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-1455
S.P.
vs.
S.A.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother, S.A.R., appeals from a divorce modification
judgment that awarded the father, S.P., sole legal custody of
the parties' minor child. The mother contends that the judge
erred by (1) finding a material change in circumstances that
required, in the child's best interest, a modification of the
divorce judgment; (2) reaching issues of legal custody, physical
custody, and child support without providing notice to the
mother; and (3) admitting into evidence a medical report,
without limitation on its use. We affirm.
Background. We summarize the relevant facts as found by
the judge after trial, supplementing them with undisputed facts
in the record. In 2016, the parties married, and their child was born in 2017. In November 2020, the child was diagnosed
with global developmental delay and autism spectrum disorder
requiring substantial support. The child's physician
recommended that the child receive fifteen to twenty hours of
applied behavior analysis therapy (ABA therapy) weekly.1 In
November 2021, the parties divorced. The mother parented the
child every week from Wednesday night to Friday before school,
and every other weekend. The father parented the child at all
other times and had dinner with him on alternating Thursdays.
Under the judgment of divorce nisi, the father paid child
support to the mother in the amount of $1,024 per week. From
March 2021 through September 2022, the child received five hours
of ABA therapy weekly. The child received ABA therapy less
often than his physician had recommended, largely because the
mother wanted the child to receive only five hours of ABA
therapy per week, including only two hours per week while she
had physical custody of the child. When the child received only
five hours of ABA therapy per week, he engaged in obsessive
behavior that his ABA therapy was designed to address.
1 ABA therapy teaches the child how to do daily activities, like using the bathroom and communicating both verbally and nonverbally. ABA therapy also teaches the parents how to address the child's sensory overload and obsessive behavior.
2 At his school, the child's teachers used rewards, such as
hugging and allowing the child to sit on a teacher's lap, to
reinforce positive behaviors. The mother objected to this type
of positive reinforcement, and around May 2022, she directed the
school to discontinue it. The father approved of this method of
positive reinforcement and observed that, after the
discontinuation of these practices, the child regressed and
frequently exhibited self-injurious behavior, including hitting
his own head with his hands.
In May 2022, the father filed this complaint for
modification of the divorce judgment. The father alleged that
the child's regression was caused by the mother's obstruction of
the recommended amount of ABA treatment and her interference
with school providers. Accordingly, the father sought sole
legal custody of the child as well as primary physical custody.
In October 2022, while the father's complaint was still pending,
the child's five hours of weekly ABA therapy was discontinued
due to staffing issues. The child did not receive any in-home
therapy until the father secured a new therapist approximately
three weeks before the August 28, 2023 trial. The new therapist
provided the child fifteen hours of services per week when the
father had weekend parenting time and nine hours per week on
weeks when the mother had parenting time, as the mother wanted
3 to continue to limit in-home services to two hours during her
parenting time. Following trial, a modification judgment issued
that (1) granted the father sole legal custody as it relates to
educational and medical decisionmaking, (2) granted the father
physical custody of the child from Monday afternoon until Friday
morning and every other weekend, (3) granted the mother physical
custody of the child every other weekend, and (4) ended the
father's child support payments to the mother.
Discussion. 1. Best interests of the child. "[A]
transfer of custody from one parent to another must be based on
some material and substantial change in circumstances since the
divorce," and "the change must be of sufficient magnitude to
satisfy the governing principle, namely, whether the transfer is
in the best interests of the child." Hernandez v. Branciforte,
55 Mass. App. Ct. 212, 220 (2002). "[T]he determination of
which parent will promote a child's best interests rests within
the discretion of the judge . . . [whose] findings . . . must
stand unless they are plainly wrong" (quotation and citation
omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019).
Despite the mother's assertions to the contrary, the judge did
not err by finding that a material change in circumstances
4 occurred.2 The judge credited the father's and a behavior
analyst's testimony that the child's behavior had worsened and
that his school progress had declined. The child's behavioral
decline was a change in circumstance that coincided with fewer
hours of ABA therapy than the child's physician recommended and
a lack of physical positive reinforcement at school.
