NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
21-P-770 & 21-P-812 Appeals Court
ANNIKA KARIN IMBRIE1 vs. GREGORY ADAIR IMBRIE.
Nos. 21-P-770 & 21-P-812.
Middlesex. October 11, 2022. – May 2, 2023.
Present: Sacks, Hand, & Grant, JJ.
Divorce and Separation, Arbitration, Alimony, Child custody, Child support, Division of property, Findings, Parent coordinator. Arbitration, Divorce and separation, Judicial review, Authority of arbitrator. Parent and Child, Custody, Child support.
Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on November 28, 2016.
The case was heard on the report of an adjudicator by Michael D. Anderson, J.
Martin F. Kane, II (Johanna Gibson also present) for the wife. Amanda Vanderhorst for the husband.
1 We acknowledge that the wife has resumed using her birth name; however, we adhere to our practice of setting forth the parties' names as they appear in the complaint for divorce. 2
HAND, J. These cross appeals stem from highly contentious
divorce proceedings between Annika Karin Imbrie (the wife) and
Gregory Adair Imbrie (the husband). By agreement, the parties
submitted the matter for "private adjudication" to a retired
Probate and Family Court judge (adjudicator), who heard evidence
and submitted a draft judgment and findings of fact for review
by a judge of the Probate and Family Court (judge). The judge
issued a judgment of divorce nisi (divorce judgment) adopting
nearly wholesale the adjudicator's draft findings and judgment,
making only minimal changes. Both parties contend, with one
exception discussed infra, that the judge, in reviewing the
adjudicator's draft judgment and findings, erroneously applied
the extremely deferential standard applicable to binding
arbitration under Gravlin v. Gravlin, 89 Mass. App. Ct. 363
(2016), rather than the less deferential standard applicable to
proceedings involving masters under Mass. R. Dom. Rel. P. 53
(rule 53).
We conclude that because the parties agreed to proceed
under the standard applicable to proceedings involving masters
under Rule 53 and did not agree to submit the case to binding
arbitration, it was error for the judge to defer to the
adjudicator's rulings under the standard applicable to binding
arbitrations. See Gravlin, 89 Mass. App. Ct. at 365-366. We
further conclude that the judge exceeded his authority in 3
adopting the adjudicator's ruling requiring the use of a
parenting coordinator (PC). Accordingly, we vacate so much of
the divorce judgment as pertains to legal custody regarding
medical decisions for the children, the PC, and the parenting
plan, and remand the case to the probate court for further
proceedings consistent with this opinion. The divorce judgment
is affirmed in all other respects.
Background. 1. General background. We summarize the
adjudicator's relevant findings, supplementing them with
undisputed facts in the record, and reserving other facts for
later discussion. See Pierce v. Pierce, 455 Mass. 286, 288
(2009). The parties were married in 2000 and had three children
together during the marriage (born in 2007, 2009, and 2013,
respectively). The wife is a patent attorney, and the husband
is a cardiologist. The parties enjoyed an upper middle-class
lifestyle during the marriage, in part because of generous
financial contributions from the wife's parents.2
2 The wife's parents paid for the parties' graduate school educations and the children's private school tuition. The parties also enjoyed regular vacations and the assistance of an au pair during the marriage. In 2010, the parties bought a "high end home" in Newton for $1.7 million with the help of a $1.55 million private mortgage given to the wife's parents. The parties made monthly mortgage payments of approximately $2,000, and the wife's parents forgave approximately $20,000 in mortgage principal each year. 4
In 2010, after the husband completed his medical residency,
the parties and their children moved to Massachusetts and the
husband began a fellowship position in the Boston area. In
2012, after the wife completed law school, she accepted an
associate position at a Boston law firm, with a reduced billable
hour requirement that enabled her to spend more time with the
children.
All three of the children have "medical conditions and/or
learning disabilities." The middle child suffers from
"debilitating" and "extreme sensory issues," the cause of which
has been difficult to diagnose. This child was treated by a
number of different behavioral health, traditional medical, and
nontraditional medical providers between 2013 and 2016; the wife
was responsible for scheduling and attending the vast majority
of these appointments. In November 2013, the wife left the law
firm and began working part-time from home so that she would
have more time to attend to the children's needs.
In 2015, the husband accepted a full-time position as an
interventional cardiologist in New Hampshire. Although the wife
originally agreed to move to New Hampshire for two years, the
eldest child was not accepted at the school desired by the
parties in that State. As a result, the parties decided that
the wife would remain in Newton with the children, and the
husband would commute from Newton to New Hampshire. At some 5
point, the husband began residing with his parents in New
Hampshire during the week and returning to Newton on the
weekends. The marriage subsequently deteriorated, and the
parties last lived together in November 2016. As the marriage
declined, the parties' views diverged on medical treatment for
their children, particularly for the middle child. The husband
preferred traditional, evidence-based medical treatment, and the
wife preferred nontraditional treatments such as alternative,
homeopathic therapies.
