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Stone v. Stone

Appeals Court of Massachusetts

June 26, 2015

Ray Stone
v.
Melissa Stone

Editorial Note:

This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Melissa Stone (mother) appeals fro a modification judgment dated February 6, 2014, awarding sole physical custody of the child to Ray Stone (father). The mother's argument on appeal appears to be that there had been no material or substantial change in circumstances that would have justified a change in custody. The mother also argues that the judge did not consider the child's best interests in making the change in custody.[1] We affirm.

We know from the February, 2014, modification judgment that the original judgment of divorce granted joint legal custody of the child to both parents and physical custody to the mother. The judgment was modified in November, 2012, granting joint legal and physical custody to both parents. The mother filed a complaint for contempt and a complaint for modification some three weeks later. The complaint for contempt was dismissed in January, 2013. At that time, the judge instructed the mother in open court not to call the police on the father again in similar circumstances.

In February, 2013, the judge dismissed the complaint for modification. The judgment of dismissal provided this warning to the mother: " If there is a finding by this Court in the future that the mother cannot act in the child's best interest by lying under oath to the Court and harassing the father, sole physical custody shall revert to the father."

In March, 2013, the father filed a complaint for modification of the judgment. The complaint alleged that the mother had lied under oath, used the court system to harass and harm the father, and had not acted in the best interests of the child. A hearing on the complaint was held in January, 2014, and the judge found the father's testimony to be credible and the mother's testimony not to be credible.

Specifically, the judge found that the mother is unwilling to work with the father to further the child's well-being and is therefore unwilling or unable to work with the father to promote the child's best interests. While the judge acknowledged that the father has been in " technical[]" violation of the mother's restraining order, the judge specifically found that " Mother has used the restraining order process to make any co-parenting between she and Father impossible." [2]

The judge concluded by finding that " [j]oint custody is not appropriate under the circumstances of this case. Mother has demonstrated again an inability to act in the child's best interests in situations where she has an opportunity to take actions which are adverse to Father. . . . Therefore, the Court finds that it is in the child's best interests that Father have sole physical custody of the minor child."

" A judgment modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances 'of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child].'" Rosenthal v. Maney, 51 Mass.App.Ct. 257, 261-262, 745 N.E.2d 350 (2001), quoting from Fuller v. Fuller, 2 Mass.App.Ct. 372, 376, 312 N.E.2d 581 (1974). We agree with the judge's findings and conclusions.

Modification judgment dated February 6, 2014, affirmed.

Kantrowitz, Trainor & Fecteau, JJ. [3] ...


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