Murray v. Super

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14-P-518 Appeals Court

DAWN MICHELLE MURRAY vs. JONATHAN S. SUPER.

No. 14-P-518.

Worcester. December 2, 2014. - March 16, 2015.

Present: Cypher, Wolohojian, & Blake, JJ.

Divorce and Separation, Child custody, Child support,
Modification of judgment. Minor, Custody. Parent and
Child, Custody, Child support.

Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on January 30, 2009.

After consolidation, complaints for modification, filed on
July 10, 2012, and October 2, 2013, were heard by Lucille A.
DiLeo, J.

Nicholas J. Plante for the mother.
Christine D. Anthony for the father.

BLAKE, J. The mother, Dawn Michelle Murray, appeals from a

judgment of the Probate and Family Court dismissing her

complaint for modification, which sought to remove the minor

children of the marriage to the State of California. Where the

parent seeking to move has primary physical custody of the
2

children, the standard governing removal of the minor children

from the Commonwealth requires a determination of whether there

is a real advantage to the custodial parent and consideration of

the best interests of the children and the interests of both

parents. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-

711 (1985) (Yannas). Where the real advantage to the custodial

parent is at odds with the best interests of the children, the

children's interests are paramount. Concluding that the judge

below did not err in placing the interests of the children

first, we affirm that part of the judgment denying the mother's

request to remove the children to California.

The mother also appeals from that portion of the judgment

reducing the child support obligation of the father, Jonathan S.

Super.1 We vacate the portion of the judgment related to child

support and remand the matter for additional findings on that

issue.

Background. We summarize the proceedings, setting forth

relevant background facts as determined by the judge,

supplemented by the record where necessary, and reserving other

facts for our later discussion of the issues. The parties were

divorced by judgment of divorce nisi on October 24, 2011, after

1
The father filed a subsequent complaint for modification
seeking a reduction in his child support obligation. The two
complaints were consolidated for trial in the Probate and Family
Court.
3

a contested trial. The divorce judgment provided, in pertinent

part, that the parties would share legal custody of their three

minor children,2 with the mother having "primary physical

custody" and the father having parenting time. When the

children are not in the care of the father, they are in the

mother's custody.3 The divorce judgment also ordered the father

to pay $830 per week in child support to the mother, plus

twenty-five percent of any net bonus received as additional

child support.

On July 10, 2012, the mother filed a complaint for

modification alleging, as a change in circumstances, that she

was to be married on August 3, 2012, to a resident of Danville,

California. For this reason, the complaint sought removal of

the minor children to California.4 Sometime thereafter, the

father filed his own complaint for modification, wherein he

sought to (1) reduce his child support obligation to the mother

due to the financial support she receives from her new husband;

2
Jonathan was born on May 3, 1997, and twins Nathan and
Christian were born on May 31, 2002.
3
The children are with the father on alternating weekends
from Friday evening to Monday morning and overnight each
Wednesday. The father has additional parenting time in the
summer and on some holidays. The remaining time is spent with
the mother.
4
The judge properly considered the complaint to be one for
removal pursuant to G. L. c. 208, § 30. See Tammaro v. O'Brien,
76 Mass. App. Ct. 254, 257-259 (2010).
4

and (2) establish a defined holiday and vacation schedule for

the parties' children. The cases were consolidated and tried

together.

In her findings and rulings, the judge entered 261 detailed

findings of fact as to both parents, the eldest child, Jonathan,

age seventeen at the time of trial, and the younger twins,

Nathan and Christian, age twelve at trial. Based on those

findings, the judge determined that a move to California would

be a real advantage to and in the interests of the mother. She

nevertheless dismissed the mother's complaint on the grounds

that the move was not in the best interests of the children or

the interests of the father. She also reduced the father's

child support obligation. This appeal followed.

Discussion. We review the judgment and the subsidiary

findings of fact for abuse of discretion or other error of law.

A trial judge's findings of fact will not be set aside unless

clearly erroneous. Barboza v. McLeod, 447 Mass. 468, 469

(2006). The reviewing court will give due regard to the judge's

assessment and determination of credibility of the witnesses in

making such findings. Custody of Eleanor, 414 Mass. 795, 799-

800 (1993). "[A] judge's discretionary decision constitutes an

abuse of discretion where we conclude the judge made 'a clear

error of judgment in weighing' the factors relevant to the

decision, . . . such that the decision falls outside the range
5

of reasonable alternatives." L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014), quoting from Picciotto v. Continental Cas.

