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
23-P-939
S.N.B.
vs.
P.K.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
S.N.B. (wife), the former spouse of P.K.M. (husband),
appeals from a judgment of divorce nisi (divorce judgment)
issued by a judge of the Probate and Family Court, challenging
the property division, the amount of income attributed to the
husband for purposes of child support, and certain provisions
relating to custody and parenting time for the parties' two
minor children. We vacate the portions of the divorce judgment
pertaining to child support and the father's parenting time, and
remand those matters for further proceedings consistent with
this memorandum and order. The divorce judgment is otherwise
affirmed. Background. We summarize the trial judge'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' marriage was arranged by their families. When
they met in late 2004, the husband was living in New Jersey and
the wife was living in Iowa. They were married in India in May
2005, and returned to Iowa after the wedding. In 2006, after
the wife obtained her master's degree, the parties moved to
Massachusetts, and the wife obtained her doctorate degree in
2011. The parties' eldest son was born in 2012, and their
youngest son was born in 2015.
The husband was emotionally and physically abusive toward
the wife and children during the marriage. In August 2019,
after the wife and children returned from a trip to India, the
wife discovered that the husband had started using a highly
concentrated form of marijuana that caused significant changes
in his behavior. After an incident in December 2020, during
which the husband was "out of control" and physically assaulted
the wife and the eldest child, the wife fled with the children
to Connecticut to stay with her friends. The wife and the
children remained in Connecticut until February 2021, after
2 which they stayed with the wife's brother in Texas for
approximately six months.1
The wife filed a complaint for divorce in May 2021, and
obtained a G. L. c. 209A abuse prevention order in June 2021.
The husband was ordered to vacate the marital home in July 2021,
enabling the wife and children to safely move back into the
marital home in August 2021 prior to the start of the new school
year.
A one-day trial was held on July 8, 2022. The wife, who
was represented by counsel, testified at the trial. Although
the husband, who was self-represented, indicated that he
intended to testify, he declined to do so. The judge then
requested the wife's counsel to give her closing argument. The
wife's counsel then asked the judge for permission to reopen the
evidence to address issues about which she had expected to
cross-examine the husband. The judge, however, denied that
request. Prior to trial, the husband ignored numerous discovery
orders and failed to file mandatory financial statements. On
the day of trial, he submitted an incomplete financial statement
that he filled out while sitting in the courtroom. He declined
The children were still attending school remotely during 1
this period because of the COVID-19 pandemic.
3 to present any other evidence,2 and largely refused to agree to
otherwise uncontested exhibits.
On July 14, 2022, the judge issued the divorce judgment and
accompanying findings. With respect to the children, the
divorce judgment provided, in relevant part, that (1) the wife
shall have sole legal and physical custody; (2) the husband
shall have three hours of supervised parenting time per week;
(3) the parties shall communicate about the children in writing;
and (4) the husband shall pay child support of $100 per week.
With respect to the property division, the wife was permitted to
retain the marital home, her retirement accounts, and certain
other property, subject to paying the husband a lump sum of
$93,500. The wife moved to amend the judgment but the judge
denied it. The present appeal by the wife followed.
Discussion. 1. Property division. "Our review of a
judgment pursuant to the equitable distribution statute, G. L.
c. 208, § 34, proceeds under a two-step analysis. 'First, we
examine the judge's findings to determine whether all relevant
factors in § 34 were considered.'" Adams v. Adams, 459 Mass.
361, 371 (2011), quoting Bowring v. Reid, 399 Mass. 265, 267
(1987). "The second tier of our review requires us to determine
2 Indeed, the husband even refused to disclose his current address to the court, as noted by the judge in her findings.
4 whether the reasons for the judge's conclusions are 'apparent in
[the judge's] findings and rulings.'" Adams, supra, quoting
Redding v. Redding, 398 Mass. 102, 108 (1986). "A judge's
determinations as to equitable distribution will not be reversed
unless 'plainly wrong and excessive.'" Adams, supra, quoting
Redding, supra at 107.
