AGNES, J.
These are consolidated appeals by the defendant Yan Schechter (the father) from a judgment of divorce nisi and an abuse prevention order. One child, a son who is still a minor (the child), was born of the marriage. The judgment awarded sole legal and physical custody of the child to the plaintiff Karina Schechter (the mother). The father's appeal presents four principal issues for our consideration. First, we review the custody determination and the validity of a judgment provision suspending the father's visitation rights for one year, along with a corresponding G. L. c. 209A order precluding any contact between the father and child during that period. Second, we review the judgment's removal provision (see G. L. c. 208, § 30), which provides that the mother has the right to remove the child "from the Commonwealth of Massachusetts to the state of New York or
Background. The consolidated trial in these cases occurred over eighteen days in 2010 and 2011, and included testimony from thirty-eight witnesses, and 132 exhibits. The conscientious judge made 330 findings of fact, as well as detailed rulings of law. We first summarize the judge's findings, setting forth other facts later in connection with the specific legal issues we address.
The father is a Ukrainian immigrant whose family initially lived in Israel and then moved to Boston in 1988 when he was nearly sixteen. The father and his family have lived in Boston for the past twenty years. The mother emigrated from Uzbekistan and eventually moved to Boston in 1999 at age twenty to pursue educational opportunities. The father graduated from Brandeis University and had early success in a small business and as a computer consultant. Throughout their relationship, there were numerous instances of emotional and economic abuse,
The father and the mother began dating in the summer of 2001 while they were both living in New York City. That fall, they both relocated to Boston, where the mother began her final year of college while continuing to work as a dental hygienist. The father became involved in the residential real estate business and again met with success. Initially, the couple lived with the father's parents and then moved in with friends of the father. From the inception, it was evident that the father's family did not support the relationship. In December, 2001, the parties found out that the mother was pregnant. The father proposed marriage and the mother accepted. The father's family did not respond well to the engagement, and urged him to obtain a prenuptial agreement. The mother experienced a miscarriage in early 2002. The couple agreed to conceive another child. The mother learned that she was pregnant again in May of 2002. Meanwhile, the couple found a condominium unit they both liked in Brighton and the father purchased it in the name of his real estate company.
During that same month, the mother graduated from college and started preparing for the Dental Admission Test (DAT). The couple decided it was best for the mother not to work and to focus on studying for her DAT. In spite of this agreement, the father continually criticized the mother for avoiding work and implied that she was exaggerating her morning sickness. He made disparaging comments to her suggesting that she was worthless, and
1. Marriage. On December 18, 2002, days before their marriage, the parties signed a prenuptial agreement that the father had been discussing with lawyers since December of 2001. The father had real estate assets in the greater Boston area estimated to be worth over seven million dollars. They were married on December 22, 2002.
The father's emotional abuse of the mother was constant and continued during their marriage, as documented in the judge's findings of fact in great detail. The mother gave birth in February of 2003. During this time, the mother chose to pursue a degree as a dentist. By April of 2008, the stock market had suffered a serious downturn and the father had a breakdown, becoming extremely anxious over his real estate business. He was hospitalized and constructively incapacitated.
By September of 2008, the mother returned to school and the father became frustrated that the mother did not spend more of her free time with him. He did not approve of the mother's friendships with particular female friends. By the time the mother prepared to graduate from dental school,
2. Separation. On May 30, 2009, the father and the mother separated. Soon after the father left their home, he telephoned the mother and said that he intended to get a divorce and needed to speak with her that night after the child went to bed. She agreed to talk. The mother and child then went to visit a friend. As the mother was leaving to return home, she found that her car was being towed and saw the father emerge from the tow truck's passenger seat. He got into his own car and drove away, staring at her intently with an angry look as he passed. Afraid to go home, the mother and child spent the night at the friend's house. The father, by his own account, grew furious. He expected that the mother would get a ride home so that he could kiss the child
While at the family home waiting for the mother, the father gathered up several pairs of her shoes, some boots, and a purse and put them in the oven. He turned the oven on and left. He stated that "[i]t seemed like the most harmless way to piss her off." The father's father went to the home to shut the oven off.
