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Martinez v. Martinez-Cintron

Appeals Court of Massachusetts, Worcester

May 3, 2018

MARIA MARTINEZ
v.
FRANCES MARTINEZ-CINTRON.

          Heard: March 2, 2018.

         Civil action commenced in the Worcester Division of the Probate and Family Court Department on December 16, 2016.

         A motion to dismiss was heard by Leilah A. Kearny, J. Leave to prosecute an interlocutory review was allowed in the Appeals Court by Carhart, J.

          Jeffrey Sakol for the mother.

          Present: Maldonado, Blake, & Desmond, JJ.

          DESMOND, J.

          In this interlocutory appeal from the order denying Frances Martinez-Cintron's (mother's) motion to dismiss her child's paternal grandmother's petition for grandparent visitation, we are faced with the question whether Blixt v. Blixt, 437 Mass. 649 (2002), requires a judge to dismiss an inadequate petition for grandparent visitation pursuant to G. L. c. 119, § 39D. We conclude that it does and therefore reverse the order.

         Background.

          We briefly summarize the facts found by the judge. The mother and James Taylor-Martinez (father) were divorced in December, 2016, pursuant to a judgment of divorce nisi, when their lone child was approximately six months old. The mother was awarded sole legal and physical custody of their child, and the father had supervised visitation. Shortly after the divorce nisi, the child's paternal grandmother, Maria Martinez (grandmother), filed in the Probate and Family Court a petition for grandparent visitation supported by a handwritten affidavit. On that petition, the grandmother checked the box that indicates that she is not alleging that there is "a significant relationship between the grandparent(s) and the child(ren) but that nonetheless it is in the best interest of the minor child(ren) that petitioner(s) be granted visitation with the child(ren)." Her accompanying affidavit did not provide any support for the proposition that it would be in the child's best interest that she be granted visitation rights. Instead, the grandmother's affidavit merely states that she is the child's grandmother, that she and the father have only seen the child in the hospital after he was born, that she wants to "be able to see him on a weekly basis," and that the mother will not let her and the father see the child.

         The mother initially did not oppose the grandmother's petition, stating that she (the mother) would allow the grandmother to visit the child so long as the visits took place in Winchendon, where the mother resides. After obtaining counsel, however, the mother moved for leave to file an amended answer and subsequently moved to dismiss the grandmother's petition pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). In denying the mother's motion to dismiss, the judge relied on the following passage from Blixt, 437 Mass. at 666:

"[b]efore a parent or parents are called upon to litigate fully a grandparent visitation complaint, with all the attendant stress and expense, the grandparent or grandparents should make an initial showing that satisfies a judge that the burden of proof, set forth above, can be met. To this end, any complaint filed under the statute should be detailed and verified or be accompanied by a detailed and verified affidavit setting out the factual basis relied on by the plaintiffs to justify relief. A complaint not so verified, or one accompanied by an inadequate affidavit, would be subject to dismissal (or summary judgment) on motion by the defendant or defendants." (Emphasis supplied by the judge.)

         This passage, the judge reasoned, indicates that Blixt subjects the grandmother's inadequate petition to dismissal, but does not require it, and the judge, quoting Blixt, supra at 665 n.24, therefore allowed the grandmother "the opportunity to produce evidence that circumstances are severe enough to warrant a court's review of the parent's decision to deny visitation." The judge made further note of the mother's apparent willingness to maintain contact with the father's family, citing her original answer to the petition and her openness to the father's grandmother serving as one of the supervisors of the father's visitation.[1]

         The mother petitioned for interlocutory relief in this court pursuant to G. L. c. 231, § 118, seeking review of the order denying her motion to dismiss. A single justice of this court ordered the judge to issue written findings and conclusions, yet lacked the authority to order the relief requested upon receipt of those written findings and conclusions. See Mass.R.A.P. 15(c), 365 Mass. 859 (1974). Instead, the single justice granted the mother leave to file an interlocutory appeal.

         The question before us now is, in light of Blixt, whether a judge must allow a parent's motion to dismiss a grandparent's petition for visitation when the petition does not sufficiently allege why visitation is necessary to protect the child from significant harm. We conclude that Blixt does impose such a requirement, and ...


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