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
22-P-1003
DANIEL TUREK
vs.
JENNIFER WALLACE. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (mother) appeals from a divorce judgment of
the Probate and Family Court in which she challenges the judge's
award to the plaintiff (father) of sole legal and physical
custody of their two minor children, the attendant parenting
plan, and the division of property. She also challenges the
judge's failure to award her alimony. Determining no error of
law or abuse of discretion, we affirm. 2
1 Formerly known as Jennifer Turek.
2The parties have informed us that, after the judgment nisi entered and pending resolution of this appeal, father with permission filed a modification complaint seeking, among other things, leave to remove the children from the Commonwealth. It also is our understanding that temporary orders have entered in this regard provisionally granting father's request pending a full hearing on the merits. Those temporary orders are not before us and we need not discuss them further. Discussion. 1. Child custody. We review custody
determinations for an abuse of discretion. See Schechter v.
Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody
matters, the touchstone inquiry [is] . . . what is 'best for the
child.'" Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting
Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208,
§ 28. "The 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.'" Hunter, supra, quoting Custody of Kali, supra at 845.
Here, the judge found that "[c]ommunication between the
parties is fraught with accusation and insult," the "distrust
that has developed between the parties [had risen] to such an
extent that making joint decisions is difficult," and "the
parties have a current inability to negotiate decision making."
The judge went on to find that if "the parties retained joint
legal custody, there is a strong likelihood that insurmountable
conflicts will arise leading to stalemates in important
decisions involving the children" and that this "inability to
negotiate will adversely impact the children." These findings
sufficed to warrant sole custody in one parent. See O'Connell
v. Greenwood, 59 Mass. App. Ct. 147, 155 (2003) (order for joint
custody "cannot succeed without a true commitment to
collaboration").
2 As to the decision regarding which parent, the judge found
that the mother, when placed in stressful situations, "tends to
lash out without thinking about the ramifications of her
behavior on the children" and that the mother's "reactions are
disproportionate to the issue at hand and occur without being
aware that her behavior causes further upset to the children."
The judge further found that the mother "has sought to limit or
restrict Father's access" to the children and that if she had
primary custody "there is a high probability she would
marginalize Father's role." On the other hand, the judge found
that the father "has been able to provide a stable and nurturing
home for the children," that he "supports their education and
meets their physical and emotional needs," and that he "supports
the children's relationship with Mother." These findings
sufficed to warrant sole custody being awarded to the father.
See Malachi M. v. Quintina Q., 483 Mass. 725, 740-741 (2019)
(whether one parent seeks to undermine relationship child has
with other parent factor to be considered in custody
determination).
On appeal, the mother contends that the judge erred in
granting the father sole legal and physical custody of the
children because the judge was biased in favor of the father and
did not consider the mother's historical role as primary
caretaker. As set forth in his decision, the judge explicitly
3 acknowledged that the mother had been the primary caretaker of
the children during the marriage. Nevertheless, due to the
mother's inability to manage the responsibility of the children
in a manner consistent with their best interests and her stated
desire that the father should have only "'minimal' time with the
children," the judge determined that the father should have sole
legal and physical custody. See Custody of Zia, 50 Mass. App.
Ct. 237, 242-243 (2000) (no presumption that primary caregiver
be awarded custody). The mother has not demonstrated that the
judge's findings were without support in the record. 3 As the
judge's detailed and well-reasoned decisional memorandum makes
clear, the rulings in favor of the father were grounded in the
evidence, rather than in any bias. 4
3 The mother does contend that the judge erred in concluding that she used the father's sabbatical as a way to escape the marriage and reinvent herself when "it is the Father who has done this and there is overwhelming evidence to support" the mother's assertion. As the father's teaching sabbatical, involving his move to France on a Fulbright scholarship, was a turning point in the parties' marriage, a significant amount of the trial revolved around it. The mother contended that the father abandoned the family and left them homeless. The judge did not credit her version of the events and instead determined that the mother manipulated the situation for her own purposes; he further set forth subsidiary findings supporting his conclusion. As these findings are all supported in the record, we will not disturb the judge's conclusion reasonably deriving from them. See Hunter, 463 Mass. at 494.
4 As evidence of bias, the mother points to the judge's failure to reprimand the father for his bad behavior and instead to make rulings in his favor. But the judge did make note of the father's improper conduct including his diversion of funds
4 2. Parenting plan. A judge has significant discretion in
formulating a parenting plan, and we will not disturb a judge's
order absent an abuse of discretion. See Prenaveau v.
Prenaveau, 81 Mass. App. Ct. 479, 486 & n.11 (2012); B.B.V. v.
B.S.V., 68 Mass. App. Ct. 12, 18-19 (2006). See also G. L.
c. 208, § 28. Here, notwithstanding the award of sole legal
custody to the father, the judge allowed the mother to have
access to all "medical, dental, mental health and educational
records" of the children. And notwithstanding the award of sole
physical custody to the father, the judge set forth a parenting
plan for the mother that included parenting time every other
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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
22-P-1003
DANIEL TUREK
vs.
