Heard: January 25, 2016.
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.
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.
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.
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.
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. 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.
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.
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
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). 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. "
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.
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
parent, against the objection of the other parent, may remove
a minor child from the Commonwealth "upon cause
shown." G. L. c. 208, § 30. "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
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.
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