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
24-P-894
GREG B. FOWKE
vs.
KATHERINE L. HOLLAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After trial, a judge of the Probate and Family Court
entered a judgment for custody, support, and parenting time of
the parties' minor child. The mother appeals, arguing
principally that the trial judge abused her discretion and made
erroneous findings in denying her equal parenting time. We
affirm.
Background. We provide a brief summary of the judge's
factual findings and the procedural history, reserving some
details for later discussion. The parties, who were never
married, were involved in a romantic relationship beginning in
2008. They resided together in a home owned by the father and
had one child who was born in 2013. During the child's early years, both parents worked full time and shared in caring for
the child. The parties' relationship ended in 2022. The
father, after experiencing several incidents involving the
mother's excessive use of alcohol, filed an action for custody,
support and parenting time pursuant to G. L. c. 209C.
In September 2022, the judge issued a temporary order
incorporating the agreement of the parties. The parties were
awarded joint legal custody of the child with primary physical
custody to the father. The temporary order, which was in effect
at the time of the trial, required the mother to submit to
alcohol testing five times per day, enroll in outpatient
counseling for alcohol dependency, and produce all treatment
records to the father's counsel. The parties agreed that the
mother would have unsupervised parenting time every other
weekend and every Tuesday and Thursday after school, or 2:30
P.M. if no school, until 7:00 P.M.
Trial occurred over two days on March 29, 2024, and April
1, 2024. In a detailed written decision, the judge ordered that
the parties share joint legal custody of the child and
established a parenting schedule. The parenting schedule
essentially continued the temporary order's schedule and
included a holiday parenting plan. In the findings of fact, the
judge found that both parents were thoughtful and loving
parents, both parents had been involved with the child's day-to-
2 day care, and that the child was attached to both parents.
However, due to the mother's prior alcohol consumption, the
judge concluded that the best interests of the child were to
continue with essentially the same current parenting schedule,
rather than award equal parenting time. The judge acknowledged
the mother's success in maintaining sobriety, noting that the
mother would no longer have to submit to alcohol testing, or any
other type of supervision as a condition to her parenting time,
and concluded that "[t]he Court hopes that Mother will be able
to establish a record of full-time employment, and the ability
to reenter the stress of day-to-day life while maintaining
sobriety. If this happens, a modification of the current
parenting plan would be in order."
Discussion. "Parents have an equal right to custody of
their children." See Hunter v. Rose, 463 Mass. 488, 494 (2012).
In determining 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, 463 Mass. at 494. A judge's factual findings will "not
be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge of the
3 credibility of the witnesses." Mass. R. Dom. Rel. P. 52(a). "A
finding is 'clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed." Barboza v. McLeod, 447 Mass. 468, 469 (2006),
quoting Marlow v. New Bedford, 369 Mass. 501, 508 (1976). See
Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015).
In her appeal, the mother claims that the judge made
erroneous findings and abused her discretion by ordering a
parenting schedule that does not give the mother equal parenting
time. In essence, the mother argues that the judge's
determination of the best interests of the child improperly
focused on the mother's prior alcohol consumption. She argues
the judge erroneously concluded that the mother was in denial of
her substance use disorder, ignored that she had taken
extraordinary steps to remain sober since 2022, and ignored the
guardian ad litem's (GAL) recommendation that the best interests
of the child would be served by the mother having equal
parenting time of the child. 1 We disagree.
