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Malachi M. v. Quintina Q.

Supreme Judicial Court of Massachusetts, Essex

December 26, 2019

MALACHI M.
v.
QUINTINA Q.[1]

         Argued September 9, 2019.

         [136 N.E.3d 707] COMPLAINT for divorce filed in the Essex Division of the Probate and Family Court Department on February 12, 2014. A complaint for modification, filed on May 19, 2016, was heard by Randy J. Kaplan, J.

         The Supreme Judicial Court granted an application for direct appellate review.

         Michael J. Traft for the mother.

         Robert E. Curtis, Jr., for the father.

          The following submitted briefs for amici curiae:

         Kia L. Freeman & Wyley S. Proctor, Boston, for Women’s Bar Association of Massachusetts & another.

          Richard M. Novitch, pro se.

         Sasha Drobnick, of the District of Columbia, Philip A. O’Connell, Jr., & Tony K. Lu, Boston, for Domestic Violence Legal Empowerment and Appeals Project.

         Kevin J. Powers, Boston, Elizabeth V. Brennan, Worcester, Christine M. Bonardi, Jamaica Plain, Roberta M. Driscoll, & Amy DiDonna, Worcester, for D.M. & others.

         Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          OPINION

         CYPHER, J.

Page 726

         [136 N.E.3d 708] This is an appeal by the mother from a modification judgment that granted sole legal custody of the parties’ child to the father. In this case we must resolve the tension between the requirement in G. L. c. 208, § 31A, that "[i]n issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child" and the constraints of G. L. c. 208, § 28, limiting modifications to changed circumstances. The issues presented are whether (1) during a proceeding to modify a child custody decision the judge must consider evidence of domestic abuse that occurred prior to the entry of the divorce judgment; (2) during a proceeding to modify a child custody decision the judge must consider the applicability of the rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent, even in the absence of evidence of abuse occurring after the divorce judgment; and (3) there was a material and substantial change in circumstances to warrant the modification.

         We hold that pursuant to G. L. c. 208, § 31A, the judge at a modification proceeding must consider evidence of both past and present abuse, including evidence of domestic abuse that occurred prior to the entry of the divorce judgment, and must address the applicability of the rebuttable presumption, even in the absence of evidence of abuse occurring after the divorce judgment. We further hold that in the present case, a substantial change in circumstances warranted modification of the custody order. For the reasons that follow, we affirm.[2]

         Background.

         1. 2015 judgment of divorce nisi.

         The parties met in 2001 and married in 2003. They have one child, who was born in 2006. In 2014, the father filed for divorce. The parties entered into a partial agreement for judgment, in which they agreed to share legal custody of the child. After a trial in which both parties were represented by counsel, the judgment of divorce nisi (divorce judgment), which incorporated the partial agreement for judgment, was entered in August 2015.[3] The divorce judgment provided that the parties would share legal and physical custody of the child.

Page 727

          As part of the divorce proceedings, the court appointed a guardian ad litem (divorce GAL), who conducted an investigation, submitted a report (divorce GAL report), and testified at the divorce trial.[4] [136 N.E.3d 709] The divorce GAL interviewed the mother, the father, and the child, as well as other individuals connected to the parties. The divorce GAL report stated, inter alia, that the mother alleged that the father hit her and slapped her on and off throughout their marriage, that the father turned physical three or four times per year, and that the father "rage[d]" if the mother tried to speak with him about the child’s care. In addition, the mother described to the divorce GAL what the divorce judge found to be "a particularly egregious occurrence of father assaulting mother in Florida in 2011" (2011 incident). The mother alleged that after she was two hours late returning home from a shopping trip, the father yelled and screamed at her, pushed her into a wall, knocked the door down after she locked herself in the bedroom, told her "I will teach you a lesson," and stabbed the chair she had just purchased.[5] The mother told the divorce GAL that the child was present in the home during this incident. The divorce GAL report addressed the father’s description of this incident, with the father recalling that he pushed the mother to the floor; that, after the mother locked herself in a room, he then pushed the door off the hinge; and that the fight ended when he pushed the mother up against a wall. The divorce GAL report stated that the father said that he and the mother had had five or six fights that became physical and that the mother had hit and slapped him.[6] The divorce GAL report also noted the father’s statement that after the 2011

Page 728

incident he "immediately looked for an anger management class and booked himself in" and that he had not been physical toward the mother since that time, which the mother confirmed.

         The divorce judgment includes two sentences about domestic violence: "The Court finds that the parties have both engaged in physical assaults upon the other during the early part of the marriage which culminated in a particularly egregious occurrence of father assaulting mother in Florida in 2011. Following that incident, father engaged in anger management counseling at his own initiative and there have been no further incidents." Neither party appealed from the divorce judgment.[7]

         2. Postdivorce events.

         Certain incidents occurred after the divorce judgment, leading the father to seek modification of the divorce judgment in May 2016. In the time between the divorce judgment and the modification trial, the father learned that the mother had brought the child to the child’s pediatrician to be tested for a sexually transmitted disease (STD),[8] that the mother told the child’s therapist that the child showed signs of regression corresponding to visits with the father, and that the mother brought the child to her pediatrician for a bruise on the child’s face and alleged that the bruise could have been from the father squeezing the child’s face.

         [136 N.E.3d 710] In early February 2016, the child was staying with the father when she lost a baby tooth. The mother requested that the father give the mother the tooth, but by the time she made the request the father was traveling and could not provide the mother with the tooth. The mother contacted the police to seek assistance with obtaining the tooth from the father’s home, but the police declined to become involved.

         A few days after the tooth incident, the mother reported an alleged 2013 incident of abuse to the police (2013 incident). The resulting police report stated that an argument between the father and the mother led the father to grab the mother’s arm, "squeezing extremely hard," and to the father throwing the mother’s car keys at her head; however, the mother ducked and the keys landed on the child’s leg, causing her to bleed.[9] As a result of the mother’s report, an application for a criminal complaint issued against

Page 729

the father, but the application was denied for lack of ...


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