Chad E. Bulkley v. Brittany A. Bulkley , 2013 Me. LEXIS 101 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 101Docket: Pen-13-137
Submitted
On Briefs: September 26, 2013
Decided: November 14, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
CHAD E. BULKLEY
v.
BRITTANY A. BULKLEY
JABAR, J.
[¶1] Brittany A. Bulkley appeals from a judgment entered in the District
Court (Bangor, Jordan, M.) granting Chad E. Bulkley’s motion to modify the
parental rights and responsibilities established in the parties’ 2010 divorce
judgment. Brittany argues that the court abused its discretion in granting Chad
primary residence of their minor child because it erred in considering the parties’
respective financial situations in determining the child’s best interest. Although
we agree with Brittany that courts should not rely primarily on the parents’
financial situations in assessing the child’s best interest, we conclude that, under
appropriate circumstances, inquiry into parents’ financial situations may be
relevant to the child’s best interest. Accordingly, we affirm the judgment.
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I. BACKGROUND
[¶2] Chad and Brittany Bulkley were married in August 2007. Their son
was born in October 2008. Chad filed a complaint for divorce on
January 19, 2010, and on April 21, 2010, the court held an uncontested hearing.
On April 30, 2010, the court issued its divorce judgment awarding the parents
shared parental rights and responsibilities of the child and granting Brittany
primary residence of the child. Chad was awarded the right to have contact with
the child “at all reasonable times,” and was ordered to pay weekly child support.
[¶3] Since the entry of the divorce judgment, Brittany has moved with the
child at least five separate times, moving within the states of Washington,
Kentucky, and Illinois. Additionally, beginning in December 2010, Brittany and
her boyfriend at the time—now her fiancé—began living in the cab of his
employer-owned tractor-trailer truck. Brittany brought the parties’ then
two-year-old child, in addition to the couple’s dog and cat, to live in the truck as
well.
[¶4] For the next two months, the two-year-old child lived in the truck. The
couple would stop every few hours to allow the child to stretch and play. The child
sat in the front seat while the truck was in transit, and when the child napped, he
would lie, unrestrained, with Brittany in the back of the truck’s cab. At the time,
Brittany did not believe that living in the truck would be detrimental to the child
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but thought it would be a good experience for the two-year-old child to travel the
country as she did with her own father when she was a teenager. While living in
the truck, the child became sick on numerous occasions, including once with a
fever and once with a stomach virus.
[¶5] From January 2010 to February 2011, Chad saw his child only once.
Chad’s contact with his child was limited in part by his own work schedule. Chad
was employed with an oil-rig supply company in the Gulf of Mexico, which
required him to travel to Louisiana for a month at a time. When Chad was not
working in the Gulf, he lived in Bangor with his new wife. Chad attributed a large
portion of his limited contact with the child to Brittany’s unstable living conditions
after the divorce.
[¶6] In February 2011, Chad was home in Bangor for two weeks, and the
parties agreed that the child would stay with him. When the two-week stay ended,
Chad decided unilaterally to keep the child and not return him to Brittany’s care.
Chad kept the child partly out of concern for his safety and well-being living in the
truck. In November 2011, Brittany and her fiancé moved out of the truck and
temporarily settled in Kentucky. On November 10, 2011, Brittany filed a motion
for contempt against Chad for violating the divorce judgment’s primary-residence
provision. On December 12, 2011, Chad filed a motion to modify the divorce
judgment, asserting that the child had not had a stable living environment
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following the divorce and that returning him to a living arrangement in the truck
could have significant negative effects on the child’s well-being. Brittany filed a
counter-motion to modify the divorce judgment and requested that restrictions be
placed on Chad’s rights of contact with the child.
[¶7] On January 17, 2012, the court (Gunther, J.) ordered that the child be
returned to Brittany until an interim order of residence could be entered. At that
time, Brittany had moved with her fiancé to Illinois. On January 24, 2012, the
court entered an interim schedule and, by agreement of the parties, mandated that
the child would not live in the truck during the pendency of the matter and required
Brittany to provide Chad with weekly confirmation of the child’s living
arrangements in Illinois.
[¶8] From January 2012 until the hearing in December 2012,1 the child
lived with Brittany and her fiancé in Illinois where he was enrolled in a preschool
program. Several times during that period, Brittany did not provide Chad with
proof of the child’s living arrangements and had difficulty providing Chad with
regular contact with the child. Chad did not visit the child in Illinois during the
time the child was in Brittany’s care.
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The hearing on the parties’ motions to modify was originally set for June 28, 2012. On
June 20, 2012, Brittany moved to continue the hearing, as she was required to remain on bed rest for a
medical issue related to pregnancy. Over Chad’s objection, the court granted the motion to continue. It
was not until September 13, 2012, that the court rescheduled the hearing for December 14, 2012.
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[¶9] On December 14, 2012, the court held a hearing on the parties’
motions. The parties, their respective significant others, and several family
members testified. The court granted Chad’s motion to modify and awarded him
primary residence of the child based on what it determined was in the best interest
of the child. See 19-A M.R.S. § 1653(3) (2012). On January 28, 2013, the court
entered its written judgment, and Brittany timely appealed. See M.R.
App. P. 2(b)(3).
