Amy Pawle v. Sean Donovan.

• Court: Massachusetts Appeals Court
• Decided: December 5, 2024
• Docket: 23-P-1355
• Status: Unpublished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-1355

AMY PAWLE

vs.

SEAN DONOVAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Appellant, Sean Donovan (father),1 and Appellee, Amy Pawle

(mother), were briefly married before divorcing in December

2019.2 The parties have one child together, who was born about a

month after the parties were married. The divorce judgment,

which incorporated the parties' separation agreement dated

December 17, 2019, provided for joint legal custody but awarded

primary physical custody to the mother. The judgment also

provided the father parenting time every Monday morning through

1 The father is a pro se litigant.

2The parties were married on July 8, 2018, and last lived together on February 15, 2019. Tuesday afternoon, and every Thursday morning through Friday

afternoon. No child support was ordered.

In January 2022, the mother filed complaints for

modification and contempt.3 In response, the father filed a

counterclaim for modification the following month.4 Following a

nonconsecutive three-day trial, from October 2022 to February

2023, the judge issued modification and contempt judgments that

granted the mother sole legal and physical custody, ordered the

father pay retroactive and prospective child support, modified

the father's parenting time, and found the father in contempt of

the separation agreement. The father now appeals from both the

modification and contempt judgments. We affirm the contempt

3 In her complaint for modification, the mother sought the following: (1) sole legal custody; (2) a modification of the father's parenting time in accordance with the child's best interests; (3) an order requiring the father to pay child support in an amount deemed appropriate under the child support guidelines; and (4) any other orders deemed appropriate.

4 In his counterclaim, the father sought the following: (1) sole legal custody; (2) a modification of his parenting time to include Sunday evenings; (3) an inclusion of a provision within the agreement providing for parenting time past age five; (4) an order requiring the mother to pay child support in the amount of $200 per week, or whatever the court should decide; (5) an order stipulating that no parenting time shall be passed off to a third person without the written permission of the other parent; (6) an order that all decisions that pertain to "optional actions or activities," including preschool and optional medical or dental visits, shall only be "imposed upon" the child if both parents agree; (7) an order that the mother pay for the father's legal expenses should he require counsel; and (8) the removal of "unreasonable requirements" such as the parties' agreement to follow the American Academy of Pediatrics' recommendations.

2 judgment. With respect to the modification judgment, we vacate

so much of the judgment as pertains to the father's parenting

time and remand the case for further proceedings consistent with

this memorandum and order. The modification judgment is

otherwise affirmed.

Discussion. 1. Custody and parenting time. To support

modification of child custody or parenting time "the [mother]

must first establish that a material and substantial change in

circumstance has occurred to warrant a change . . . and that the

change is in the child's best interests." See E.K. v. S.C., 97

Mass. App. Ct. 403, 408 (2020); see also G. L. c. 208, § 28.

"[T]he best interests analysis is a child-centered one that

focuses on the specific needs and interests of a child and how

these might best be met." Charara v. Yatim, 78 Mass. App. Ct.

325, 336 (2010). "In custody matters, the touchstone inquiry

[is] . . . what is best for the child, and [t]he determination

of which parent will promote a child's best interests rests

within the discretion of the judge . . . [whose] findings . . .

must stand unless they are plainly wrong" (quotations omitted).

Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019), quoting

Hunter v. Rose, 463 Mass. 488, 494 (2012). "[I]t 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." Imbrie v.

3 Imbrie, 102 Mass. App. Ct. 557, 571 (2023). The best interests

of a child "are likely better served by ending the joint

custodial arrangement," rather than "forcing the parties into a

cooperative relationship they appear incapable of maintaining."

O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 156 (2003).

We review the judge's decision for abuse of discretion or

clear error of law. Schechter v. Schechter, 88 Mass. App. Ct.

239, 245 (2015). In doing so, we defer to the judge's factual

findings, "absent a showing that they are plainly wrong or

clearly erroneous." Id.

Here, sufficient evidence was adduced at trial to support

the judge's conclusion that a change in circumstances warranted

granting sole legal custody to the mother, and that doing so was

in the child's best interests. See E.K., 97 Mass. App. Ct. at

408. The judge heard extensive testimony from the mother

detailing the challenges the parties have had making parenting

decisions due to the father's hostile communication style and

unilateral decision making. For example, the mother testified

that the father does not "accept any criticism [in regards to

parenting decisions] without then using abusive, belittling

language towards [her]." To support this claim, the mother

introduced text messages from the father reflecting his

antagonistic communication style. The mother further testified

that the father took issue with the child receiving routine

4 dental care such as X-rays to check for suspected cavities.5

When the child was referred to a pediatric dentist, the father

notified the dentist's office that the parties were involved in

a custody dispute, resulting in the dentist cancelling the

child's appointment and the mother having to find a different

dentist for the child. Additionally, the father unenrolled the

child from preschool even though the separation agreement did

not give the father the authority to do so.

