810 N.E.2d 862
61 Mass.App.Ct. 1112


NOTICE:  THIS IS AN UNPUBLISHED OPINION.

Appeals Court of Massachusetts.
Mary Anne Panaro GRADY,
v.
Dennis Patrick GRADY. 

No. 03-P-1142. 
June 21, 2004.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

    The plaintiff wife has appealed from that part of a judgment of divorce nisi awarding sole legal and physical custody of the parties' minor son to the husband while providing liberal rights and opportunity for her to enjoy contact with the child.  The wife contends in her appeal that the judge's determinations on the custody question were contrary to the evidence and were otherwise in error.  We disagree and, thus, affirm the judgment.

    The trial judge entered extensive and detailed findings in support of her custody order.  She made specific determinations of credibility as to various witnesses' testimony and other evidence, and also offered pointed explanations for her credibility determinations.  Finally, she offered her "theory of the case," stating that the central issue in the custody determination was credibility.  The trial judge stated that "seldom has the Court heard a trial where so much of one party's testimony [that of the wife] was not credible."  R 70.  The judge found the credible evidence to be inconsistent with the wife's perceptions of reality, including her perceptions that the husband had sexually abused the child, that he was a domestic abuser or batterer, that he was a stalker who had violated a G.L. c. 209A order against him, that he had a serious drinking problem, and that he somehow was able to cover up these problems in part by a supposed special relationship he had with officials and police from the town of Mansfield (where the couple had resided together during the marriage).

    The trial judge found the child to be healthy overall (physically, emotionally and psychologically), but nevertheless was feeling some adverse effects arising from the antagonism between the parties caused by their separation.  The judge found that the child "loves and needs both parents."  R 71.  However, owing to her distorted perceptions and beliefs about the husband, the mother believes that the child will be safe only if contact with the husband is terminated, and that she will be safe from the husband only if protected by a c. 209A order. (Such an order, issued in January, 2001, by the District Court, remained in effect throughout the pendency of the divorce case.)  The judge summed up the overall situation in the following finding:

"28.  Both parents love the child and recognize that the child loves each of them.  The Husband is able to encourage the child to have a relationship with the Wife.  However, the Wife is unable to encourage the child to have a relationship with the Husband as she persists in her belief that the Husband sexually abused the child and it is, therefore, in the child's best interest to sever any relationship with the Husband.  This attitude on the Wife's behalf is not in the child's best interest.  Until it is changed, it is in the child's best interest that he be placed with the primary caregiver that will encourage the child to have a good relationship with both parents--i.e. the father.

"Additionally, the Wife has been unable to abide by the Court ordered supervised visitation schedule throughout these proceedings....  The Wife has intentionally attempted to interfere with the visits between the child and the Husband.  There is no evidence that would enable the Court to believe that the Wife's actions would change for the better.  To the contrary, the evidence is that the Wife's goal is still to sever the child's relationship with the Husband."

    R 61-62.

    The judge supported her decision to abandon the typical approach in divorce cases of shared or joint custody of minor children, pursuant to > G.L. c. 208,§ 31, by noting that, for this arrangement to work in the child's best interests, "both parents must be able mutually to agree on the basic issues in child rearing and want to cooperate in making decisions for their children." (R 78, citing > Doe v. Doe, 16 Mass.App.Ct. 499 [1983] ). The judge found that joint custody of, and shared responsibility for, the child would be "an invitation to continued warfare and conflict."  See > Rolde v. Rolde, 12 Mass.App.Ct. 398, 405-406 (1981).  We conclude that there is no error in the judge's findings and conclusions.

    The trial judge considered > G.L. c. 208, § 31A, and > Custody of Vaughn, 422 Mass. 590 (1996), but found no credible evidence of past or present abuse by the husband to the wife or the child.  The judge specifically found that the wife's perception of events is not in accord with reality.  Again, we conclude that there was no error in this regard.

   
    In her appeal from the custody order, the wife essentially attempts to retry the case here.  She argues that the trial judge either ignored or rejected evidence supporting her own version of events and the charges she made against the husband, and that certain of the judge's determinations or conclusions lack evidentiary support.  In the statement of the case in her brief, the wife does not even attempt to relate the facts according to the facts the judge actually found from the evidence; rather, she relates other evidence favorable to her that the judge either rejected outright or failed to mention in her decision.

    "The credibility of witnesses, particularly, is a preserve of the trial judge upon which an appellate court treads with great reluctance."  > Springgate v. School Comm. of Mattapoisett, 11 Mass.App.Ct. 304, 310 (1981).  The trial judge's weighing of the evidence and determinations of credibility are entitled to deference.  > Care and Protection of Bruce, 44 Mass.App.Ct. 758, 763 (1998).  "It was the trial judge who had the opportunity to see and hear the witnesses, and it is for [her] and not for us to assess their credibility and to weigh the evidence presented."  > Adoption of Arnold, 50 Mass.App.Ct. 743, 750 (2001).  "Only if there is clear error will we disturb those findings."  Ibid.

    The wife has not made any showing that this is one of those rare or exceptional instances where a trial judge's assessments of credibility were plainly wrong.  Compare Springgate v. School Comm. of Mattapoisett, supra at 311 (reversal of trial judge's decision based in substantial part on judge's "wholesale repudiation of seven witnesses whose interest in the outcome of the case was less personal and intense than that of one witness on the other side, [the plaintiff]").  There is no indication here of such a slanted view by the judge as in Springgate; indeed, the judge considered and relied upon evidence presented by several disinterested persons, especially the two guardians ad litem who had been appointed by her to investigate the matter in the first place.  Furthermore, the judge's decision clearly demonstrates that she meticulously weighed and considered the factors set forth in > G.L. c. 208, § 31, for making child custody determinations in cases of divorce.

    The husband's request for appellate attorney's fees and double costs is allowed.  Within ten days of the issuance of the rescript, the husband may file with this court a petition for appellate attorney's fees and double costs of appeal in accordance with the procedure prescribed in > York Mgmt. v. Castro, 406 Mass. 17, 20 (1989).  The wife shall have seven days thereafter to file a response.

Judgment of divorce nisi affirmed with attorney's fees and double costs.

Richard Barrett wrote:
 

Has anyone seen any case law where a judge or appeals has awarded shared legal and physical custody of a child even if one parent is intentially being combative to show that they "can't" get along.

Rich
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