DIANE LYNN VENTRICE vs. MICHAEL CHARLES VENTRICE.
No. 13-P-1992.
Appellate Court of Massachusetts
December 2, 2014. - March 19, 2015.
87 Mass. App. Ct. 190 (2015)
Present: RAPOZA, C.J., VUONO, & MEADE, JJ.
Hampden.
A provision in an amended divorce judgment that ordered the parties to engage in and pay for court-directed mediation before either could file any subsequent action in the Probate and Family Court violated the parties’ right of free access to the courts under
In a divorce action, the probate judge committed an abuse of discretion by awarding the mother sole legal and physical custody of three of the couple‘s four children, where it was not clear from the record that the judge properly evaluated relevant record evidence, including the recommendation of the guardian ad litem, that supported granting custody to the father. [194-196]
COMPLAINT for divorce filed in the Hampden Division of the Probate and Family Court Department on December 28, 2010.
The case was heard by Anne M. Geoffrion, J.
William M. Driscoll for the husband.
Bradford B. Moir for the wife.
MEADE, J. After a trial and subsequent hearing in the Probate and Family Court, the defendant, Michael Charles Ventrice, appeals from certain provisions of an amended divorce judgment nisi. In particular, Michael appeals the provision ordering that he and the plaintiff, his former spouse Diane Lynn Ventrice, shall engage in and pay for court-directed mediation before either may file any subsequent action in the Probate and Family Court.1 Michael also contends that the judge abused her discretion by awarding Diane sole legal and physical custody of three of the couple‘s four children.2 For the reasons that follow, we vacate the amended divorce judgment and remand to the Probate and Family
Background.
We recite facts found by the judge, and accept as true other essential uncontroverted facts from the record. Miller v. Miller, 448 Mass. 320, 321 (2007). Michael and Diane Ventrice were married in June, 2001. They had four children, who, as of the time of trial in May, 2012, were between the ages of twelve and five: Linda, the oldest, followed by Susan, Agatha, and Matthew, who was youngest.45
During their marriage, Michael and Diane owned and operated a business known as Big Adventures, a children‘s play center, in Westfield. The couple alternated working at Big Adventures and staying home with the children. Michael was the primary caretaker for about four years, while Diane worked extended hours at the business.6 At all other times, Diane was the primary caregiver for the children. Michael performed construction and snow-plow jobs on the side for extra money, while Diane was working as a security assistant.
Diane filed for divorce in December, 2010. It was clear from the record and undisputed that the marriage was irretrievably broken. During the pendency of the divorce, Diane began a relationship with Michael Clegg, a previously convicted sex offender. Diane asserted that Clegg was supportive of her and her children. However, because Clegg had not yet undergone a psychosexual evaluation, the court ordered that Clegg have no contact with the minor children. Diane repeatedly violated this order, seemingly without concern.7
By agreement of the parties, the court appointed a guardian ad litem (GAL). The GAL conducted numerous interviews with both parties, their relatives, friends and associates, the four children (individually and as a group), social workers from the Department of Children and Families (DCF), school counsellors, therapists, and others who were involved with the family. In her report,
The case proceeded to trial in May, 2012, and a judgment of divorce nisi entered on June 14, 2013.8 The judgment contained a provision stating that Michael and Diane must attempt to reach an agreement regarding compliance with the judgment, and that, “[i]f the parties are unable to reach an agreement, the parties shall engage the services of a mediator before either may file an action in this [c]ourt. The costs associated with mediation shall be shared equally by the parties, unless otherwise reallocated by the mediator.” Finally, finding the parties unable to co-parent, the judge awarded sole legal and physical custody of the oldest child, Linda, to Michael, with sole legal and physical custody of the remaining three children going to Diane.9 Michael appeals both the order to mediate at the parties’ expense, as well as the custody determination.
Discussion.
a. Free access to courts.