2. Divorce proceedings. a. Custody and parenting issues.
On November 28, 2016, the wife filed a complaint for divorce,
requesting, among other things, primary physical custody and
shared legal custody of the children, alimony, and child
support. In January 2017, the parties executed a stipulation
agreeing, among other things, to the appointment of a PC to
resolve disputes regarding nonfinancial parenting issues, with
the fees to be shared equally between the parties. With respect
to custody and parenting time, the stipulation provided that the
children would reside primarily with the wife, subject to the
husband's parenting time every other weekend and two weekday
dinner visits each week. The stipulation further provided that
the parties would have shared legal custody, subject to certain 6
notice provisions regarding the children's medical care.3 This
stipulation was incorporated into an order issued on February
28, 2017, which order required the husband to pay base
unallocated support of $1,942 per week4 and additional
unallocated support equivalent to twenty percent of any bonus
received by the husband in 2017.
On August 30, 2017, the husband filed an amended answer and
counterclaim for divorce, seeking, inter alia, sole legal
custody as to medical and school related decisions concerning
the children (with shared legal custody for all other matters),
and permission to remove the children to New Hampshire.
On September 27, 2017, the parties executed a stipulation
agreeing to the appointment of a Guardian Ad Litem (GAL) to
evaluate, investigate, and file a written report (including
recommendations) on the issues of custody, the parenting plan,
and the children's medical care. On the same day, an order
3 The parties acknowledged that all three children were on an "established non-traditional dietary and medicinal and nonmedicinal protocol" and agreed that they would provide each other with at least one week's notice of any scheduled medical appointments for the children.
4 The base unallocated support represented thirty-five percent of the difference between the parties' incomes, after deducting their respective financial contributions to the children's au pair. 7
issued appointing Mira Levitt, Ph.D., as a "Guardian ad litem -
Evaluator" or "Category E GAL."5
On January 20, 2018, the parties agreed to the appointment
of Robin M. Deutsch, Ph.D., as PC to resolve any parenting
disputes for a period of two years, with the opportunity for the
parties to sign a new PC agreement after the two-year period
concluded; and that the PC's recommendations would be binding
"until the [c]ourt enters an order [or] [j]udgment altering,
modifying or rejecting her recommendation." The parties further
agreed that once the PC's total fees exceeded $15,000 (based on
an hourly rate of $375), they would continue PC services only by
agreement.
On May 7, 2018, the GAL filed a seventy-four page report
wherein she recommended that the children continue to reside
primarily with the wife during the school year and spend three
weekends per month (and up to two dinner visits per week) with
the husband. The GAL acknowledged that although the parties'
disagreements regarding the children's medical care might
warrant assigning one parent decision-making authority, such a
solution might not be in the children's best interests. The GAL
5 In addition to investigating and reporting factual data to the court, a Category E GAL develops clinical opinions to assist the judge (or adjudicator) in making custody and visitation decisions. See Care & Protection of Jamison, 467 Mass. 269, 288 n.30 (2014). 8
stated that while it would be impractical to grant the husband,
rather than the wife, medical decision-making authority given
that the wife is the children's primary caretaker, the wife's
authority should not remain unchecked.6
b. Agreement for private adjudication. On March 6, 2019,
the parties executed and filed with the court a stipulation
providing, among other things, that they "agree to submit . . .
an [o]rder of [r]eference for the [c]ourt's approval to submit
the matter to private adjudication . . . for a trial on the
merits." The stipulation was incorporated into a temporary
order, stating that an "order of reference to
[a]rbitrator/[m]aster shall be issued."
On March 7, 2019, before the parties submitted a draft
order of reference as contemplated in their stipulation, the
6 Specifically, the GAL recommended that (1) there be a clear structure by which medical decisions are made, with the parties settling on a team of agreed-upon medical providers for the children and, in the event that the parties cannot agree on a provider, the husband should make a final decision as to a provider in light of his medical training and knowledge of evidence-based treatments; and (2) the PC should continue to address parenting issues between the parties and, where the parties are unable to agree on a child's medical treatment, the PC should consult with the child's medical providers and defer to evidence-based treatments and standards of the American Academy of Pediatrics to make a provisional recommendation (which recommendation may be reviewed by a judge). 9
first judge assigned to the case7 issued sua sponte an order of
reference, providing, in relevant part, that:
"all issues in the pending [c]omplaint for [d]ivorce [shall] be heard for final ruling through private adjudication on the merits with an agreed upon [a]rbitrator . . . . The [a]rbitrator will hear the parties, examine their evidence, make findings of fact, and set them forth in her adjudication. Said [a]rbitrator shall make a judgment supported by findings on each issue tried. The parties agreed to be bound by any finding, award or decision of arbitration, except to the extent that the award is modified by the court after review or to the extent that the controlling law may permit either party or both parties to seek judicial review of the arbitration award under applicable princip[les] of law. . . . The parties and [a]rbitrator/[m]aster are referred to Rule 53 of the Massachusetts Rules of Civil Procedure and Rules 20, 21 and 24 of the Probate Rules and Uniform Practice XXVIII which govern this procedure."
On May 28, 2019, the parties executed an "arbitration
agreement" providing, inter alia, that the matter would be
referred to the adjudicator "to hear the dispute as ARBITRATOR
pursuant to Rule 53 of the Mass. Rules of Domestic Relations
Procedure." See generally Mass. R. Dom. Rel. P. 53 (rule
governing proceedings before masters).
