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Michelon v. Deschler

Appeals Court of Massachusetts, Middlesex

January 10, 2020

MELISSA A. MICHELON
v.
KURT W. DESCHLER.

         Heard November 5, 2019

         COMPLAINT for divorce filed in the Middlesex Division of the Probate and Family Court Department on June 18, 2014. The case was heard by William F. McSweeny, III, J.

         Maureen McBrien for the mother.

         Jennifer Koiles for the father.

         Present: Rubin, Wolohojian, & Henry, JJ.

          WOLOHOJIAN, J.

         In this appeal from a judgment of divorce nisi, the central issue is whether the judge's findings, which were adopted essentially verbatim from the father's proposed findings and rationale, nonetheless evidence the required "badge of personal analysis" (citation omitted). Cormier v. Carty, 381 Mass. 234, 237 (1980). For the reasons we set out, we conclude they do not.

         The parties were married on March 1, 2003, and have three children. The mother filed a complaint for divorce on June 18, 2014, pursuant to G. L. c. 208, ยง 1B, based on an irretrievable breakdown of the marriage. The husband answered and counterclaimed, seeking a divorce on the same grounds. The parties stipulated to temporary orders pertaining to the children's schedules, child support payments from the father, and the allocation of day care and extracurricular activities. Prior to trial, they also stipulated to various facts, including that "[R (the first child)] is entering the second grade and completed Kindergarten and first

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grade in the Hudson Public Schools. [C (the second child)] is entering Kindergarten this fall. [Z (the third child)] attends daycare at CHAPS Academy in Hudson, Massachusetts."

         Also pretrial, the parties entered into two partial stipulations for judgment, which covered the children's holiday and vacation parenting schedules, the allocation of educational costs and expenses, health insurance and uninsured health expenses, the division of property (personal and real), life insurance, and income taxes. In short, all that was left for trial were the nonholiday and nonvacation parenting schedule, the question of joint legal custody over educational and religious decisions, [1] and the question where the children were to go to school. After the trial (during which both parties testified [2]), the judge awarded equal parenting time to the parties, awarded joint legal custody, and ordered that the children be moved to the Sudbury school system. Judgment entered accordingly, and additionally incorporated the terms of the parties' partial stipulations for judgment.

         On appeal, the mother argues that the judge abused his discretion in awarding equal parenting time to both parents, awarding joint legal custody over educational decisions, see note 1, supra, and ordering that the children be moved to the Sudbury school system. As a threshold matter, she also asserts that the judge's findings and rationale, which were adopted virtually verbatim from the father's submission, do not demonstrate that the judge independently evaluated the evidence.

         Ordinarily, even where findings are recited verbatim from a party's proposal, we do not reject them out-of-hand if they are supported by the evidence. Care & Protection of Olga, 57 Mass.App.Ct. 821, 823-824 (2003). A judge's findings will not be disturbed unless they are clearly erroneous. Mass. R. Dom. Rel. P. 52 (a). "A finding is clearly erroneous . . . when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made'" (citation

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omitted). Care & Protection of Olga, supra at 824. However, "findings which fail to evidence a 'badge of personal analysis' by the trial judge must be subjected to stricter scrutiny by an appellate court" (citation omitted). Cormier, 381 Mass. at 237. The findings should show that the judge personally prepared them or "so reworked a submission by counsel that it is clear that the findings are the product of his independent judgment." Id. at 238. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1),424 Mass. 430, 451 (1997) (findings evidenced by badge of personal analysis because judge rejected certain characterizations and heavily edited many findings); Anthony's Pier Four, Inc. v. HBC Assocs.,411 Mass. 451, 465 (1991) (findings are product of judge's independent judgment where judge deleted specific language from counsel's submissions, incorporated some of opposing counsel's proposed findings, and drafted findings and conclusions ...


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