MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
We have before us an appeal from an order of the Probate and Family Court dated July 26, 2023, modifying and extending until December 2031 a restraining order issued against the defendant under G. L. c. 209A.
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In large measure, the defendant seeks to relitigate factual questions that were resolved against him in prior cases. These issues are not properly before us in this appeal. He also seeks to challenge the plaintiffs truthfulness both prior to and during the original proceedings in this matter and in the proceedings surrounding the order at issue here. Credibility judgments, however, are committed to the sound discretion of the judge who hears the witnesses. Adoption of Gillian, 63 Mass. App. Ct. 398, 403 (2005). The defendant has not demonstrated clear error such that the judges findings should be reversed. See id.
The defendant does make several arguments about the order at issue in this case. To begin with, he argues that the stay-away distance of fifty yards selected by the judge was an abuse of discretion, and he argues that the order should have been set at the fifty feet he requested and, in any event, at no more than twenty yards, or sixty feet.
The choice of a fifty-yard distance for the stay-away order was in fact a downward modification from what was required prior to this order, which was one hundred yards. To be sure, the defendant did ask for fifty feet. The plaintiff objected to that. In these circumstances, we see no abuse of discretion in the judge choosing a middle ground, in this case, fifty yards.
The defendant argues next that the modification with respect to parenting time, which states that it shall “take place every Wednesday 3 P.M. after camp/school until Thursday at camp or school or 9:30 A.M.,” leaves a gap with respect to times when there might be no camp or school on Wednesdays or such activities might end earlier than 3 P.M. Having reviewed the transcript, it does appear to us that the word “or” is missing from the first phrase in the quoted language, so that it would order the parenting time to begin at 3 P.M. or after camp or school on Wednesdays. We think an “or” must be added to make clear that the parenting time begins after camp or school or at 3 P.M. if there is no camp or school. While leaving the order in place, we will remand the matter to the trial court to allow the judge to determine whether this is in fact an error that requires adjustment (or simply to make that adjustment should the plaintiff agree).
The defendant next challenges the provisions that both the plaintiff and the defendant shall communicate respectfully with each other by electronic mail and only regarding child-related matters, and that the parties may communicate respectfully with each other by text message only in an emergency and regarding child-related matters. We conclude neither was an abuse of discretion, nor are the words “respectfully” or “emergency” too vague for inclusion in an order such as this.
The defendant argues next that the modification order, with respect to parenting time, is at variance with a schedule agreed on by the parties during a court-ordered conciliation session in February 2023, which resulted in a memorandum of understanding that was entered as a judgment. The plaintiff asserts that there is no conflict between that memorandum of understanding and the language of the modification in the extension order (and, though it has no bearing on the scope of the order with which the defendant must comply, makes clear that she has no objection to the defendant using all the parenting time to which he is entitled under that agreed-on memorandum of understanding).
As the defendant has not provided us a copy of this memorandum of understanding, we cannot assess the merits of this claim, but in any event, the defendant did not raise this claim of inconsistency in the trial court, and it is waived.
The defendant also argues that the no-contact order prevents him even from electronically paying his child support obligations. Again, this argument was not raised below and is waived. We emphasize that this order does nothing to alter the defendants child support obligations, or the penalties he will face for noncompliance with those obligations. We also note that the no-contact provision has been in place since 2016, apparently without it interfering with his performance of his child support obligations. Although neither party cites any, we find it likely that there is an order, statute or regulation applicable here under which the defendant is able, by some mechanism, for example, through the Department of Revenue, to pay his child support without contacting the plaintiff in violation of the restraining order, since he has been required to make such payments for many years despite the no-contact order.
Of course, if it were true that the order was at variance with the memorandum of understanding or that the defendant could not make child support payments without violating it, the proper avenue for seeking relief would be by means of a motion for modification in the trial court. We emphasize that in noting this, we do not intend to encourage further litigation. The defendant has not shown before us either that there is a conflict with the memorandum of understanding or that making child support payments necessarily violates this order.
If unnecessary and frivolous motions are filed, we trust that the trial court will impose appropriate sanctions. This is particularly so where it appears that there has been much unnecessary litigation in this matter, including most of what has been argued before us, wasting energy, time, and money that could have been spent in ways that would have benefitted the children, including by improving the defendants relationship with them, rather than on rehashing issues decided, doubtless in a way the defendant believes was wrong, years ago.
The order dated July 26, 2023, is affirmed. The case is remanded for the trial court judge to determine whether the language concerning the timing of the beginning of the defendants parenting time on Wednesdays needs to be modified for clarity.
So ordered.
FOOTNOTES
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. We note that the docket in the trial court reflects a timely-filed motion for reconsideration that appears not to have been acted on. To the extent that the filing of the motion for reconsideration renders the notice of appeal premature, we exercise our discretion to hear it because the premature filing of the notice of appeal did not prejudice the plaintiff. See Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019).