Co., 512 F.3d 9, 15 (1st Cir. 2008).

1. Removal. "The removal from the Commonwealth of

children of divorced parents is governed generally by G. L. c.

208, § 30, as amended through St. 1986, c. 462, § 9, which

provides that such children, if less than an age at which they

are capable of granting or withholding consent themselves, may

be removed by consent of both parents or, failing that, by order

of the court 'upon cause shown.'" Pizzino v. Miller, 67 Mass.

App. Ct. 865, 869 (2006).5,6 "The purpose of the statute is to

preserve the rights of the noncustodial parent and the child to

maintain and develop their familial relationships, while

5
General Laws c. 208, § 30, provides that "[a] minor child
of divorced parents who is a native of or has resided five years
within this commonwealth and over whose custody and maintenance
a probate court has jurisdiction shall not, if of suitable age
to signify his consent, be removed out of this commonwealth
without such consent, or, if under that age, without the consent
of both parents, unless the court upon cause shown otherwise
orders."
6
The father argues that we may affirm the judge's decision
on the alternative ground that none of the children, who were of
suitable age, consented to the move. The record supports the
judge's conclusion that there was insufficient evidence to
support a finding that the children did not consent to the move.

Although not applicable here, an analysis of "suitable age
to signify his consent," G. L. c. 208, § 30, should take into
account the child's age, maturity, intellect, skill, and
academic ability. See Ardizoni v. Raymond, 40 Mass. App. Ct.
734, 738-739 (1996); Altomare v. Altomare, 77 Mass. App. Ct.
601, 609-610 (2010).
6

balancing those rights with the right of the custodial parent to

seek a better life for himself or herself in another State or

country." Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775

(2006).

In determining whether cause for removal by the parent with

primary physical custody has been shown under the statute, the

judge must consider the custodial parent's request under the

familiar two-prong "real advantage" test set forth in Yannas,

395 Mass. at 710-712, and Hale v. Hale, 12 Mass. App. Ct. 812,

818-819 (1981). "[T]he first consideration is whether there is

a good reason for the move, a 'real advantage.'" Yannas, supra

at 711. Second, if the real advantage test is satisfied, the

judge must consider whether the move is in the best interests of

the children. Ibid. See Wakefield v. Hegarty, supra at 776;

Pizzino v. Miller, supra at 870-871; Altomare v. Altomare, 77

Mass. App. Ct. 601, 604 (2010). We address each prong in turn.

a. Real advantage to the mother. To satisfy the real

advantage test, the custodial parent must demonstrate "the

soundness of the reason for moving, and the presence or absence

of a motive to deprive the noncustodial parent of reasonable

visitation." Yannas, 385 Mass. at 711.

Here, the judge found that moving to California would be a

real advantage to the mother. In reaching her decision, the
7

judge generally considered the mother's remarriage,7 the

emotional difficulty and sadness she experiences from being

separated from her new husband, and the social and emotional

benefits she would experience if she lived with her husband in

California. On these bases, and the evidence presented, the

judge found that the mother's remarriage was not a sham, was not

contracted for some unlawful purpose, and that she had

demonstrated that the reasoning behind the requested move was

sound.

The record supports the judge's findings. The mother has

extended family in California.8 Her new husband is unable to

move from California because he shares caregiving

responsibilities for his twelve year old daughter, who has

significant disabilities, with his former wife. If she were

able to move, the mother's financial situation would improve due

to her new husband's considerable wealth, and she would not need

to work outside the home. The judge's finding that these

advantages would have a positive trickle-down effect on the

children is supported by the record. Further, there was no

7
The mother married William Murray (Murray) on August 3,
2012. This is the second time the mother and Murray were
married. Their first marriage in 1988 ended in divorce in 1990.
Murray did not testify at this trial.
8
The mother's only sibling and his family live in Danville,
California, and her parents live two hours from Danville.
Neither the mother nor the father has extended family in
Massachusetts.
8

evidence that would support a finding that the proposed move was

designed to deprive the father of his parenting time with the

children. In short, we discern no error or abuse of discretion

in the finding of a real advantage to the mother.