A two-day hearing was held before the adjudicator on August
29 and 30, 2019. On December 20, 2019, the adjudicator
circulated her first draft judgment, rationale, and findings of
fact to the parties; these documents were not filed with the
7 We understand that, based on the usual rotations in judicial scheduling, at least three judges have been assigned to these cases at different times. 10
Probate and Family Court. Among other things, the December 2019
draft judgment proposed to grant the wife sole decision-making
authority regarding the children's medical care, to which the
husband submitted his objection; the wife opposed the husband's
objection. On February 7, 2020, the adjudicator filed with the
Probate and Family Court an amended draft judgment and amended
findings, proposing to reassign sole medical decision-making
authority to the husband. The wife filed an opposition to the
amended draft judgment while the husband moved to adopt it.
Following a hearing, a second judge issued an order recommitting
the matter to the adjudicator and directing her to "make
additional subsidiary findings as she deems appropriate and/or
otherwise amend/modify the 'Draft Amended Judgments, Rationale
and Findings of Fact' regarding the limited issues of legal
custody regarding medical decision-making authority."8
In September 2020, after the adjudicator heard the
recommitted matter, she issued to the parties further amended
draft judgments and findings, which were not filed with the
8 Although the December 2019 draft judgment was not separately filed with the court, the parties referred to the adjudicator's findings and judgment in their subsequent pleadings. Considering those pleadings, the judge stated that the adjudicator's December 2019 findings appeared to support the grant of medical decision-making authority to the wife and noted that the adjudicator's February 2020 amended findings reflected changes to only eight of 458 findings, none of which pertained to medical decision-making. 11
Probate and Family Court (September 2020 drafts). The September
2020 drafts reaffirmed the February 2020 drafts, proposed
providing the husband with final medical decision-making
authority, and addressed several other matters that were outside
the scope of the recommitment order. The wife objected to
certain aspects of the September 2020 amended drafts.
On December 2, 2020, the adjudicator issued an order
concluding that the recommitment order limited her review to the
issue of medical decision-making authority only, and that the
only changes between the February 2020 and December 2020 drafts
would relate to medical decision-making authority, as other
changes contained in the September 2020 drafts exceeded the
scope of the recommitment order.9
c. Adjudicator's December 2020 drafts. The adjudicator
filed the second amended draft judgments, findings, and
rationale with the Probate and Family Court (December 2020
drafts). The draft proposed to award the wife physical custody,
establish a parenting plan for the husband, continue the
appointment of the PC for three years, and grant shared legal
custody of the children subject to the husband's final medical
9 The adjudicator also made some additional changes that she characterized as the correction of scrivener's errors, none of which bear on the issues in this appeal. 12
decision-making authority. As to the latter, the December 2020
draft judgment provided that:
"The parties shall initially address the medical treatment options with the Parenting Coordinator. . . . In the case of an inability of the parties to agree to medical treatment, the [husband] shall have the final decision making authority. . . . [The] [w]ife may only schedule medical appointments for the children only after advance notice to the [h]usband. Failure to provide advance notice shall be cause to readdress who shall make medical appointments. If the parties cannot agree, the [h]usband shall make the decision on the particular appointment. Neither party is to impose any dietary restrictions on the children without the expressed consent of the other party. Neither party is to administer any prescribed or over the counter medications without the expressed consent of the other party. The children are to be administered any and all prescribed or over the counter medications to which both parties have agreed acknowledged in a written email."
Fifteen new findings pertaining to medical decision-making were
included in the adjudicator's December 2020 draft findings.
With respect to support and child-related expenses, the
December 2020 draft judgment provided, in relevant part, that
(1) the husband shall pay base unallocated support of $1,986.38
per week, until the first to occur of either party's death, the
wife's remarriage or cohabitation (as defined in G. L. c. 208,
§ 49), or 160 months from the date of divorce; and (2) the
husband shall pay additional unallocated support equivalent to
twenty percent of the husband's gross bonus income. With
respect to the property division, the December 2020 draft
judgments allocated the parties' assets so as to effectuate an
equitable and nearly equal distribution. 13
On December 21, 2020, the husband filed in the Probate and
Family Court a motion requesting several modifications to the
December 2020 draft judgments and findings concerning the
parenting plan, unallocated support, and property division. On
December 23, 2020, the wife filed a motion requesting that the
December 2020 draft judgments and findings be adopted as-is,
except that she requested final medical decision-making
authority be granted to her instead of the husband.
d. Ruling on the adjudicator's submissions. On April 27,
2021, the judge entered an order on the parties' motions,
largely accepting and adopting the December 2020 draft judgments
and findings (April 2021 order). Relying on Gravlin, 89 Mass.
App. Ct. at 367-368, the judge concluded that the parties
"agreed to binding arbitration," thus he was "strictly bound" by
the adjudicator's findings and conclusions of law "even if they
are in error," and further, that he was required to give
"extreme deference" to the adjudicator's findings, rationale,
and judgment in the exercise of his "nondelegable duty to review
and assess the same." The judge concluded that "there is no
evidence, or even an allegation, that the [adjudicator]: (1)
exceeded her authority by granting relief beyond that to which
the parties bound themselves or awarded relief prohibited by
law; and/or (2) decided the matter based on 'fraud, arbitrary
conduct, or procedural irregularity in the hearings.'" 14
With respect to medical decisions, the judge found that the
findings and rationale of the adjudicator were clear and
supported her decision. He acknowledged that there were
sufficient findings to justify an order giving the wife final
decision-making authority, but that the adjudicator's decision
giving that authority to the husband was supported by the
record. He adopted the adjudicator's decision regarding medical
decision-making, with one modification allowing for the parties
to unilaterally administer over-the-counter medication to the
children in the event of an "emergency."