1 The mother also argues that the judge's holiday parenting schedule was an abuse of discretion because it deviated from the family's past practice of spending most of the summer and Christmas breaks in South Dakota. The mother essentially requests equal holiday custody despite the award to the father of primary physical custody. The mother cites no case, nor have we found any, supporting the proposition that a judge must evaluate holiday custody differently from custody during the
4 A central issue -- if not the sole issue -- at trial was
the father's allegation that the mother suffered from a
substance use disorder. The judge heard testimony from the
father, the mother, and the GAL on this subject. In the end,
the judge credited the testimony of the father as to the
mother's prior use of alcohol and made specific findings of fact
regarding mother's excessive use of alcohol, her minimization of
her use of alcohol, and the impact that it had on the parties'
relationship and the child, including incidents where she was
intoxicated or drinking alcohol in the child's presence. The
judge specifically found that the mother was in denial when she
testified that her consumption amounted to social drinking and
that her drinking habits had not increased since 2016. The
judge articulated specific reasons for her conclusion, for
example referencing the mother's severe intoxication at a New
England Patriot's football game that required her to be
transported by ambulance to the hospital. The judge also did
not believe mother's version of events that she had fallen down
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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
24-P-894
GREG B. FOWKE
vs.
KATHERINE L. HOLLAND.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After trial, a judge of the Probate and Family Court
entered a judgment for custody, support, and parenting time of
the parties' minor child. The mother appeals, arguing
principally that the trial judge abused her discretion and made
erroneous findings in denying her equal parenting time. We
affirm.
Background. We provide a brief summary of the judge's
factual findings and the procedural history, reserving some
details for later discussion. The parties, who were never
married, were involved in a romantic relationship beginning in
2008. They resided together in a home owned by the father and
had one child who was born in 2013. During the child's early years, both parents worked full time and shared in caring for
the child. The parties' relationship ended in 2022. The
father, after experiencing several incidents involving the
mother's excessive use of alcohol, filed an action for custody,
support and parenting time pursuant to G. L. c. 209C.
In September 2022, the judge issued a temporary order
incorporating the agreement of the parties. The parties were
awarded joint legal custody of the child with primary physical
custody to the father. The temporary order, which was in effect
at the time of the trial, required the mother to submit to
alcohol testing five times per day, enroll in outpatient
counseling for alcohol dependency, and produce all treatment
records to the father's counsel. The parties agreed that the
mother would have unsupervised parenting time every other
weekend and every Tuesday and Thursday after school, or 2:30
P.M. if no school, until 7:00 P.M.
Trial occurred over two days on March 29, 2024, and April
1, 2024. In a detailed written decision, the judge ordered that
the parties share joint legal custody of the child and
established a parenting schedule. The parenting schedule
essentially continued the temporary order's schedule and
included a holiday parenting plan. In the findings of fact, the
judge found that both parents were thoughtful and loving
parents, both parents had been involved with the child's day-to-
2 day care, and that the child was attached to both parents.
However, due to the mother's prior alcohol consumption, the
judge concluded that the best interests of the child were to
continue with essentially the same current parenting schedule,
rather than award equal parenting time. The judge acknowledged
the mother's success in maintaining sobriety, noting that the
mother would no longer have to submit to alcohol testing, or any
other type of supervision as a condition to her parenting time,
and concluded that "[t]he Court hopes that Mother will be able
to establish a record of full-time employment, and the ability
to reenter the stress of day-to-day life while maintaining
sobriety. If this happens, a modification of the current
parenting plan would be in order."
Discussion. "Parents have an equal right to custody of
their children." See Hunter v. Rose, 463 Mass. 488, 494 (2012).
In determining 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, 463 Mass. at 494. A judge's factual findings will "not
be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge of the
3 credibility of the witnesses." Mass. R. Dom. Rel. P. 52(a). "A
finding is 'clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed." Barboza v. McLeod, 447 Mass. 468, 469 (2006),
quoting Marlow v. New Bedford, 369 Mass. 501, 508 (1976). See
Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015).
In her appeal, the mother claims that the judge made
erroneous findings and abused her discretion by ordering a
parenting schedule that does not give the mother equal parenting
time. In essence, the mother argues that the judge's
determination of the best interests of the child improperly
focused on the mother's prior alcohol consumption. She argues
the judge erroneously concluded that the mother was in denial of
her substance use disorder, ignored that she had taken
extraordinary steps to remain sober since 2022, and ignored the
guardian ad litem's (GAL) recommendation that the best interests
of the child would be served by the mother having equal
parenting time of the child. 1 We disagree.