The wife contends that the judge erred by failing to make
findings on several of the mandatory factors under § 34, despite
insufficient evidence at trial regarding those factors. The
wife asserts that the lack of evidence was attributable to the
husband's incomplete financial statement and refusal to testify,
and the judge improperly denied her request to reopen the
evidence once it became apparent that the husband would not be
testifying. We are not persuaded.
The wife was aware that the parties had only been allotted
one day for their divorce trial, and she was capable of
providing evidence regarding the relevant § 34 factors through
her own direct testimony. To the extent that she may have made
a strategic decision to elicit testimony regarding certain
factors through cross-examination of the husband, the judge was
not obligated to relieve her of the consequences of that
decision by reopening the evidence after she had already given
her closing argument. Weber v. Coast to Coast Med., Inc., 83
5 Mass. App. Ct. 478, 481 (2013) ("The decision whether 'to admit
additional evidence after a party has rested lies in the sound
discretion of the trial judge'" [citation omitted]); Caffyn v.
Caffyn, 70 Mass. App. Ct. 37, 43-44 (2007) (judge did not abuse
discretion in denying wife's request to reopen evidence on issue
of property valuation where case had "already been tried to a
conclusion" and, during trial, wife made "presumably strategic
decision to rely upon the husband's testimony and to forgo
expert testimony"). Accordingly, we cannot fault the judge for
not making findings on § 34 factors for which the wife could
have, but failed to, present sufficient evidence. See Putnam v.
Putnam, 7 Mass. App. Ct. 672, 674 (1979) ("when parties decline
to offer evidence on [§ 34] factors . . . consideration of the
factors thereby omitted can properly be deemed waived").
We are likewise unpersuaded by the wife's assertion that
the judge erred by failing to (1) ascribe specific values for
certain assets,3 (2) provide a "chart or detailed analysis of the
3 The wife also claims that the judge erred in omitting certain assets altogether: (1) land in India owned by the husband, and (2) the contents of a safe deposit box in India coowned by the parties. The only evidence pertaining to land in India owned by the husband was a passing reference made by the wife during her testimony. She did not describe the land in any detail, nor did she provide any values for same. Given the minimal evidence regarding that land, the judge did not err in omitting it from the property division. As for the safe deposit box in India, the parties executed a stipulation on the day of trial assigning sole ownership of the box and its contents
6 division of assets," and (3) provide "any explanation for the
basis of the $93,500 lump sum" that the wife was ordered to pay
to the husband. The judge was not required to provide a
specific value for every single asset or a "chart or detailed
analysis" of the property division. See Ross v. Ross, 50 Mass.
App. Ct. 77, 81 (2000) ("Mathematical precision is not required
of equitable division of property" [citation omitted]). The
judge's findings reflect appropriate consideration of the § 34
factors on which sufficient evidence was submitted, and the
ultimate distribution of property flowed rationally from those
findings. See Williams v. Massa, 431 Mass. 619, 631 (2000).
The wife retained the marital home (having an equity value of
approximately $77,000), an apartment in India purchased by the
parties during the marriage (valued at approximately $120,000),
her retirement accounts, a Honda minivan, bank accounts, and
other miscellaneous personal property.4 The husband retained a
(including jewelry and other valuables) to the wife. The stipulation was expressly incorporated into and made a part of the divorce judgment.
4 The parties purchased the marital home in August 2016 for $795,000. The wife testified that the home had recently been appraised at $1,030,000. However, the husband insisted on stipulating to a lower value of $700,000, which the wife agreed to. Sometime between 2006 and 2009, the parties purchased an apartment in India that had been built by the wife's grandfather. The judge appeared to credit the wife's testimony that the property was worth around $120,000 at the time of trial.
7 joint bank account containing slightly less than $30,000, his
retirement accounts, and a Honda sedan. To effectuate an
equitable division, the wife was ordered to pay the husband a
lump sum of $93,500. The judge's findings reflect that the
$93,500 lump sum was comprised of three amounts: $38,500
(representing approximately one-half of the marital home
equity), $50,000 (representing slightly less than one-half of
the value of the India apartment), and $5,000 (to adjust for the
disparate values of the parties' respective vehicles). The
property division was not plainly wrong and excessive, and we
therefore decline to disturb it. See Adams, 459 Mass. at 371.
