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13-P-1992 Appeals Court
DIANE LYNN VENTRICE vs. MICHAEL CHARLES VENTRICE.
No. 13-P-1992.
Hampden. December 2, 2014. - March 19, 2015.
Present: Rapoza, C.J., Vuono, & Meade, JJ.
Constitutional Law, Access to court proceedings. Divorce and
Separation, Child custody. Minor, Custody. Parent and
Child, Custody, Custody.
Complaint for divorce filed in the Hampden Division of the
Probate and Family Court Department on December 28, 2010.
The case was heard by Anne M. Geoffrion, J.
William M. Driscoll for the husband.
Bradford B. Moir for the wife.
MEADE, J. After a trial and subsequent hearing in the
Probate and Family Court, the defendant, Michael Charles
Ventrice, appeals from certain provisions of an amended divorce
judgment nisi. In particular, Michael appeals the provision
ordering that he and the plaintiff, his former spouse Diane Lynn
Ventrice, shall engage in and pay for court-directed mediation
2
before either may file any subsequent action in the Probate and
Family Court.1 Michael also contends that the judge abused her
discretion by awarding Diane sole legal and physical custody of
three of the couple's four children.2 For the reasons that
follow, we vacate the amended divorce judgment and remand to the
Probate and Family Court for additional proceedings.3
Background. We recite facts found by the judge, and accept
as true other essential uncontroverted facts from the record.
Miller v. Miller, 448 Mass. 320, 321 (2007). Michael and Diane
Ventrice were married in June, 2001. They had four children,
who, as of the time of trial in May, 2012, were between the ages
of twelve and five: Linda, the oldest, followed by Susan,
Agatha, and Matthew, who was youngest.4,5
During their marriage, Michael and Diane owned and operated
a business known as Big Adventures, a children's play center, in
1
We refer to the parties by their first names to avoid
confusion.
2
Michael was given sole legal and physical custody of the
couple's oldest child.
3
Neither party appeals the judgment of divorce itself, or
the court's equitable division of the marital estate.
4
We use pseudonyms for all the children throughout the
opinion.
5
Linda, Agatha, and Matthew had each been diagnosed with
and were taking prescription medication for attention deficit
hyperactivity disorder. Susan was taking medication for
exercise-induced asthma.
3
Westfield. The couple alternated working at Big Adventures and
staying home with the children. Michael was the primary
caretaker for about four years, while Diane worked extended
hours at the business.6 At all other times, Diane was the
primary caregiver for the children. Michael performed
construction and snow-plowing jobs on the side for extra money,
while Diane was working as a security assistant.
Diane filed for divorce in December, 2010. It was clear
from the record and undisputed that the marriage was
irretrievably broken. During the pendency of the divorce, Diane
began a relationship with Michael Clegg, a previously convicted
sex offender. Diane asserted that Clegg was supportive of her
and her children. However, because Clegg had not yet undergone
a psychosexual evaluation, the court ordered that Clegg have no
contact with the minor children. Diane repeatedly violated this
order, seemingly without concern.7
By agreement of the parties, the court appointed a guardian
ad litem (GAL). The GAL conducted numerous interviews with both
parties, their relatives, friends and associates, the four
children (individually and as a group), social workers from the
6
Diane told the guardian ad litem that when she returned
home during this period, she would encounter the children still
hungry and Michael asleep.
7
A nonscientific evaluation of Clegg was completed after
trial. The parties agreed that Clegg was determined to have no
residual issues.
4
Department of Children and Families (DCF), school counsellors,
therapists, and others who were involved with the family. In
her report, issued in December, 2011, and supplemented in May,
2012, and March, 2013, the GAL recommended that Michael be given
sole legal and physical custody of all four children. In her
opinion, Michael was then presenting as "the stable parent" and
was "more easily accessible and [the] more cooperative" parent
with whom to work. The GAL noted that the children were calmer
and more stable when they were with Michael, and that his house
was "clean and orderly." On the other hand, the GAL described
Diane's home as "unorganized and chaotic."
