Shane Radcliff v. Courtney Radcliff.

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

23-P-255

SHANE RADCLIFF

vs.

COURTNEY RADCLIFF.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The sole issue in this appeal is whether a Probate and

Family Court judge abused his discretion in ordering Courtney

Radcliff (mother)1 to pay a partial award of attorney's fees to

Shane Radcliff (father). We affirm the judgment.

Background. The mother and father married in 2012 and

divorced in 2018. The parties have one child who was four years

old at the time of the modification trial referenced below. The

parties' divorce was "acrimonious" with a "case file . . .

replete with incendiary filings, pleadings, photos and literally

hundreds of pages of attacks or counter-attacks against one

another pre and post the divorce judgment."

1 The mother's surname is now Byrne.
In exhibit B to their separation agreement, which merged

into the judgment of divorce, the parties agreed that they would

"cooperate with each other in selecting a proper pre-school for

the child," and "shall share a list and collaborate to determine

which pre school the child will attend in the fall 2019 and

thereafter." They further agreed that when the child reaches

the age to attend preschool the "parties shall confer on what

preschool/school is in the child's best interest. If the

parties cannot agree on where the child will be attending

preschool/school, the parties shall engage the Parenting

Coordinator . . . to resolve this issue."

When the child reached the age to attend preschool,

numerous disputes arose between the parties, including

disagreements about the start date, the choice of preschool

program, which preschool to attend, and the use of the parenting

coordinator. The disputes resulted in wide-ranging and costly

litigation throughout 2019, 2020, and 2021, as evidenced by the

filing and litigating of myriad complaints for contempt and

modification filed by both parties, extensive motion practice,

issuance of multiple judicial orders and findings, and entries

of temporary court orders by the judge.

The judge ultimately consolidated two "modifications" for

trial, which was held on January 28, January 29, and February 5,

2021. At the close of the mother's case-in-chief at the trial,

2
the father moved for dismissal pursuant to Mass. R. Dom. Rel. P.

41 (b) (2) (rule 41 [b] [2]). On February 5, 2021, "[a]fter due

consideration of all evidence presented at trial," the judge

determined that the mother had "failed to prove a material and

substantial change sufficient to warrant a modification of the

current judgment," and dismissed the complaints for

modification. On March 5, 2021, a supplemental judgment issued

in the Probate and Family Court, ordering the dismissal of the

complaints for modification and awarding attorney's fees to the

father in the amount of $18,975. On the same day, the judge

issued posttrial findings of fact and conclusions of law, which

explained, inter alia, that the father had incurred substantial

legal fees as a direct result of the mother's litigation of the

action, that the mother was "being litigious for the sake of

being litigious," and that the mother "is responsible for a

portion of [f]ather's attorney fees" in the amount of $18,975.2,3

The mother now appeals therefrom.

Discussion. The parties agree that the modification

complaints that were litigated through trial are now moot, and

2 The supplemental judgment and the findings both were
docketed on March 11, 2021.

3 The judge noted that the father had incurred legal fees
"of just under $60,000.00" for trial and "over $112,000.00 in
total."

3
thus the sole issue on appeal is whether the partial attorney's

fee award to the father constituted an abuse of discretion. On

appeal, the mother claims, in essence, that the judge abused his

discretion in awarding attorney's fees to the father because

(1) her claims were not frivolous; (2) the judge wrongly

dismissed the complaints for modification midtrial; and (3) the

judge was obligated to find that there was a material change in

circumstances.

It is of no moment that the mother's claims at trial were

not frivolous. General Laws c. 208, § 38, authorizes Probate

and Family Court judges to "award costs and expenses, or either,

to either party." This includes the discretion to order one

spouse, including a former spouse in a postdivorce modification

proceeding, to pay the other spouse's attorney's fees. The

award is not contingent on the appeal being frivolous or the

recipient spouse prevailing on appeal. See Wasson v. Wasson, 81

Mass. App. Ct. 574, 582 (2012) ("judge has discretion to award

fees even in the absence of bad faith or frivolous claims or

defenses"). See also Cooper v. Cooper, 62 Mass. App. Ct. 130,

141-142 (2004); Peterson v. Peterson, 30 Mass. App. Ct. 932, 934

(1991). Here, the judge found that the mother was "being

litigious for the sake of being litigious." There is nothing in

the record before us that suggests that this finding was clearly

erroneous. To the contrary, the record supports this finding.

