Ardizoni v. Raymond

667 N.E.2d 885, 40 Mass. App. Ct. 734, 1996 Mass. App. LEXIS 737
CourtMassachusetts Appeals Court
DecidedJuly 18, 1996
DocketNo. 95-P-1314
StatusPublished
Cited by25 cases

This text of 667 N.E.2d 885 (Ardizoni v. Raymond) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ardizoni v. Raymond, 667 N.E.2d 885, 40 Mass. App. Ct. 734, 1996 Mass. App. LEXIS 737 (Mass. Ct. App. 1996).

Opinion

Ireland, J.

Jeanne M. Ardizoni (wife) and Dana M. Raymond (husband) were married in 1984, and, in the same year, became the parents of identical twin girls, Rebecca and Mary (pseudonyms). They separated in March, 1993, because of serious problems in the marriage, and the husband filed a complaint for divorce in April of that year. In February, 1994, a judgment of divorce entered under G. L. c. 208, § IB, but, two months later, the wife filed a complaint with the Probate & Family Court to modify the physical custody provisions of that judgment. The husband has appealed from the resulting order. The single issue presented is whether it was [735]*735error for the judge to separate the parties’ identical eleven year old female twins and to award each parent physical custody of one child. From the record before us, we conclude that it was. We vacate the order and remand the matter for further proceedings on the issue of physical custody.

Factual background. In April, 1993, the Department of Social Services (DSS) became involved in the custody issue because of concerns it had over the mother’s fitness to care for the twins. The concerns were prompted in large part by the mother’s history of drug abuse. As a result, the father was given temporary physical custody of the children. By order dated August 11, 1993, the probate judge who would later hear the divorce complaint decided that the father should retain physical custody of the children and that the mother’s visits with them would be supervised.1

The judgment of divorce incorporated and merged the parties’ separation agreement, including their stipulation to joint legal custody of the children, with physical custody remaining with the father for the ensuing three months, subject to the mother’s visitation rights. The stipulation also provided that joint physical custody would be transferred to both parents without requiring a petition for modification, so long as the mother’s visitation with the twins “has gone well.”

In April, 1994, the mother filed a complaint for modification of the decree, seeking sole physical custody of the children. Her complaint alleged a material change in circumstances: the twins had been placed “in physical and emotional danger in their father’s home due to the presence of their father’s oldest child [by a previous marriage], a son . . . who has recently been arrested for use of a firearm and committed to a mental hospital.” In December, 1994, the parties stipulated that, commencing in January, 1995, each parent would have physical custody of both children for alternating two-week periods and that, when the twins were staying with the father, his oldest son would not be left alone with them. The stipulation was to govern only while the complaint for modification was pending. On February 14, 1995, the date scheduled for a full hearing on the mother’s complaint for modification, the judge (with the apparent blessing of both parties’ counsel) interviewed the girls in his chambers outside [736]*736the presence of counsel and discussed with them their particular preferences about which parent they might wish to live with. Thereafter, the judge brought the twins into the courtroom for an informal hearing on the record, during which Rebecca said, “I want to try it [living] with my mother!”

Based primarily upon Rebecca’s stated wish to live with her mother on a temporary experimental basis, and upon Mary’s stated wish to remain with her father, as well as the mother’s successful efforts at rehabilitation, the judge issued a temporary order placing Rebecca with the mother. As before, Mary continued to live with the father. In issuing the order, the judge emphasized that the girls would continue to attend the same school, at least through June, 1995, and that they would be together during visits with each parent. The matter was continued for a further hearing four months hence. A guardian ad litem (G.A.L.) was appointed to investigate the matter and to report back to the court.

A three-day trial on the wife’s complaint for modification took place June 13, 1995, through June 16, 1995, during which the judge heard detailed testimony from the G.A.L., Dr. Vickie Lyall, focusing in particular upon a 29-page report that she had submitted to the court. The judge also heard testimony from the twins’ school guidance counselor, 2 from Mary’s therapist,3 from the mother’s clinical social worker, from the parties themselves, and from others.4 Several days after the trial, the judge spoke with Rebecca in the privacy of his chambers concerning her thoughts about her situation and her preferences as to where she should live.

On June 28, 1995, the judge issued written findings and rulings together with a transcript of the informal hearing that had taken place February 14, 1995. On October 10, 1995, he issued supplementary findings. In an order captioned, “Temporary Orders as Modified,” the judge continued the children’s separate living arrangements for an additional year by awarding physical custody of one twin to each parent. [737]*737Thereafter, a single justice of this court, acting upon the father’s petition for interlocutory relief, entered an order noting that, despite its caption, the “temporary” orders amounted to a final order in the wife’s complaint for modification of custody. The single justice certified the matter for argument before a full panel. In addition to the usual record from the proceedings below, the Probate Court has also forwarded to us a sealed and impounded copy — unseen by counsel — of the judge’s notes from his June 19, 1995, interview with Rebecca.

At oral argument on May 7, 1996, the parties reported to us that Rebecca continues to reside with her mother, while Mary continues to live with her father. Reportedly, the twins are doing satisfactorily in their respective placements. The twins are enrolled in the same school system, but since September, 1995, have attended different elementary schools. They visit on alternate weekends with each parent. Thus far, however, Mary has refused to remain overnight at her mother’s home during her visits there.

Discussion. The father claims that the judge’s order is clearly erroneous and not supported by evidence and that the overwhelming evidence was in favor of maintaining the twins under one roof. He contends that the judge placed too much emphasis upon the children’s preferences as stated to him during his private discussions with them. Given Mary’s purported refusal to live with the mother, the father argues that the only practical way of keeping the twins together is for the court to give him physical custody of both children.

General Laws c. 208, § 28, as amended through St. 1993, c. 460, enables a Probate Court judge, upon finding that “a material and substantial change in the circumstances of the parties has occurred” to modify an earlier divorce judgment concerning the custody arrangements of minor children, where the modification “is necessary in the best interests of the children.” See Hartog v. Hartog, 27 Mass. App. Ct. 124, 128 (1989), and cases cited. “In determining whether there has been a material change in the parties’ circumstances, the probate judge must weigh the relevant circumstances; the resolution of the various factors rests within the judge’s sound discretion. . . . Unless there is no basis in the record for the judge’s decision, we defer to the judge’s evaluation of the evidence presented at trial.” Bush v. Bush,

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Cite This Page — Counsel Stack

Bluebook (online)
667 N.E.2d 885, 40 Mass. App. Ct. 734, 1996 Mass. App. LEXIS 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ardizoni-v-raymond-massappct-1996.