Duane Carl Noyes, Jr. v. Maria Rose Mancuso.

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

24-P-606

DUANE CARL NOYES, JR.

vs.

MARIA ROSE MANCUSO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Maria Rose Mancuso (mother) appeals from a Probate and

Family Court modification judgment that, as relevant here,

(1) awarded sole legal custody of the parties' nine year old

daughter to Duane Carl Noyes, Jr. (father), while leaving in

place a prior judgment's provision for shared physical custody;

and (2) denied the mother's request to remove the child to

Florida. The judge concluded that "[b]oth parties have made

flawed parenting choices," but that, as between the two parties,

the "[f]ather is better able to exercise sole legal custody for

[the child's] benefit." On appeal, the mother argues that

certain of the judge's findings were clearly erroneous and did

not support the change in legal custody, that the change was not
in the child's best interests, and that the judge failed to

consider the child's wishes regarding removal to Florida. We

affirm.

Discussion. 1. Challenges to findings. A judge's factual

findings will "not be set aside unless clearly erroneous, and

due regard shall be given to the opportunity of the trial court

to judge of the credibility of the witnesses."

Mass. R. Dom. Rel. P. 52(a). "In a bench trial credibility is

'quintessentially the domain of the trial judge [so that her]

assessment is close to immune from reversal on appeal except on

the most compelling of showings.'" Prenaveau v. Prenaveau, 81

Mass. App. Ct. 479, 496 (2012), quoting Johnston v. Johnston, 38

Mass. App. Ct. 531, 536 (1995). "A finding is 'clearly

erroneous' when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed." Barboza

v. McLeod, 447 Mass. 468, 469 (2006), quoting Marlow v. New

Bedford, 369 Mass. 501, 508 (1976). See Schechter v. Schechter,

88 Mass. App. Ct. 239, 245 (2015). "It is the appellant's

burden to show that a finding is clearly erroneous." Allen v.

Allen, 86 Mass. App. Ct. 295, 298 (2014). Applying these

standards, we conclude that the mother has not shown that any of

the challenged findings is clearly erroneous.

2
First, the mother challenges finding 101, which states:

"No credible evidence was presented that [the f]ather has a

mental health diagnosis made by a provider or that

[the f]ather's mental health impacts his ability to parent [the

child]." Although the mother acknowledges the absence of

evidence that the father has any formal diagnosis, she argues

that there was evidence he is depressed to an extent that

negatively affects his parenting ability. We are not persuaded.

The only evidence of the father's depression per se was the

lay testimony of the paternal grandmother, which the judge

expressly acknowledged in finding 100. The mother now points to

various behaviors of the father that she attributes to

depression, such as his failure to read messages the mother sent

him using the court-ordered "Our Family Wizard" communication

tool, and his allowing his voicemail box to become full and

unable to receive new messages. The judge found facts

corresponding to each of these behaviors (findings 129, 131,

155-156), but the mother cites no evidence connecting them to

depression. The mother also cites the father's failure to

search for work in his field and his failure to file tax returns

for several years as evidence of depression, but again the

mother cites no evidence connecting such behaviors to

depression. Thus, we cannot say finding 101 was clearly

erroneous.

3
Second, the mother challenges finding 76, which states that

although the judge gave some weight to the child's having

suffered a sunburn while in the father's care and the father's

failure to tell the mother about it, "insufficient evidence was

provided that [f]ather is not an appropriate caregiver overall."

We understand the mother to be challenging the judge's overall

finding that the father was an appropriate caretaker. There

were ample subsidiary findings to support that overarching

determination. Regarding the sunburn, the judge found that the

child "has sustained normal childhood injuries in both parties'

care" and gave little weight to that fact. More generally, she

found that the father gets along well with the child (finding

105); does most of her laundry, buys her food, and makes dinner

(findings 88, 97, 98); helps her with her homework, so that she

particularly wants to work with him on harder assignments

(finding 93); takes her on outings that they both enjoy

(findings 105 and 106); and wants to take her to an orthodontist

and an ophthalmologist (findings 137 through 140). The mother

does not challenge these findings or the adequacy of the

evidence underlying them.

Third, the mother challenges the judge's statement in

finding 156 that ongoing conflict between her and the father had

resulted in the child's "failing to see providers." The mother

misinterprets this as a finding that the child "failed to see

4
any providers." To the contrary, in finding 127, the judge

acknowledged that the mother "facilitates all of [the child's]

medical appointments," and in findings 133 and 134, she

acknowledged the mother's discussion with the child's healthcare

provider regarding the child's vaccination status.

Fourth, and in a similar vein, the mother challenges that

part of finding 157 stating that the father has "identified the

parties' conflict as the reason that he has not brought [the

child] yet" to see certain appropriate medical providers. The

mother misinterprets this as a finding that she has prevented

the father from bringing the child to see those providers. But

the judge made no such finding; rather, she found only that the

father viewed his conflict with the mother as his reason for not

obtaining that medical care for the child. The father's

testimony supported this finding. Notably, the judge also

concluded that, although the father was "not blameless" for "the

parties' inability to make these decisions jointly," "he has not

escalated the parties' conflict to the extent that [m]other

has."

Fifth, the mother challenges finding 159, stating that "it

is in [the child's] best interest that [f]ather have sole legal

custody." We view this as the judge's ultimate finding or

conclusion and address the mother's challenge to it infra.

