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Murray v. Super

Appeals Court of Massachusetts, Worcester

March 16, 2015

Dawn Michelle Murray
v.
Jonathan S. Super

Argued December 2, 2014

Corrected April 17, 2015.

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.

Present: Cypher, Wolohojian, & Blake, JJ.

OPINION

[26 N.E.3d 1117] 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 children, the standard governing removal of the minor children from the Commonwealth requires a determination whether there is a real

Page 147

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, 481 N.E.2d 1153 (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 [26 N.E.3d 1118] 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 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 com-

Page 148

plaint 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; 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 ...


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