b. Best interests of the children. In discussing the best

interests standard, the court in Yannas observed that "[i]f the

custodial parent establishes a good, sincere reason for wanting

to remove to another jurisdiction, none of the relevant factors

becomes controlling in deciding the best interests of the child,

but rather they must be considered collectively." 395 Mass. at

711-712. The relevant factors are: (1) whether the quality of

the children's lives will be improved, including any improvement

that "may flow from an improvement in the quality of the

custodial parent's life"; (2) any possible "adverse effect of

the elimination or curtailment of the child[ren]'s association

with the noncustodial parent"; (3) "the extent to which moving

or not moving will affect the [children's] emotional, physical,

or developmental needs"; (4) the interests of both parents; and

(5) the possibility of an alternative visitation schedule for

the noncustodial parent. Dickenson v. Cogswell, 66 Mass. App.

Ct. 442, 447 (2006), quoting from Yannas, supra at 711-712.

Applying these factors, we agree with the judge that the

proposed move was a real advantage for the mother, but not in
9

the best interests of the children or the interests of the

father.9

i. Quality of the children's lives. At the time of trial,

Jonathan was a junior in high school; the twins were in the

sixth grade. Jonathan will turn eighteen in May, 2015, and the

twins will turn thirteen also in May, 2015. In considering

whether the quality of their lives would be improved by the

proposed move, the judge found that their currently stable lives

would suffer, "as they would [lose] the structure and support of

regular weekly contact with Father, [as well as] the peer groups

that they have developed at school, church and through their

other activities." All three children have lived in Bolton

their entire lives and have attended public school in Bolton.

Jonathan plays trumpet in the advanced jazz band. The twins

play instruments in both the concert band and the jazz band.

Christian also plays piano and sings in the choir. The judge

also found that the mother tended to present an optimistic

picture of the move that lacked insight. She focused on the

children's potential enjoyment of California while minimizing

9
In determining the proposed move was not in the best
interests of the children, the judge relied, in part, on the
testimony and report of the guardian ad litem (GAL), exclusive
of her recommendations. See Gilmore v. Gilmore, 369 Mass. 598,
604 (1976) (trial judge is permitted consider GAL report as
evidence). The GAL interviewed the three children separately,
interviewed the parents, observed the children with each parent,
and interviewed collateral witnesses, including the mother's new
husband and the children's teachers and medical professionals.
10

the difficulties that the transition would likely pose for them

and their ability to maintain a strong relationship with the

father. The mother selectively informs the father of the

children's activities. By way of example, the mother's husband

employs Jonathan, who works remotely from Massachusetts. The

father only learned this information at the trial. Yet another

example of this behavior is that despite the twins being invited

to play on a particular basketball team, the mother unilaterally

and without explanation declined the offer without consulting

the father. By contrast, the father objected to Christian

playing football, explaining to the mother his concern that the

four night per week time commitment would interfere with

Christian's school work. The judge also found that the mother

"lacks self-awareness and is self-referential. [She] focused on

superficial advantages to the children and . . . ignored the

dilemma poignantly described by all three children to the GAL,

namely that the children want their parents to be happy but do

not want them separated by 3,000 miles."

On appeal the mother argues that the judge erred in finding

that she had failed to show how the children's lives would be

improved by a move to California. That finding has little

significance, however, where both parties acknowledge that

neither has any concern with respect to the California schools

or the quality of education there. Indeed, the father did not
11

challenge the mother's assertion that the community and school

system the children would enjoy in California is equivalent to

the one in Bolton, where they have lived for their entire lives.

ii. The children's relationship with their father. The

judge found that the father has a strong bond with the children,

is an active and involved parent, coaches them in their athletic

activities, attends church regularly with them, and has never

missed parenting time with them. She further found that except

for two occasions, the father's requests for additional

parenting time have been rejected by the mother. All three boys

golf with the father and ski with both parents. The twins play

baseball both casually with the father and on organized teams.

