SULLIVAN v. CHARLES D. SULLIVAN

JOANNA SULLIVAN v. CHARLES D. SULLIVAN

75 Mass. App. Ct. 1112

November 10, 2009

Present: KANTROWITZ, SMITH & GRAHAM, JJ.

NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This is a removal case, decided in the Probate and Family Court. The mother appeals from a judgment dismissing her modification complaint, by which she sought to remove the couple's two children to Georgia, home of her new husband and step-children. On appeal she contends that the judge (1) abused her discretion in finding no real advantage to the mother if she relocated to Georgia; (2) erred in finding that separating the children from their father would not be in their best interest, because the father's domestic violence against the mother diminished his ability to serve as an appropriate role model to his children; and (3) failed to make findings as to mother's relationship to the minor children. We affirm.

Background. A judgment of divorce nisi entered in August, 2005. The mother, the custodial parent, is white, the father is black, and they have two minor children. The mother remarried in 2007, and her new husband resides in Georgia. In November, 2006, the mother filed a modification complaint, seeking leave to remove the children to Georgia. The judge specifically found, based on the mother's assertions in her testimony at trial and to the guardian ad litem (GAL), that her desire to be with her new husband was not her primary reason for wanting to relocate to Georgia, and that her primary reason to move to Georgia was the anticipated financial benefit of the move. These financial reasons, [Note 1] the judge concluded, were unfounded, and based more on speculation and hope than anything else. The judge also noted that the mother has no relatives in Georgia whereas she does have relatives residing nearby in Connecticut. Thus, the judge found, the proposed move did not represent a "real advantage" to mother. [Note 2]

In addition to finding no real advantage to the mother, the judge found that the proposed relocation was not in the children's best interests. In this regard, the judge rejected the GAL's recommendation, instead accepting the recommendation of Dr. Daniels, the father's expert, recognized by both parties as an authority in her field of expertise. Dr. Daniels opined, in part, that, because the children were dark skinned biracial youngsters, their separation from their father would be detrimental to the acculturation process, especially here, where, the judge found, the mother and her new husband are generally insensitive to the issue. The judge further found that the children would likely benefit from the father's sensitivity and proximity, and that removing the children to Georgia would lessen the father's positive influence in their lives.

Discussion. Application of the "real advantage" test. As the mother has been the custodial parent, the judge appropriately applied the "real advantage" test to the removal analysis. See Yannas v. FrondistouYannas, 395 Mass. 704 , 710712 (1985). "Under the real advantage test, ‘[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the [children's] best interests." Abbott v. Virusso, 68 Mass. App. Ct. 326 , 330 (2007), quoting from Pizzino v. Miller, 67 Mass. App. Ct. 865 , 870 (2006).

The custodial parent must establish "a good, sincere reason for wanting to remove to another jurisdiction." Yannas, supra at 711. Here, the judge, after considering the appropriate legal precedents, concluded that the mother failed to demonstrate a real advantage to moving to Georgia since (1) the move would provide her with no financial benefit, and she had no firm employment there; (2) "[t]he Mother never stated either to the GAL or to [the] Court that the reason for the move was to be with her new husband"; (3) "both [the] Mother and [her new husband] testified that they would be willing to move to Massachusetts if [the] Mother's request to move the children was denied"; and (4) "[the new husband] would likely find employment in Massachusetts as a graphic designer and ... his income would be greater in Massachusetts than in Georgia." Compare Cartledge v. Evans, 67 Mass. App. Ct. 577 , 580 (2006) (move offered mother free lodging, the companionship of family, and readily available child-care assistance from family, while she looked for and established herself in a suitable job). Compare also Williams v. Pitney, 409 Mass. 449 , 456 (1991) (move would result in emotional support from relatives and friends and better employment prospects for mother); Vertrees v. Vertrees, 24 Mass. App. Ct. 918 , 919 (1987) (move would be to the advantage of the mother emotionally, socially and financially). We need not decide this issue because the second inquiry under Yannas is dispositive.

Under Yannas the judge must also determine whether removal from the jurisdiction is in the best interests of the children. Yannas, supra. "An evaluation of the best interests of the child requires attention to whether the quality of the child's life may be improved by the change (including any improvement flowing from an improvement in the quality of the custodial parent's life), the possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent, and the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child." Yannas, supra.

"If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively." Yannas, supra at 711712. See Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 267268 (2001). At this second stage "[e]very person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding...." Yannas, supra at 712.

The judge concluded that relocation by the mother to Georgia would not be in the best interests of the children. She based her conclusion on her findings that the move would not result in an improvement in the life of the mother that would inure to the children's benefit and that separating the children from their father would have a negative effect on their emotional and developmental needs. [Note 3] The judge also found that the mother's motive, in some measure, was to deprive the father of meaningful contact with the children. [Note 4]

On the record before us, it appears that there was no error by the judge in her balancing of interests and her determination that removal was not appropriate.

Domestic abuse. The mother contends that the judge erred in failing to consider the seriousness of the past domestic abuse by the father in determining whether the requested removal was in the best interest of the children. [Note 5] The judge found that there was a single incident of domestic violence by the father in front of the children. Evidence of the incident was presented fully to the court and, indeed, addressed by both the GAL and the father's expert, Dr. Daniels. The judge noted that if domestic violence exists in a family on a continual basis, it would be unhealthy, but, here the father admitted his misdeed with appropriate contrition, and the problem subsided. The judge made findings regarding this issue, concluding that "there was no evidence presented, nor any reported by the GAL, that the children suffer from any adverse effects from the single incident of domestic violence witnessed between the parents.... [T]hese children did not live in an environment of domestic violence. They witnessed an incident between their parents when they were young, after which the father was immediately contrite and accepted full responsibility for his actions." Such findings are sufficient.

Findings relating to the mother. Finally, the mother argues that the judge abused her discretion by failing to make findings as to the mother's relationship to the children. On closer inspection, the argument appears to be that the judge erred in failing to make findings which would have been favorable to her and unfavorable to the father. However, the judge had no obligation to believe any particular witness and it was up to her to decide on the credibility of witnesses and the weight to be given to their testimony. Care & Protection of Three Minors, 392 Mass. 704 , 711 (1984); Bak v. Bak, 24 Mass. App. Ct. 608 , 616 (1987).

Judgment affirmed.

FOOTNOTES

[Note 1] . Among other things, the mother claimed that housing was less expensive in Georgia, heating costs were lower, inexpensive private schooling was available, and her job prospects were better than in Massachusetts.

[Note 2] . The parties have not provided the court with a complete transcript; instead, they have submitted transcript excerpts that purport to support their respective positions. Accordingly, we are unable to conclude that any of the judge's findings is clearly erroneous. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807 , 811 (1992); Cameron v. Carelli, 39 Mass. App. Ct. 81 , 84 (1995).

[Note 3] . The judge's decision comes perilously close to giving too much reliance on the race of the parties in determining the outcome of the modification.

[Note 4] . See findings 4953 in which the judge found that the mother does not encourage participation by the father in any decision making regarding the children; has excluded the father from decision making about the children's schooling and extracurricular activities; initiated a schedule change to eliminate Thursday overnight visits that the father had with the children; insisted that the father call the children only during the same half hour each evening, and failed to inform the father that the son was seeing a therapist.

[Note 5] . The mother did not cite domestic violence as a basis for her request for removal; therefore the proper application of the evidence regarding domestic violence is in determining the best interests of the child. See Yannas v. FrondistouYannas, 395 Mass. at 711.