Tolos v. Tolos

419 N.E.2d 304, 11 Mass. App. Ct. 708, 1981 Mass. App. LEXIS 1038
CourtMassachusetts Appeals Court
DecidedApril 17, 1981
StatusPublished
Cited by8 cases

This text of 419 N.E.2d 304 (Tolos v. Tolos) 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
Tolos v. Tolos, 419 N.E.2d 304, 11 Mass. App. Ct. 708, 1981 Mass. App. LEXIS 1038 (Mass. Ct. App. 1981).

Opinion

Dreben, J.

Before us are four appeals by Myrna Tolos (mother) from orders of three Probate Court judges entered subsequent to a divorce decree. The orders were entered in connection with attempts, still unsuccessful, by Ernest [709]*709Tolos (father) to visit his minor daughter, Rhea. While we note that the mother is not in compliance with at least one of the orders,1 and hence is not entitled as of right to press her appeals (Henderson v. Henderson, 329 Mass. 257, 258 [1952]; Ellis v. Doherty, 334 Mass. 466, 467-468 [1956]; Murphy v. Murphy, 380 Mass. 454, 462 [1980]), we nevertheless accord the mother an opportunity to participate in a new hearing on the question of custody. We do not dismiss the appeal from that order because a new hearing on custody appears warranted for the well-being of the child. She is “not chargeable with the misconduct of her mother . . . and ought not to be compelled to suffer for it.” Murphy v. Murphy, supra at 462, quoting from Aufiero v. Aufiero, 332 Mass. 149, 153 (1955). We dismiss the appeals from the other orders.

Rhea’s parents were divorced in 1973, and the divorce decree incorporated a stipulation of her parents giving her mother custody and providing for child support payments by her father. Neither the decree nor the stipulation referred to visitation rights. After the mother moved from Massachusetts to Colorado with Rhea, the father was unable to arrange for visits with his daughter.

In an effort to obtain visitation rights, he brought a petition for modification, which sought, among other things, a change in custody. The parties had engaged in earlier skirmishes relating to child support payments, and the mother filed a complaint for contempt for arrearages. In June, 1979, the judge who had presided over the divorce proceedings in 1973 held a hearing and, thereafter, ordered visitation for the father, reduced the child support payments, and dismissed the mother’s complaint for contempt. The mother strongly opposed visitation, and the judge con[710]*710tinued the case until January 8, 1980, for a review of visitation rights, stating, “I don’t want Mrs. Tolos to be required to make another trip. Her counsel or her father could be here to report to me.”

Rhea’s father flew to Denver, failed in his attempt to see his daughter,2 and was unable to bring the child back to Boston as provided in the court order.3 In October, 1979, he obtained an order from another judge suspending child support payments, and on January 8, 1980, he obtained an order from a third judge4 transferring custody of the child from the mother to himself. That order was unaccompanied by findings, and it was conceded at oral argument in this court that neither the mother nor the child was present at the January 8, 1980, hearing. Moreover, there is nothing in the docket entries in the Probate Court, or otherwise, which suggests that the mother had reason to believe that the issue of custody would be considered at the January 8, 1980, hearing.

In these circumstances, we think the order transferring custody to the father should be vacated. Even assuming that the mother acted improperly in secreting the child from the father in Denver, the award of custody cannot be sustained on that ground. Hersey v. Hersey, 271 Mass. 545, 555 (1930). Heard v. Heard, 323 Mass. 357, 377 (1948). Haas v. Puchalski, 9 Mass. App. Ct. 555, 557 (1980). Improper conduct of a parent “cannot be permitted to interfere with the welfare of the child . . ..” Id., quoting from Heard, supra at 377.

“The uprooting of a child . . . should be done only for compelling reasons.” Jones v. Jones, 349 Mass. 259, 264 (1965). “To warrant the transfer of custody from one parent to another, following a determination of custody in a [711]*711divorce proceeding, there must be a relevant change in circumstances.” Haas v. Puchalski, 9 Mass. App. Ct. at 557, and cases cited. See Schuler v. Schuler, 382 Mass. 366, 368 (1981); Felton v. Felton, 383 Mass. 232, 239 (1981). 'The “change must be of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the child[ ].” Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974).

As indicated earlier, there is no suggestion that the mother was notified and deliberately stayed away from the hearing. To the contrary, her absence may be explained by a lack of notice as to the issues to be determined at the hearing and a belief on her part, based on the judge’s discussion on June 7, 1979, that the presence of her (the wife’s) father at the hearing would be sufficient to protect her interests. Whatever the reason, it is apparent that the judge did not have before him evidence which, with proper notice to the mother, might have been available. Such evidence from the mother and, in the judge’s discretion, from the minor child would, of course, be crucial in weighing “all the relevant factors in determining the best interests of the child.” Haas v. Puchalski, supra at 557 n.5. Such decisions require great care. In making them, a court must look to “ground-level facts” and not merely to general testimony from a “possibly self-serving” parent. Felton v. Felton, 383 Mass. at 240, 242 (case involving visitation rights).

In view of the importance of the order of January 8,1980, to the welfare of Rhea, and the fact that evidence critical to an intelligent decision — not obtainable at the time of the order changing custody — is likely to be available at a new hearing, we hold that the January 8, 1980, order should be vacated. The Probate Court shall hold a new hearing on custody and such other matters as are deemed appropriate. At such time the judge should hear all the evidence, including, in his or her discretion, reports of investigators. See Felton v. Felton, supra at 242; G. L. c. 215, § 56A. Thereafter, the judge should make the detailed findings we in[712]*712dicated are necessary where custody is changed. Haas v. Puchalski, supra at 556 n.5.

Although we determine that the January 8, 1980, order should be vacated, we in no way condone the flouting of it by the mother. For this reason, the order is to stand unless the mother, within thirty days from the date of the rescript, files in the Probate Court a motion for a new hearing on the question of custody. If so, the judge shall vacate the January 8,1980, order on such conditions as are appropriate to insure a prompt hearing.

While we dismiss the mother’s other appeals, see Henderson v. Henderson, 329 Mass. at 258; Ellis v. Doherty, 334 Mass. at 467-468; Murphy v. Murphy 380 Mass. at 462, we note, in order to bring this controversy nearer to an end, that there is no error apparent on the record in the entry of any of the three orders being appealed. There is no question that the June, 1979, order for visitation was proper. The importance from a legal viewpoint of both parents having frequent and continuing association with their child has recently been reaffirmed. Felton v. Felton, supra at 234.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Karoline Hill v. Sean Del Plato.
Massachusetts Appeals Court, 2025
Marsha Philemond v. Diony Rejouis.
Massachusetts Appeals Court, 2025
El Chaar v. Chehab
941 N.E.2d 75 (Massachusetts Appeals Court, 2010)
Yousif v. Yousif
814 N.E.2d 14 (Massachusetts Appeals Court, 2004)
Rosenthal v. Maney
745 N.E.2d 350 (Massachusetts Appeals Court, 2001)
Morris v. Scottsdale Mall Partners, Ltd.
523 N.E.2d 457 (Indiana Court of Appeals, 1988)
Bouchard v. Bouchard
422 N.E.2d 471 (Massachusetts Appeals Court, 1981)
DiRusso v. DiRusso
422 N.E.2d 463 (Massachusetts Appeals Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
419 N.E.2d 304, 11 Mass. App. Ct. 708, 1981 Mass. App. LEXIS 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolos-v-tolos-massappct-1981.