We conclude that the judge did not err by finding that the
best interests of the child required a change in legal and
physical custody. The mother testified that she had never read
the physician's report about the child's behavioral needs,
rejected its recommendations in any event, and would not comply
with ABA therapy beyond two hours per week. The judge thus
found that the mother's perception of the child's behavior was
unreliable. We disturb neither this finding nor the finding
that "all of the credible evidence support[ed] the fact that
[the] child need[ed] more services, specifically ABA therapy at
home in addition to the skills he is taught at school." See
Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015) ("the
judge's assessment of the weight of the evidence and the
2 In the November 2021 judgment of divorce nisi, another judge found that the mother's position that the child did not need fifteen to twenty hours per week of ABA therapy was not "unreasonable." The mother argues that this finding precluded the litigation of issues related to ABA therapy hours at the modification trial.
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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
23-P-1455
S.P.
vs.
S.A.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother, S.A.R., appeals from a divorce modification
judgment that awarded the father, S.P., sole legal custody of
the parties' minor child. The mother contends that the judge
erred by (1) finding a material change in circumstances that
required, in the child's best interest, a modification of the
divorce judgment; (2) reaching issues of legal custody, physical
custody, and child support without providing notice to the
mother; and (3) admitting into evidence a medical report,
without limitation on its use. We affirm.
Background. We summarize the relevant facts as found by
the judge after trial, supplementing them with undisputed facts
in the record. In 2016, the parties married, and their child was born in 2017. In November 2020, the child was diagnosed
with global developmental delay and autism spectrum disorder
requiring substantial support. The child's physician
recommended that the child receive fifteen to twenty hours of
applied behavior analysis therapy (ABA therapy) weekly.1 In
November 2021, the parties divorced. The mother parented the
child every week from Wednesday night to Friday before school,
and every other weekend. The father parented the child at all
other times and had dinner with him on alternating Thursdays.
Under the judgment of divorce nisi, the father paid child
support to the mother in the amount of $1,024 per week. From
March 2021 through September 2022, the child received five hours
of ABA therapy weekly. The child received ABA therapy less
often than his physician had recommended, largely because the
mother wanted the child to receive only five hours of ABA
therapy per week, including only two hours per week while she
had physical custody of the child. When the child received only
five hours of ABA therapy per week, he engaged in obsessive
behavior that his ABA therapy was designed to address.
1 ABA therapy teaches the child how to do daily activities, like using the bathroom and communicating both verbally and nonverbally. ABA therapy also teaches the parents how to address the child's sensory overload and obsessive behavior.
2 At his school, the child's teachers used rewards, such as
hugging and allowing the child to sit on a teacher's lap, to
reinforce positive behaviors. The mother objected to this type
of positive reinforcement, and around May 2022, she directed the
school to discontinue it. The father approved of this method of
positive reinforcement and observed that, after the
discontinuation of these practices, the child regressed and
frequently exhibited self-injurious behavior, including hitting
his own head with his hands.
In May 2022, the father filed this complaint for
modification of the divorce judgment. The father alleged that
the child's regression was caused by the mother's obstruction of
the recommended amount of ABA treatment and her interference
with school providers. Accordingly, the father sought sole
legal custody of the child as well as primary physical custody.
In October 2022, while the father's complaint was still pending,
the child's five hours of weekly ABA therapy was discontinued
due to staffing issues. The child did not receive any in-home
therapy until the father secured a new therapist approximately
three weeks before the August 28, 2023 trial. The new therapist
provided the child fifteen hours of services per week when the
father had weekend parenting time and nine hours per week on
weeks when the mother had parenting time, as the mother wanted
3 to continue to limit in-home services to two hours during her
parenting time. Following trial, a modification judgment issued
that (1) granted the father sole legal custody as it relates to
educational and medical decisionmaking, (2) granted the father
physical custody of the child from Monday afternoon until Friday
morning and every other weekend, (3) granted the mother physical
custody of the child every other weekend, and (4) ended the
father's child support payments to the mother.
Discussion. 1. Best interests of the child. "[A]
transfer of custody from one parent to another must be based on
some material and substantial change in circumstances since the
divorce," and "the change must be of sufficient magnitude to
satisfy the governing principle, namely, whether the transfer is
in the best interests of the child." Hernandez v. Branciforte,
55 Mass. App. Ct. 212, 220 (2002). "[T]he determination of
which parent will promote a child's best interests rests within
the discretion of the judge . . . [whose] findings . . . must
stand unless they are plainly wrong" (quotation and citation
omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019).
