Leeden v. Doell
Leeden v. Doell
Opinion of the Court
The father appeals from an amended judgment of modification and a judgment on his complaint for contempt, both entered in the Probate and Family Court. He argues that the judge erred by (1) reducing the father's parenting time with the parties' child, (2) declining to order that the child's surname be changed to include the father's surname,
1. Parenting schedule. The original parenting schedule, as set forth in the April 2015 judgment of paternity, provided as follows. Beginning September 2015, the father would have the child on alternate weekends from Friday at 5 P . M . to Sunday at 6 P . M . (or Monday at 6 P . M . if Monday was a holiday). Beginning September 2016, the father's parenting time would increase to alternate weekends from Friday at 5 P . M . to Monday at 6 P . M . Once the child begins kindergarten,
In August 2015 the mother filed a complaint for modification, alleging that the child was suffering distress during visits with the father and that increasing the father's parenting time would cause the child more distress. The mother requested that implementation of the parenting schedule "be delayed until the child is acclimated to visitation." The father counterclaimed for modification, requesting among other things that he be allowed to pick up the child at 4 P . M . on Fridays to give them time to catch the ferry to New York, where the father lives.
After a trial on the mother's complaint and the father's counterclaims, the judge modified the judgment of paternity in various respects. As most relevant here, the judge ordered that (1) "[e]ffective immediately, [the] [f]ather's parenting time shall be alternate weekends from Friday at 4:00 P . M . until Sunday at 6:00 P . M ., and in the event Monday is a holiday or there is otherwise no school on Monday, [the] [f]ather's parenting time shall be extended until Monday at 6:00 P . M .," and (2) the "[f]ather's vacation time ... shall take place when school is not in session." The father argues on appeal that the judge erred by ordering these and other modifications without finding a substantial change of circumstances to warrant them.
The issue is governed by G. L. c. 209C, § 20, which provides that "no modification concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child's best interests." As this language makes clear, a finding of a substantial change of circumstances is a statutory prerequisite to modifying a custody or visitation order. See Della Corte v. Ramirez,
Here, because of internal inconsistencies in the judge's rationale, it is unclear whether she found modification justified by a substantial change in circumstances of the parties or the child. On the one hand, the judge stated that "neither party has demonstrated a substantial change in the circumstances of either the parties or the child[ ]." But on the other, the judge plainly identified the evidentiary basis for each of the modifications she ordered.
This evidence could reasonably support a finding of a substantial change in circumstances justifying modification of the parenting schedule. We cannot determine, however, whether such a finding is implicit in the judge's rationale. Thus, remand for clarification is necessary on this issue.
2. Child's surname. The judgment of paternity provided that the child would keep the mother's surname, but that his birth certificate would be amended to reflect the father's surname as his middle name. The judge found that no change in circumstances warranted modifying this provision. The father fails to show that the judge erred as a matter of law or otherwise abused her discretion in this respect.
3. Contempt. The father brought a complaint for contempt against the mother for denying him one week of vacation time and the preceding weekend of parenting time, in violation of the schedule set out in the judgment of paternity. The judge found the mother not in contempt because the father proposed his vacation time during a week the child was scheduled to be in preschool and the father would not commit to bringing the child back to Massachusetts in time to attend the first day. We review the judge's decision only for abuse of discretion. See K.A. v. T.R.,
"[A] civil contempt finding [must] be supported by clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner,
Conclusion. Paragraphs 1, 3, and 4 of the amended judgment of modification dated January 12, 2018, are vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. Pending further order, the parenting schedule established in the April 24, 2015, judgment of paternity shall remain in effect. The remainder of the amended judgment of modification dated January 12, 2018, is affirmed. The judgment dated November 28, 2017, on the complaint for contempt is affirmed.
So ordered.
Vacated in part and remanded. Affirmed in part.
The parties were never married. In April 2015 the father voluntarily acknowledged paternity, and a judgment of paternity entered.
The child is scheduled to begin kindergarten in September 2019.
We note that some modifications were favorable to the father. For example, the judge allowed his request for permission to pick up the child one hour earlier on Fridays.
The mother's request for appellate attorney's fees is denied.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.