife was primarily responsible
for the care of the parties' children . . . . While [the]
[h]usband was able to work full time, [the] [w]ife was
unable to do so. She did not have the luxury of working
full time to accrue additional savings and assets.

. . . .

16The husband claims that the parties "separated their bank
accounts in early 2017," citing to the parties' January 2017
stipulation (which makes no mention of dividing the parties'
bank accounts) and the adjudicator's finding that the parties
"split up their joint accounts" when the wife filed for divorce.
This does not, however, demonstrate that the parties agreed to a
particular division of their accounts, thereby foreclosing any
division of those accounts in the divorce judgment. The husband
further contends that it was error to divide as a marital asset
his bank account from which he pays unallocated support to the
wife, in essence arguing that such division constitutes
inequitable double-dipping. We note that double-dipping is not
prohibited as a matter of law. See Fehrm-Cappuccino v.
Cappuccino, 90 Mass. App. Ct. 525, 527 n.4 (2016). Moreover,
the husband was ordered to pay unallocated support based on his
ongoing stream of earned income, rather than by liquidating a
particular asset. Accordingly, it is possible to identify
separate bases for the property division and unallocated support
award. Id. at 528 n.5.
30

The Court is satisfied that including the assets acquired
after separation as part of the marital division of assets
is both fair and equitable and well within the statutory
demands of [G. L. c. 208, § 34]. . . . '[T]he care and
maintenance of a child by a spouse even while separated is
a contribution to the marital partnership.' Wheeler v.
Wheeler, 41 Mass. App. Ct. 743, 745 (1996)."

Although the judge purported to conduct a limited review

under Gravlin, it is apparent that he drew his own legal

conclusion when determining the timing of the valuation of the

parties' assets. He did so based on the fact that the wife's

contributions to the marital enterprise continued throughout the

parties' separation. Compare Wheeler, 41 Mass. App. Ct. at 745,

with Savides v. Savides, 400 Mass. 250, 252-253 (1987). Because

the judge weighed the adjudicator's findings and independently

made a conclusion of law regarding the appropriate date for

dividing the marital estate, we discern no error.17

6. Unallocated support. We are unpersuaded by the

husband's various challenges to the judgment's unallocated

support provision. With respect to the husband's 2019 income,

the adjudicator made findings based on the evidence at the

hearing before her, which concluded in August 2019. The

17The husband does not challenge as clearly erroneous any
subsidiary findings pertaining to the property division, nor
does he challenge other aspects of the property division.
Accordingly, because our review of the property division is
confined to the date of valuation issue only, we leave all other
aspects of the divorce judgment pertaining to property division
undisturbed.
31

evidence included the husband's January 2019 employment

contract. The adjudicator determined that the husband's

projected 2019 income, including salary, bonuses, and fringe

benefits would be $764,447.76.18 The husband claims that this

figure far exceeds the income reported on his 2019 W-2 form;

however, his W-2 form was not in evidence at the hearing before

the adjudicator. Notwithstanding, to the extent that there is

any error in the calculation of the husband's 2019 income as

compared to his 2019 W-2 form, the error is harmless because it

is confined to the calculation of his projected 2019 bonus

income, not his salary. The husband's unallocated support

obligation is based on his salary only.19 The husband is also

required to pay additional unallocated support equivalent to

twenty percent of his gross bonus income from the prior year.

His additional unallocated support obligation is not predicated

on any calculation (erroneous or otherwise) of projected bonus

18The adjudicator found that as of August 22, 2019, the
husband's income totaled $405,971.87. She found that the
husband's August 29, 2019, financial statement that reported
gross weekly income of $6,634 was not credible as to his bonus
and total gross income.

19The base support amount of $1,986.38 per week is the
equivalent of thirty-five percent of the difference between the
husband's weekly salary of $6,634.62 ($345,000 per year) and the
wife's weekly income of $959.24. See G. L. c. 208, § 53 (b).
32

income, rather, it is based on his actual bonus income already

received.

With respect to the wife's receipt of financial

contributions from her parents, the husband contends that the

adjudicator, and by extension the judge, erroneously disregarded

them when determining the wife's need for support. The husband

did not, however, raise this issue in his motion setting forth

his objections to the adjudicator's December 2020 draft judgment

and findings. Therefore it is not properly before us on appeal.

"An issue not raised or argued below may not be argued for the

first time on appeal" (citation omitted), Carey v. New England

Organ Bank, 446 Mass. 270, 285 (2006); accordingly, it is

waived.20

20Even if the issue had been properly raised below, we
discern no error in the determination of the wife's need for
support based on the record before us. The adjudicator found
that, in light of the shortfall between her income and credible
expenses, the wife was in need of support. See G. L. c. 208,
§ 53 (b). The adjudicator also found that child support was
warranted, thereby leaving intact the unallocated support order
originally put in place by a judge. The adjudicator found that
the wife has interests in a number of revocable and irrevocable
trusts settled by her father, but there is no indication that
that the wife presently receives trust distributions. The
wife's trust interests were properly treated as expectancies in
connection with her opportunity for the future acquisition of
assets and income pursuant to G. L. c. 208, § 34. The
adjudicator also made findings about the wife's parents' annual
gifting and expectation that the practice would continue
postdivorce, as well as their payment of certain child related
expenses, but declined to reduce the husband's support
obligation on that basis because "the [w]ife's parents have no
legal obligation to support the [w]ife and children. Any
33

Finally, the husband contends that it was error to award

unallocated support for a period of 160 months, without

considering "the years of temporary support payments as a result

of the extenuated litigation." However, the husband did not

raise this argument in his motion filed in the Probate and

Family Court setting forth his objections to the adjudicator's

December 2020 draft judgment and findings. Accordingly, the

issue is not properly before us on appeal and is waived. See

Carey, 446 Mass. at 285. We nevertheless note that the duration

of general term alimony generally commences at the entry of the

divorce judgment, and a judge is not required to consider the

duration of temporary alimony, especially where there is no

indication that the recipient spouse was to blame for the

protracted nature of the divorce proceedings. See Holmes v.

Holmes, 467 Mass. 653, 659-661 (2014).

Conclusion. So much of the divorce judgment as pertains to

legal custody regarding the children's medical treatment, the

parenting coordinator, and the parenting plan is vacated and

assistance she receives from them is voluntary on their part."
To the extent that the unallocated support order contains a
child support component, see Duval v. Duval, 101 Mass. App. Ct.
752, 761 (2022) (unallocated support typically treated as hybrid
family support order with both child support and alimony
components), we discern no error in the adjudicator's
consideration of the fact that the wife's parents have no legal
obligation to support the children. See Murray v. Super, 87
Mass. App. Ct. 146, 155 (2015).
34

remanded to the Probate and Family Court for further proceedings

consistent with this opinion. The divorce judgment is affirmed

in all other respects.21

So ordered.

21 The wife's request for attorney's fees and costs is
denied.