The case proceeded to trial in May, 2012, and a judgment of
divorce nisi entered on June 14, 2013.8 The judgment contained a
provision stating that Michael and Diane must attempt to reach
an agreement regarding compliance with the judgment, and that,
"[i]f the parties are unable to reach an agreement, the parties
shall engage the services of a mediator before either may file
an action in this [c]ourt. The costs associated with mediation
shall be shared equally by the parties, unless otherwise
reallocated by the mediator." Finally, finding the parties
unable to co-parent, the judge awarded sole legal and physical
custody of the oldest child, Linda, to Michael, with sole legal
8
The amended judgment, which altered certain provisions not
contested on appeal, was issued on July 12, 2013, nunc pro tunc
to June 14, 2013.
5
and physical custody of the remaining three children going to
Diane.9 Michael appeals both the order to mediate at the
parties' expense, as well as the custody determination.
Discussion. a. Free access to courts. Michael challenges
the provision in the amended divorce judgment that requires the
parties to engage in out-of-court mediation, at their own
expense, before either may file an action in the Probate and
Family Court.10 He claims that the judge's order violates his
right of free access to the courts under art. 11 of the
Declaration of Rights of the Massachusetts Constitution
(Declaration of Rights).11 We agree.
Article 11 of the Declaration of Rights guarantees each
person the right "to obtain right and justice freely, and
without being obliged to purchase it; completely, and without
any denial; promptly, and without delay; conformably to the
laws." The free access to the courts guaranteed to each citizen
by art. 11 requires that all cases be decided by a judge, and
9
Regarding Linda, the judge found that she had been living
with Michael and that this arrangement was "currently meeting
her needs." As to Susan, Agatha, and Matthew, the judge found
that Diane had been "the primary custodian for all of their
lives and this arrangement is serving their needs."
10
Diane does not take a position on this issue on appeal.
11
Michael alleges that this provision violates the First
Amendment to the United States Constitution, as well as Federal
equal protection and due process guarantees. However, because
we award the sought relief solely under State constitutional
law, we need not, and do not, decide Michael's Federal claims.
6
that litigants need not "purchase" access to justice. See Bower
v. Bournay-Bower, 469 Mass. 690, 703 n.12 (2014) (Bower);
Graizzaro v. Graizzaro, 36 Mass. App. Ct. 911, 912 (1994)
(Graizzaro); Boddie v. Connecticut, 401 U.S. 371, 380-382 (1971)
(Boddie).
The recent case of Bower, supra, is instructive.12 In
Bower, the Supreme Judicial Court vacated an order of the
Probate and Family Court that appointed a parent coordinator
over the objection of one parent, and granted that coordinator
binding authority to resolve conflicts between the parents. Id.
at 709. In that case, as here, the judge delegated her
decision-making authority to a court-appointed official, doing
so over the objection of at least one party. Id. at 693. While
recognizing that courts have the inherent power to appoint
dispute resolution officials in appropriate circumstances, the
Supreme Judicial Court stressed that it is the judge -- and,
absent agreement of the parties, only the judge -- who shall
make the final, binding decision in each case. Id. at 701-709.
Bower also states that any preconditions that require the use of
costly services prior to filing a court action may implicate
art. 11 of the Declaration of Rights. See id. at 703 n.12.
12
The judge did not have the benefit of Bower when she
decided this matter.
7
Here, the amended judgment orders that "the parties shall
engage the services of a mediator before either may file an
action in this [c]ourt," and "[t]he costs associated with
mediation shall be shared equally by the parties, unless
otherwise reallocated by the mediator."13 Michael objected to
that provision and brought a timely motion to amend the
judgment, which was denied in part on those grounds but allowed
in part on other grounds not challenged on appeal. The effect
of the judge's order prevents the parties from bringing a
subsequent action in the Probate and Family Court until they
have borne the costs of mediation.14 This is an unconstitutional
burden to the parties because it delays an objecting party's
right to file a complaint in our courts, and also because it
forces the parties to bear a likely costly expense for court-
ordered mediation services. In particular, this precondition
could discourage or even prevent one of the parties from seeking
to modify the divorce judgment if a material change in
circumstances or the best interests of the parties' four
13
Contempt complaints were excluded from this provision,
and thus permitted to be filed.