JENNIFER WALLACE. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (mother) appeals from a divorce judgment of
the Probate and Family Court in which she challenges the judge's
award to the plaintiff (father) of sole legal and physical
custody of their two minor children, the attendant parenting
plan, and the division of property. She also challenges the
judge's failure to award her alimony. Determining no error of
law or abuse of discretion, we affirm. 2
1 Formerly known as Jennifer Turek.
2The parties have informed us that, after the judgment nisi entered and pending resolution of this appeal, father with permission filed a modification complaint seeking, among other things, leave to remove the children from the Commonwealth. It also is our understanding that temporary orders have entered in this regard provisionally granting father's request pending a full hearing on the merits. Those temporary orders are not before us and we need not discuss them further. Discussion. 1. Child custody. We review custody
determinations for an abuse of discretion. See Schechter v.
Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody
matters, the touchstone inquiry [is] . . . what is 'best for the
child.'" Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting
Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208,
§ 28. "The 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.'" Hunter, supra, quoting Custody of Kali, supra at 845.
Here, the judge found that "[c]ommunication between the
parties is fraught with accusation and insult," the "distrust
that has developed between the parties [had risen] to such an
extent that making joint decisions is difficult," and "the
parties have a current inability to negotiate decision making."
The judge went on to find that if "the parties retained joint
legal custody, there is a strong likelihood that insurmountable
conflicts will arise leading to stalemates in important
decisions involving the children" and that this "inability to
negotiate will adversely impact the children." These findings
sufficed to warrant sole custody in one parent. See O'Connell
v. Greenwood, 59 Mass. App. Ct. 147, 155 (2003) (order for joint
custody "cannot succeed without a true commitment to
collaboration").
2 As to the decision regarding which parent, the judge found
that the mother, when placed in stressful situations, "tends to
lash out without thinking about the ramifications of her
behavior on the children" and that the mother's "reactions are
disproportionate to the issue at hand and occur without being
aware that her behavior causes further upset to the children."
The judge further found that the mother "has sought to limit or
restrict Father's access" to the children and that if she had
primary custody "there is a high probability she would
marginalize Father's role." On the other hand, the judge found
that the father "has been able to provide a stable and nurturing
home for the children," that he "supports their education and
meets their physical and emotional needs," and that he "supports
the children's relationship with Mother." These findings
sufficed to warrant sole custody being awarded to the father.
See Malachi M. v. Quintina Q., 483 Mass. 725, 740-741 (2019)
(whether one parent seeks to undermine relationship child has
with other parent factor to be considered in custody
determination).
On appeal, the mother contends that the judge erred in
granting the father sole legal and physical custody of the
children because the judge was biased in favor of the father and
did not consider the mother's historical role as primary
caretaker. As set forth in his decision, the judge explicitly
3 acknowledged that the mother had been the primary caretaker of
the children during the marriage. Nevertheless, due to the
mother's inability to manage the responsibility of the children
in a manner consistent with their best interests and her stated
desire that the father should have only "'minimal' time with the
children," the judge determined that the father should have sole
legal and physical custody. See Custody of Zia, 50 Mass. App.
Ct. 237, 242-243 (2000) (no presumption that primary caregiver
be awarded custody). The mother has not demonstrated that the
judge's findings were without support in the record. 3 As the
judge's detailed and well-reasoned decisional memorandum makes
clear, the rulings in favor of the father were grounded in the
evidence, rather than in any bias. 4
3 The mother does contend that the judge erred in concluding that she used the father's sabbatical as a way to escape the marriage and reinvent herself when "it is the Father who has done this and there is overwhelming evidence to support" the mother's assertion. As the father's teaching sabbatical, involving his move to France on a Fulbright scholarship, was a turning point in the parties' marriage, a significant amount of the trial revolved around it. The mother contended that the father abandoned the family and left them homeless. The judge did not credit her version of the events and instead determined that the mother manipulated the situation for her own purposes; he further set forth subsidiary findings supporting his conclusion. As these findings are all supported in the record, we will not disturb the judge's conclusion reasonably deriving from them. See Hunter, 463 Mass. at 494.
4 As evidence of bias, the mother points to the judge's failure to reprimand the father for his bad behavior and instead to make rulings in his favor. But the judge did make note of the father's improper conduct including his diversion of funds
4 2. Parenting plan. A judge has significant discretion in
formulating a parenting plan, and we will not disturb a judge's
order absent an abuse of discretion. See Prenaveau v.
Prenaveau, 81 Mass. App. Ct. 479, 486 & n.11 (2012); B.B.V. v.
B.S.V., 68 Mass. App. Ct. 12, 18-19 (2006). See also G. L.
c. 208, § 28. Here, notwithstanding the award of sole legal
custody to the father, the judge allowed the mother to have
access to all "medical, dental, mental health and educational
records" of the children. And notwithstanding the award of sole
physical custody to the father, the judge set forth a parenting
plan for the mother that included parenting time every other
weekend and a "telephone or video conference with the children
every other night when the Children are with the Father," as
well as a holiday schedule.