The judge accepted and adopted the December 2020 draft
findings and rationale in full and issued a divorce judgment
adopting the December 2020 draft judgment in its entirety
(except for the change related to over-the-counter medication,
and a correction of a clerical error not pertinent here). The
present cross appeals followed.
Discussion. 1. Standards of review. a. Standard
applicable to judge's review. As an initial matter, we agree
with the parties that the judge, in reviewing the adjudicator's
December 2020 drafts, improperly applied the Gravlin standard
(which adopted the standard applicable to binding arbitrations
under the Uniform Arbitration Act for Commercial Disputes, G. L.
c. 251 [UAACD]), rather than the standard applicable to
proceedings involving masters under Mass. R. Dom. Rel. P. 53. 15
There is a significant difference between the standards. A
judge reviewing a binding arbitration award "is confined to
determining whether the arbitrator (1) exceed[ed] h[er]
authority by granting relief beyond the scope of the arbitration
agreement, . . . by awarding relief beyond that to which the
parties bound themselves, . . . or by awarding relief prohibited
by law, or (2) decided the matter based on fraud, arbitrary
conduct, or procedural irregularity in the hearings" (quotations
omitted). Gravlin, 89 Mass. App. Ct. at 367-368. The judge
typically does not review the arbitrator's findings and
conclusions of law for clear error. Id. at 368. "This strict
standard of review is highly deferential to the decision of an
arbitrator" (emphasis added). Id., quoting School Comm. of
Lexington v. Zagaeski, 469 Mass. 104, 110 (2014).
By contrast, "there is no requirement that a master's
recommendations be given total deference." Ross v. Ross, 385
Mass. 30, 38 (1982). "The main object of referring a suit to a
master is to have the facts settled by [her] . . . . [I]t
remains for the trial judge to enter the proper judgment on the
facts as found and on the law as applied thereto" (quotation and
citation omitted). Hardiman v. Hardiman, 11 Mass. App. Ct. 626,
628 (1981). "The master's conclusions of law do not determine
the legal effect of the facts found by h[er] and, a fortiori, do
not determine the choice of remedy where such choice lies within 16
the discretion of the trial judge." Id. Thus only "[t]he
master's findings of fact are binding on the probate judge and
on this court," Osborne v. Osborne, 384 Mass. 591, 601 (1981),
quoting Chase v. Pevear, 383 Mass. 350, 359 (1981) -- unless
they are "clearly erroneous, mutually inconsistent, unwarranted
by the evidence before the master as a matter of law or are
otherwise tainted by error of law." Mass. R. Dom. Rel. 53 (h)
(1). "With respect to the master's ultimate conclusions, . . .
'[w]e must apply our own view of the law, and we must consider
whether the master's general findings, on a correct view of the
law, are consistent with his subsidiary findings.'" Osborne,
supra, quoting Chase, supra at 359-360.
Here, the parties stipulated that they would submit the
matter for "private adjudication" and would file a draft order
of reference to the court. Before they could do so, a judge
issued a sua sponte order referring the matter to "arbitration."
Although the judge's order of reference submitted the matter to
"arbitration," it is the content of the parties' stipulation and
subsequent agreement that controls. See Gravlin, 89 Mass. App.
Ct. at 365-366 ("A judge may not . . . order parties to submit
to binding arbitration absent their agreement, as such an order
would be an improper delegation of the judge's authority under
G. L. c. 208, § 34"). 17
The parties here, unlike the parties in Gravlin, did not,
through their subsequent agreement regarding the proceedings to
be held before the adjudicator, submit the matter to "binding
arbitration." Gravlin, supra at 366. There is no reference to
"binding arbitration" in their stipulation or subsequent
agreement, and they did not reference the rules applicable to
binding arbitrations under Gravlin or the UAACD. Rather, the
parties' agreement provided, in relevant part, that the
adjudicator would "hear the dispute as ARBITRATOR pursuant to
Rule 53 of the Mass. Rules of Domestic Relations Procedure"
(emphasis added). The agreement further provided that:
"[t]he parties agree to be bound by any finding, award or decision of arbitration, except to the extent that the award is modified by the court after review . . . . The parties and Arbitrator/Master are referred to Rule 53 of the Massachusetts Rules of Civil Procedure and Rules 20, 21 and 24 of the Probate Rules and Uniform Practice XXVIII which govern this procedure. . . . [T]he Arbitrator will issue an arbitration decision in writing and deliver a copy of the decision to each party . . . . The decision shall be binding upon both parties, subject only to the applicable rules and law in the Commonwealth of Massachusetts for arbitrations (specifically, Rule 53 of the Mass. Rules of Domestic Relations Procedure)" (emphasis added).