The judge also considered the written psychological

evaluation of the father conducted by a clinical psychologist6 as

well as the psychologist's corresponding testimony. The

psychologist concluded that the father suffers from paranoid

ideation, delusional thinking, and demonstrated "significant

scores" of self-importance and dominance which are traits

5 The father argues he suffered a due process violation because the judge did not allow a "rebuttal witness" to testify regarding a statement made by the mother's attorney that he "grabbed the x-ray machine" away from a dental technician during the child's dental examination. However, the father admits that the judge did not permit the witness to testify because she was "not on the list" and we discern no abuse of discretion in the judge's decision. Commonwealth v. Hinds, 494 Mass. 681, 694 (2024) (holding judge's decision to exclude witness reviewed for abuse of discretion).

6 After the mother filed a motion to compel a psychiatric evaluation of the father the judge ordered a psychiatric evaluation of both parents. The results of the mother's evaluation were unremarkable.

5 associated with narcissistic personality disorder.7 The

psychologist testified that these traits would interfere with

the father's ability to work collaboratively with the mother to

make joint decisions about the child's medical care or

education.8 The psychologist ultimately concluded that the

father would benefit from mental health intervention, and

failure to treat his mental health challenges would negatively

impact the child's development.

As such, where the father's acrimonious communication style

and mental health challenges prevent the parties from making

joint decisions about their child's welfare, we discern no abuse

of discretion in the judge's decision to grant the mother sole

7 In her decision, the judge erroneously stated that the psychologist used the term "psychopath with sociopathic tendencies" to describe the father. However, the judge's conclusion that the mother should be granted sole legal custody, partly due to the father's mental health difficulties, was well supported by the psychologist's evaluation and her testimony.

8 The father asserts that the judge erred by certifying the psychologist as an expert and failed to assess the reliability of the methodology the psychologist used to evaluate the father under the Daubert-Lanigan standard. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994). However, where the judge heard testimony that the psychologist is appropriately educated and licensed in clinical psychology, has nearly thirty years of experience providing psychological testing, and employed a testing methodology that is accepted in Massachusetts courts, we discern no abuse of discretion in certifying the psychologist as an expert. See Commonwealth v. Javier, 481 Mass. 268, 285 (2019).

6 legal custody of the child. See Imbrie, 102 Mass. App. Ct. at

571; Schechter, 88 Mass. App. Ct. at 245.

The judge also determined that there was a material change

in circumstances sufficient to justify altering the father's

parenting time. For example, the judge found that because the

child is now attending school, the child would benefit from a

"more traditional" parenting schedule that provides the father

with parenting time on alternating weekends as well as afternoon

and evening time during the week.9 However, this new parenting

schedule results in an approximate one-third reduction in the

father's parenting hours over a two-week period.10 While we

agree that the judge was justified in altering the father's

parenting schedule in consideration of the child's need to

attend school, the judge's findings were insufficient to justify

such a significant reduction in the father's total parenting

hours. Indeed, while the judge determined that the father is

"overwhelmingly possessive" of the child and fails to understand

that the child requires separation from each parent to become

9 Under the former parenting schedule, the father's parenting time largely overlapped with school hours.

10For example, while the separation agreement provides the father with one hundred thirty-two hours of parenting time over a two-week period, the new schedule provides the father with approximately eighty-five hours of parenting time over the same period with moderate variations if the child does not have school or camp on a given weekday.

7 independent and develop,11 the judge did not explicitly justify

the reduction in parenting time on this basis. See E.K., 97

Mass. App. Ct. at 408. Therefore, because it is unclear that

the child's school attendance necessitates a significant

reduction in the father's parenting hours, we vacate the so much

of the modification judgment as it relates to the father's

parenting time, and remand for further findings and a

redetermination of the father's parenting time in light of such

further findings.12

2. Child support. "[M]odification [of child support] is

presumptively required whenever there is an inconsistency

between the amount of child support that is to be paid under the

existing support order and the amount that would be paid under

the [Child Support Guidelines (guidelines)]." Morales v.

Morales, 464 Mass. 507, 511 (2013). See Cavanagh v. Cavanagh,

490 Mass. 398, 423 n.22 (2022).13 See also G. L. c. 208, § 28;

11This finding was supported by the psychologist's evaluation and testimony.

12Throughout his brief, the father argues that the judge erred in assessing the credibility of various witnesses, including the mother and the psychologist. However, a credibility assessment is "quintessentially the domain of the trial judge . . . [and] is close to immune from reversal." Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995). We find no reason to upset the judge's assessments here.

