SUZANNE HOPE TAMMARO vs. KEVIN FRANCIS O'BRIEN.
No. 08-P-1762.
APPEALS COURT OF MASSACHUSETTS
76 Mass. App. Ct. 254; 921 N.E.2d 127
October 8, 2009, Argued
February 11, 2010, Decided
Issues:
- Whether the Motion to dismiss the mother's complaint for modification should be granted?
- Whether the judge failed to fully and fairly weigh the factors for removal?
The father argues that the judge (1) lacked the authority to permit removal of the children on a complaint for modification and thus should have granted his motion to dismiss; and (2) failed to fully and fairly weigh the factors for removal.
The court held that the father's motion to dismiss was properly denied. Although the complaint here does not specifically invoke G. L. c. 208, § 30, it states clearly that the mother was requesting permission to remove the children from the Commonwealth. There is no merit in the father's contention that even if the mother's complaint was not fatally "defective," the judge was bound to apply in the present case the standard applicable to a complaint for modification. The judge also did not err in admitting evidence of circumstances prior to the date of the parties' divorce. Even in modification actions, a judge is not necessarily precluded from considering matters prior to the earlier judgment. Numerous decisions reflect that removal cases in Massachusetts have been initiated through complaints for modification. Although "a request for modification of custody is distinct from a request to relocate,"Rosenthal v. Maney, supra at 261, the issues are closely related.
Where removal is sought, a judge will be called upon to consider the children's well-being in light of any change in visitation that might result if a move to a distant location is permitted. As long as the complaint for modification provides notice to the opposing party of the relief sought, it is an appropriate vehicle for requesting removal of children from Massachusetts .
Whether the court failed to fully and fairly weigh the factors for removal?
The court held that "There was no error in the judge's finding that the mother had established good, sincere reasons for wanting to remove to New Hampshire. That the mother's place of employment remains in Massachusetts does not, in the circumstances, require a different result."
The judge found specifically that the mother had demonstrated good, sincere reasons for the proposed move to Derry. The mother's new employment position, which the judge found presented a "positive change" for the mother "professionally and financially," has a primary work site in Methuen, which is at least ninety minutes (or more) from Brockton. "Although it is not inconceivable that the mother could find suitable housing close in the Methuen MA area that meets all of her housing criteria and is in her price range," the judge specifically found that "she has made a sincere, and good faith, albeit unsuccessful, effort to do so.
