Julie A. Johnston v. Matthew Ashe.

• Court: Massachusetts Appeals Court
• Decided: September 19, 2023
• Docket: 22-P-0648
• Status: Unpublished

Opinion

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-648

JULIE A. JOHNSTON

vs.

MATTHEW ASHE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Julie A. Johnston, mother, appeals from a judgment on her

complaint for custody, support, and parenting time entered by a

judge of the Probate and Family Court, which, among other

things, denied mother's request to remove her two children from

Massachusetts to Florida. The mother claims that the judge

abused her discretion or otherwise erred in denying the mother's

request based on the determination that removal is not in the

best interests of the children. 1 We affirm.

1 The mother also purports to appeal from a May 31, 2022 order denying her motion to alter the judgment. Because she makes no discernable argument addressing this order in her brief, and as she conceded at oral argument, this claim is waived and we need not consider it further. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief"). Discussion. We review an order addressing a request to

remove children from the Commonwealth for "'abuse of discretion

or other error of law,' accepting the judge's findings unless

shown to be clearly erroneous." E.K. v. S.C., 97 Mass. App. Ct.

403, 411-412 (2020), quoting Murray v. Super, 87 Mass. App. Ct.

146, 148 (2015). "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made 'a clear error of judgment in weighing' the factors

relevant to the decision . . . such that the decision falls

outside the range of reasonable alternatives." Dolan v. Dolan,

99 Mass. App. Ct. 284, 290 n.6 (2021), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

"A minor child of divorced parents who is a native of or

has resided five years within this commonwealth and over whose

custody and maintenance a probate court has jurisdiction shall

not, if of suitable age to signify his consent, be removed out

of this commonwealth without such consent, or, if under that

age, without the consent of both parents, unless the court upon

cause shown otherwise orders." G. L. c. 208, § 30. This rule

also applies to nonmarital children with two legal parents. See

Smith v. McDonald, 458 Mass. 540, 546 (2010).

"If the party seeking removal is the sole physical

custodian of the children, then the judge must consider the

request under a two-prong test set forth in Yannas." Altomare

2 v. Altomare, 77 Mass. App. Ct. 601, 603 (2010). See Yannas v.

Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). The first

prong considers "whether there is a good reason for the move, a

'real advantage.'" Yannas, 395 Mass. at 711. If the custodial

parent satisfies the "real advantage" test, then the question

becomes whether removal is in the best interests of the

children, which is the court's "paramount concern." Id. at 710.

In evaluating the best interests of the child, a court

considers "whether the quality of the child's life may be

improved by the change (including any improvement flowing from

an improvement in the quality of the custodial parent's life),

the possible adverse effect of the elimination or curtailment of

the child's association with the noncustodial parent, and the

extent to which moving or not moving will affect the emotional,

physical, or developmental needs of the child." Yannas, 395

Mass. at 711.

Here, the judge determined that although the mother

established a "real advantage" for the move, removal is not in

the best interests of the children. On appeal, the mother

claims that the judge abused her discretion or otherwise erred

by (1) dismissing the potential improvements to the children's

quality of life, (2) failing to consider the extent to which

moving or not moving will affect the children's emotional,

physical, or developmental needs, and (3) placing

3 disproportionate weight on the effect of the children's

relationship with their father and his family if they moved to

Florida. We disagree.

In her detailed factual findings, the judge specifically

noted the potential improvements to the children's quality of

life if they moved to Florida -- mainly, they would live in a

bigger home, see their maternal family members more frequently,

be cared for daily by family members instead of a childcare

service or provider, and have indirect benefits flow from the

benefits to the mother. On the other hand, the judge considered

how the children presently "have a consistent weekly parenting

schedule and enjoy the time they spend with each extended side

of their family," and how "uprooting the children and relocating

to Florida would be disruptive to their lives." Notably, the

judge found that removal would negatively impact the children's

relationship with the father and his side of the family and that

the amount of travel contemplated by the mother's proposed

travel schedule to alleviate this concern would be "burdensome,

exhausting and disruptive."

Rather than dismissing or failing to consider the

improvements and benefits to the children in moving to Florida,

as the mother claims, the judge appropriately weighed these

factors against the countervailing factors: "While the Court

considers the benefits to Mother and the children of Mother's

4 support system and a more spacious home in Florida, the Court

finds that these benefits do not outweigh the cost to the

children of reducing their time with Father and disrupting their

well-established and thriving lives in Massachusetts."

Accordingly, we reject the mother's claim that the judge abused

her discretion or otherwise erred in concluding that removal is

not in the children's best interests.

Judgment affirmed.

Order entered May 31, 2022, denying motion to alter or amend affirmed.

By the Court (Meade, Hershfang & D'Angelo, JJ. 2),

Clerk

Entered: September 19, 2023.

2 The panelists are listed in order of seniority.