Prenaveau v. Prenaveau

912 N.E.2d 489, 75 Mass. App. Ct. 131, 2009 Mass. App. LEXIS 1105
CourtMassachusetts Appeals Court
DecidedAugust 28, 2009
DocketNo. 09-P-950
StatusPublished
Cited by18 cases

This text of 912 N.E.2d 489 (Prenaveau v. Prenaveau) 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
Prenaveau v. Prenaveau, 912 N.E.2d 489, 75 Mass. App. Ct. 131, 2009 Mass. App. LEXIS 1105 (Mass. Ct. App. 2009).

Opinions

Milkey, J.

This expedited appeal is from a Probate and Family Court judgment of divorce nisi. The dispute is primarily about where the couple’s children will live. While married, the couple lived in Stoughton, where the wife still lives. In 2007, while divorce proceedings were pending, the husband moved to central New Hampshire, where he now lives with the couple’s former au pair.

[132]*132After trial, the Probate Court judge declined to determine that either parent should have sole physical custody of their young children. He nevertheless allowed the husband to remove the children to New Hampshire. The wife was allowed to have the children much of the time if she bore the transportation burdens and effectively maintained a part-time residence in New Hampshire. Although the judge refused to put a label on this custody arrangement, he explained that he ordered it so that the children would have roughly equal time with their parents. On appeal, the wife challenges the judge’s resolution of the custody and removal issues, as well as his division of the marital estate. Because we conclude that the judge misapplied the law and allowed the children to be removed without any showing that the move would provide a distinct advantage to them, and failed to provide an adequate explanation of his division of the marital estate, we reverse those portions of the judgment that address custody, removal, child support, and property division.

Background.1 The husband and wife met in college when he was a senior and she was a freshman. After the husband graduated in 1995, he worked at Walmart for a year and then began employment at PM Associates, Inc., a small firm based in Stough-ton that was owned and run by his future father-in-law, Peter Miller. The company performs bookkeeping services for other businesses that want to “outsource” that work. After the wife graduated in May of 1998, she briefly worked for an accounting firm and then also joined her father’s business. The couple was married in August of 1998, and they established a home in Stoughton.

Over time, the husband’s and wife’s careers at PM Associates took distinctly different trajectories. By 2005, the last year they both worked for the company, the wife was working extremely long hours (often 9:00 AM to 9:00 PM), she had acquired a forty percent interest in the company, she was earning a taxable annual income of $122,989, and — at least for some purposes — she was held out as president of the company.2 The husband’s [133]*133taxable income at that time was $63,600, he worked more sporadic hours, and his functions involved setting up the computer system and occasional marketing. In his words, “I basically just became a runner, and I still did some sales.”

The wife gave birth to a daughter on August 29, 2003, and to a son on April 24, 2005. Both parents continued to work their respective schedules, and the day-to-day “grunt work” of parenting was performed by au pairs. The husband’s lighter and more flexible workload allowed him to see more of the children during the day. The differential in their time spent with the children was not as great as their different work schedules might suggest, however, because the father regularly left the children with the wife’s parents in the evenings, and he spent many weekends apart from his family pursuing outdoor activities such as hunting, fishing and snowmobiling. As a result, prior to the separation the • husband spent only “slightly more time with the children.”

The couple’s daughter was bom with a serious condition relating to a blockage in her intestines. She required surgery immediately after her birth and spent two weeks in the hospital (with the husband and wife taking shifts to be with her). In May of 2006, the daughter became ill, was admitted to a Boston hospital, underwent major surgery, and spent a total of two weeks in the hospital. In 2007, she was again hospitalized in Boston, although no additional surgery was required. As the judge found, the daughter is currently healthy but she needs to be watched for a possible recurrence of her serious gastrointestinal problems.

The couple’s relationship became increasingly strained as their career paths at PM Associates diverged. The record is replete with many poignant examples of the uncomfortable interplay between their work and personal spheres. The conflict in the marriage increased by the fall of 2005 when the husband “began to spend an inordinate amount of time” with their au pair, Candaliza Vasquez.

The husband filed for divorce on March 13, 2006. After promptly being fired from his position at PM Associates, he began working as a boat salesman. Nevertheless, the couple continued to live in the same home in Stoughton, apparently still with Ms. Vasquez. The parents shared legal and physical [134]*134custody of their children pursuant to a temporary court order issued on April 21, 2006.

After a few months, it became plain that their living situation was untenable, and the husband and Ms. Vasquez moved to a house in the adjacent town of Canton. Under a modified court order issued on July 13, 2006, the parents continued to share legal and physical custody. This was accomplished through a somewhat complicated schedule that had the children spending about two-thirds of their time with the wife, and one-third of their time with the husband. As of May 11, 2007, the husband was required to pay $100 per week in child support.

With the break up of her marriage, the wife hired a new au pair to replace Ms. Vasquez. She also cut back on the amount that she worked, which allowed her to spend more time with her children. Immediately after the separation, she worked twenty to twenty-five hours per week, and by the end of trial (three years later), she was working approximately thirty hours per week. By the time of trial, the daughter was in full-day kindergarten in Stoughton and the son was in a part-time preschool two days per week.

Even before the breakdown of the marriage, the husband began to consider a change in career. He had long served as a “special police officer” in Stoughton, and he decided to pursue law enforcement full time. He also considered moving back to New Hampshire where he grew up, where he pursued his avid love of outdoor activities, and where he still had extended family. In October or November of 2005, several months before he filed for divorce, he applied to be a New Hampshire State trooper. He was eventually accepted into the program, and after deferring his admission, he moved to New Hampshire in August of 2007 to begin a 14-week training at the State police academy. Given this change in circumstances, on August 3, 2007, a different Probate Court judge modified the temporary custody order and gave the wife sole physical custody, while allowing the husband to see the children for three or four weekends per month.3 That order, which also increased the child support the husband was required to pay to $157 per week, remained in effect until April of 2009.

[135]*135The father was assigned to the “Troop A Barracks,” one of six barracks covering the state. This barracks includes two “patrol areas”: Rockingham County, which abuts the Massachusetts border, and Strafford County, which lies further to the north. The husband testified that he was able to bid on shifts in both patrol areas, and he specifically put in to work the “midnight shift,” which runs from 10:00 p.m. to 6:00 a.m.

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Cite This Page — Counsel Stack

Bluebook (online)
912 N.E.2d 489, 75 Mass. App. Ct. 131, 2009 Mass. App. LEXIS 1105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prenaveau-v-prenaveau-massappct-2009.