MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The wife appeals from a 2019 divorce judgment, entered after a four-day trial. She challenges the provisions pertaining to property division and supervised parenting time. She also contends that the trial judge unfairly enforced certain discovery deadlines against her but not the husband; she thus requests a remand for further proceedings before a different judge. We agree with the wife that errors relating to the valuation of the parties’ marital home (home) require a remand for reconsideration of the property division. We affirm the challenged provision regarding parenting time, and we are unpersuaded by the wifes claims regarding discovery deadlines and the need for reassignment of the case.
1. Property division. The wife challenges two findings as clearly erroneous: (1) that the husband had paid the $80,000 down payment on the home using funds acquired prior to the marriage, and (2) that the home had a fair market value of $755,000. Based on these and other findings, the judge concluded that, as a part of the division of the marital property, the wife, after conveying her ownership interest in the home to the husband, should receive forty percent of the equity in the home, or $55.927.24.
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We agree that a remand to reconsider this determination is warranted.
First, the judges finding regarding the source and amount of the down payment was, as the husband now concedes, clearly erroneous; after reviewing the evidentiary record, we are “left with the definite and firm conviction that a mistake has been committed.” Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). The husband testified that the amount of the down payment was $89,000 (not $80,000) and that he had paid it with “funds that [he] had acquired since [the] marriage had begun.”
This point was significant because the judge, in her rationale for awarding the husband sixty percent of the equity in the home (and the wife only forty percent), stated that she “assign[ed] important weight to the contributions of the parties,” including specifically the husbands provision of the funds for the down payment. It is unclear whether the judge would have ordered a different proportional division had she realized that the down payment was made with marital funds, but whether to do so is for the judge to decide, not us.
Second, at the outset of trial, the parties’ opening statements made clear, as had their financial statements, that their respective valuations of the home differed significantly. The husband asserted that the value was $755,000 -- the price paid for the home more than three years before trial -- whereas the wife asserted a value of $965,000, based on an estimate received from a realty company. There was no current appraisal. The wifes counsel suggested, “if theres going to be a division, and I believe I put that in my proposed judgment, that the parties do agree on an appraiser ․ when they go ahead and try to split that asset, so theyre able to get an accurate amount of what the house is actually worth[,] because we believe its worth far more than the price that they bought it for back in 2016.”
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The judge then offered to give the parties her preliminary thoughts on the contested issues, based on their opening statements, in the hope of facilitating a settlement. The parties agreed to this procedure. As to the home, the judge stated: “We dont have an appraisal, so if youre not able to come to terms on that, my judgment will probably say something along the lines of ․ the parties would each engage a realtor who might engage a third party or they might agree to a master for facts final on the value of the real estate, something that would allow them to come up with a meaningful number” without each party having to pay the full cost (which the judge estimated at $20,000) of his or her own appraisal.
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The parties were unable to reach a settlement and the case proceeded to trial. After trial, the judge found that the “only credible evidence” was that the home had been purchased for $755,000 in 2016, that the $965,000 estimate provided by the wife was not credible, and that the home was therefore worth $755,000. The judge determined the parties’ equity in the home using this figure.
This unannounced and unexplained departure from the home valuation procedure the judge had earlier indicated she likely would follow was an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The wife was entitled to rely on the judges statement of how she intended to proceed and therefore was entitled to forego any effort to introduce, through her own testimony or otherwise, additional evidence of the homes value at trial.
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If the judge had determined sometime during the trial that the single-appraisal procedure discussed earlier was no longer appropriate, the judge could have said so and afforded the parties some opportunity to adjust their approaches accordingly. Although we cannot say that the $755,000 value found by the judge is necessarily clearly erroneous, the procedure that led to the finding was prejudicially unfair to the wife. On this record, the finding cannot stand. A remand is necessary.
2. Supervised parenting time. The wife challenges as clearly erroneous the judges finding that the wife had physically abused the parties’ minor child -- a finding that led the judge to order that all visits between the wife and the child be supervised, because “unsupervised parenting time would expose [the child] to an unreasonable risk of abuse.”
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The wife does not contest the finding that, when the child was slightly more than two years old, the wife “began to intrusively inspect [the childs] vagina and anus after [the child] had spent time [with the husband]”; that the wife “claimed that she did these inspections to make sure [the husband] had not sexually abused [the child]”; and that “[t]his concern was irrational.” The wife argues only that characterizing this conduct as physical abuse was clearly erroneous. We are unpersuaded.
