Dickenson v. Cogswell

848 N.E.2d 800, 66 Mass. App. Ct. 442, 2006 Mass. App. LEXIS 596
CourtMassachusetts Appeals Court
DecidedJune 5, 2006
DocketNo. 05-P-543
StatusPublished
Cited by15 cases

This text of 848 N.E.2d 800 (Dickenson v. Cogswell) 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
Dickenson v. Cogswell, 848 N.E.2d 800, 66 Mass. App. Ct. 442, 2006 Mass. App. LEXIS 596 (Mass. Ct. App. 2006).

Opinion

Kafker, J.

The mother, the custodial parent, appeals from the denial of her request to remove the parties’ minor child to California, where the mother’s new husband had moved. As the family’s primary source of financial support, the mother planned to retain her job in Massachusetts and telecommute. She would spend three weeks out of every four in California and the remaining week in Massachusetts. Her alternative visitation plan included having her ten year old child take frequent overnight (“red eye”) flights to see his father, with whom he was close. The Probate and Family Court judge denied the removal request. We affirm.

[443]*4431. The judge’s findings, a. Background. The mother, Pamela Dickenson, and the father, W. Cleveland Cogswell, were married in 1986. Soon thereafter, the father adopted the mother’s ten year old son from a previous marriage. The parties subsequently had a second child together, a son bom in 1994. The younger child is the subject of this appeal.

“During [the child’s] early years, [the mother and father] were co-parents who shared child care responsibilities.”1 The mother would take the child to day care, while the father would pick him up from day care at about 5:30 p.m. and be responsible for him until the mother returned from work at around 7:00 p.m. From the time the parties separated in 1996 until their divorce in 1998, the parenting schedule remained the same.

In 1998, a probate judge granted the parties a judgment of divorce nisi. Hie judgment incorporated and merged the child-related provisions of the parties’ separation agreement and incorporated, but did not merge, the remaining provisions. The shared parenting section of the separation agreement provides that the mother and father would share legal custody of the child and that the mother would have physical custody. The agreement further provides that the father “shall have access to said child at all reasonable times and places, including but not limited to . . . one weekend each month; one Saturday each month; one overnight during the work week; the weekend after their son’s birthday; every Father’s Day; one full week during each of the following periods: January and May; June and September; and October and December (a total of three weeks); and additional times to assist the wife with her work schedule; and all holidays as agreed upon . . . .”

After their divorce, “the parties did not adhere to the parenting and visitation plan in their separation agreement. In practice, the parties were co-parents, engaging in good communication and exercising a flexible approach to visitation.” Beginning sometime in 2000, the father reduced his time with the child because of his increased work responsibilities. Also in 2000, the mother met and began dating Mark Salwasser.

In 2001, the mother commenced her current job as a sales [444]*444operation manager at Smith & Nephew in Andover, where she earns approximately $100,000 per year. In April of that year, the father took a severance package from Fleet Bank and remained unemployed until July, 2002. At some point during this time period, the father met his current wife. He also rented a condominium to be closer to the child. From September, 2001, until May, 2002, tie saw the child “almost daily.”

In September of 2002, the mother married Salwasser, who sold his home and moved in with the mother and child in their home in Andover. Salwasser undertook “homemaker” responsibility for the family: he ran errands, he cooked, and he cleaned. That same month, Salwasser purchased a home in his name in Arroyo Grande, California, with the proceeds of the sale of his Massachusetts home. The mother pays all the costs associated with the Arroyo Grande house.

Also in September of 2002, the father learned from the child that the mother wanted to relocate to California. After initially describing the relocation as only a possibility and denying any immediate plans to move, the mother confirmed in November, 2002, that she planned to move to California with Salwasser.

The judge found that both parents were able and that “[ujntil early 2003, when tensions arose over relocation, the parties communicated well and shared time flexibly with [the child].” In the spring of 2003, the father began working for his current employer, Webster Financial Services, a bank located in Connecticut, and began commuting 115 miles from his home in Newton to the bank, which takes one hour and forty minutes each way. He saw the child on Thursday nights and every other weekend. The father married his current wife in June, 2003. In November, 2003, the mother put her Andover home on the market, and after it was sold, she moved to her present apartment in Lawrence where she lived with her child and Salwasser. Salwasser moved to Arroyo Grande in August, 2004, a few weeks before trial commenced.

b. The proposed move. The judge found that the mother desires to move to Arroyo Grande to be with her husband; that the mother’s “motivation in removing to California is not to deprive [the father] of contact with [the child]”; and that the mother “sincerely believes that a strong relationship between [445]*445[the father] and [the child] is important, and, if her request to remove is granted, she will aim to minimize the impact of the move on [the father] in terms of finances and time with [the child].”

Prior to trial, the mother and current employer agreed that she would work remotely in California for three weeks per month and that she would fly to Massachusetts for one week every month at her employer’s expense. The judge acknowledged that the mother “believes that this working arrangement will allow her more time with [the child] because she would work from home and complete her day by 6:30 p.m. [Eastern Standard Time] or 3:30 p.m. [Pacific Standard Time].”

Salwasser was bom in California, but lived on the east coast from 1971, and in Massachusetts from the mid-1980’s until, as noted above, August, 2004. His parents, who are in their mid-eighties, reside in California. Their primary residence is in Clovis, California, 162 miles and a two and one-half hour drive from Salwasser’s home in Arroyo Grande. Salwasser’s parents also own a beach cottage twenty minutes away from Arroyo Grande. Beginning in 2002, Salwasser began traveling back and forth from California to Massachusetts to visit his parents approximately once each month.

When the trial began, Salwasser, who prefers part-time employment, did not have a job in California. However, by the end of the trial Salwasser reported that he had received an offer of part-time employment to develop after-school programs for elementary and high school students for $1,300 per month. Salwasser had not, however, moved to California in hope of obtaining this job. The mother will remain as the primary source of financial support for the family.

The judge found that the mother “may benefit emotionally from moving to California because she will be with her husband . . . , but she will not benefit economically or socially. Her employment will become less secure, she frequently will travel away from home, and she will be living far from her New England friends and family.”2 The judge concluded that [446]*446there “is no real advantage to [the mother] in moving to California.”

c. The best interests of the child. The judge found the following.

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Bluebook (online)
848 N.E.2d 800, 66 Mass. App. Ct. 442, 2006 Mass. App. LEXIS 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickenson-v-cogswell-massappct-2006.