On the whole, the children spend nearly a third of the year with

the father. For these reasons, the judge found that a cross-

country move would impose significant stress on the children and

the father and negatively impact the frequency and quality of

his parenting time with them.

iii. Children's emotion, physical, and developmental

needs. Jonathan, Nathan, and Christian are well-adjusted, good

students who enjoy a close relationship with each of their

parents. None has special medical, educational, or

psychological needs. The children have deep roots in their

community and want for nothing in Massachusetts, a finding that

is not contested on appeal. Nor is there a question, as noted
12

supra, that the opportunities available to them in California

would be roughly equivalent to those they currently enjoy.

iv. Interests of the parents. The judge found that the

proposed move presented a real advantage to the mother.10 The

judge did not minimize the real advantage to the mother in any

way, but considered the apparent disregard she demonstrated as

to the impact the proposed move would have on the father and the

children.11 The judge's findings, amply supported by the record,

reflect that the mother did not investigate the opportunities

available to the children academically, musically, athletically,

or culturally. The judge's findings illustrate that the mother

is not a reliable evaluator of the interests of others, and in

particular, of the children. On the other hand, the quantity

and the quality of the father's parenting time with the children

10
The mother complains that the judge made exhaustive
findings about the father's interests and minimal findings about
her. The number of findings of fact relating to each parent is
of no significance; rather, the findings themselves control.
Further, as we have already stated, the factors in considering
the interests in a removal case "must be considered
collectively," and no one factor in particular controls the
outcome. Dickenson v. Cogswell, 66 Mass. App. Ct. at 448,
quoting from Yannas, 395 Mass. at 712.
11
It is commendable that the mother does not intend to move
to California if her request to remove is denied, deferring that
move until the twins graduate from high school. Moreover, the
mother and her husband have been maintaining a bicoastal
relationship for over eighteen months. The judge found that the
mother sees her husband "on a near monthly basis." The mother
will not be losing a job or housing if she remains in the
Commonwealth until the children graduate high school.
13

cannot be replicated if they are permitted to move. As such the

judge's finding that a cross-country move would not be in the

interests of the father is well grounded in the record.

v. Visitation. On appeal, the mother argues that the

judge failed to consider reasonable alternative visitation in

finding the proposed move was not in the best interests of the

children. "[T]he test is not whether there is no impact on the

father's association, but whether reasonable 'alternative

visitation arrangements' might achieve ongoing and meaningful

contact appropriate to the circumstances." Rosenthal v. Maney,

51 Mass. App. Ct. 257, 271 (2001). Here, the judge found that

the mother failed to make realistic suggestions as to how the

father and the children might achieve the ongoing and meaningful

contact they currently enjoy. That finding is not in error.12

ii. Balancing real advantage and best interests. We

acknowledge that prior cases affirm the allowance of a request

to remove children from the Commonwealth where the trial judge

12
The mother's visitation proposal at trial was de minimis.
She was also disingenuous in her suggestion that the father
could relocate to California because his employer is based
there. The judge found that the location of the father's
employer in California is an eight hour drive from Danville, and
that the father rarely traveled to California for business. The
judge did not abuse her discretion in rejecting this suggestion.
After trial, the mother offered a more detailed plan, generally
providing that the children could travel to Massachusetts during
their vacation time and that the father could see the children
whenever he is in California. The posttrial submissions of
counsel, including any proposed judgments, are not evidence and
we do not consider them when reviewing the judge's findings.
14

has found a real advantage exists for the custodial parent.

However, a finding that the proposed move presents a real

advantage to the physical custodian does not necessarily mean

that the move is in the best interests of the children. Here,

the real advantage to the mother does not align with the

children's best interests or the interests of the father. See

Dickenson v. Cogswell, 66 Mass. App. Ct. at 447, 452, quoting

from Yannas, 395 Mass. at 711 (effects of move on children are

"most important" and deferring to judge's view that it was not

in child's best interests to permit move to California where

"bicoastal existence" would be tiring and stressful, financial

security would diminish, and there would be negative impact on

important relationship with father); Rosenthal v. Maney, 51

Mass. App. Ct. at 266 ("best interests of the children always

remain the paramount concern").

The judge did not err in finding that the proposed move

would have clear and significant negative effects on the

children and the father which were not outweighed by the

benefits that would inure to the mother. That decision is

supported by the record and the judge's copious findings of

fact; we accordingly discern no error.