The wifes argument is premised on her erroneous view that the judge was constrained by the definition of abuse in G. L. c. 208, § 31A. Section 31A provides, among other things, that “[i]n issuing any temporary or permanent custody order, the probate and family court shall consider evidence of past or present abuse toward a ․ child as a factor contrary to the best interest of the child.” Section 31A further provides: “For the purposes of this section, ‘abuse’ shall mean the occurrence of one or more of the following acts ․ between a parent and child: (a) attempting to cause or causing bodily injury; or (b) placing another in reasonable fear of imminent bodily injury.” When a judge finds that such abuse has occurred, that finding “create[s] a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody[,] or shared physical custody with the abusive parent.” Id. Additionally, “[i]f ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child” and “may consider” a variety of specific protective measures, including supervised visitation. Id.
Although § 31A imposes various requirements and procedures when a judge has found that “abuse” as defined therein has occurred, nothing in § 31A purports to preclude a judge from placing conditions on visitation even in circumstances that do not rise to the level of “abuse” as so defined. The long-established governing consideration in ordering visitation is the best interests of the child. See Rolde v. Rolde, 12 Mass. App. Ct. 398, 406 (1981); Petruzziello v. Newman, 8 Mass. App. Ct. 896, 897 (1979). Conditions on visitation are “within the [trial] judges discretion.” Silverman v. Spiro, 438 Mass. 725, 736 (2003), citing Vilakazi v. Maxie, 371 Mass. 406, 409 (1976). What the Supreme Judicial Court has said with respect to the statutes governing paternity actions is equally true of the statutes governing custody and visitation determinations in divorce actions: they “provide[ ] a framework for the courts ‘best interests’ analysis” but “neither replace the ‘best interests of the child’ standard nor limit the factors that a judge may consider in determining what custodial arrangements are in the best interests of the child.” Smith v. McDonald, 458 Mass. 540, 545-546 (2010), quoting Custody of Kali, 439 Mass. 834, 843-844 (2003).
Accordingly, the definition of abuse in § 31A governs, for example, the creation of a rebuttable presumption against custody as set forth in § 31A, but it does not prevent a judge from considering other types of abuse in imposing conditions on visitation, pursuant to the judges overarching responsibility to further the best interests of the child. Here, the wifes repeated and irrational inspections of the vagina and anus of a child more than two years old, even if unlikely to cause abuse in the sense of “bodily injury” under § 31A, were intrusive physical conduct that raised a significant prospect of psychological injury to the child.
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We see no error or abuse of discretion in using the phrase “physical abuse” to describe the wifes conduct.
Ultimately, the wifes argument reduces to a dispute over terminology. Instead of referring to physical abuse, the judge, in explaining why supervised visitation was necessary for the time being, could equally well have used the phrase “intrusive inspections of the childs vagina and anus,” in which case § 31A would not even arguably be relevant.
The wife further argues that the order for supervised visitation amounts to a permanent obstacle to her ability to parent the child. Again, we are unpersuaded. It always remains open to the wife to seek a modification based on changed circumstances. See G. L. c. 208, § 28. Through the wifes progress in her mental health treatment, or based on other developments, the time may come when supervision of the visits is no longer necessary. The judge stated at trial that “at the end of the day Im not opposed to [the wife] having limited unsupervised time with this child, but I dont want the child subjected to vaginal searches every time she comes back. Its not good.” If the risk of such searches and similar conduct lessens or is eliminated, a modification may be appropriate.
3. Discovery deadlines. The wife contends that the judge unfairly enforced certain discovery deadlines against her but not the husband. But it does not appear that the wife ever made this argument to the judge, as a reason to afford the wife some relief from a deadline or otherwise. In any event, we have carefully examined each of the wifes claims and conclude that none of them entitles her to relief on appeal. We need not recount the details of every asserted instance of unfair treatment; a few examples will make clear why the wifes arguments are unavailing.
First, a few months before trial, the wife, asserting that the husband had not complied with discovery requests, filed a motion to compel. After a hearing, the judge issued an order requiring further responses. Two weeks before trial, the wife filed a contempt complaint, asserting that the husband still had not complied with his discovery obligations. At the outset of the trial, in response to the contempt complaint, the judge ruled that if any documents not timely provided in discovery were offered in evidence, she would rule on their admissibility when offered. The wife acknowledged this ruling but did not argue that it was an insufficient remedy, e.g., that she needed the documents to cross-examine the husband effectively. Because she makes that argument for the first time on appeal, it is waived. See Albert v. Municipal Court of Boston, 388 Mass. 491, 493-494 (1983).