1 The mother also argues that the judge's holiday parenting schedule was an abuse of discretion because it deviated from the family's past practice of spending most of the summer and Christmas breaks in South Dakota. The mother essentially requests equal holiday custody despite the award to the father of primary physical custody. The mother cites no case, nor have we found any, supporting the proposition that a judge must evaluate holiday custody differently from custody during the
4 A central issue -- if not the sole issue -- at trial was
the father's allegation that the mother suffered from a
substance use disorder. The judge heard testimony from the
father, the mother, and the GAL on this subject. In the end,
the judge credited the testimony of the father as to the
mother's prior use of alcohol and made specific findings of fact
regarding mother's excessive use of alcohol, her minimization of
her use of alcohol, and the impact that it had on the parties'
relationship and the child, including incidents where she was
intoxicated or drinking alcohol in the child's presence. The
judge specifically found that the mother was in denial when she
testified that her consumption amounted to social drinking and
that her drinking habits had not increased since 2016. The
judge articulated specific reasons for her conclusion, for
example referencing the mother's severe intoxication at a New
England Patriot's football game that required her to be
transported by ambulance to the hospital. The judge also did
not believe mother's version of events that she had fallen down
a set of stairs twice during a family celebration, not because
she was intoxicated, but because the stairs were treacherous.
The judge concluded that the evidence "supports a finding that
school year. Accordingly, our analysis of the overall custody determination is dispositive of this argument as well.
5 Mother clearly developed a drinking problem." 2 This finding is
supported by the record and does not amount to an abuse of
discretion.
While the judge properly considered and credited the
mother's lengthy period of sobriety and participation in
substance use treatment, she also appropriately considered that,
because the mother never admitted to having an alcohol problem
and blamed her drinking on the stress of interacting with the
father, that it was unclear if the mother would continue to
engage in substance use treatment in the future. Moreover, at
the time of trial, the mother expressed her intent to return to
full-time employment but had yet to do so. We do not read the
judge's decision as establishing full-time employment as a
condition of obtaining equal parenting time. Rather, the mother
expressed that her goal was to return to full-time employment,
so it was appropriate for the judge to consider this fact. It
was proper for the judge to consider that the mother remained
sober during a time in which she was not in the work force, and
that the mother had not established a track record of sobriety
while balancing the stressors of being employed full time and
2 In her findings of fact, the judge also stated that "[t]he events that evidence her drinking is far beyond social drinking are serious. The Court finds that both Mother and the GAL downplayed these events and their impact on Mother's ability to safely coparent the child."
6 supporting herself and her child. See Adoption of Ulrich, 94
Mass. App. Ct. 668, 676 (2019), quoting Custody of Michel, 28
Mass. App. Ct. 260, 270 (1990) (judge can consider "pattern of
'past conduct to predict future ability and performance'").
The judge also considered, but ultimately rejected, the
GAL's recommendation regarding parenting time, finding that the
GAL had failed to address several key issues surrounding the
mother's alcohol consumption and its impact on the child.
Disagreeing with the recommendations of the GAL, without more,
does not amount to an abuse of discretion. The judge was not
required to accept the GAL's recommendation, as she provided
sufficient support for her decision concerning parenting time.
See Mason v. Coleman, 447 Mass. 177, 186 (2006) (judge not
required to adopt opinions of GAL).
In sum, the mother's challenges to the judge's findings
"amount to no more than a disagreement with the judge's weighing
of the evidence and credibility determinations regarding
witnesses." Adoption of Don, 435 Mass. 158, 166 (2001). "In a
bench trial credibility is 'quintessentially the domain of the
trial judge [so that her] assessment is close to immune from
reversal on appeal except on the most compelling of showings.'"
Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012),
quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995).
7 There was no abuse of discretion in the determination of
parenting time. 3
Judgment affirmed.
By the Court (Sacks, Englander & Walsh, JJ. 4),
Clerk
Entered: July 16, 2025.
3 We decline to award attorney's fees to either party.
4 The panelists are listed in order of seniority.