Thus, notwithstanding the parties' use of the terms
"arbitrator" and "arbitration" in the agreement, they intended
for the procedure to be governed by rule 53, which applies only
to proceedings involving masters. See Mass. R. Dom. Rel. P. 53
(a) (i) ("'master' shall mean any person, however designated, 18
who is appointed by the court to hear evidence in connection
with any action and report facts" [emphasis added]). Although
the parties stated that they would be "bound by any finding,
award or decision" made by the adjudicator, they also expressly
stated that the award could be "modified" by a judge "after
review" pursuant to rule 53. In the absence of clear,
unequivocal language stating that the parties intended to submit
the case to "binding arbitration," we cannot conclude that the
parties intended to be so bound.
Moreover, the parties' intent to proceed under Rule 53 can
be further gleaned from their conduct after executing the
agreement, as they followed the procedures set forth under rule
53 throughout the proceedings before the adjudicator and judge.10
See Springfield v. Department of Telecomm. & Cable, 457 Mass.
562, 572 (2010), quoting Restatement (Second) of Contracts,
§ 202 (4) (1981) ("any course of performance accepted or
acquiesced in without objection is given great weight in the
interpretation of the agreement"); Lodge Corp. v. Assurance Co.
of Am., 56 Mass. App. Ct. 195, 197 n.4 (2002), quoting
Restatement (Second) of Contracts § 202 (5) (1981) ("Wherever
reasonable, the manifestations of intention of the parties to a
10On numerous occasions, the parties followed the Rule 53 procedures for suggesting amendments to the draft report, see Mass. R. Dom. Rel. P. 53 (g) (2); and objecting to the report, see Mass. R. Dom. Rel. P. 53 (h) (1)-(2). 19
promise or agreement are interpreted as consistent with each
other and with any relevant course of performance [or] course of
dealing").
In reviewing a master's report,
"the court shall accept the master's subsidiary findings of fact unless they are clearly erroneous, mutually inconsistent, unwarranted by the evidence before the master as a matter of law or are otherwise tainted by error of law. . . . The court may draw its own inferences from the master's subsidiary findings. The court may make findings in accordance with [Mass. R. Dom. Rel. P.] 52, which are in addition to the master's findings and not inconsistent therewith, based either on evidence presented to the court or evidence before the master which was recorded by means approved by the master before commencement of the hearing."
Mass. R. Dom. Rel. P. 53 (h) (1).
Accordingly, to the extent that the judge gave substantial
deference to the adjudicator's rulings, rather than employing
the less deferential review prescribed by Rule 53, this was
error. See Gustin v. Gustin, 420 Mass. 854, 857-858 (1995)
("Absent an agreement of the parties, by stipulation or
otherwise, the role of the intermediary . . . should be limited
to hearing the matter and making a recommendation to the Probate
Court judge. The judge . . . must promulgate the final, and
binding, disposition of the [case] consistent with the terms of
[the applicable] statute. The judge cannot delegate this
duty."); Hardiman, 11 Mass. App. Ct. at 628 ("To give the
master's disposition any weight beyond that of a recommendation
would be an abdication of the judicial function"). See also 20
Robbins v. Robbins, 16 Mass. App. Ct. 576, 577 n.2 (1983) ("The
master's 'ultimate findings' . . . are recommendations which are
not binding on the judge").
b. Appellate standard of review. Under rule 53, we review
a master's findings for clear error, while reviewing conclusions
of law de novo. See Pollock v. Marshall, 391 Mass. 543, 554-555
(1984). Where, however, the judge did not treat the
adjudicator's ultimate rulings as mere recommendations but
instead gave them "extreme deference," the judge improperly
delegated his duty to exercise his discretion in making a final
determination of the issues. See Bower v. Bournay-Bower, 469
Mass. 690, 707 (2014); Gravlin, 89 Mass. App. Ct. at 365-366.
In such circumstances, the improperly delegated issues must be
remanded to the judge for final determination by him. With
these principles in mind, we turn to the parties' individual
contentions.11
11We briefly address the husband's related contention that the adjudicator, and by extension the judge, improperly interpreted the recommitment order (which was issued by a different judge) as being limited solely to the medical decision issue. He claims that, as a result, the adjudicator failed to correct errors in her findings and rulings pertaining to the parenting plan, property division, and support, which errors were then adopted by the judge. We do not discern any error in the adjudicator's deference to the express language of the recommitment order, which limited the scope of the recommitment to the issue of medical decision-making. Because this was a master proceeding under Rule 53, the judge who issued the recommitment order had the discretion to limit the scope of the recommitment. See Mass. R. Dom. Rel. P. 53 (h) (4) ("The court 21
2. Legal custody as to medical decisions. a. Clearly
erroneous findings. The wife asserts that the majority of the
findings underpinning the adjudicator's decision to grant the
husband medical decision-making authority were clearly
erroneous. "[W]e accept the . . . findings of fact as true
unless they are clearly erroneous. 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"
(quotations and citations omitted). Kendall v. Selvaggio, 413
Mass. 619, 620-621 (1992).
With the limited exceptions we discuss here, we discern no
error in the findings challenged by the wife. We agree that the
finding that the wife failed to timely notify the husband of the
eldest child's broken arm is clearly erroneous.12 We further
agree that the findings which state that the wife addressed a
package to the children referring to them by her surname instead
may adopt the report, strike it in whole or in part, modify it, recommit it to the master with instructions or take any other action that justice requires" [emphasis added]). The adjudicator appropriately adhered to the instructions set forth in the recommitment order.
