NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-1002

C.F.

vs.

J.F.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

J.F. (mother) appeals from an amended judgment of divorce 

nisi. On appeal she contends that the judge erred in awarding 

C.F., the father and former husband, legal custody and primary 

physical custody of their daughter, and erred in dividing the 

marital estate. We affirm.

1. Custody. On appeal, the mother, who appeared pro se at 

trial and in this court,1 maintains that she was a victim of 

domestic violence in the marriage, that the father's conduct had 

an adverse impact on the child, and that she should be awarded 

sole legal and physical custody of the child. The father

testified that an ex parte abuse prevention order had issued 

1 At the outset of the litigation the mother was represented by 

counsel. That attorney, and two others, withdrew with the 

permission of the judge.
2

previously, and was extended once by agreement, but that he had 

not hit or assaulted the mother. The mother testified that she 

had been hit and punched, and that she was in fear of the 

father. The trial judge, who also was the judge who issued the 

ex parte and extension orders, did not explicitly resolve the

credibility issue presented by the diverging testimony regarding 

abuse. In the judgment, the judge noted that there was no 

extant abuse prevention order at the time of trial and stated 

that the mother had not established grounds for divorce on the 

basis of cruel and abusive treatment.

The judge awarded sole legal and primary physical custody 

to the father for the reason, among others, that the mother had 

moved and enrolled the child in a different school system 

without informing the father or the court, and that the mother 

interposed this and other obstacles to effective communication 

between the parents. The judge found that shared legal custody 

was not in the child's best interests, and that her best 

interests were served by remaining in the community to which she 

was accustomed with the father as her primary caregiver. See 

generally Macri v. Macri, 96 Mass. App. Ct. 362, 370 (2019)

(discussing breakdown in communications as obstacle to shared 

parenting).

After oral argument we remanded the case for findings 

regarding domestic violence in accordance with Malachi M. v. 
3

Quintina Q., 483 Mass. 725, 738-740 (2019), and Custody of 

Vaughn, 422 Mass. 590, 599-600 (1996), and retained jurisdiction 

over the appeal. On remand, the judge entered additional 

findings, which we now have before us. We review the judge's 

findings for clear error, and his determination of custody for 

an abuse of discretion. See Schechter v. Schechter, 88 Mass. 

App. Ct. 239, 245 (2015). "The determination of which parent 

will promote a child's best interests rests within the 

discretion of the judge . . . [whose] findings . . . must stand 

unless they are plainly wrong" (quotation omitted). Hunter v. 

Rose, 463 Mass. 488, 494 (2012). The touchstone of our inquiry 

is the best interest of the child. Id. See G. L. c. 208, § 31.

In his supplemental findings the judge found that the 

mother's allegations of violence were not credible, and that the 

father was not physically abusive during the marriage. The 

judge further credited the father's account of the mother's 

"erratic and volatile behavior." The judge's credibility 

determinations are entitled to deference, and we will not 

disturb them. Malachi M., 483 Mass. at 741. See J.S. v. C.C., 

454 Mass. 652, 657 (2009), quoting Mason v. Coleman, 447 Mass. 

177, 186 (2006) ("Findings of fact shall not be set aside unless 

clearly erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of the 

witnesses"). See also Mass. R. Dom. Rel. P. 52 (a). We cannot 
4

say that the judge abused his discretion in awarding sole legal 

custody and primary physical custody to the father.

The mother also appears to make a general argument 

regarding her fitness as a parent by reference to a report of a 

guardian ad litem. The report was not admitted in evidence at 

the trial and is not part of the record before us. See Chokel

v. Genzyme Corp., 449 Mass. 272, 279 (2007). The mother also 

argues that we should apply the real advantage test articulated 

in Yannas v. Frondistou–Yannas, 395 Mass. 704 (1985). The real 

advantage test is used when the custodial parent with the 

majority of custodial responsibility wants to move with the 

child outside of the Commonwealth, and is inapplicable here.