4
Moreover, the judge noted that although the father's attorney's

fees for trial "are just under $60,000[,] this is not a

reasonable amount for [m]other to pay for her overly litigious

actions in this matter." Accordingly, the judge only awarded

the father partial attorney's fees in the amount of $18,975,

payable in weekly installments of $125 until satisfied. This

discretionary determination was well within the range of

reasonable alternatives and did not constitute an abuse of

discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014) (abuse of discretion occurs where judge made clear error

of judgment in weighing factors relevant to decision "such that

the decision falls outside the range of reasonable

alternatives").4

Contrary to the mother's argument, the judge did not

dismiss the mother's case "mid-trial." After the mother

completed her presentation of evidence, the judge asked, "[D]o

you rest?" The mother's counsel responded, "Yes." Thereafter,

the father moved for dismissal under rule 41 (b) (2). Thus, the

judge did not act "mid-trial," but waited until the mother had

4 The mother challenges the basis for the award of
attorney's fees but does not challenge the amount awarded. In
any event, in the circumstances of this case, the amount of fees
approved by the judge ($18,975) was reasonable and supported by
the record.

5
presented and rested her case-in-chief before entertaining the

dismissal motion.

Finally, the judge was not obligated to render a judgment

in favor of the mother. The issues at trial were contested and

the evidence disputed. Rule 41 (b) (2) authorizes a judge, on

motion of a defendant, to "determine" the facts and "render

judgment against the plaintiff" on "the ground that upon the

facts and the law the plaintiff has shown no right to relief."5

Moreover, "in passing upon a motion under the second sentence of

rule 41 (b) (2) a trial judge is not limited to that standard of

proof required for a directed verdict . . . [;] rather, the

judge is free to weigh the evidence and resolve all questions of

credibility, ambiguity, and contradiction in reaching a

decision" (citation omitted). El Chaar v. Chehab, 78 Mass. App.

Ct. 501, 507 n.12 (2010). See Ryan, Elliott & Co. v. Leggat,

McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689 (1979) (same).

Here, the judge's findings of fact reveal that he did what rule

5 Rule 41 (b) (2) provides, in relevant part,

"[a]fter the plaintiff, in an action tried by the court
without a jury, has completed the presentation of his
evidence, the defendant, without waiving his right to offer
evidence in the event the motion is not granted, may move
for a dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief. The court
as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence."

6
41 (b) (2) contemplates. That is, he weighed the evidence,

resolved questions of credibility and contradiction, and found

that the parties' hostile relationship and dispute over the

child's preschool venue were not new developments and that the

mother "failed to prove a material and substantial change

sufficient to warrant a modification of the current judgment"

(emphasis added).6 For all of the foregoing reasons, we discern

no abuse of discretion in the partial award of attorney's fees.

Supplemental judgment dated
March 5, 2021, affirmed.7

By the Court (Vuono, Neyman &
D'Angelo, JJ.8),

Clerk

Entered: November 1, 2024.

6 Although we need not decide the issue, we note that the
record before us, including the judge's posttrial conclusions of
law, supports an implicit finding by the judge that the
requested modification in the present case was not "necessary in
the best interests of the child[]." G. L. c. 208, § 28
(judgment modifying earlier judgment as to care and custody of
minor child of parties requires that court find [1] "a material
and substantial change in the circumstances of the parties has
occurred" and [2] "the judgment of modification is necessary in
the best interests of the child[]").

7 The father's request for an award of appellate attorney's
fees is denied.

8 The panelists are listed in order of seniority.

7