111 N.E.3d 304
Mass. App. Ct.2018Background
- Parties: Kevin Heine (husband) and Rosangela Heine (wife); child born 2012. Divorce proceedings in Massachusetts Probate and Family Court; separation agreement executed in 2016 resolving most issues.
- Temporary orders (2014–2015) initially prohibited either parent from international travel with the child without agreement or further court order.
- The separation agreement provided shared legal custody, roughly equal parenting time, alternating school vacations, and two nonconsecutive weeks of summer vacation to each parent; travel to Brazil remained unresolved.
- Trial in March 2016 addressed the child’s international travel; the divorce judgment (June 13, 2016) allowed the wife to renew the child’s passports and to travel to Brazil with the child up to 21 days per year, required registration of the judgment in Brazil, and directed the parties to stipulate to Massachusetts’ continuing, exclusive jurisdiction over custody disputes.
- Husband moved for relief from judgment and to stay; motion for relief denied. Wife sought attorney’s fees; judge awarded $1,250 related to opposition to the stay. Husband appealed.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Whether wife may travel internationally with the child | Travel should be prohibited due to risk of international abduction and Brazil’s enforcement problems | Travel benefits child by preserving maternal-family ties; risk is low with safeguards | Allowed travel generally; judge’s finding not an abuse of discretion (affirmed) |
| Whether judgment may permit up to 21 days of travel per year | 21 days conflicts with separation agreement’s vacation allocation and upsets equal vacation time | 21 days is reasonable to maintain family ties | 21-day allotment vacated and remanded for clarification and possible adjustment |
| Whether parties can stipulate to Massachusetts’ continuing, exclusive jurisdiction for future custody matters | Such stipulation improperly attempts to confer continuing subject-matter jurisdiction | Wife agreed to jurisdiction as a safeguard and to register in Brazil | Reversed: parties cannot confer continuing exclusive jurisdiction; MCCJA/PKPA preclude waiver |
| Whether award of $1,250 in attorney’s fees was proper | Fees were awarded in bad faith; award was excessive or improperly documented | Fees were for opposition to stay and relief motion; sought fees for prior motion too | Vacated and remanded for redetermination because record does not support the limited finding and documentation was insufficient |
Key Cases Cited
- Hunter v. Rose, 463 Mass. 488 (Mass. 2012) (child’s best interest is the touchstone in custody matters)
- Custody of Kali, 439 Mass. 834 (Mass. 2003) (best-interest standard and custody factors)
- Smith v. McDonald, 458 Mass. 540 (Mass. 2010) (trial judge has latitude to identify relevant factors; abuse of discretion review)
- Yannas v. Frondistou‑Yannas, 395 Mass. 704 (Mass. 1985) (recognizing benefit of maintaining ties to family and culture abroad)
- Cricenti v. Weiland, 44 Mass. App. Ct. 785 (Mass. App. Ct. 1998) (parties cannot confer continuing jurisdiction on state court in violation of MCCJA/PKPA)
- MacDougall v. Acres, 427 Mass. 363 (Mass. 1998) (subject-matter jurisdiction cannot be conferred by consent)