Michael challenges the provision in the amended divorce judgment that requires the parties to engage in out-of-court mediation, at their own expense, before either may file an action in the Probate and Family Court.10 He claims that the judge‘s order violates his right of free access to the courts under
The recent case of Bower, supra, is instructive.12 In Bower, the Supreme Judicial Court vacated an order of the Probate and Family Court that appointed a parent coordinator over the objection of one parent, and granted that coordinator binding authority to resolve conflicts between the parents. Id. at 709. In that case, as here, the judge delegated her decision-making authority to a court-appointed official, doing so over the objection of at least one party. Id. at 693. While recognizing that courts have the inherent power to appoint dispute resolution officials in appropriate circumstances, the Supreme Judicial Court stressed that it is the judge — and, absent agreement of the parties, only the judge — who shall make the final, binding decision in each case. Id. at 701-709. Bower also states that any preconditions that require the use of costly services prior to filing a court action may implicate
Here, the amended judgment orders that “the parties shall engage the services of a mediator before either may file an action in this [c]ourt,” and “[t]he costs associated with mediation shall be shared equally by the parties, unless otherwise reallocated by the mediator.”13 Michael objected to that provision and brought a timely motion to amend the judgment, which was denied in part on those grounds but allowed in part on other grounds not challenged on appeal. The effect of the judge‘s order prevents the parties from bringing a subsequent action in the Probate and Family Court until they have borne the costs of mediation.14 This is an unconstitutional burden to the parties because it delays an
Accordingly, the amended judgment must be vacated and the case remanded to the Probate and Family Court, for further proceedings. On remand, the judge may in her discretion refer the parties to court-appointed dispute resolution in accordance with the Uniform Rules on Dispute Resolution,15 but may not condition the right of either party to petition the court on participation in such a process. Moreover, even if the parties participate in court-ordered dispute resolution, absent their agreement, any court-appointed official may only recommend a disposition to the judge, who retains a nondelegable duty to make the final and binding resolution of the case. See Gustin, supra at 857-858 (“The judge may not delegate this duty“). In addition, the judge may not foreclose either party‘s right to commence a nonfrivolous action, nor may she order the parties to bear the cost of any mandatory dispute resolution services.
b. Custody of the children.
Michael also challenges the judge‘s award to Diane of custody of three of the couple‘s four children.
When reviewing custody awards, we uphold the judge‘s factual findings absent clear error. Mason v. Coleman, 447 Mass. 177, 186 (2006). “Unless there is no basis in the record for the judge‘s decision, we defer to the judge‘s evaluation of the evidence presented at trial.” Bush v. Bush, 402 Mass. 406, 411 (1988). The judge‘s findings must, however, “add up to sufficient support for [her] custody order.” Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 493 (2012).
We recognize that “[t]he decision of which parent will promote a child‘s best interests is a subject peculiarly within the discretion of the judge.” Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996) (Ardizoni), quoting from Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987). “Discretion allows the judge, when determining the best interests of children, to consider the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or G.A.L., evidence of the history of the relationship between the child and each parent, evidence of each parent‘s present home environment and over-all fitness to further the child‘s best interests, and the judge‘s own impressions upon interviewing the child privately in chambers.” Ibid.
In the present case, the judge ruled in Diane‘s favor, but apparently did so without considering evidence favoring Michael.16 The judge‘s memorandum only observes that Diane “has her shortcomings relative to the cleanliness of the home and controlling the children.” However, this vastly understates the substantial evidence in the GAL report, which included interviews with DCF social workers and other professionals who had interacted with the family. The GAL reported that there were serious health and safety concerns, such as Diane‘s negligent attitude towards her daughters taking prescribed medication, removing the children from needed therapy, and failing to barricade
In reviewing the order, we cannot ascertain why the judge chose not to follow the recommendations of the GAL, who reported that Michael is “the stable parent” and is “more easily accessible and [the] more cooperative” parent with whom to work. It is not obvious from the divorce judgment nisi or the accompanying memorandum that the judge considered this evidence in the record or even found that it was credible. “[A]n ultimate conclusion needs a foundation in the record supported by ‘ground-level facts.‘” Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 142 (2009), quoting from Felton v. Felton, 383 Mass. 232, 240 (1981). Insofar as it relates to the award of custody, the amended judgment reflects a “clear error in judgment in weighing the factors relevant to the decision,” and must be vacated and remanded. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). On remand, the judge should either substantiate her analysis of the best interests of the children with evidence from the record, or explain why the other relevant evidence discussed herein was not weighed or credited. See Rosenberg v. Merida, 428 Mass. 182, 191 (1998) (“an award of custody [will not be sustained] ‘unless all relevant factors in determining the best interests of the child have been weighed‘“), quoting from Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981). We note that we do not express an opinion as to which parent should receive custody. Rather, given the gravity of the decision and notwithstanding the judge‘s detailed findings, where, as here, the GAL has made a recommendation that the judge rejects, more is required to support the judge‘s determination. See Ardizoni, supra at 737-738 (custody order vacated where judge failed to make specific or detailed findings based on evidence within the record).
The provision of the amended judgment of divorce nisi that orders Michael and Diane Ventrice to engage in and pay for court-directed mediation before either may file any subsequent action in the Probate and Family Court and the provision awarding custody of the children are vacated. The remainder of the amended divorce judgment nisi, dated July 12, 2013, nunc pro tunc to June 14, 2013, pertaining to the division of the marital estate, is affirmed. The matter is remanded to the Probate and Family Court for further proceedings consistent with this opinion.
So ordered.