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
25-P-479
SCOTT WINICK & another1
vs.
BRITTANY BISHOP.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioners, Scott Winick and Linda Winick
(grandparents), appeal from a decree of the Probate and Family
Court dismissing their petition for grandparent visitation. We
affirm.
Background. On November 13, 2019, the grandparents filed a
petition for grandparent visitation naming as respondents their
son, Benjamin Winick (father), and Brittany Bishop (mother), who
are the parents of the child at issue, who was then fourteen
months old. The petition asserted that there was a significant
1 Linda Winick. relationship between the grandparents and the child, and that
grandparent visitation was in the child's best interest.
Two weeks later, the father, the mother, and the
grandparents entered a stipulation concerning grandparent
visitation. A judge of the Probate and Family Court issued
temporary orders incorporating the stipulation and providing the
grandparents with visitation on alternate Sundays, coinciding
with the father's parenting time, as well as one-hour video
conferences weekly.
On January 20, 2021, the judge held a one-day trial.2 While
the case was under advisement, the father died on February 9,
2021. Several months later, the mother filed a motion to amend
the temporary orders concerning grandparent visitation. The
judge ordered grandparent visitation to continue on the same
schedule as previously ordered, but imposed certain conditions
on visits. The judge also "reopen[ed] the evidence to permit
both parties to introduce evidence since the date of trial."
A second day of trial was held on March 17, 2022. The
judge issued a judgment and decree dismissing the grandparents'
petition for grandparent visitation. The grandparents appeal.
2 The trial judge was not the same judge who entered the order incorporating the stipulation.
2 Discussion. The mother argues that because the
grandparents have failed to provide this court with a transcript
of the first day of trial, we cannot conduct a meaningful review
of the judge's findings. We agree.
Based on the evidence adduced on the first day of trial,
January 20, 2021, the judge made specific and detailed findings
of fact. For example, the judge credited the mother's testimony
that she was the child's primary caregiver. The judge did not
credit the grandparents' testimony that the child exhibited
signs of trauma on arrival at their home in June 2019. The
judge credited the testimony of a mental health professional who
provided early intervention services beginning in March 2020
that the mother engaged the child in age-appropriate therapies
and that the child's developmental improvements are to be
attributed to the mother. The judge also credited the mother's
testimony about her sobriety.
Applying G. L. c. 119, § 39D, and the case law to her
findings of fact, the judge noted that the mother's decisions
concerning grandparent visitation are to "be given presumptive
validity." Blixt v. Blixt, 437 Mass. 649, 658 (2002), cert.
denied, 537 U.S. 1189 (2003), citing Troxel v. Granville, 530
U.S. 57, 69 (2000). The judge concluded that the grandparents
had not met their burden to overcome that presumption by proving
3 by a preponderance of the evidence that they have a "significant
preexisting relationship" with the child, and that "the failure
to grant visitation will cause the child significant harm by
adversely affecting the child's health, safety, or welfare."
Blixt, supra. The judge found that the child had stayed with
the grandparents for a total of about four months in 2019, and
had periodic visits since, but those contacts did not create a
significant preexisting relationship with the child such that
grandparent visitation would be ordered without the mother's
consent. See Frazier v. Frazier, 96 Mass. App. Ct. 775, 778-779
(2019) (grandparent relationship consisting of "shared meals,
visits, vacations, and holidays" was "apparently nurturing and
enriching," but not one which if disrupted would cause
significant harm). The judge noted that nothing prevents the
parties from agreeing to grandparent visitation "as Mother deems
in [the child's] best interest."
As appellants, the grandparents had the duty to provide
this court with "the transcript of all proceedings relevant to
the appeal." Mass. R. A. P. 8 (b) (1) (A), as appearing in 481
Mass. 1611 (2019). After trial, the grandparents filed a motion
in the Probate and Family Court, assented to by the mother, to
obtain the transcripts of both trial dates. In the motion the
grandparents asserted that "[f]ailure to obtain the transcripts
4 of the trial proceedings will prevent the Court of Appeals from
conducting a meaningful review of the issues raised upon
appeal."
Even so, the grandparents have not provided this court with
the transcript of the January 20, 2021 trial proceedings.