5
Sixth, the mother challenges finding 89, which states as

relevant here that the father "credibly testified that he is

[the child's] primary caretaker during his parenting time, not

[his mother]." The mother argues that this finding is

undermined by what she claims is the father's testimony that,

"at times during his parenting time, he is working four days in

a row." In the passage of testimony that she cites, however,

the father described his work schedule only for the week before

trial; he did not testify that he regularly worked four days in

a row. We are not "left with the definite and firm conviction

that a mistake has been committed" in finding 89, Barboza, 447

Mass. at 469, quoting Marlow, 369 Mass. at 508, particularly

where it is expressly based on the judge's credibility

determination. See Prenaveau, 81 Mass. App. Ct. at 496.

2. Change in legal custody. The mother challenges the

judge's conclusion that it was in the child's best interests for

the father to exercise sole legal custody. In her brief, the

mother expressly agrees with the judge's conclusions that the

parties' relationship had deteriorated to the point that they

were no longer capable of jointly making parenting decisions and

that this was a material change in circumstances warranting a

modification of the existing shared legal custody arrangement.

The mother contends, however, that the father's "demeanor and

behavior . . . have shown that he is no longer a suitable

6
caretaker" for the child, meaning, at least implicitly, that she

is the only parent suitable to exercise legal custody. M.Br.18.

We are not persuaded.

"The decision of which parent will promote a child's best

interests is a subject peculiarly within the discretion of the

judge" (quotation and citations omitted). Ardizoni v. Raymond,

40 Mass. App. Ct. 734, 738 (1996). The best interests

determination is "a classic example of a discretionary decision"

as to which "much must be left to the trial judge's experience

and judgment" (quotations and citations omitted). Adoption of

Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P.

v. George P., 526 U.S. 1034 (1999). We therefore review the

judge's custody decision for an abuse of discretion, which is

defined as "a clear error of judgment in weighing the factors

relevant to the decision . . . such that the decision falls

outside the range of reasonable alternatives" (quotation and

citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

We have already rejected, in our discussion above, the

mother's challenge to the judge's determination that the father

was an appropriate caretaker. The mother nevertheless points to

additional evidence suggesting that the father was a less than

ideal caretaker, including his lack of awareness of a mental

health crisis suffered by the child; his lack of preparation for

7
trial; his lack of awareness of or contact with several of the

child's medical providers; his reluctance to share parenting

time;1 and his assertedly lax approach to the child's schooling.2

These arguments overlook the judge's overall assessment

that "[b]oth parties have made flawed parenting choices"; that

"[n]either party is faultless"; and that the judge was forced to

choose between "limited alternatives, all of which . . . have

imperfections." At oral argument the mother acknowledged that

the judge, in deciding who should have legal custody, had

considered all of the factors she was required to consider. Our

role when reviewing for an abuse of discretion is thus not to

reweigh the evidence but to determine whether the judge's choice

1 The mother argues that her parenting time "would be
nightmare were [f]ather the sole custodian," because he could
not be trusted to afford the mother adequate parenting time
during holidays, and because he does not favor giving her as
much parenting time during school weeks as she wants. But this
ignores that the judge viewed it as "imperative that [the child]
have frequent and equal parenting time with both parties."
Therefore, the modification judgment included detailed
provisions governing holiday parenting time, and an additional
provision regarding parenting on school days. The mother does
not challenge the fairness or the enforceability of these
provisions.

2 The mother notes that the father had allowed the child to
log in to do her at-home schoolwork after 9 P.M. The judge
expressly gave this factor "comparatively little weight," given
that she "usually . . . finish[ed] her schoolwork around 7:00
P.M."

8
was "outside the range of reasonable alternatives." L.L., 470

Mass. at 185 n.27. Here, we cannot say that it was.

3. Child's wishes regarding removal. Finally, the mother

contends that, in denying her request to remove the child to

Florida, the judge failed to consider the child's wishes. But,

as the mother acknowledged at oral argument, there is no

evidence in the record that the child preferred to move to

Florida. Rather, the record reflects only that the child

wanted the judge to know about her friends in Florida and of her

worries about how she could remain in contact with them and see

them.

Even if the child had expressed a desire to move to Florida

in the custody of the mother, a child's statements of custody

preference "must be treated with caution," and "the preference

of a younger child is not given decisive weight" (quotations and

citations omitted). Ardizoni, 40 Mass. App. Ct. at 738. In

Ardizoni, we concluded that a trial judge had placed "excessive

reliance upon the preferences of two eleven year old children."

Id. at 741. In another case, we concluded that the wishes of a

ten year old child were not controlling. Bak v. Bak, 24 Mass.

App. Ct. 608, 617 (1987). Here, at the time of the modification

trial, the child was only nine years old.

The judge gave detailed consideration to whether removal

was in the child's best interests, including how it would affect

9
her relationship with the father and her close relationships

with his extended family, and how her living situation in

Florida would be cramped and put her at risk of exposure to

domestic violence. The judge was not required to give the

child's attachments to her friends in Florida more importance

than the factors weighing against removal. The judge did not

abuse her discretion by denying removal in these circumstances.

Modification judgment dated
August 17, 2023, affirmed.

By the Court (Sacks,
Hershfang & Tan, JJ.3),

Clerk

Entered: May 12, 2025.

3 The panelists are listed in order of seniority.

10