12The remainder of that particular finding, that the wife has sometimes failed to notify the husband of doctor's appointments, is not clearly erroneous. 22
of their own,13 are clearly erroneous and inconsistent with other
findings that the husband overstated the incident to make it
appear that the wife was seeking to exclude him from the
children's lives. We need not, however, address the impact, if
any, of these erroneous findings because the trial judge must
first make a determination as to the children's best interests
based on all of the non-erroneous subsidiary findings made by
the adjudicator -- which the trial judge did not do here.
b. Standard applied to medical decisions issue. The wife
contends that the judge erroneously applied the highly
deferential Gravlin standard when reviewing the adjudicator's
ruling on the medical decision-making issue. The husband,
however, contends that the judge's evaluation of the
adjudicator's subsidiary findings regarding medical decisions
reflected a less deferential review that is more consistent with
what Rule 53 prescribes. For the reasons that follow, we agree
with the wife and disagree with the husband.
Here, the judge reviewed the adjudicator's subsidiary
findings not for clear error, but for the limited purpose of
ascertaining whether there was any support for the adjudicator's
medical decision ruling in her findings.
13 The children used the husband's surname. 23
Similarly, the judge did not draw his own legal conclusions
regarding the subsidiary findings -- apart from stating there
were findings that would support the grant of medical decision-
making authority to either parent -- and the judge did not make
his own discretionary determination regarding the best interests
of the children. See G. L. c. 208, §§ 28, 31; Kendall v.
Kendall, 426 Mass. 238, 251 (1997), cert. denied, 524 U.S. 953
(1998) ("The determination of custody rests within the
discretion of the judge"); Rolde v. Rolde, 12 Mass. App. Ct.
398, 402 (1981) ("in deciding issues involving custody, the
overriding concern of the [judge] must be the promotion of the
best interests of the children and their general welfare").
Because the judge did not treat the adjudicator's ruling as
a mere recommendation, and instead gave it unwarranted
deference, he improperly delegated his authority under G. L.
c. 208, § 28 and § 31. See Bower, 469 Mass. at 707.
Accordingly, the issue of medical decision-making must be
remanded to the judge for the purpose of reviewing the
adjudicator's findings and recommended rulings pursuant to rule
53, and for the judge to make the final discretionary
determination concerning which parent will promote the
children's best interests.14
14Of course, on remand the judge is free to consider whether it would be in the children's best interests for the 24
We take this opportunity to comment on an issue that is
likely to arise on remand. We note that it 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. See Carr
v. Carr, 44 Mass. App. Ct. 924, 925 (1998), cert. denied, 525
U.S. 1073 (1999). Notwithstanding that fact, where one parent
has primary physical custody of the children, we have concerns
about the practicality of granting partial sole legal custody
regarding medical decisions to the other parent -- particularly
where the children are in the custodial parent's care eighty
percent of the time, the children have extensive medical issues,
and the custodial parent is responsible for taking the children
to ninety percent of their medical appointments. Although there
is no statutory prohibition against granting sole legal custody
(partial or full) to a parent who does not have physical
custody, see G. L. c. 208, §§ 28, 31, we conclude that, based on
the particular circumstances presented here, the judge should
make specific subsidiary findings clearly demonstrating that, if
the judge grants partial sole legal custody regarding medical
decisions to the parent who does not have physical custody, the
decision is necessary to promote the children's safety and
parents to retain some form of joint authority for medical decisions. 25
wellbeing. See G. L. c. 208, § 31. Accordingly, the judge to
whom the case is assigned on remand may make such additional
findings if the judge determines, in his or her sole discretion,
that they are warranted by the evidence. See Mass. R. Dom. Rel.
P. 53 (h) (1).
3. Parenting plan. The husband complains that the judge,
in applying the Gravlin standard, failed to properly consider
certain requested corrections to aspects of the adjudicator's
parenting plan that he asserts were contrary to the GAL's
recommendations. The husband's proposed changes included
increasing his parenting time to three weekends per month.
While a judge is not required to adopt a GAL's
recommendation, see Pizzino v. Miller, 67 Mass. App. Ct. 865,
876 (2006), where the judge rejects that recommendation, the
judge should explain his or her reason for doing so. See
Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 196 (2015). Here,
however, the judge did not explain the basis for departing from
the GAL's recommendation because he did not exercise his
discretion to determine an appropriate parenting plan. Rather,
he incorrectly applied the highly deferential Gravlin standard
and deferred to the adjudicator's determination.15 This was an
15 With respect to the parenting plan, the judge stated that: 26
improper delegation of his judicial authority. Bower, 469 Mass.
at 707. Accordingly, so much of the divorce judgment as
pertains to the parenting plan must be vacated and remanded for
the judge to consider the adjudicator's findings and
recommendations and exercise his or her discretion to determine
an appropriate parenting plan in the children's best interests.