14
Rule 2 of the Uniform Rules on Dispute Resolution, S.J.C.
Rule 1:18, as amended, 442 Mass. 1301 (2004) (Uniform Rules),
defines "mediation" as "a voluntary, confidential process in
which a neutral is invited or accepted by disputing parties to
assist them in identifying and discussing issues of mutual
concern, exploring various solutions, and developing a
settlement mutually acceptable to the disputing parties"
(emphasis supplied).
8
children so required. See G. L. c. 208, § 28. Because the
Probate and Family Court has exclusive jurisdiction in this
area, see G. L. c. 215, § 3, the Ventrices would have no
alternative forum in which to pursue such a claim. In this
light, we conclude that the amended judgment does precisely what
art. 11 of the Declaration of Rights forbids, i.e., it chills
the Ventrices' right to freely petition the courts. See Bower,
supra at 702-703. See also Boddie, supra at 380-382 (cost
requirement may deprive certain litigants of procedural due
process); Gustin v. Gustin, 420 Mass. 854, 857 (1995) (Gustin)
("a judge typically cannot order parties to a dispute to submit
that dispute to binding arbitration unless the parties agree to
do so") Graizzaro, supra at 912 ("A court may appropriately urge
settlement on the parties but may not refuse them access to a
judicial forum to resolve their justiciable disputes").
Accordingly, the amended judgment must be vacated and the
case remanded to the Probate and Family Court, for further
proceedings. On remand, the judge may in her discretion refer
the parties to court-appointed dispute resolution in accordance
with the Uniform Rules on Dispute Resolution,15 but may not
15
The Uniform Rules govern dispute resolution in the
Probate and Family Court. They require, among other things,
that court-ordered dispute resolution services be at no cost to
the parties, that the provider of such services be approved by
the Chief Justice of the Trial Court, and that the court inform
9
condition the right of either party to petition the court on
participation in such a process. Moreover, even if the parties
participate in court-ordered dispute resolution, absent their
agreement, any court-appointed official may only recommend a
disposition to the judge, who retains a nondelegable duty to
make the final and binding resolution of the case. See Gustin,
supra at 857-858 ("The judge may not delegate this duty"). In
addition, the judge may not foreclose either party's right to
commence a nonfrivolous action, nor may she order the parties to
bear the cost of any mandatory dispute resolution services.
b. Custody of the children. Michael also challenges the
judge's award to Diane of custody of three of the couple's four
children. He claims that the judge failed to evaluate relevant
record evidence that supported granting custody to him. We
agree and order that the decision be vacated and remanded for
additional findings.
When reviewing custody awards, we uphold the judge's
factual findings absent clear error. Mason v. Coleman, 447
Mass. 177, 186 (2006). "Unless there is no basis in the record
for the judge's decision, we defer to the judge's evaluation of
the evidence presented at trial." Bush v. Bush, 402 Mass. 406,
411 (1988). The judge's findings must, however, "add up to
the parties that they are not required to settle the case while
participating in such services. See Uniform Rule 4(c).
10
sufficient support for [her] custody order." Prenaveau v.
Prenaveau, 81 Mass. App. Ct. 479, 493 (2012).
We recognize that "[t]he decision of which parent will
promote a child's best interests is a subject peculiarly within
the discretion of the judge." Ardizoni v. Raymond, 40 Mass.
App. Ct. 734, 738 (1996) (Ardizoni), quoting from Bak v. Bak, 24
Mass. App. Ct. 608, 616 (1987). "Discretion allows the judge,
when determining the best interests of children, to consider the
widest range of permissible evidence, including the reports and
testimony of a court appointed investigator or G.A.L., evidence
of the history of the relationship between the child and each
parent, evidence of each parent’s present home environment and
over-all fitness to further the child’s best interests, and the
judge’s own impressions upon interviewing the child privately in
chambers." Ibid.