II. DISCUSSION
[¶10] “The trial court is afforded broad discretion in determining the
custody and residence of minor children.” Akers v. Akers, 2012 ME 75, ¶ 2,
44 A.3d 311. We therefore “review the court’s decision awarding primary
residence upon a motion to modify a divorce judgment for an abuse of discretion”
and its “factual findings . . . for clear error.” Id.[¶11] In determining whether a modification is warranted pursuant to
19-A M.R.S. § 1657(1)(A) and (2) (2012), the trial court engages in a two-step
inquiry: “First, whether since the prior order there has occurred a change in
circumstances sufficiently substantial in its effect upon the child[]’s best interest[]
to justify a modification; and second, if so, how should the custody arrangement be
modified in furtherance of the child[]’s best interest[].” Smith, 2008 ME 56, ¶ 11,
955 A.2d 740 (quotation marks omitted).
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[¶12] Brittany contends that the court abused its discretion in modifying the
divorce judgment when it erroneously considered the parties’ financial situations in
determining the best interest of the child. Brittany relies on our decision in
Adoption of Tobias D., 2012 ME 45, ¶ 22, 40 A.3d 990, to argue that a parent’s
socioeconomic status is irrelevant to the child’s best interest. However, our
holding in Tobias D. was much more limited than Brittany’s assertion. In our
decision, which involved the child protection statute, 22 M.R.S. § 4055 (2012), we
stated:
Socioeconomic status or a finding that a parent is less financially
stable than potential guardians is not the type of finding that renders a
parent unfit as a matter of law unless it is also determined that he is
unable or unwilling to ensure that the child’s basic needs are met.
Id. ¶ 22 (emphasis added). In the case before us, although the trial court
determined what living arrangement would be in the best interest of the child going
forward, see 19-A M.R.S. § 1653(3), it also considered whether Brittany’s
financial circumstances, and the choices she made concerning those circumstances,
did negatively affect the child’s basic needs.
[¶13] In determining a child’s best interest, the trial court is asked to think
“as a wise, affectionate and careful parent.” Rodrigue v. Brewer, 667 A.2d 605,
606 (Me. 1995) (quotation marks omitted). Section 1653(3) affords the trial court
significant latitude in making such determinations, so long as a child’s safety and
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well-being are of the court’s primary concern. See Kelley v. Snow, 2009 ME 128,
¶ 15, 984 A.2d 1281 (“A child’s safety and well-being are a court’s primary
consideration when determining the best interest of children . . . .”).
[¶14] To assist the trial court with its undertaking, the Legislature set forth
nineteen separate factors it deemed relevant to a child’s best interest. See
19-A M.R.S. § 1653(3)(A)-(S). The flexibility of section 1653(3) does not
obligate the court to “robotically address[] every statutory factor . . . so long as it is
otherwise evident that the court has evaluated the evidence with the best interest
factors in mind.” Nadeau v. Nadeau, 2008 ME 147, ¶ 35, 957 A.2d 108. “The
ultimate determination of the weight to be given each factor requires careful
consideration by the court” and is done on an individualized, case-by-case basis.
Akers, 2012 ME 75, ¶ 3, 44 A.3d 311; Costigan v. Costigan, 418 A.2d 1144, 1147
(Me. 1980).
[¶15] Here, the trial court did not abuse its discretion in considering the
parties’ financial situation as relevant to the child’s best interest. As the trial court
found, a parent’s financial situation does have a bearing on statutory factors, such
as the adequacy of the child’s current living arrangement, see 19-A M.R.S.
§ 1653(3)(D), and the stability of any proposed future living arrangements, id.
§ 1653(3)(E).
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[¶16] The trial court found that Brittany’s living arrangements after the
divorce were continuously unstable. She testified that she had moved at least five
times since the divorce and for a period of time lived in the cab of a truck. In
comparison, the trial court found that Chad had owned a house since 2008 and that
he had no intentions of moving. The court did not abuse its discretion in
considering, at least in part, the parties’ financial situations to determine which
parent offered the more stable living arrangements going forward.
[¶17] Moreover, 19-A M.R.S. § 1653(3)(N) provides that the trial court has
the discretion to consider “[a]ll other factors having a reasonable bearing on the
physical and psychological well-being of the child.” Here, the trial court found
that the “child’s physical and psychological well-being is much more likely to be
better residing with [Chad.]” The trial court had sufficient evidence in the record
to find that during the periods in which the child lived with Brittany, the child
received less than adequate medical care. Brittany testified that since the divorce
she had not taken the child to see a doctor, except for one trip to the emergency
room. Similarly, the child was five vaccines behind when Chad brought the child
to the doctor in February 2011. Chad also testified that the child had indications of
physical developmental issues, which the child’s doctor believed resulted from the
child’s time living in the truck. Therefore, the court did not abuse its discretion in
finding that the financial situations of the parents were relevant to the medical care
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that the child received and that it had a “reasonable bearing on the child’s safety
and well-being.” See 19-A M.R.S. § 1653(3)(N).
[¶18] Lastly, although Brittany contends that the trial court gave undue
weight to the parties’ financial situations in its decision, the trial court considered
several other factors in deciding to grant Chad primary residence of the child. The
evidence in the record supports the court’s findings that (1) Chad had a greater
capacity to allow and encourage frequent and continuing contact between the child
and Brittany; (2) Brittany had made it more difficult for Chad to have contact with
the child; and (3) Brittany was motivated, at least in part, by simply wanting to
have exclusive possession of the child, and had not always looked out for the
child’s best interest. See 19-A M.R.S. § 1653(3)(B), (F), (H). After reviewing the
court’s overall assessment of the child’s best interest, it is “evident that [it] ha[d]
evaluated the evidence with the best interest factors in mind,” and therefore the
court did not err or abuse its discretion. See Nadeau, 2008 ME 147,
¶ 35, 957 A.2d 108.
The entry is:
Judgment affirmed.
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On the briefs:
Audrey B. Braccio, Esq., Pelletier & Faircloth, Bangor, for appellant
Brittany Bulkley
Wayne Doane, Esq., Exeter, for appellee Chad Bulkley
Bangor District Court docket number FM-2010-47
FOR CLERK REFERENCE ONLY