The parties did not live together after the father moved out of the home. The father attempted to get key access to the building adjacent to and overlooking the marital home, but his request was not granted.
3. Legal proceedings. On June 8, 2009, the mother filed a complaint for divorce. On September 14, 2009, she filed a separate complaint in which she sought protection from abuse under G. L. c. 209A. In support of the protective order issued by the court, the judge cited an instance in which the father threatened, "I'm coming with an axe to chop you up," after the mother would not agree to let the child have a sleepover.
During this time frame, the father transferred a significant interest in his business into his parents' names. He sought to give his parents retroactive distributions of his own personal share of profits. The father claimed his income was $580 per week, which the judge found was a "completely unreliable" estimation.
4. Guardian ad litem report. As part of the proceedings, a psychologist was appointed as guardian ad litem (GAL) on behalf of the child to evaluate the issues of custody and parenting time, and later the issue of removal. The GAL issued an extensive report dated April 15, 2010 (and supplemented that September), that detailed his observations and interactions with family members. The report concluded that the father dominates both the mother and the child with his words and actions. The father appeared to have agendas concerning information he wanted to discuss or disclose and rewarded the child when he cooperated. On the other hand, the GAL observed that "[the mother] allows
Discussion. 1. Standard of review. The judge's factual findings must be left undisturbed absent a showing that they are plainly wrong or clearly erroneous. This deferential standard applies to our review of cases involving custody and visitation, see Felton v. Felton, 383 Mass. 232, 239-240 (1981); Rosenberg v. Merida, 428 Mass. 182, 191 (1998); Loebel v. Loebel, 77 Mass.App.Ct. 740, 747 (2010); as well as to factual findings in connection with removal under G. L. c. 208, § 30, see Mason v. Coleman, 447 Mass. 177, 186 (2006); Murray v. Super, 87 Mass.App.Ct. 146, 148 (2015). See also 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 committed.'" Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). "In applying the standard, the judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference." Custody of Two Minors, 396 Mass. 610, 618 (1986). However, in reviewing the ultimate determination on custody and visitation, we consider whether there was an abuse of discretion in how the judge accounted for the child's best interests. See Sagar v. Sagar, 57 Mass.App.Ct. 71, 79 (2003). See also Youmans v. Ramos, 429 Mass. 774, 787 (1999). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made `a clear error of judgment in weighing' the factors relevant to the decision." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citation omitted).
2. Parenting issues. a. Custody and visitation. i. The terms of the judgment. The judgment ordered that the mother have sole legal and physical custody of the child and that "[t]here shall be a one year cessation of any contact between [the child] and his
The father maintains that "the minimal findings here do not support any plausible contention that the best interests of the child standard was properly applied here." This is a gross mischaracterization of the basis for the judge's rulings. The judge dealt with the parties for more than two years and had numerous opportunities to observe their interactions, as well as to assess witness accounts of how they treated each other and interacted with their child. The judge also had the benefit of the comprehensive and detailed GAL report, which is part of the record on appeal. The judge documented numerous instances of the father's abusive and degrading conduct toward the mother before and during the marriage, including several instances in which the father threatened to kill or do great bodily harm to the mother. In making a decision about legal or physical custody, a judge "shall consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health." G. L. c. 208, § 31, as appearing in St. 1989, c. 689. Furthermore, in such cases the judge "shall consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child." G. L. c. 208, § 31A, inserted by St. 1998, c. 179, § 3.
We recognize that "parents have a fundamental interest in their relationships with their children that is constitutionally protected." Opinion of the Justices, 427 Mass. 1201, 1203 (1998). However, the strong expression of public policy by our Legislature that a child's welfare must be the paramount concern when a judge determines custody, see G. L. c. 208, §§ 31 and 31A, and G. L. c. 209A, § 3(d), means that a judge is authorized not only to order sole legal and physical custody with one parent when it serves the best interests of the child, see, e.g., Carr, 44 Mass. App. Ct. at 925; Custody of Zia, 50 Mass.App.Ct. 237, 241-245 (2000), but also that a judge is authorized to impose conditions
In this case, the judge made findings that the father was domineering in his relations with the mother and child. The judge credited the GAL's observation that the father repeatedly made negative comments and disparaging references to the mother in the child's presence, "and spent considerable time and impassioned energy impugning [the mother's] moral character." The judge also documented the father's lack of insight into the destructive nature of his behaviors, his tendency to blame others for everything, and his lack of impulse control. As the judge correctly noted, "[a] determination of whether a parent is able to separate his or her needs and interests from those of the minor children and whether a parent's actions will compromise the minor children's relationship with the other parent are relevant factors in determining custody." See Hernandez v. Branciforte, 55 Mass.App.Ct. 212, 220-221 (2002). Finally, the judge explained why neither unsupervised nor supervised visitation between the father and the child was feasible.