2. Child support. The wife next contends that the judge
abused her discretion in attributing only minimum wage income to
the husband for purposes of calculating child support.5
"Income may be attributed where a finding has been made
that either parent is capable of working and is unemployed or
underemployed." Child Support Guidelines § 1(E)(1) (Oct. 2021).
If the judge determines that a parent "is earning less than he
. . . could earn through reasonable effort," the judge should
5 The judge found that, at the time of trial, the wife was employed as an assistant professor earning approximately $142,000 per year, and the husband was unemployed earning no income. In calculating the child support order, the judge used the wife's income and the husband's attributed "minimum wage" income.
8 consider "potential earning capacity rather than actual earnings
in making its child support order." Id. at § 1(E)(2). We
review the judge's attribution of income for an abuse of
discretion. See Davae v. Davae, 100 Mass. App. Ct. 54, 57
(2021).
Here, the judge implicitly determined that the husband, who
was unemployed at the time of trial, was capable of earning more
with reasonable effort, as reflected by her decision to
attribute income to him. See Davae, 100 Mass. App. Ct. at 59
(accepting judge's "implicit finding that the husband had not
been using reasonable efforts to earn to capacity"). In
determining the husband's "potential earning capacity," the
judge was required to "consider a nonexclusive list of factors,
to the extent known and presented to the [judge]" (quotation and
citations omitted), id. at 57-58, including the husband's "past
employment and earnings history." Child Support Guidelines
§ 1(E)(3). Although the evidence on this issue was admittedly
sparse, the judge found that the husband was previously employed
by a company as a software engineer earning $130,000 annually.
The judge found that the last record of the husband's employment
with the company was in September 2021, approximately ten months
prior to trial, but "[t]here was no evidence offered as to why
or when he left that employment."
9 Instead of considering the husband's recent salary of
$130,000, however, the judge ultimately attributed minimum wage
income to him. In her subsequent order denying the wife's
postjudgment motion to amend, the judge stated that there was
"no evidence presented at trial as to what happened to husband's
employment," but the "[w]ife did testify that husband used THC
in wax form which caused changes in his demeanor and delusions
which reasonably render him unable to work at the level before."
The wife's testimony regarding the husband's marijuana use,
however, related solely to the increased intensity of his rages
and corresponding abusive behavior toward her and the children.
Neither the wife's testimony nor any other evidence at trial
suggested that the husband's work performance began to suffer
after he started using marijuana. To the contrary, after the
wife discovered the husband's marijuana use and accompanying
behavioral changes in August 2019, the husband remained fully
employed for at least two years thereafter, through September
2021. The judge's conclusory finding that the husband's use of
marijuana "reasonably" rendered him unable to work at his
previous level was not supported by evidence in the record. See
Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 142 (2009), S.C.,
81 Mass. App. Ct. 479 (2012) (judge's "ultimate conclusion" must
be based on "ground-level facts").
10 Accordingly, we conclude that the judge erred in
discounting the husband's recent employment and earnings history
when determining his present earning capacity for purposes of
child support. See Child Support Guidelines § 1(E)(3) (judge
"shall . . . consider . . . to the extent known and presented to
the [judge] . . . [the parent's] past employment and earnings
history" [emphasis added]). The child support order set forth
in the divorce judgment must therefore be vacated and the matter
remanded for redetermination of the husband's earning capacity.6
3. Husband's parenting time. The wife next contends that
the judge erred in granting the husband supervised parenting
time (rather than no parenting time) without making required
findings under G. L. c. 208, § 31A, addressing the effect of the
husband's abusive behavior on the children.
We review the judge's determination of custody and
parenting time for an abuse of discretion. See Schechter v.