Despite the mother's assertions to the contrary, the judge did
not err by finding that a material change in circumstances
4 occurred.2 The judge credited the father's and a behavior
analyst's testimony that the child's behavior had worsened and
that his school progress had declined. The child's behavioral
decline was a change in circumstance that coincided with fewer
hours of ABA therapy than the child's physician recommended and
a lack of physical positive reinforcement at school.
We conclude that the judge did not err by finding that the
best interests of the child required a change in legal and
physical custody. The mother testified that she had never read
the physician's report about the child's behavioral needs,
rejected its recommendations in any event, and would not comply
with ABA therapy beyond two hours per week. The judge thus
found that the mother's perception of the child's behavior was
unreliable. We disturb neither this finding nor the finding
that "all of the credible evidence support[ed] the fact that
[the] child need[ed] more services, specifically ABA therapy at
home in addition to the skills he is taught at school." See
Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015) ("the
judge's assessment of the weight of the evidence and the
2 In the November 2021 judgment of divorce nisi, another judge found that the mother's position that the child did not need fifteen to twenty hours per week of ABA therapy was not "unreasonable." The mother argues that this finding precluded the litigation of issues related to ABA therapy hours at the modification trial. Given the change of circumstances detailed here, the mother is incorrect.
5 credibility of the witnesses is entitled to deference" [citation
omitted]). We discern no abuse of discretion or other error in
the judge's conclusion that it was in the child's best interests
for the father to have sole legal custody as it related to
educational and medical decisionmaking. See E.K. v. S.C., 97
Mass. App. Ct. 403, 409 (2020). Finally, the judge did not err
by granting the father physical custody of the child on weekdays
and every other weekend in order for the child's educational and
medical needs to be met.3
2. Notice of issues at trial. The mother contends that
the judge abused her discretion by reaching issues of physical
custody and child support without providing notice to the
mother.4 We review a judge's decision to reach an issue not
delineated in a pretrial order for an abuse of discretion. See
Cavanagh v. Cavanagh, 490 Mass. 398, 426-427 (2022). "[O]nce
the issues are defined in a pretrial order, they ought to be
adhered to in the absence of some good and sufficient reason"
3 The mother also asserts that the judge admitted the physician's report for the limited purpose of its effect on Rahman, but improperly allowed the father to use the report for a different purpose. To the contrary, the judge properly admitted the physician's report, pursuant to the G. L. c. 233, § 79G exception to the hearsay rule, with no limitations on its use.
4 The mother also contends that she did not have notice that legal custody would be an issue at trial. Legal custody was listed as an issue in the trial scheduling order.
6 (quotation and citations omitted). Id. at 426. In evaluating
the propriety of a judge's decision to reach issues not
delineated in pretrial orders, "courts have consistently focused
on the elements of surprise and unfairness." Slade v. Slade, 43
Mass. App. Ct. 376, 378-379 (1997).
The trial scheduling order stated that the issue was "legal
custody as it relates to the child's need for ABA therapy." The
judge concluded that, due to the mother's unequivocal testimony
that she would not participate in the recommended ABA therapy,
the best interests of the child required that the child reside
with the father during the week while he receives services.
That is, the child could only receive the recommended ABA
therapy if the parenting plan were modified. The judge thus
provided a good and sufficient reason to address the issue of
physical custody, as it was naturally related to the issue of
legal custody regarding the child's need for ABA therapy.
Contrast Cavanagh, 490 Mass. at 427 (judge exceeded scope of
pretrial order where she reached issue not "naturally related to
any of the issues that were enumerated"). In any event, even if
the mother lacked adequate notice that physical custody was at
issue, in the absence of a representation that she would be
willing to allow the recommended ABA therapy while the child is
in her physical custody, or proffer of some other basis for
7 concluding that the change in legal custody in order to provide
the recommended ABA therapy would not necessitate a change in
physical custody, she has not demonstrated any prejudice from
that lack of notice. Because the father became the primary
physical custodial parent, he was no longer required to pay
child support to the mother. See G. L. c. 208, § 28.
Modification judgment affirmed.
By the Court (Rubin, Hand & Brennan, JJ.5),
Clerk
Entered: January 21, 2025.
5 The panelists are listed in order of seniority.