Bower v. Bournay-Bower
469 Mass. 690
| Mass. | 2014Background
- Mother and father divorced; judgment of divorce nisi (May 11, 2011) incorporated a detailed parenting plan and provided for shared legal custody of four children.
- Both parties later filed mutual contempt complaints alleging violations of custody/visitation and shared decision-making provisions; father sought appointment of a parent coordinator with binding authority.
- At a contempt hearing the judge declined to rule on the contempt allegations and instead, over the mother's objection, ordered a named parent coordinator to hear all present and future custody/visitation disputes in the first instance and to issue binding rulings treated as court orders unless stayed by a judge before the ruling took effect; father was ordered to pay the coordinator.
- Mother appealed after a subsequent judge enforced the parent coordinator order in resolving the contempt complaints; Supreme Judicial Court transferred the case to itself.
- The SJC concluded judges possess inherent authority to refer parties to parent coordinators in appropriate circumstances but held the appointment here exceeded that authority, impermissibly delegated judicial power, and raised art. 11 due process (access to courts) concerns; the appointment and related portions of the judgment were vacated.
Issues
| Issue | Plaintiff's Argument (Bower) | Defendant's Argument (Bournay‑Bower) | Held |
|---|---|---|---|
| Whether a probate judge has inherent authority to appoint a parent coordinator over a party's objection | No inherent authority without statute or party consent; order infringes access-to-courts and due process | Parent coordination is common and useful; judge may use inherent equitable powers to appoint coordinator | Judges may refer parties to parent coordinators in appropriate cases, but not with the broad terms used here |
| Whether a judge may compel submission to a parent coordinator with binding decision‑making power absent both parties' consent | Binding authority without consent deprives party of right to court recourse and is akin to compelled arbitration | Father argued appointment and binding authority were proper to resolve recurring disputes and conserve judicial resources | A judge may not compel binding decision‑making by a parent coordinator over a party's objection; violates art. 11 and precedent on compelled arbitration |
| Whether the order improperly deferred judicial resolution of pending contempt claims by mandating referral | Order effectively delayed mother's right to have contempt claims adjudicated by a judge | Father argued referral would prevent cycles of litigation and expedite practical resolution | Deferral of the contempt hearing over objection infringed right to prompt judicial recourse and was impermissible |
| Whether the order unlawfully delegated judicial authority to a nonjudge (including power to alter custody/visitation) | Order allowed coordinator to make structural changes without applying statutory modification standard (G. L. c. 208, § 28); judge abdicated statutory duty | Father contended no intent to permit structural changes; appointment was meant for day‑to‑day disputes | The order unlawfully delegated judicial decision‑making (including potential modifications of custody) and was vacated |
Key Cases Cited
- Matter of Moe, 385 Mass. 555 (recognizes probate court's broad equitable/inherent powers to act in wards' best interests)
- Sheriff of Middlesex County v. Commissioner of Correction, 383 Mass. 631 (discusses inherent judicial powers essential to court functioning)
- Gustin v. Gustin, 420 Mass. 854 (court may not compel binding arbitration absent consent; judge retains statutory decision‑making duty)
- Gray v. Commissioner of Revenue, 422 Mass. 666 (limits on inherent power where statute allocates enforcement authority elsewhere)
- Silverman v. Spiro, 438 Mass. 725 (judge may not grant third party sole authority over statutorily committed judicial determinations)
- Worcester County Trust Co. v. Marble, 316 Mass. 294 (court cannot delegate statutory determinations to a trustee)
- Glenn Acres, Inc. v. Cliffwood Corp., 353 Mass. 150 (finality of arbitration awards depends on court entry of judgment)