4. Parenting coordinator. The husband contends that the
judge erroneously adopted the adjudicator's ruling extending the
appointment of the PC to resolve parenting disputes. The
husband further contends that, in the absence of an agreement
between the parties to pay for the PC to mediate medical
disagreements going forward, it was improper to require the
parties to submit medical disputes to the PC in the first
instance before the husband could exercise final medical
decision-making authority. We agree with both contentions.
While judges "possess the inherent authority to appoint
parent coordinators in appropriate circumstances . . . the
appointment in this case exceeded the bounds of that authority."
"[The] [h]usband raises several parenting issues (primarily logistical) that he does not like in the draft Amended Judgment that he would like modified. Based upon the [Gravlin] standard . . . they do not demonstrate that the [a]rbitrator exceeded her authority or decide the matter based upon 'fraud, arbitrary conduct, or procedural irregularity in the hearings.' The issues raised are all matters that can be presented to the Parent Coordinator . . . . [T]he [a]rbitrator's ruling shall stand." 27
Bower, 469 Mass. at 698. First, absent the express agreement of
the parties, "a judge cannot shift the final decision-making
authority granted by statute to a third party." Id. at 707.
Second, "a judge may not require the parties to use the services
of the parent coordinator if the order would require one or both
parents to pay for the services without his or her consent."
Id. Here, the parties' January 2018 agreement to use the PC was
specific and detailed. Importantly, the parties only agreed to
the PC's appointment through January 2020. The divorce
judgment, however, extended the appointment by an additional
three years, through March 2024, thereby improperly requiring
the parties to pay the PC's fees for an additional three-year
period without the fee cap agreed upon by the parties. See id.
This was error.
Accordingly, so much of the divorce judgment as requires
the parties to continue using, and paying for, the PC must be
vacated.
5. Property division. The husband contends that the judge
erred when concluding that the adjudicator properly determined
the date for valuing the marital estate for purposes of
equitable division under G. L. c. 208, § 34. We disagree.
Here, the adjudicator valued the property contained in the
marital estate at the time of the divorce rather than at the
time of the parties' separation. She made detailed findings 28
regarding property acquired by the parties after their
separation. She found that the home in which the wife resided
had negative equity at the time of the hearing. The adjudicator
also found that the down payment for the husband's home was made
with marital funds and thus constituted a marital asset subject
to equitable distribution; however, the net equity in the
property (acquired by the husband in part through his mortgage
payments) was not includable in the marital estate.
Additionally, the adjudicator found that the husband purchased a
motorcycle during the pendency of the divorce proceedings, in
violation of the automatic restraining order, and therefore the
adjudicator treated the net equity as includable in the marital
estate. The adjudicator treated the husband's other individual
assets as marital property subject to equitable distribution.
Similarly, with the exception of two Swedish bank accounts
established by the wife's grandparents decades before the
parties were married, the adjudicator treated all of the wife's
individual assets as includable in the marital estate for
purposes of equitable distribution under G. L. c. 208, § 34.
The husband asserts that it was error to treat property
acquired postseparation as includable in the marital estate and
that the appropriate date for identifying marital assets was the 29
date of the parties' separation.16 The husband raised this issue
with the judge, who phrased the issue before him as "whether
applying the [a]rbitrator's [f]indings and [j]udgment result[ed]
in an inequitable division of assets that is contrary to [G. L.
c. 208, § 34]." The judge ruled that:
"Assets are typically valued and divided as of the date of divorce. . . . Treating the [husband's] assets [acquired postseparation] as marital assets subject to division hardly results in an inequitable division of assets or otherwise violate[s] public policy or dictate[s] a result in violation of [G. L. c. 208, § 34]. Even assuming that the funds as set forth by [the] [h]usband were all accumulated post separation and after paying support to [the] [w]ife, [the] [h]usband was able to [] accumulate those assets because [the] [w]ife was primarily responsible for the care of the parties' children . . . . While [the] [h]usband was able to work full time, [the] [w]ife was unable to do so. She did not have the luxury of working full time to accrue additional savings and assets.
. . . .
16The husband claims that the parties "separated their bank accounts in early 2017," citing to the parties' January 2017 stipulation (which makes no mention of dividing the parties' bank accounts) and the adjudicator's finding that the parties "split up their joint accounts" when the wife filed for divorce. This does not, however, demonstrate that the parties agreed to a particular division of their accounts, thereby foreclosing any division of those accounts in the divorce judgment. The husband further contends that it was error to divide as a marital asset his bank account from which he pays unallocated support to the wife, in essence arguing that such division constitutes inequitable double-dipping. We note that double-dipping is not prohibited as a matter of law. See Fehrm-Cappuccino v. Cappuccino, 90 Mass. App. Ct. 525, 527 n.4 (2016). Moreover, the husband was ordered to pay unallocated support based on his ongoing stream of earned income, rather than by liquidating a particular asset. Accordingly, it is possible to identify separate bases for the property division and unallocated support award. Id. at 528 n.5. 30
The Court is satisfied that including the assets acquired after separation as part of the marital division of assets is both fair and equitable and well within the statutory demands of [G. L. c. 208, § 34]. . . . '[T]he care and maintenance of a child by a spouse even while separated is a contribution to the marital partnership.' Wheeler v. Wheeler, 41 Mass. App. Ct. 743, 745 (1996)."