The judge's decision to suspend visitation for one year is also supported by his extensive findings that over the course of their relationship, the father had engaged in physical, emotional, and financial abuse of the mother, and, in his interactions with the child, had damaged the mother's relationship with the child.
ii. The G. L. c. 209A order. The original abuse prevention order was an emergency order issued ex parte on September 13, 2009, as a result of an episode over whether the father could have an overnight visitation with their child at the home of the child's friend. (There was an order in effect at the time that required written consent by both parties for the father to have an overnight visit.) Several days later, the court conducted an extension hearing
The order was made a permanent abuse prevention order on February 3, 2012, the same day the divorce judgment entered. The judge's endorsement reads as follows: "This order is entered after an 18 day trial on cross complaints for divorce and on plaintiff's complaint for protection from abuse. Although the order is permanent, paragraph 7 may be reviewed after one year." In paragraph 7, the father is ordered not to contact the child and not to come within fifty yards of him.
The father does not challenge the substance of the c. 209A order insofar as it bars him from abusing or contacting the mother. The father's principal contention is that he was deprived of notice and the right to be heard before the issuance of the permanent abuse prevention order. However, this claim is not supported by the record.
However, in such a case a judge is not also required to find that the defendant has committed a separate act or acts of abuse against the parties' child to order that the defendant have no contact with that child. Under the statute, "A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse, including . . . (h) ordering the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or custody, unless authorized by the court . . ." (emphasis supplied). G. L. c. 209A, § 3, as appearing in St. 1990, c. 403, § 3. As the statute also expressly provides, "a finding by [the Probate and Family Court] by a preponderance of the evidence that a pattern or serious incident of abuse, as defined in [G. L. c. 208,
Our decision in Szymkowski v. Szymkowski, 57 Mass.App.Ct. 284, 288 (2003), is not to the contrary. There, we concluded that an abuse prevention order obtained by the defendant's former wife on behalf of the defendant's minor daughter was invalid because the plaintiff mother had not demonstrated that the child was the victim of "abuse" as defined in G. L. c. 209A, § 1.
This case also is distinguishable from Smith v. Joyce, 421 Mass. 520, 522-523 (1995), in which a judge of the Probate and Family Court extended a c. 209A order directing the defendant father to stay away from the plaintiff mother and their two sons, exclusively on the basis of evidence that the father had placed the mother in fear of imminent serious physical harm. In vacating the order as to the sons, the court noted that "[t]he judge should have considered the defendant's relations with his sons apart from the plaintiff's request that the defendant stay away from her. If there is to be a G. L. c. 209A order that a defendant stay away from and have no contact with his or her minor children, there must be independent support for the order." Id. at 523. Here, however, the judge's findings reflect that he focused attention on the relationship between the father and the child. Furthermore, in this case, unlike in Smith, there is "independent" evidence apart from the father's abuse of the mother in that the child witnessed at least one serious act of domestic violence. Moreover, the judge explained that, due to the father's chronic misbehavior, any contact during at least a period of one year between the father and the child will cause the child to suffer serious emotional harm. For these reasons, the judge did not err in including a one-year suspension of visitation in the permanent abuse prevention order under G. L. c. 209A.