2. Child support. In support of his complaint for

modification, the father alleged as a material and substantial

change of circumstances the mother's remarriage. At the time of
15

the modification trial, the judge found that the father's income

had modestly increased,13 and that the mother's income remained

at zero. The judge further found, however, that the mother now

receives estimated contributions from her new husband in the

amount of $1,000 per week. Based on those changes, including

adding the new husband's voluntary contributions to the mother's

income into the child support calculation, the judge reduced the

father's child support obligation from $830 per week to $808 per

week. The judge also eliminated the obligation of the father to

pay to the mother twenty-five percent of his bonuses, reasoning

that the new child support order included the father's bonus

income.14 On appeal, the mother argues that the judge erred in

attributing income to her of $1,000 per week.

"Public policy dictates that children be supported by the

financial resources of their parents insofar as is possible."

M.C. v. T.K., 463 Mass. 226, 231 (2012. The Massachusetts Child

13
The judge found that the father's income at the time of
the divorce in 2011 was $3,154.46 per week, excluding bonuses.
At the time of the removal trial in 2013, the father's income
was $3,642.68 per week, including bonuses.
14
General Laws c. 208, § 28, as amended through St. 2011,
c. 93, § 37, provides that a child support order shall be
modified "if there is an inconsistency between the amount of the
existing order and the amount that would result from application
of the child support guidelines." Although the father alleged
that there had been a material change of circumstances, the
judge here was correct to apply those guidelines to the parties'
updated financial circumstances. See G. L. c. 119A, § 13(c);
Morales v. Morales, 464 Mass. 507, 512 (2013); Croak v.
Bergeron, 67 Mass. App. Ct. 750, 754 (2006).
16

Support Guidelines (2009) (guidelines) detail the types of

income that can be considered in calculating child support. See

guidelines § I-A. The father contends that the funds received

by the mother from her husband are specifically contemplated by

the guidelines, which provide that income may include "[s]pousal

support from a person not a party to this order." Guidelines

§ I-A(18) Alternatively, the father argues that the income

falls under the catch-all provision, covering "[a]ny other form

of income or compensation not specifically itemized above."

Guidelines § I-A(28). The mother contends that the guidelines

prohibit from consideration contributions of a present spouse in

calculating a child support obligation. Contrary to the

position of each party, the guidelines do not reflect a direct

prohibition on contributions from a present spouse, nor do they

include a direct command to include them.15 Rather, "[t]he

guidelines and our case law leave the definition of income

flexible, and the judge's discretion in its determination

broad." Casey v. Casey, 79 Mass. App. Ct. 623, 634 (2011).

Nevertheless, that discretion is not without bounds.

Here, the judge's findings do not include pertinent details

about the funds received by the mother from her new husband,

15
This stands in contrast to the Alimony Reform Act of
2011, St. 2011, c. 124, § 3, G. L. c. 208, § 54(a), which
precludes from consideration the income and assets of the
payor's spouse in a redetermination of alimony in a modification
action.
17

such as how those funds are expended. Additional findings that

would aid our analysis include, but are not limited to, the

costs associated with the mother traveling to and from

California, the lack of an obligation of the mother's husband to

support the children, the manner in which the mother's and the

children's lifestyles are altered by these funds, the discretion

that the mother's husband maintains in payment of these funds,

and the manner in which the mother would support her household

absent these funds. Without such findings, the facts as they

presently stand are insufficient to determine whether the new

husband's contributions should be included in the child support

calculations under the guidelines. Accordingly, that portion of

the judgment is vacated and the matter is remanded so the judge

may make additional findings with respect to this issue.

Because the matter must be remanded, we also address the

judge's sua sponte elimination of the father's obligation to pay

a portion of his bonus to the mother as child support. Doing so

was error where neither party so requested and the order has the

potential to reduce what the mother may otherwise be entitled to

if the father's bonus exceeds the amount of the bonus factored

into the guidelines. Similarly, the weekly child support order

could be deemed excessive if the father earns a bonus in a

lesser amount than that already applied to the guidelines. The
18

bonus component of the father's child support obligation shall

thus be reinstated.

4. Conclusion. The portion of the judgment dismissing the

mother's complaint for modification is affirmed. The portion of

the judgment reducing and restructuring the father's child

support obligation is vacated and the matter is remanded to

allow the judge to make additional findings and rulings

consistent with this opinion. Additional evidence may be taken

in the judge's discretion. The bonus component of the father's

child support obligation shall be reinstated. The father's

request for appellate counsel fees is denied.

So ordered.