Although the judge purported to conduct a limited review
under Gravlin, it is apparent that he drew his own legal
conclusion when determining the timing of the valuation of the
parties' assets. He did so based on the fact that the wife's
contributions to the marital enterprise continued throughout the
parties' separation. Compare Wheeler, 41 Mass. App. Ct. at 745,
with Savides v. Savides, 400 Mass. 250, 252-253 (1987). Because
the judge weighed the adjudicator's findings and independently
made a conclusion of law regarding the appropriate date for
dividing the marital estate, we discern no error.17
6. Unallocated support. We are unpersuaded by the
husband's various challenges to the judgment's unallocated
support provision. With respect to the husband's 2019 income,
the adjudicator made findings based on the evidence at the
hearing before her, which concluded in August 2019. The
17The husband does not challenge as clearly erroneous any subsidiary findings pertaining to the property division, nor does he challenge other aspects of the property division. Accordingly, because our review of the property division is confined to the date of valuation issue only, we leave all other aspects of the divorce judgment pertaining to property division undisturbed. 31
evidence included the husband's January 2019 employment
contract. The adjudicator determined that the husband's
projected 2019 income, including salary, bonuses, and fringe
benefits would be $764,447.76.18 The husband claims that this
figure far exceeds the income reported on his 2019 W-2 form;
however, his W-2 form was not in evidence at the hearing before
the adjudicator. Notwithstanding, to the extent that there is
any error in the calculation of the husband's 2019 income as
compared to his 2019 W-2 form, the error is harmless because it
is confined to the calculation of his projected 2019 bonus
income, not his salary. The husband's unallocated support
obligation is based on his salary only.19 The husband is also
required to pay additional unallocated support equivalent to
twenty percent of his gross bonus income from the prior year.
His additional unallocated support obligation is not predicated
on any calculation (erroneous or otherwise) of projected bonus
18The adjudicator found that as of August 22, 2019, the husband's income totaled $405,971.87. She found that the husband's August 29, 2019, financial statement that reported gross weekly income of $6,634 was not credible as to his bonus and total gross income.
19The base support amount of $1,986.38 per week is the equivalent of thirty-five percent of the difference between the husband's weekly salary of $6,634.62 ($345,000 per year) and the wife's weekly income of $959.24. See G. L. c. 208, § 53 (b). 32
income, rather, it is based on his actual bonus income already
received.
With respect to the wife's receipt of financial
contributions from her parents, the husband contends that the
adjudicator, and by extension the judge, erroneously disregarded
them when determining the wife's need for support. The husband
did not, however, raise this issue in his motion setting forth
his objections to the adjudicator's December 2020 draft judgment
and findings. Therefore it is not properly before us on appeal.
"An issue not raised or argued below may not be argued for the
first time on appeal" (citation omitted), Carey v. New England
Organ Bank, 446 Mass. 270, 285 (2006); accordingly, it is
waived.20
20Even if the issue had been properly raised below, we discern no error in the determination of the wife's need for support based on the record before us. The adjudicator found that, in light of the shortfall between her income and credible expenses, the wife was in need of support. See G. L. c. 208, § 53 (b). The adjudicator also found that child support was warranted, thereby leaving intact the unallocated support order originally put in place by a judge. The adjudicator found that the wife has interests in a number of revocable and irrevocable trusts settled by her father, but there is no indication that that the wife presently receives trust distributions. The wife's trust interests were properly treated as expectancies in connection with her opportunity for the future acquisition of assets and income pursuant to G. L. c. 208, § 34. The adjudicator also made findings about the wife's parents' annual gifting and expectation that the practice would continue postdivorce, as well as their payment of certain child related expenses, but declined to reduce the husband's support obligation on that basis because "the [w]ife's parents have no legal obligation to support the [w]ife and children. Any 33
Finally, the husband contends that it was error to award
unallocated support for a period of 160 months, without
considering "the years of temporary support payments as a result
of the extenuated litigation." However, the husband did not
raise this argument in his motion filed in the Probate and
Family Court setting forth his objections to the adjudicator's
December 2020 draft judgment and findings. Accordingly, the
issue is not properly before us on appeal and is waived. See
Carey, 446 Mass. at 285. We nevertheless note that the duration
of general term alimony generally commences at the entry of the
divorce judgment, and a judge is not required to consider the
duration of temporary alimony, especially where there is no
indication that the recipient spouse was to blame for the
protracted nature of the divorce proceedings. See Holmes v.
Holmes, 467 Mass. 653, 659-661 (2014).
Conclusion. So much of the divorce judgment as pertains to
legal custody regarding the children's medical treatment, the
parenting coordinator, and the parenting plan is vacated and
assistance she receives from them is voluntary on their part." To the extent that the unallocated support order contains a child support component, see Duval v. Duval, 101 Mass. App. Ct. 752, 761 (2022) (unallocated support typically treated as hybrid family support order with both child support and alimony components), we discern no error in the adjudicator's consideration of the fact that the wife's parents have no legal obligation to support the children. See Murray v. Super, 87 Mass. App. Ct. 146, 155 (2015). 34
remanded to the Probate and Family Court for further proceedings
consistent with this opinion. The divorce judgment is affirmed
in all other respects.21
So ordered.
21 The wife's request for attorney's fees and costs is denied.