b. The removal order. The judgment provision in question is as follows: "The mother is granted the right to remove [the child] from the Commonwealth of Massachusetts to the State of New York or another state if the opportunity for employment and security is more readily available elsewhere. . . . The mother shall keep her attorney informed of any changes in her address." On
A request for removal is governed by G. L. c. 208, § 30, which states that "[a] minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this Commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders." G. L. c. 208, § 30, as amended by St. 1986, c. 462, § 9. The statutory standard of "upon cause shown" means that removal must be in the best interests of the child. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). In Yannas, the court held that the judge must determine whether the proposed move represents a "real advantage" to the custodial parent. Id. at 710. Yannas interpreted G. L. c. 208, § 30, to require the judge to conduct a two-stage analysis to determine whether to permit a custodial parent to move with the child or children to another jurisdiction. In the first stage, the custodial parent must demonstrate, and the judge must find, that the custodial parent has set forth a "good, sincere reason for wanting to remove to another jurisdiction," id. at 711, and that the custodial parent is not motivated by a desire to deprive the noncustodial parent of reasonable visitation. Ibid. See Murray, 87 Mass. App. Ct. at 149-150. If the judge makes these threshold determinations, the judge then moves to the second stage of the analysis. In the second stage, the question is whether on balance, taking into consideration the interests of the custodial and noncustodial parents, and the impact of such a move on the child, removal is in the best interests of the child. Yannas, 395 Mass. at 711-712. No single factor is "controlling in deciding the best interests of the child, but rather they must be considered collectively." Id. at 712.
We recently explained that the real advantage test does not mean that so long as the custodial parent is advantaged by a move to another State, a judge is required to approve the request. Murray, 87 Mass. App. Ct. at 153. Ultimately, the judge must determine that removal is in the best interests of the child. Id. at 150. See Dickenson v. Cogswell, 66 Mass.App.Ct. 442, 447 (2006).
In the present case, the judge did make findings of fact that are relevant to a proper determination whether removal would be a real advantage to the mother. These include many of the findings
Despite the judge's decision documenting the father's abuse of the mother and concluding that the father's visitation with the child should be suspended, the judge did not terminate the father's parental rights, and clearly left open the possibility of a modification of his order precluding visitation. In a case such as this, the father's constitutional rights as a parent require that the judge considering a request for removal take into account the potential for the father to seek a resumption of visitation. See
In light of the fact that more than three years have passed since the judgment was entered and the mother and the child relocated to Illinois, we conclude that a further evidentiary hearing is required to enable a judge to make a decision whether the mother's request for removal to a specific State is warranted on the basis of a contemporaneous record. In determining the best interests of the child, weight, of course, should be given to the fact that "[s]tability is itself of enormous benefit to a child, and any unnecessary tampering with the status quo simply increases the risk of harm to the child." Custody of Kali, 439 Mass. 834, 843 (2003).
3. The prenuptial agreement. The judge ruled that the prenuptial agreement signed by the mother on December 18, 2002, just days before her marriage and while she was seven months pregnant, was unfair and unreasonable at the time it was executed, and thus was void. See DeMatteo v. DeMatteo, 436 Mass. 18, 31-33 (2002). The judge found that the father's parents did not trust the mother, did not want her to share in the ownership of the father's assets, and were the driving force behind the agreement. Although each party was represented by counsel, the evidence supports the judge's finding that the negotiation was brief and one-sided. The mother first met with her attorney on October 31, 2002. In mid-November, the mother's attorney sent a series of draft proposals to be included in the agreement to the father's attorney. The father rejected the proposed terms and on December 16, 2002, the father's attorney sent the father's terms by electronic mail to the mother's attorney with a message that due to the wedding scheduled for the following week the father "would like to sign this tomorrow as relatives are arriving on Wednesday and . . . schedules will be quite hectic after that." Although the
The terms of the prenuptial agreement are not in dispute. As summarized by the judge, it provides in substance as follows:
The father maintains that the judge disregarded DeMatteo, supra, by concluding that the prenuptial agreement was void ab initio simply or principally because there was a significant disparity
In DeMatteo, the court noted that the judge found that the wife was "fully informed" of her husband's net worth before the agreement was signed, and that she had the advice of independent counsel. 436 Mass. at 27. Although the judge described the negotiations that led to the agreement as minimal, the court found this fact insufficient to invalidate the agreement. "The parties reached agreement after full disclosure of their respective financial positions and after negotiations during which they exchanged offers and counteroffers." Id. at 28.
