Alyssa Erhartic v. Christian Erhartic.

• Court: Massachusetts Appeals Court
• Decided: July 26, 2024
• Docket: 23-P-1221
• Status: Unpublished

Opinion

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-1221

ALYSSA ERHARTIC

vs.

CHRISTIAN ERHARTIC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On appeal from a modification judgment, the plaintiff,

Alyssa Erhartic (mother), contends that a judge of the Probate

and Family Court erred by ordering continued shared legal

custody, appointing a parent coordinator, and requiring her to

pay child support to the defendant, Christian Erhartic (father).

We affirm.

Background. On April 19, 2016, the parties filed a joint

petition for divorce, and a judgment of divorce nisi entered on

May 19, 2016. That judgment incorporated a separation agreement

that included provisions related to their three year old child

merging with the judgment. By agreement, the parties maintained joint legal custody of the child, with neither parent paying

child support, and established a detailed parenting plan.

On July 6, 2020, the mother filed a complaint for

modification seeking, among other things, sole legal custody, an

adjustment in parenting time, and child support. The father

answered and filed a counterclaim seeking, among other things,

legal and physical custody and child support. Following a trial

involving five witnesses, including a guardian ad litem (GAL),

and 108 exhibits, the judge issued a judgment of modification as

well as detailed findings of fact and rationale. The judge

concluded, "I do not find a material and substantial change in

circumstances and that it would be in [the child's] best

interests to grant either party's request for sole legal or sole

physical custody." The judge entered a child support order "in

accordance with the guidelines" and concluded that it was

"imperative" that the parties continue to work with the

parenting coordinator as agreed. The mother now appeals.

Discussion. "[T]he court may make a judgment modifying its

earlier judgment as to the care and custody of the minor child[]

of the parties provided that the court 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 child[]." G. L. c. 208, § 28. "[I]n

2 reviewing the ultimate determination on custody and visitation,

we consider whether there was an abuse of discretion in how the

judge accounted for the child's best interests." Schechter v.

Schechter, 88 Mass. App. Ct. 239, 245 (2015). "[A] judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made 'a clear error of judgment in

weighing' the factors relevant to the decision." Id., quoting

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

discern no error.

The record shows that the judge carefully considered the

parties' relationships with the child as well as the child's

educational needs and physical, emotional, and mental health.

See G. L. c. 208, § 31. As the judge found, the father's

conduct was at times "unhelpful and stressful" to the mother,

delayed the child from receiving special education services,

slowed a productive decision-making process regarding the

child's needs, and caused the child "undue stress and worry."

Despite the father's shortcomings, "the parties have been able

to make joint decisions for [the child] albeit with some delay

at times." The parties have been able to reach agreements

regarding the child "on all major issues." "Overall [the child]

has done well under the current parenting plan. He transitions

easily between the homes, and is overall happy and well

3 adjusted." "In these circumstances, there was no change 'of

sufficient magnitude' warranting a modification of joint legal

custody." Corte v. Ramirez, 81 Mass. App. Ct. 906, 908 (2012),

quoting Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220

(2002).

The mother contends that the judge applied the wrong legal

standard and further contends that the judge's conclusion about

insufficient changed circumstances is inconsistent with the

findings of fact that show the father was responsible for the

parties' dysfunctional relationship that was marked by

continuous conflict. To the contrary, the judge applied the

correct standard and exercised her discretion in determining

that joint custody continues to be the best path for

safeguarding the happiness and welfare of the child. See Carr

v. Carr, 44 Mass. App. Ct. 924, 924 (1998) (custody decision

"rests within the discretion of the trial judge"). We also note

that the judge rejected some of the GAL's harshest criticism of

the father and credited evidence showing that the father

demonstrated self-awareness of his shortcomings and made

significant efforts through therapy and medication to modify his

behavior. See Mason v. Coleman, 447 Mass. 177, 186 (2006)

(judge is not obliged to accept views of GAL). The judge also

found that the "parties are able to communicate about [the

4 child] and make decisions for him," and the judge specifically

rejected any suggestion that the parties had an inability to

communicate or reach decisions in the child's best interest.

While the mother continues to view the evidence very differently

than the trial judge, we defer to the judge's assessment of this

evidence.

As her extensive and detailed findings show, the judge did

not condone, minimize, or overlook the father's conduct. "The

judge properly recognized that the present case was not about

punishing a party for past bad behavior, but was about deciding

what was best for the child[] going forward." K.A. v. T.R., 86

Mass. App. Ct. 554, 565 (2014). Nevertheless, the judge's

rationale makes clear that more is expected from the father

going forward. In particular, the judge noted that the father

"intends to continue in treatment" for his problematic

behavioral issues, and it is not in the child's best interest

"to keep his activities, friends and personal belongings in

Concord separate from those in Chelmsford." If shared physical

custody is to continue as the child grows older, the father

needs to accept the child's important social relationships in

Concord (with the mother) as well as in Chelmsford (with the

father).

5 We also disagree with the mother's contention that the

judge lacked authority to require the parties to pay for a

parenting coordinator. A Probate and Family Court judge has the

"inherent authority" to appoint a parenting coordinator, but

requiring the parties to pay for the services of the coordinator

is not permitted without their consent. Bower v. Bournay-Bower,

469 Mass. 690, 698, 707 (2014). The record shows that the

parties consented. Through a stipulation dated September 30,

2022, the parties agreed to "employ" the services of a parenting

coordinator "until such time as the Court issues a final

Judgment of Modification in this matter, which does not

incorporate the present terms of this Stipulation." The

modification judgment here incorporated the terms of the

stipulation. We do not read any terms of the stipulation as

6 limiting the parties' consent to a particular time frame as the

mother asserts in her brief.

Modification judgment affirmed.

By the Court (Milkey, Hodgens & Toone, JJ.1),

Clerk

Entered: July 26, 2024.

1 The panelists are listed in order of seniority.