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