Schechter, 88 Mass. App. Ct. 239, 245 (2015). "In custody
matters, the touchstone inquiry [is] . . . what is 'best for the
6 On remand, the judge should make further findings reflecting consideration of (1) the husband's recent employment and earnings history, and (2) any appropriate inferences to be drawn from the husband's evasiveness regarding his finances. See Grubert v. Grubert, 20 Mass. App. Ct. 811, 821-822 (1985) (where uncertainty surrounding husband's income was his own doing, judge was entitled to draw all reasonable inferences against him). Moreover, the judge may, in her discretion, take additional evidence relevant to the husband's earning capacity.
11 child,'" Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting
Custody of Kali, 439 Mass. 834, 840 (2003), and the judge is
required to "consider evidence of past or present abuse toward a
parent or child as a factor contrary to the best interest of the
child." G. L. c. 208, § 31A. "If the [judge] finds that a
pattern or serious incident of abuse has occurred," the judge
must make findings "as to the effects of the abuse on the child,
which findings demonstrate that [the custody] order is in the
furtherance of the child's best interests and provides for the
safety and well–being of the child." Id. "If ordering
visitation to the abusive parent, the [judge] shall provide for
the safety and well–being of the child and the safety of the
abused parent," which may include, among other things, requiring
(1) the visitation to be supervised; (2) "the abusive parent to
attend and complete, to the satisfaction of the court, a
certified batterer's treatment program as a condition of
visitation;" and (3) "the abusive parent to abstain from
possession or consumption of . . . controlled substances during
the visitation and for 24 hours preceding visitation." Id. We
"examine the judge's findings to determine whether the
requirements of G. L. c. 208, § 31A, were met." Maalouf v.
Saliba, 54 Mass. App. Ct. 547, 550 (2002).
12 Here, the judge made the following relevant findings
regarding the husband's abusive behavior toward the wife and the
children. Throughout the marriage, the husband was "emotionally
abusive," he "became angry easily," and his "temper exploded."
The husband's anger was often expressed verbally, and sometimes
physically. During one incident, the husband became upset and
threw a laptop at the wife that hit her leg and caused bruising.
During another incident, the husband removed his shoe and raised
it to strike the wife but was stopped by his mother (who was
visiting the parties at the time). On another occasion, the
husband forced the wife to kneel on the floor and not move
because he was her "master." On yet another occasion, while
driving, the husband ordered the wife out of the car and told
her to walk home. After she got out of the car, the husband
"zoomed" forward and then backward, and told the wife to get
back into the car. The children, who were in the car and
witnessed the incident, were crying and calling out, "Mommy,
mommy."
In 2019, after the husband began using marijuana, he
stopped interacting with the children and his "rages" became
more frequent and intense. When disciplining the children, the
husband would use physical force against the wife's objection,
ordering her to not interfere and stating that it was "important
13 to instill fear in the children" and that his disciplinary
methods were "meant to hurt." The husband's disciplinary
methods included, among other things, grabbing the children by
the collar and shaking them, locking the eldest child in the
bathroom for over an hour, and hitting the children (which
caused the eldest child to develop a habit of covering his head
with his arms when summoned by the husband). In November 2019,
the husband became upset with the youngest child and choked him.
In December 2020, during a disagreement between the parties
regarding childcare duties, the husband became enraged, shoved
the wife (causing her to fall down), and dragged the eldest
child down the stairs. The judge credited the wife's testimony
that the husband was "out of control" and that she and the
children were frightened. The wife locked herself and the
children in the bedroom and called her friends from Connecticut
to pick them up. When the wife's friends arrived, the youngest
child expressed relief, jumping up and down and stating, "I'm
safe. I'm safe."
The wife and the children did not return to Massachusetts
until August 2021, after the 209A order issued and the husband
vacated the marital home. The husband did not see the children
at all between December 2020 and July 2022. The judge concluded
that it was "in the children's best interest to be re-introduced
14 to [the husband] in a setting where they feel comfortable and
with a third-party present." The judge ultimately granted the
husband three hours of supervised visitation once per week in
the presence of an agreed-on third party,7 with the ability to
seek modification of the parenting schedule "after a period of
successful parenting time with the third-party present."