Instead, the grandparents assert in their brief, without
reference to any source, that "[u]nfortunately, the Lower Court
was unable to locate and has no record of any audio for the
first day of trial that occurred via Zoom. As a result, the
[grandparents] submit[] only the transcript from the second day
of trial." Those unsupported assertions are insufficient to
relieve the grandparents of their duty as appellants to provide
this court with a complete trial transcript. See Neuwirth v.
Neuwirth, 85 Mass. App. Ct. 248, 257-258 (2014) (appellant's
affidavits did not establish excusable neglect in failing to
obtain transcript, where they claimed misunderstanding based on
conversations with named employee of register's office of
Probate and Family Court, but did not allege what employee said
or that it was inaccurate). Cf. Caccia v. Caccia, 40 Mass. App.
Ct. 376, 378 (1996) (after judge dismissed appeal for failure to
order transcript, appellant made showing that in fact she had
done so and had made "written inquiry to the register of probate
as to whether she need[ed] to do anything further").
5 The grandparents did not move to reconstruct the record of
the January 20, 2021 trial proceedings, as they were required to
do. See Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611
(2019) ("If . . . a transcript is unavailable, the appellant
shall file a motion to reconstruct the record . . ."). Had the
grandparents done so, the judge could have reconstructed the
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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
25-P-479
SCOTT WINICK & another1
vs.
BRITTANY BISHOP.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioners, Scott Winick and Linda Winick
(grandparents), appeal from a decree of the Probate and Family
Court dismissing their petition for grandparent visitation. We
affirm.
Background. On November 13, 2019, the grandparents filed a
petition for grandparent visitation naming as respondents their
son, Benjamin Winick (father), and Brittany Bishop (mother), who
are the parents of the child at issue, who was then fourteen
months old. The petition asserted that there was a significant
1 Linda Winick. relationship between the grandparents and the child, and that
grandparent visitation was in the child's best interest.
Two weeks later, the father, the mother, and the
grandparents entered a stipulation concerning grandparent
visitation. A judge of the Probate and Family Court issued
temporary orders incorporating the stipulation and providing the
grandparents with visitation on alternate Sundays, coinciding
with the father's parenting time, as well as one-hour video
conferences weekly.
On January 20, 2021, the judge held a one-day trial.2 While
the case was under advisement, the father died on February 9,
2021. Several months later, the mother filed a motion to amend
the temporary orders concerning grandparent visitation. The
judge ordered grandparent visitation to continue on the same
schedule as previously ordered, but imposed certain conditions
on visits. The judge also "reopen[ed] the evidence to permit
both parties to introduce evidence since the date of trial."
A second day of trial was held on March 17, 2022. The
judge issued a judgment and decree dismissing the grandparents'
petition for grandparent visitation. The grandparents appeal.
2 The trial judge was not the same judge who entered the order incorporating the stipulation.
2 Discussion. The mother argues that because the
grandparents have failed to provide this court with a transcript
of the first day of trial, we cannot conduct a meaningful review
of the judge's findings. We agree.
Based on the evidence adduced on the first day of trial,
January 20, 2021, the judge made specific and detailed findings
of fact. For example, the judge credited the mother's testimony
that she was the child's primary caregiver. The judge did not
credit the grandparents' testimony that the child exhibited
signs of trauma on arrival at their home in June 2019. The
judge credited the testimony of a mental health professional who
provided early intervention services beginning in March 2020
that the mother engaged the child in age-appropriate therapies
and that the child's developmental improvements are to be
attributed to the mother. The judge also credited the mother's
testimony about her sobriety.
Applying G. L. c. 119, § 39D, and the case law to her
findings of fact, the judge noted that the mother's decisions
concerning grandparent visitation are to "be given presumptive
validity." Blixt v. Blixt, 437 Mass. 649, 658 (2002), cert.
denied, 537 U.S. 1189 (2003), citing Troxel v. Granville, 530
U.S. 57, 69 (2000). The judge concluded that the grandparents
had not met their burden to overcome that presumption by proving
3 by a preponderance of the evidence that they have a "significant
preexisting relationship" with the child, and that "the failure
to grant visitation will cause the child significant harm by
adversely affecting the child's health, safety, or welfare."
