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Rosenwasser v. Rosenwasser

Appeals Court of Massachusetts, Middlesex

June 17, 2016


          Heard: January 25, 2016.

         Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on June 16, 2010. An amended complaint for modification, filed on August 28, 2012, was heard by Patricia A. Gorman, J.

          Susan E. Stenger for the father.

          Donald G. Tye (Michelle M. Rothman with him) for the mother.

          Present: Cohen, Trainor, & Katzmann, JJ.

          KATZMANN, J.

         Ronald Rosenwasser (father), the former husband of Marci Rosenwasser (mother), appeals from a modification judgment of the Probate and Family Court denying his request to remove the parties' minor child to Boca Raton, Florida. As the father is the child's primary custodial parent, his removal request is governed by the two-prong "real advantage" test set forth in Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985) (Yannas). Though we credit the judge's efforts to deal with a complex situation involving two loving parents, we conclude that the judge erred in her application of the second prong of the Yannas test, by not adequately considering the best interests of the child and the interests of the father, while giving undue weight to the interests of the mother. We therefore vacate the portion of the modification judgment denying the father's removal request and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion.

         The mother also cross-appeals from the portion of the modification judgment reducing the father's support obligation. We vacate the portion of the modification judgment pertaining to support and remand the matter for additional findings consistent with this opinion.


         "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." Murray v. Super, 87 Mass.App.Ct. 146, 147 (2015) (Murray). The parties married in March, 1990, and lived together in Florida until 1997, when they relocated to Massachusetts. The father grew up in Florida, and much of his extended family still lives there. The mother's parents, who are Canadian citizens, also live in Florida approximately five months out of the year. The father is one of three partners in a small law firm that has offices in Florida, Massachusetts, and Kentucky. Each partner operates primarily out of one office and is responsible for bringing in his own business and profits. The father works primarily out of the Newton, Massachusetts, office and also works out of the Boca Raton, Florida, office approximately one week per month. The father employs one associate in the Newton office, as well as two paralegals and a shared bookkeeper in the Boca Raton office.

         After nearly twenty years of marriage, the parties separated in February, 2010. Shortly thereafter, in May, 2010, the mother gave birth to the parties' daughter (child). In October, 2011, the parties were divorced pursuant to a separation agreement that was incorporated and merged into a judgment of divorce.[1] The separation agreement provided the mother with primary physical custody of the child, and the father with "liberal parenting time". The separation agreement required the father, as the family's sole wage earner, to pay the mother "base unallocated family support" of $42, 000 per year and "additional support" equivalent to a percentage of his earned income between $120, 000 and $350, 000. He was not required to pay such "additional support" on income earned in excess of $350, 000.

         It is undisputed that, almost immediately after the divorce, the mother became unable to care for the child due to her ongoing mental health issues, including depression and anxiety. The father quickly took over as the child's primary caretaker, while continuing to operate his law practice. The child was enrolled in full-time daycare, and the father also used paid babysitters to provide additional childcare coverage during non-daycare hours. Because the mother was unable to care for the child for extended periods of time, the father took the child with him on his monthly business trips to Florida.

         In February, 2012, the father filed a modification complaint seeking primary physical custody and a reduction in his support payments to reflect "the reality" of the changed parenting arrangement. In August, 2012, the father was permitted to amend his complaint to include a request to remove the child to Florida, on the basis that he "has no support system in Massachusetts to assist him with the child[, ]" his "family (including the child's grandparents) and friends live in Florida, " his law firm's "main office, partners and staff" are in Florida, and he would "have more income available for the child if he were to move to Florida" and operate solely out of the Boca Raton office, as there is a "considerable cost in maintaining offices in both states." In August, 2013, the parties entered into a partial modification agreement, which was incorporated into a judgment, transferring primary physical custody of the child to the father and providing the mother with parenting time on Thursday afternoons and overnight visits on alternating weekends. The remaining issues, including the father's requests for removal and reduced support payments, went to trial.

         During the five-day trial, which began in August, 2013, and concluded in January, 2014, the judge heard testimony from the father, the mother's parents, and the mother's court-appointed guardian ad litem (GAL).[2] The mother did not testify. It is undisputed that, from the time of the divorce in October, 2011, until the start of the modification trial in August, 2013, the mother missed the majority of her parenting time. However, during the five-month period in which the trial was pending, the mother "was able to exercise all of her scheduled parenting time. "

         On July 22, 2014, the Probate and Family Court entered a modification judgment which, among other things, denied the father's removal request and substantially reduced his support obligation to the mother. In denying the removal request, the judge concluded that while the move to Florida would provide the father with a "real advantage, " it was not in the child's best interests. The instant appeal followed.


         "We review the judgment and the subsidiary findings of fact for abuse of discretion or other error of law." Murray, 87 Mass.App.Ct. at 148. "'[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.'" Hoegen v. Hoegen, 89 Mass.App.Ct. 6, 9 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). "Although we will not substitute our judgment for that of the probate judge, we will 'scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.'" Whelan v. Whelan, 74 Mass.App.Ct. 616, 620 (2009), quoting from Kelley v. Kelley, 64 Mass.App.Ct. 733, 739 (2005) (additional citation omitted).

         1. Removal.

         A parent, against the objection of the other parent, may remove a minor child from the Commonwealth "upon cause shown." G. L. c. 208, § 30.[3] "In determining whether cause for removal by the parent with primary physical custody has been shown under the statute, the judge must consider the custodial parent's request under the familiar two-prong 'real advantage' test" articulated in Yannas, 395 Mass. at 710-712. Murray, supra at 149. The judge must first consider whether the move provides a "real advantage" to the custodial parent. Yannas, supra at 711. If that threshold prong is met, the judge must then determine whether the move is in the child's best interests. Ibid. We address each of the Yannas prongs in turn.

         A. Real advantage.

         "To satisfy the real advantage test, the custodial parent must demonstrate 'the soundness of the reason for moving, and the . . . absence of a motive to deprive the noncustodial parent of reasonable visitation.'" Murray, supra, quoting from Yannas, supra.

          Here, the judge concluded that the move to Florida would provide a real advantage to the father as his "income would improve or stay the same, his business overhead costs would diminish, and his emotional support system would be stronger." The judge specifically found that the father's family members living in Florida, including his "mother, brother, sister-in-law, as well as many cousins and nieces and nephews, give him emotional and physical support in the care of [the child]" and assist him with "daily chores, such as shopping and cleaning, so that he may balance work and childcare." While not addressed in the judge's findings, it appears from the record that the father has only one relative, a cousin, living in Massachusetts. The judge also found that the father's income has "decreased each year since he gained sole ...

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