Here, "[e]ven though the judge made detailed and
comprehensive findings, demonstrating close attention to the
record, this is not a case in which we may conclude that the
judge made implicit findings sufficient to satisfy the statute."
Maalouf, 54 Mass. App. Ct. at 550. Despite the judge's findings
describing numerous incidents of verbal, emotional, and physical
abuse -- including an incident where the husband choked the
parties' then five year old child -- the judge did not make an
express finding "that a pattern or serious incident of abuse
ha[d] occurred." G. L. c. 208, § 31A. Although such a finding
could reasonably be inferred from the judge's subsidiary
findings,8 "domestic violence is an issue too fundamental and
7 If the parties were unable to agree on a neutral third party, they were directed to retain the services of a professional parenting time supervisor to be paid for by the husband.
8 At a minimum, the choking incident appears to qualify as an incident of serious abuse. See G. L. c. 208, § 31A; G. L. c. 265, § 13K.
15 frequently recurring to be dealt with only by implication."
Maalouf, supra, quoting Custody of Vaughn, 422 Mass. 590, 599
(1996).
Moreover, although the judge's findings reflect
consideration of the "effects of the abuse on the child[ren],"
the findings do not adequately "demonstrate that [the
visitation] order is in the furtherance of the child[ren]'s best
interests and provides for [their] safety and well–being."
G. L. c. 208, § 31A. The judge found that husband and the
children had an "estranged relationship" before the December
2020 incident, and that he "stopped interacting with the
children" after he began using marijuana in 2019. Although the
judge found that it was in the children's best interests to be
"re-introduced" to the husband, it is unclear what evidence in
the record supports this. For example, there is nothing in the
judge's findings demonstrating the existence of a previously
loving and appropriate relationship between the husband and the
children, like in Maalouf, 54 Mass. App. Ct. at 551, or a
willingness on the part of the husband to change his abusive
behavior.9
9 To the contrary, the husband told the judge at trial that he would never attend counseling, even if it meant never seeing the children again.
16 In the absence of the aforementioned findings, the
requirements of § 31A have not been satisfied. We therefore
vacate the portion of the divorce judgment granting the husband
supervised visitation and remand the matter for the judge to
make further findings and redetermine the issue of visitation in
light of such further findings. See Maalouf, 54 Mass. App. Ct.
at 550-551 (vacating visitation order and remanding matter due
to judge's failure to make express findings under § 31A as to
whether father's abuse of mother constituted "pattern or serious
incident," and effect of abuse on children).
4. Child-related communication and 209A order. Turning to
the wife's remaining contention, we agree that the provisions of
the divorce judgment requiring the parties to communicate about
the children and the "no contact" provisions of the 209A order
conflict with each other. "A c. 209A order entered by the
Probate and Family Court must be modified when a subsequent
custody or visitation order is entered by the Probate and Family
Court which conflicts with the c. 209A order. All orders must
be consistent" (citation omitted). Commonwealth v. Rauseo, 50
Mass. App. Ct. 699, 710 (2001). "[A] modification of a 209A
order initially issued by a Probate [and Family] Court [judge]
must be entered on the 209A form of order." Id. at 710-711.
Accordingly, on remand, the judge shall modify the "no contact"
17 provisions of the 209A order to be consistent with the child-
related communication provisions set forth in the divorce
judgment. See Id. at 710-711 & n.12.
Conclusion. So much of the divorce judgment, dated July
14, 2022, as pertains to child support and the husband's
parenting time is vacated, and those matters are remanded for
further proceedings consistent with this memorandum and order.
The divorce judgment is affirmed in all other respects.
During the pendency of the remand, the husband shall pay
temporary child support of $100 per week, unless otherwise
ordered by the judge.
So ordered.
By the Court (Rubin, Desmond & Singh, JJ.10),
Clerk
Entered: December 18, 2024.
10 The panelists are listed in order of seniority.