Houston v. Houston9/15/2005
Middlesex.
April 7, 2005.
Present: Lenk, Beck, & Cowin, JJ.
Divorce and Separation, Child custody, Findings. Practice, Civil, Admissions.
Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on July 10, 2001.
The case was heard by Dorothy M. Gibson, J., and a motion to amend findings of fact and conclusions of law was heard by her.
Lance Houston, the former husband of Lomalee Houston (wife), appeals from a judgment of divorce nisi of the Probate and Family Court and from an order denying his motion to amend the findings of fact and conclusions of law, claiming, among other things, that the Probate Court judge erred in ameliorating, subsequent to trial, the effects of certain admissions that had become binding on the wife by the operation of Mass.R.Dom.Rel.P. 36 (1975). We agree with the husband that so much of the judgment as pertains to child custody (and related orders for child support and visitation) must be vacated, and we remand the matter to the Probate and Family Court for further proceedings.
1. Background
After a short-term marriage during which the parties lived together for three years between August, 1997, and June, 2000, the wife filed a complaint for divorce in which she sought, among other things, custody of the parties' child, who was born on May 1, 1996. On July 15, 2003, a pretrial conference was held which resulted in an order directing the parties to complete discovery within forty-five days and stating that the contested issues for trial were alimony and "legal custody." Thereafter, on July 28, 2003, the husband, then (apparently) a law student and acting pro se, served by mail on the wife, through counsel, a "1st set of requests for admissions." The wife served her answers to the requests for admissions on September 5, 2003, three days late.
At the trial on January 2, 2004, on the limited issues of alimony and child custody, the husband introduced and had marked as an exhibit his requests for admissions, and the judge stated that because the wife had failed to respond to the requests within the thirty-day period specified in Mass.R.Dom.Rel.P. 36, and had failed to file a motion to extend the thirty-day period, the requests were considered admitted and the parties (and the judge) were "stuck" with them. The judge also indicated, at various points at trial, that evidence was not required concerning matters established by the admissions.
By a judgment of divorce nisi dated February 25, 2004, the wife was awarded full legal and physical custody of the parties' child (subject to reasonable visitation by the husband) and the husband was ordered to pay child support in the amount of $73 per week. Neither party was ordered to pay alimony to the other. In her findings of fact and conclusions of law, the judge iterated that because the wife had failed to serve timely answers to the requests for admissions, and had failed to request an extension of time to file her answers, " he Wife . . . bound by the admissions contained [in the requests]." The judge also indicated that, in response to a motion filed by the husband, she had "entered sanctions for Wife's failure to timely answer, specifically, the Court established the facts contained in the Request for Admissions."
Notwithstanding her statements at trial concerning the binding nature of the admissions and the establishment of the facts contained therein, the judge subsequently found as facts, inter alia, that " rom the birth of the parties' son, the Wife was primarily responsible for child care and homemaking," and that " uring the course of the marria
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