Catledge v. Evans
Catledge v. Evans
Opinion of the Court
These are cross appeals, one from an order by a judge of the Probate and Family Court denying the plaintiff mother permission to move with the parties’ then six year old child to Old Saybrook, Connecticut, and the other from an order by a single justice of this court staying the probate judge’s order pending appeal.
The mother meanwhile appealed from the order denying removal and at the same time filed a motion, pursuant to Mass. R.A.P. 6(a), as amended, 378 Mass. 930 (1974), seeking an order staying the probate judge’s order pending appeal. A single justice of this court issued such an order, from which the father filed a notice of appeal. The single justice also accelerated proceedings on the two appeals in an effort to minimize prejudice flowing from the stay.
The single justice’s order. There can be no question that the order of September 14, 2005, staying the order commanding return pendente lite, lay within the discretion of the single justice under Mass.R.A.P. 6(a). See Mezoff v. Cudnohufsky, 5 Mass. App. Ct. 874 (1977). A single justice’s order staying a judgment pending appeal is rarely overturned. The mother and child had been living in Old Saybrook from midsummer on, and the child had been entered in a local parochial school that seemed to be the best fit for him. The probate judge’s order gave the mother only three days to enroll the child in a new school, a
The balance of hardship (see Hilton v. Braunskill, 481 U.S. 770, 776 [1987], interpreting the cognate Federal rule, Fed. R.A.P. 8 [1998]) cut in favor of staying the order; or, at least, the single justice could properly see it that way. As to the single justice’s determination that the mother had demonstrated a likelihood of success on the merits of her appeal, no abuse of her discretion in that regard can be shown in light of our disposition of the underlying appeal. The order of the single justice must be affirmed.
The probate judge’s order. As the mother here had physical custody of the child, we apply the “real advantage” test.
The aspect of the judgment that most gives us pause is the judge’s treatment of the factors bearing on the real advantage analysis, which is to say, the presence of a sincere reason for the move and the absence of a motive to deprive the father of reasonable visitation.
In these circumstances, a move to a town and neighborhood that are familiar to the child, where the mother and child have close family connections, and which are not so distant from Boston as to preclude frequent visitation with the father, offers an obviously reasonable alternative more in keeping with the principles implicit in the real advantage test. The probate judge’s findings fail to support her conclusion that the best interests of the child are served by the denial of the removal petition.
The judgment denying the mother permission to remove the child is reversed, and the matter is remanded for the entry of a
So ordered.
The guardian ad litem appointed in this matter explicitly (in his report to the court), and the probate judge implicitly (by her reference to and quotation from the relevant portion of the guardian’s report), questions the continuing viability of the “real advantage” test. That test remains the appropriate standard in cases where the custodial parent seeks removal. See Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447-448 (2006). Compare Mason v. Coleman, 447 Mass. 177, 184-186 (2006) (articulating the standard for removal cases when the parties share physical custody).
The judge did not gainsay the guardian’s finding that the mother’s motives were sincere, and that she was not motivated by a desire to make visitation with the father more difficult.
The salient subsidiary findings of the judge find support in the record primarily in the report of the guardian ad litem, but they differ significantly from that notably dispassionate and balanced report in that they represent a distillation and amplification of the elements of the report negative to the mother and the removal. The judge’s conclusion, moreover, shows less than full appreciation of the mother’s genuine problem dealing with a failed marriage, loss of job, loss of house, and a young child to support. For purposes of this decision we accept the judge’s subsidiary findings but draw our own conclusions from those findings. See Rosenthal v. Maney, 51 Mass. App. Ct. at 265 (deference not accorded when findings do not support a judge’s action).
The mother also offered to drive the child halfway for a midweek visitation with the father at a restaurant to ameliorate disruption in the father’s visitation. We tend to share the judge’s skepticism as to the usefulness of this suggestion.
Dissenting Opinion
(dissenting). Notwithstanding my dissent, I agree with the majority that the order of the single justice was within her discretion under Mass.R.A.P. 6(a), as amended, 378 Mass. 930 (1974). I respectfully dissent, however, from the majority opinion insofar as it reverses the Probate and Family Court judge’s order. Our standard of review is clear in these cases. We are bound by long-standing and appropriate guidelines that require “ ‘[findings of fact. . . not be set aside unless clearly erroneous, and due regard ... be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ We do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error or a ‘firm conviction that a mistake has been committed.’ ” Mason v. Coleman, 447 Mass. 177, 186 (2006) (citations omitted).
Here, the trial judge made thoughtful and comprehensive findings in denying the mother’s complaint for authorization to remove her minor child from this jurisdiction. The judge specifically found that “[t]he most generous characterization of the Wife’s reason for moving to Connecticut is ‘because she wants to,’ ” and “[njone of the recognized criteria for showing a real advantage are present, nor did the Wife succeed in proving even the allegations she made in her Complaint seeking the removal.” The trial judge noted that the wife, as part of the divorce, attempted to amend the complaint to allow the removal of the child in the event she lost her job after the divorce became final. This motion was denied, and the trial judge subsequently observed that it was clear that the wife always intended to remove the child to Connecticut. The judge made the following findings: (1) “The Wife’s claim that she is only able to find employment in Connecticut is not credible”; (2) “The Wife’s claim that she has no support system in Massachusetts is not credible”; (3) “The Wife’s claim that she cannot afford to stay in Massachusetts is not credible”; and finally (4) “A move of
The trial judge specifically concluded that the wife’s argument did not meet the real advantage standard as set out in Yan-nas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985). The trial judge concluded her analysis with the observation that “[i]n this case, because the Wife has not shown any advantage, other than her personal desire, [the child’s] best interest must determine the outcome of the removal request. The move is not in [the child’s] best interest.” When we decide whether a judge has abused her discretion, “we do not simply substitute our judgment for that of the judge, rather, we ask whether the decision in question ‘rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.’ This standard gives great deference to a judge’s decision.” Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999) (citation omitted). Here, the judge carefully explained her conclusions both for the benefit of the parties and to enable us to review her ruling. There was nothing in her analysis that was arbitrary or capricious. There was no error, and her judgment should have been affirmed.
Reference
- Full Case Name
- Jennifer M. Cartledge v. Mark E. Evans
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- 8 cases
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- Published