13Because the parties' combined available income does not exceed $400,000 (the current maximum combined available income amount under the guidelines), see Child Support Guidelines

8 Child Support Guidelines § III (Aug. 2021). Moreover, "[t]o the

extent possible, and consistent with common sense and justice,

the modified judgment should take into account the earlier,

expressed desires of the parties" as set forth in their

separation agreement. Katzman v. Healy, 77 Mass. App. Ct. 589,

598 (2010), quoting Bercume v. Bercume, 428 Mass. 635, 644

(1999). See Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct.

525, 526-527 & n.1 (2016) (when modifying child support pursuant

to Morales inconsistency standard, judge should also consider,

to extent possible, parties' intentions set forth in separation

agreement).

Here, in her complaint for modification, the mother sought

child support from the father citing "a difference between the

amount of the existing child support order and the amount that

would result from the application of the Child Support

Guidelines," as well as the father's failure "to contribute to

the child's expenses as was contemplated by the parties when

agreeing to no specific order for child support." In their

separation agreement, the parties stated that "[n]either party

shall pay the other child support unless a change in

§ II(C)(2) (Aug. 2021), the "inconsistency" standard for modification applies. See Morales, 464 Mass. at 510 n.4 (inconsistency standard applies to modification of child support where parties' combined available income does not exceed maximum combined available income under guidelines).

9 circumstances takes place that warrants . . . modification." At

the time that the parties agreed to a zero dollar child support

order in the separation agreement, the 2018 guidelines were in

effect. At the time of the modification trial, the new 2021

guidelines were in effect. In attributing income to the father,

the judge found that the father has the capacity to earn

substantially more than what he claims to currently earn from

his bicycle shop and did not accept the father's rationale that

parenting the child prevents him from working full-time. The

judge found that the father was capable of working full-time in

a minimum wage position, in part because of the changed

parenting schedule necessitated by the child's new school

schedule. The judge used the father's attributed income to

calculate child support under the current 2021 guidelines,

resulting in a child support order of $100 per week, thus

reflecting an inconsistency with the previous zero dollar order

set forth in the parties' 2018 agreement. See Morales, 464

Mass. at 511. Accordingly, we discern no abuse of discretion in

the modification of child support. See Bobblis v. Costa, 94

Mass. App. Ct. 264, 266 (2018).

3. Contempt. The father submits that the contempt

judgment should be vacated because he did not disobey an

"unambiguous command" when he chose to unenroll the child from

preschool. He further argues that the judge erred by awarding

10 the mother attorney's fees in connection with the contempt

judgment. These arguments are also unavailing.

While it is true that "a civil contempt finding [must] be

supported by clear and convincing evidence of disobedience of a

clear and unequivocal command," such evidence exists here.

Birchall, petitioner, 454 Mass. 837, 853 (2009). The parties'

separation agreement lays out a clear decision-making structure

that the parties must follow if "there exists a conflict of

opinion . . . relative to a significant issue concerning the

minor child's education (including preschool selection) . . . ."

Under this structure, the mother must first notify the father in

writing of "each non-emergency decision the parties need to make

for the child." The father may then respond in writing with any

objections. If the parties still cannot agree, the separation

agreement gives the mother final decision-making authority.

Therefore, the father's unilateral decision to unenroll the

child from preschool was a clear and "unequivocal" violation of

the separation agreement. See Birchall, supra.

As such, we discern no abuse of discretion in the judge's

contempt order, or her decision to grant the mother legal fees

and costs associated with securing the contempt judgment.14 See

14The mother is also seeking attorney's fees in connection with this appeal. However, this request is denied. See John T. Callahan & Sons, Inc. v. Worcester Ins. Co., 453 Mass. 447, 449 (2009) (adopting "American Rule" which, in absence of statute or

11 Giannetti v. Thomas, 32 Mass. App. Ct. 960, 961 (1992) (finding

award of attorney's fees and costs in civil contempt case

properly left to judge's discretion).15

Conclusion. The contempt judgment, dated June 9, 2023, is

affirmed. So much of the modification judgment, dated June 9,

2023, as pertains to the father's parenting time is vacated, and

the case is remanded to the Probate and Family Court for further

proceedings consistent with this memorandum and order. The

modification judgment is otherwise affirmed. The parenting

schedule set forth in the modification judgment shall remain in

court rule, does not allow successful litigants to recover attorney's fees and expenses).

15The mother moved to strike portions of the record appendix submitted by the father that were not part of the lower court record. The father then moved to strike the mother's appellee brief, as well as the supplemental appendix in its entirety. After careful review, the mother's motion is allowed and the father's motion is denied. See Commonwealth v. Torres, 470 Mass. 1020, 1022 n. 3 (2014) (allowing motion to strike where materials were not part of record before trial court); see also Mass. R. A. P. 18, as appearing in 481 Mass. 1637 (2019).

12 effect as a temporary order during the pendency of the remand

unless the judge orders otherwise.

So ordered.

By the Court (Rubin, Desmond & Singh, JJ.16),

Clerk

Entered: December 5, 2024.

16 The panelists are listed in order of seniority.