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Ventrice v. Ventrice, 87 Mass.App.Ct. 190, 26 N.E. 3d 1128 (2015)

In Ventrice v. Ventrice, the Massachusetts Appeals Court held that a probate court’s judgment which required the parties to attend and pay for mediation prior to filing a court action violated the parties’ right of free access to courts under Article 11 of the Declaration of Rights of the Massachusetts Constitution (Declaration of Rights).

During their marriage, the parties owned and operated a family business and alternated working at the business and caring for their four children. The wife filed for divorce in 2010 and began a relationship with a previously convicted sex offender. During the divorce, the court ordered that the children have no contact with the wife’s boyfriend but the wife repeatedly violated the order. The court appointed guardian ad litem (“GAL”) recommended that the husband have sole legal and physical custody of the children, noting that the husband was “the stable parent.”  The GAL reported serious health and safety concerns regarding the wife, such as her 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. The GAL found the wife’s house to be completely unkempt on a regular basis, and that she was unable to control the children at home.

Following trial, the Probate and Family Court entered a judgment which required the parties to engage a mediator in order to attempt to reach an agreement before filing future actions with the court. The judgment further provided that the parties share the cost of the mediator equally, subject to the mediator’s reallocation. The court awarded sole custody of the oldest child to the husband and sole custody of the remaining three children to the wife. The husband appealed.

The Appeals Court found that the judgment’s mandate of mediation, at the parties’ expense, violated their right of free access to the courts under Article 11 of the Declaration of Rights. Specifically, Article 11 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.” Citing Bower v. Bournay-Bower, 469 Mass. 690 (2014), the Appeals Court reiterated that free access to the courts guaranteed to each citizen requires that all cases be decided by a judge, and that litigants need not “purchase” access to justice. The Appeals Court found the order to be an unconstitutional burden which could delay an objecting party’s right to file a complaint in the courts. The Court further found the provision unconstitutional since it forces the parties to bear the cost of mediation. The Appeals Court determined that the precondition could discourage or prevent one of the parties from seeking to modify a judgment even if a material change in circumstances or the best interests of the children so required. Further, because the Probate and Family Court has exclusive jurisdiction under M.G.L.c., 215, § 3, the Appeals Court found that the parties would have no alternative forum in which to pursue such a claim. As a result, the Appeals Court concluded that the judgment “chilled” the parties’ right to freely petition the courts. As a result, the Appeals Court vacated the judgment and remanded for further proceedings.

With regard to custody, the Appeals Court found that the judge awarded the wife custody without considering evidence favoring the husband. Citing Bush v. Bush, 402 Mass. 406 (1988), the Court stated that “[u]nless 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.”  The Appeals Court found that the judge understated substantial evidence in the GAL report concerning serious health and safety issues with the wife’s parenting, in addition to concerns about the wife’s home and inability to control the children. Further, the Appeals Court was unable to discern why the judge chose not to follow the recommendations of the GAL with regard to custody.  The Appeals Court found that it was not evident from the judgment or memorandum that the judge considered the evidence or even found it to be credible. Citing Prenaveau v. Prenaveau, 75 Mass.App.Ct. 131 (2009), the Court noted that the “ultimate conclusion needs a foundation in the record supported by ground-level facts.”  The Appeals Court found a “clear error in judgment in weighing the factors relevant to the decision,” which must be vacated and remanded. The Court held that 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.

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