Read more broadly, we understand the mother's argument to 

be that she is the better parent. In view of the trial judge's 

factual finding that the mother moved with the child to another 

town and enrolled her in a different school system without 

informing the father or the court, we see no error in the 

judge's factual finding that the child's best interests are 

better served by remaining with the father in her home community 

of many years and granting legal custody to the father.

2. Division of marital property. a. Timeshares. The 

mother claims that the trial judge did not properly consider and 

divide timeshares that were part of the marital estate and erred 

in the distribution of the proceeds of the marital home. 
5

Typically, "[o]ur review of a judgment pursuant to the equitable 

distribution statute, G. L. c. 208, § 34, proceeds under a twostep analysis. First, we examine the judge's findings to 

determine whether all relevant factors in § 34 were 

considered. . . . The second tier of our review requires us to 

determine whether the reasons for the judge's conclusions are 

apparent in his findings and rulings. . . . A judge's 

determinations as to equitable distribution will not be reversed 

unless plainly wrong and excessive" (quotations omitted). 

Calvin C. v. Amelia A., 99 Mass. App. Ct. 714, 722–723 (2021). 

The record here is inadequate to permit us to make this inquiry

in full. However, we are able to review the mother's argument 

by reference to the judge's findings, which summarized the 

parties' assets, liabilities, financial statements, and 

contributions to the marriage.2

The judge considered the § 34 factors. At the time of the 

filing of the complaint the parties had been married for five 

years and eleven months. The father worked as a truck driver 

and stagehand. At the time of the divorce, the mother was 

2 The parties, both of whom make arguments based on the financial 

statements, provided us with the judge's decision but no 

financial statements. The judge took judicial notice of the 

financial statements, which were not introduced in evidence by 

either party, and summarized them in his decision. Neither 

party suggests that the judge's factual findings regarding the 

parties' assets and liabilities were erroneous.
6

working as a hairdresser, and had worked for some period of time 

during the marriage. The judge divided the husband's pensions

equally and allocated one car to each party. He ordered that 

each party remain responsible for any debt held in his or her 

name, individually. The judge found that the timeshares, which 

were unvalued, were held in the father's name alone and were 

acquired before the marriage, and that the mother no longer had 

any real property acquired before the marriage. The judge 

awarded the assets held in each party's name to that party, 

including the timeshares held in the father's name.

The judge correctly treated the property acquired before 

the marriage as part of the marital estate, see Williams v. 

Massa, 431 Mass. 619, 626 n.4 (2000), but ultimately made the 

decision that each person in this relatively short-term marriage 

should take from the marriage the liabilities and assets (except 

the pensions) that each brought to the marriage. We discern no 

abuse of discretion in this division of the timeshares. See 

Richman v. Richman, 28 Mass. App. Ct. 655, 659-660 (1990)

(describing marriage of seven years as short-term); Bacon v. 

Bacon, 26 Mass. App. Ct. 117, 119-121 (1988) (affirming on 

equitable grounds trial judge's decision to permit wife to 

retain premarital property).

b. Marital home. The judge had previously ordered the 

sale of the marital home, but the home had not been sold at the 
7

time of trial. The judge found that the father paid the 

mortgage on the marital home without living there for one year 

and nine months, and that while he did not pay child support 

during this time, the amount of the mortgage payment exceeded 

any child support he might have paid. Based on his finding that 

the father contributed more to the preservation of the marital 

estate, the judge ordered that the first $20,000 of the proceeds 

of the sale of the marital home be paid to the father and that 

the sale proceeds be split equally thereafter. The mother

objects to the $20,000 carve out, but we have nothing in the 

record (or the briefs) to suggest that this figure was either 

erroneous or inequitable. On the record before us, the judge 

did not abuse his discretion.

Conclusion. For these reasons, the amended judgment of 

divorce nisi is affirmed. The father's request for an award of 

his appellate attorney's fees is denied.

So ordered.

By the Court (Sullivan, 

Shin & Hodgens, JJ.3),

Clerk

Entered: February 28, 2023.

3 The panelists are listed in order of seniority.