In the present case, the judge ruled in Diane's favor, but
apparently did so without considering evidence favoring
Michael.16 The judge's memorandum only observes that Diane "has
16
The judge did consider Michael's shortcomings, and
properly so. She noted that Michael had referred to Diane's
boyfriend as a "child rapist" and denigrated Diane on several
occasions in front of the children. We discern no error in
those findings, which were well-supported by the record. We
also do not take issue with the judge's finding that neither
parent has prioritized the children's interests, and the rather
obvious conclusion that Michael and Diane are unable to co-
parent. As the judge correctly noted, "both parents have done
these children a terrible disservice" (quoting the GAL report).
11
her shortcomings relative to the cleanliness of the home and
controlling the children." However, this vastly understates the
substantial evidence in the GAL report, which included
interviews with DCF social workers and other professionals who
had interacted with the family. The GAL reported that there
were serious health and safety concerns, such as Diane's
negligent attitude towards her daughters taking prescribed
medication, removing the children from needed therapy, and
failing to barricade an eighty-foot cliff near her house, which
one of the children climbed down unsupervised to retrieve a toy.
There were also reports that Diane's house was completely
unkempt on a regular basis, and that Diane showed a striking
inability to control the children at home.17 By comparison, the
GAL reported that Michael's house is "clean and orderly."
Finally, the record was uncontroverted that Diane removed the
children from school during the Massachusetts comprehensive
assessment system (MCAS) testing to take them on vacation to
Florida.18
17
According to a DCF social worker, who was interviewed by
the GAL, Diane's house was "total chaos" with "no rules and no
boundaries."
18
It appears that, while in Florida, Diane left the
children unattended and engaged in conduct that resulted in
police involvement.
12
In reviewing the order, we cannot ascertain why the judge
chose not to follow the recommendations of the GAL, who reported
that Michael is "the stable parent" and is "more easily
accessible and [the] more cooperative" parent with whom to work.
It is not obvious from the divorce judgment nisi or the
accompanying memorandum that the judge considered this evidence
in the record or even found that it was credible. "[A]n
ultimate conclusion needs a foundation in the record supported
by 'ground-level facts.'" Prenaveau v. Prenaveau, 75 Mass. App.
Ct. 131, 142 (2009), quoting from Felton v. Felton, 383 Mass.
232, 240 (1981). Insofar as it relates to the award of custody,
the amended judgment reflects a "clear error in judgment in
weighing the factors relevant to the decision," and must be
vacated and remanded. L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). On remand, the judge should either substantiate
her analysis of the best interests of the children with evidence
from the record, or explain why the other relevant evidence
discussed herein was not weighed or credited. See Rosenberg v.
Merida, 428 Mass. 182, 191 (1998) ("an award of custody [will
not be sustained] 'unless all relevant factors in determining
the best interests of the child have been weighed'"), quoting
from Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981).
We note that we do not express an opinion as to which parent
should receive custody. Rather, given the gravity of the
13
decision and notwithstanding the judge's detailed findings,
where, as here, the GAL has made a recommendation that the judge
rejects, more is required to support the judge's determination.
See Ardizoni, supra at 737-738 (custody order vacated where
judge failed to make specific or detailed findings based on
evidence within the record).
Conclusion. The provision of the amended judgment of
divorce nisi that orders Michael and Diane Ventrice to engage in
and pay for court-directed mediation before either may file any
subsequent action in the Probate and Family Court and the
provision awarding custody of the children are vacated. The
remainder of the amended divorce judgment nisi, dated July 12,
2013, nunc pro tunc to June 14, 2013, pertaining to the division
of the marital estate, is affirmed. The matter is remanded to
the Probate and Family Court for further proceedings consistent
with this opinion.
So ordered.