In the present case, unlike in DeMatteo, the judge found a lack of full disclosure. For example, the father claimed during the divorce proceedings and represented to the mother during their marriage that his primary asset, his real estate company Millennium R.E. LLC (Millennium), is a partnership in which his parents own a one-half interest. The father attempted to make a fifty-percent, retroactive distribution of Millennium's assets to his
The judge also identified other reasons why the prenuptial agreement was unfair and unreasonable at the time of its adoption. In particular, the judge reasoned that
The combination of the father's failure to make a complete disclosure of his assets and income, the circumstances surrounding the negotiation and execution of the agreement,
4. Attorney's fees. The defendant disputes the judgment provision awarding $165,000 in attorney's fees to the mother. In a divorce proceeding, the judge has discretion in awarding attorney's fees in appropriate circumstances. Cooper v. Cooper, 62 Mass.App.Ct. 130, 141 (2004), citing G. L. c. 208, § 38. If an award is within the range of reasonableness based on "an objective evaluation of the services performed" it will be affirmed on appeal. Ibid., quoting from Ross v. Ross, 385 Mass. 30, 38-39 (1982). The factors relevant to an exercise of judicial discretion in determining an award of attorney's fees in a case such as this include "the ability of the wife's counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the husband's obstructionist conduct which prolonged the proceedings. . . ." Ibid., quoting from Downey v. Downey, 55 Mass.App.Ct. 812, 819 (2002). Here, the judge was intimately familiar with the parties, the father's superior financial position, the nature of the case, and the submissions of the parties. The judge made specific findings that the father needlessly complicated the mother's efforts to discover the facts and severely and unnecessarily increased the amount of work performed by the mother's attorney. See Hunter v. Rose, 463 Mass. 488, 502 (2012). At no time throughout the course of the proceedings below did the father request a hearing on the matter of attorney's fees. On the record before us, we conclude the judge properly exercised his discretion.
Conclusion. For the reasons set forth above, the judge's detailed findings of fact support his award of physical and legal custody to the mother and his conclusion that a suspension of visitation between the father and the child for a period of one year was in the best interests of the child. As the judge did not deprive the father of any procedural rights in the conduct of the G. L. c. 209A case and did not err in including the one-year suspension of child visitation in the abuse prevention order, the order is affirmed. The judge was correct in ruling that the prenuptial agreement was invalid at the time of execution. We also uphold
So ordered.
In this case, the judge found that the father had the mother's car towed and was on the scene for the removal of the car, and then told the mother that everything belonged to him, that she would only get the clothes that she brought to the United States, and that she could take public transit until she earned enough to buy a car. At other times, he cancelled and later restored her credit cards when they fought. After one particular fight the mother went to the grocery store to find all of her credit cards cancelled, and the father did not restore them until the parties made up. At another time he also took and cut the mother's credit cards in half in front of her.
G. L. c. 208, § 31A. (We note that this same rebuttable presumption governs temporary custody determinations in abuse prevention proceedings in the Probate and Family Court. G. L. c. 209A, § 3[d].)
The section defines "serious incident of abuse" as
G. L. c. 208, § 31A.
Finally, the statute directs,
Ibid. (Again we note the identical requirement appears in G. L. c. 209A, § 3[d].)
The judge also credited the GAL's observation that during interviews, in discussing the father's parenting and behavior problems, the mother "generally spoke about her wish for [the father] to correct those problems so he could be a better parent. There was never the sense of the character-assassination that pervaded [the father's] interactions." The judge found the mother, on the other hand, has "demonstrated appropriate parenting skills, supporting [the child] without smothering him. She makes a distinction between one's behavior and the essence of one's being. She is committed to [the child], consistent in her parenting, and she provides [the child] with stability. She has a loving relationship with [the child]."
When a parent who has custody of a child satisfies the requirements for an abuse prevention order for the parent's own protection, before any order is made on behalf of the other parent relating to visitation with that child, the judge should assess the safety of the family. In these most sensitive cases, judges should make every effort to craft any order relating to visitation so as "to protect the emotional and physical well being of the child and the non-abusing parent, while preserving both parent-child relationships." Guidelines for Judicial Practice: Abuse Prevention Proceedings § 12:01, Commentary (Admin. Office of the Trial Ct. 2011).