MELISSA A. MICHELON
KURT W. DESCHLER.
Heard: November 5, 2019.
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.
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.
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, § IB, 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 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,
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,  and the question where the children were
to go to school. After the trial (during which both parties
testified), 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.
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.
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 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 of his own);
Roche v. Boston Safe Deposit & Trust Co., 391
Mass. 785, 792 (1984) (where judge omitted many portions of
counsel's submissions and added and condensed sentences,
judge's findings had badge of personal analysis).
the judge adopted verbatim the father's proposed findings
of fact, only updating the ages of the children. The judge
also by and large adopted the father's proposed
rationale, deleting only four paragraphs and one sentence.
The result of these deletions was to reject the father's
characterizations of the mother's evidence. At the same
time, the judge did not incorporate any of the mother's
proposed findings on these points or otherwise make his own
findings regarding that evidence, thus leaving a vacuum in
the findings with respect to signification portions of the
evidence. Notably the judge's findings and rationale are
silent with respect to the troubling aspects of the
mother's evidence, such as the father's alcohol
consumption and his arrest for operating a motor vehicle
while under the influence of alcohol, the episode regarding
his alleged mistreatment of the family's ailing cat, his
decision to allow R (a young child) to drive an all-terrain
vehicle, the father's exposing the children to his
multiple dating partners and enlisting them in helping him
keep them from learning of each other, his watching
pornography in the children's presence, the allegations
of physical violence, and the ample evidence of the
parents' difficulties in communicating with each other
regarding the children. The judge was not required to accept
the mother's evidence, but the judge was required to deal
with it; indeed much of it was uncontested. "Troublesome
facts . . . are to be faced rather than ignored. . . . Only
then is the judge's conclusion entitled to the great
respect traditionally given to discretionary decisions."
Adoption of Abby, 62 Mass.App.Ct. 816, 817 (2005),
quoting Adoption of Stuart, 39 Mass.App.Ct. 380, 382
these circumstances, we are unable to assess the judge's
order regarding parenting time or the award of joint legal
custody over educational matters,  and these matters require
remand for further findings that address the difficult issues
raised by the evidence. In addition, we are concerned by the
complete absence of findings or explanation for the
judge's order that the children attend the Sudbury school
system (in which they had not previously been enrolled).
Nothing in the findings or the rationale permit us to
understand how the judge assessed the best interests of the
children or the basis for the judge's conclusion that the
children were best served by attending a new school system.
Accordingly, the children's school placement also
requires further findings.
these reasons, so much of the divorce judgment as addressed
the parenting schedule, the award of joint legal custody over
educational matters, and the placement of the children into
the Sudbury schools, is vacated. These issues are remanded
for further proceedings as the judge in his discretion
determines necessary, recognizing that circumstances since
the time of the judgment may affect the judge's
assessment of the children's best interests. The current