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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.