Blixt, supra. The judge found that the child had stayed with
the grandparents for a total of about four months in 2019, and
had periodic visits since, but those contacts did not create a
significant preexisting relationship with the child such that
grandparent visitation would be ordered without the mother's
consent. See Frazier v. Frazier, 96 Mass. App. Ct. 775, 778-779
(2019) (grandparent relationship consisting of "shared meals,
visits, vacations, and holidays" was "apparently nurturing and
enriching," but not one which if disrupted would cause
significant harm). The judge noted that nothing prevents the
parties from agreeing to grandparent visitation "as Mother deems
in [the child's] best interest."
As appellants, the grandparents had the duty to provide
this court with "the transcript of all proceedings relevant to
the appeal." Mass. R. A. P. 8 (b) (1) (A), as appearing in 481
Mass. 1611 (2019). After trial, the grandparents filed a motion
in the Probate and Family Court, assented to by the mother, to
obtain the transcripts of both trial dates. In the motion the
grandparents asserted that "[f]ailure to obtain the transcripts
4 of the trial proceedings will prevent the Court of Appeals from
conducting a meaningful review of the issues raised upon
appeal."
Even so, the grandparents have not provided this court with
the transcript of the January 20, 2021 trial proceedings.
Instead, the grandparents assert in their brief, without
reference to any source, that "[u]nfortunately, the Lower Court
was unable to locate and has no record of any audio for the
first day of trial that occurred via Zoom. As a result, the
[grandparents] submit[] only the transcript from the second day
of trial." Those unsupported assertions are insufficient to
relieve the grandparents of their duty as appellants to provide
this court with a complete trial transcript. See Neuwirth v.
Neuwirth, 85 Mass. App. Ct. 248, 257-258 (2014) (appellant's
affidavits did not establish excusable neglect in failing to
obtain transcript, where they claimed misunderstanding based on
conversations with named employee of register's office of
Probate and Family Court, but did not allege what employee said
or that it was inaccurate). Cf. Caccia v. Caccia, 40 Mass. App.
Ct. 376, 378 (1996) (after judge dismissed appeal for failure to
order transcript, appellant made showing that in fact she had
done so and had made "written inquiry to the register of probate
as to whether she need[ed] to do anything further").
5 The grandparents did not move to reconstruct the record of
the January 20, 2021 trial proceedings, as they were required to
do. See Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611
(2019) ("If . . . a transcript is unavailable, the appellant
shall file a motion to reconstruct the record . . ."). Had the
grandparents done so, the judge could have reconstructed the
missing transcript from other sources, including the
recollections of counsel and her own notes.3 See Zabin v.
Picciotto, 73 Mass. App. Ct. 141, 172 (2008).
Contradicting his assertion in the Probate and Family Court
that "[f]ailure to obtain" the transcript of the January 20,
2021 trial proceedings "will prevent the [Appeals] Court . . .
from conducting a meaningful review of the issues raised upon
appeal," at oral argument counsel for the grandparents claimed
that transcript is unnecessary for us to decide the appeal. We
disagree. "In order to review factual findings, we must have a
record of all the evidence which was before the judge."
Connolly v. Connolly, 400 Mass. 1002, 1003 (1987). "We cannot
determine that a finding of fact was clearly erroneous under
these circumstances." Matter of the Valerie R. Pecce
3From the specificity of the judge's findings of fact, which were dated March 14, 2024, it appears entirely possible that when the judge prepared them she had access to the audio recording of the January 20, 2021 trial proceedings.
6 Supplemental Needs Trust, 99 Mass. App. Ct. 376, 381 (2021).
"In the absence of a transcript, as here, we assume that [the
judge's] findings are adequately supported." Connolly, supra.
Assuming that the judge's findings of fact are adequately
supported, we discern no clear error or abuse of discretion in
the judge's conclusion that the grandparents have not met their
burden to overcome the presumption of validity of the mother's
decisions concerning grandparent visitation. See Blixt, 437
Mass. at 657-658.
Decree of dismissal dated March 14, 2024, affirmed.
By the Court (Grant, Walsh & Brennan, JJ.4),
Clerk
Entered: April 30, 2026.
4 The panelists are listed in order of seniority.