On appeal, the mother argues that the plan, which requires
that she travel from her home on Cape Cod to the father's home
in the Berkshires in order to pick up and drop off the children,
just prior to filing for divorce, dishonesty with the mother during the marriage, infidelity during the marriage, and tracking of the mother so he could engage in this infidelity. The judge determined, however, that these behaviors did not have a causal connection to the father's ability to care for the children. See Custody of Zia, 50 Mass. App. Ct. at 243-244 (no abuse of discretion in award of sole legal and physical custody to father even though mother had obtained several abuse prevention orders against him, where judge determined prior history did not detract from father's current ability to care for children).
5 see note 2, supra, unreasonably burdens her and interferes with
her employment, located at Woods Hole, which involves going out
to sea for weeks at a time during the summer. Although there
was evidence that summer cruises gave the mother the opportunity
to earn extra income, it was not required by her employment.
And although travel between essentially opposite ends of the
state is undeniably taxing, the judge found that the mother
created the difficult scenario by moving far away from the
family home. Under the circumstances, it was not unreasonable
for the judge to have put the onus of travel on the mother.
3. Property division. General Laws c. 208, § 34, governs
the division of property in divorce cases and provides for
various factors which the court is bound to consider. The
ultimate goal of the statute is to effectuate an equitable,
rather than equal, division of property. See Williams v. Massa,
431 Mass. 619, 626 (2000). As long as the judge's findings
reflect that "all relevant factors in § 34 were considered, and
the reasons for the judge's conclusion are apparent and flow
rationally from the findings and rulings, a judge's
determination on the equitable division of marital property will
not be disturbed." Id. at 631. On appeal, the mother claims
that the judge unjustifiably awarded the father a
disproportionately greater amount of the marital assets but she
fails to support this in the record. The judge's decision
6 reflects consideration of all of the relevant factors and the
exhibit provided by the judge to illustrate the distribution
shows that he achieved an equal rather than disproportionate
division.
Although the mother makes a number of complaints about the
judge's treatment of various assets, they are without citation
to the record or legal authority and we are otherwise unable to
substantiate them. To the extent that the mother complains of
assets accrued prior to marriage and those acquired individually
through family gift as being considered marital property, a
judge has the authority to do this. See Connor v. Benedict, 481
Mass. 567, 577 (2019) (retirement funds accrued prior to
marriage properly considered part of marital estate); Williams,
431 Mass. at 625-627 (property acquired by individual through
inheritance could properly be considered marital property). To
the extent that the mother complains about the lack of clarity
regarding the father's finances, she has failed to point to any
erroneous ruling which may have prevented her from obtaining
discovery to which she was entitled. See Sahin v. Sahin, 435
Mass. 396, 404 (2001) (party could not complain about lack of
financial disclosure where available discovery methods not
pursued). The mother has failed to show that the judge failed
to achieve an equitable distribution of property or otherwise
7 abused discretion. See Warnajtys v. Warnajtys, 97 Mass. App.
Ct. 690, 692 (2020).
4. Alimony. Finally, the mother complains of the judge's
decision not to award alimony.
"A judge has broad discretion when awarding alimony under the Alimony Reform Act (act), G. L. c. 208, §§ 48-55. In reviewing both the form and the amount of an award of alimony, we examine a judge's findings to determine whether the judge considered all the relevant factors under G. L. c. 208, § 53 (a), and whether the judge relied on any irrelevant factors. Despite the many changes brought about by the act, it did not alter the principle that the central issue relevant to a financial award is the dependent spouse's need for support and maintenance in relationship to the respective financial circumstances of the parties" (citations and quotations omitted).
Calvin C. v. Amelia A., 99 Mass. App. Ct. 714, 718 (2021).
Here, the judge's decision reflects that he did consider
all the relevant factors and did not rely on any irrelevant
factor. For example, he took into consideration the parties'
education and skills, employment history and future prospects,
current assets and liabilities as well as future ability to
acquire assets and income, the parties' lifestyle during the
marriage and the parties' current and future needs. In the end,
he determined that both parties were able to meet their
reasonable needs through earned income and that neither party
required contribution from the other. Therefore, an award of
alimony was not required.
8 The mother nonetheless contends that she was entitled to
alimony as compensation for her primary role in caring for the
children at the expense of career advancement. But she has
failed to show that an award of alimony was necessary for her to
maintain her premarital lifestyle or that the father had the
ability to pay any such alimony. Under the circumstances, the
mother has failed to show that the judge abused discretion.
Zaleski v. Zaleski, 469 Mass. 230, 235 (2014) (judge has broad
discretion in awarding alimony under statute).
The mother's request for compensation for her time and
expense associated with the appeal and the father's request for
appellate attorney's fees are both denied.
Judgment affirmed.
By the Court (Vuono, Singh & Englander, JJ. 5),
Assistant Clerk.
Entered: May 8, 2024.
5 The panelists are listed in order of seniority.