Second, one of the judges pretrial orders barred the parties from calling witnesses in their cases-in-chief if not disclosed to the other party by a specified date. Although neither party furnished a witness list by that date, the wife now complains that “the husband was permitted to testify in his case-in-chief.” But the wife herself was also permitted to testify. That each party planned to and did testify can hardly have come as a surprise, or resulted in any prejudice, to the other party. That the wife also wished to call numerous other witnesses, whereas the husband did not, does not make the judges enforcement of the disclosure deadline an abuse of discretion or an example of unequal treatment.
Third, although the judges witness disclosure order applied only to the parties’ cases-in-chief, the wife now asserts that she was also barred from calling a witness (her therapist) in her rebuttal case. But, when she told the judge she wished to call the therapist as a rebuttal witness, the judge did not preclude her from doing so based on any discovery order. Rather, the judge indicated that the trial could be extended to another day for that purpose, if the wife wanted, but that the judge doubted if she would “need” the therapists testimony. At the beginning of the next trial day, the wife, referring to the judges prior statement, did not attempt to call the therapist as a witness. The wife again raised the issue later that day, however, stating that the therapist would come to testify, whereupon the judge repeated her view that the value of his testimony would be “de minimis.” Whatever the merits of that view, it does not appear to be based on any unfair application of discovery deadlines.
Finally, the wife argues that she was not allowed to offer in evidence a letter from the therapist. The wife has not included the letter in the record appendix, so we are unable to determine whether its exclusion was prejudicial, but the transcript suggests that the letter would have been hearsay. The husband objected on hearsay (as well as timeliness) grounds, the wife offered no argument that the letter was not hearsay, and the judge appeared to sustain the objection. Although the wife now argues in her reply brief that “[t]he letter could have been a medical report admissible pursuant to G. L. c. 233, § 79G,” this argument was not made to the judge and thus is waived.
4. Reassignment. In light of our disposition of the other issues, we see no need for reassignment of the case on remand.
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5. Conclusion. Paragraph 19 of the judgment, ordering payment to the wife of the net amount of the equity on the home to which the wife was determined to be entitled, is vacated, and the case is remanded for further proceedings on that issue. The judge, after taking any necessary additional evidence, should make a finding as to the fair market value of the home at the time of the judgment and should, after taking into account the source and amount of the down payment, redetermine the parties’ respective shares of the equity in the home and make any necessary order for a further payment or repayment. The judgment is otherwise affirmed.
So ordered.
Affirmed
FOOTNOTES
2
. This amount was subject to an offset based on the husband being ordered to pay off a loan in the amount of $7,949.67 related to the wifes education, so that the net amount ordered to be paid to the wife based on her equity in the home was $47,977.57.
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. The parties, as ordered, had filed proposed judgments before trial and were permitted to amend them in light of the trial testimony. The wifes original proposed judgment is not in the record appendix, but her amended proposed judgment includes a provision for the parties to agree upon an appraiser to determine the homes current market value.
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. After then giving her assessment of other issues, the judge stated, “I reserve the right to disagree with anything I just said because ․ if the witnesses testify to something that completely skews my impressions, then Im going to rule accordingly, so I reserve the right to differ with myself.” At trial, however, neither party offered any further evidence as to the homes current value.
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. The case was originally expected to be tried in one day, but ended up being tried on four nonconsecutive days over the course of six weeks.
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. The judge awarded the husband sole legal custody and primary physical custody of the child.
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. As the judge explained at trial, her concern was that if visits were unsupervised and the wifes behavior continued, it “could be a very difficult internalized memory of this baby to get over as she goes forward and gets routines and starts thinking about relationships herself. It was concerning that it was alleged to have happened on a regular basis, so that the child would start to realize that when shes coming back from daddy, mommys doing this, whether the child would posit that on Mom and say, ‘I dont like what Moms doing,’ or posit it on, ‘is this related to Dad?’ Who knows?”
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. The wifes request for appellate attorneys fees and costs under G. L. c. 208, § 38, is denied.