MELISSA A. MICHELON
KURT W. DESCHLER.
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.
McBrien for the mother.
Koiles for the father.
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, § 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
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
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 ...