Erin (Wallace) Little v. Stephen W. Wallace , 2016 Me. LEXIS 102 ( 2016 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 93
Docket: Lin-15-468
Submitted
On Briefs: April 21, 2016
Decided: June 21, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
ERIN (WALLACE) LITTLE
v.
STEPHEN W. WALLACE
SAUFLEY, C.J.
[¶1] The now nine-year-old girl at the center of this appeal has been
seriously emotionally injured by the chronic conflict between her divorced parents
and the complex schedules and transitions from one parent’s household to the
other. After she had a serious breakdown, she found respite in a new, less complex
schedule, ordered while the parties’ post-divorce motions were pending. At the
conclusion of the trial on those motions, the District Court (Wiscasset, Raimondi,
J.) determined that a similar schedule should become part of the parties’ modified
divorce judgment. The child’s father appeals from the resulting judgment, which
established primary residence of the parties’ daughter with the mother. We affirm
the judgment.
2
I. BACKGROUND
[¶2] The facts are drawn from the court’s extensive and thoughtful findings
of fact, which are fully supported by evidence in the record. See Pearson v.
Ellis-Gross, 2015 ME 118, ¶ 4, 123 A.3d 223. The parties met when Erin
(Wallace) Little was nineteen and Stephen W. Wallace was forty-eight years old.
Wallace was a friend of Little’s mother. Wallace and Little were married in
September 2005, and their daughter was born one year later. The marriage broke
down in 2008, and Little filed for divorce in February 2009.
[¶3] By agreement, a divorce judgment was entered by the court
(Mathews, M.) in December 2009 that provided for shared primary residence of the
child with a weekly alternating schedule and transitions during the middle of the
week. In October 2011, acting upon the father’s post-divorce motion to modify,
the court (Tucker, J.) modified the divorce judgment based on the terms of a
mediated agreement. The resulting judgment created an even more complicated
schedule of contact, requiring mid-week transitions on varying days of the week
during the school year, with the child alternating weekends between her parents.
[¶4] Over time, and in the face of the frequent transitions between parental
homes, the child became increasingly depressed as the tensions between her
parents grew. By August 2014, at less than eight years old, she was talking about
“not wanting her life.” During one major incident, the father sent messages to the
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mother indicating that the child was distressed and asking the mother to delay in
picking her up at 9:00 a.m. as scheduled. The mother declined. When the mother
arrived to pick the child up at 9:00 a.m., the parents engaged in a dispute in the
child’s presence. The child became hysterical and remained inconsolable upon
arriving at her mother’s home. She was curled up in a fetal position and could not
calm herself. The mother called a crisis line, and the social worker who arrived to
evaluate the situation expressed a concern that the child may have been sexually
abused by her father.
[¶5] The mother obtained a protection from abuse order, which was later
voluntarily dismissed, and moved to modify the divorce judgment. As amended,
her motion to modify asserted as one of the changes in circumstances the
possibility that the child had been sexually abused by her father. The father filed a
motion for contempt on the ground that the mother had prevented all contact with
his daughter in violation of the existing contact schedule. The court appointed a
guardian ad litem and entered an interim order establishing a limited schedule of
contact for the child with her father.
[¶6] After the child was evaluated professionally for evidence of sexual
abuse, the GAL reported to the court that there was no clear evidence of sexual
abuse but that “there is clearly an issue to be solved with [the child].” The GAL
emphasized that the child is highly sensitive to the parents’ conflict and to the
4
changes in their relationships with their romantic partners—most recently
involving the father’s break-up with a woman who had been close to the child.
[¶7] The court entered an interim order in January 2015 granting the father
increased contact with the child. After a trial held on all motions in June 2015, the
court granted the mother’s motion to modify the divorce judgment and denied the
father’s motion for contempt.1 The court then granted post-judgment motions to
alter or amend, and for reconsideration, and entered a corrected judgment and
findings of fact.
[¶8] In its extensive factual findings, the court determined that it could not
“find abuse based on the evidence presented.” However, the court found that the
child “was in an intolerable situation where she was being forced to transition
between warring parents on a weekly basis. Since [the child]’s contacts with her
father have been limited, she has been freed from the unbearable stress and tension
of those transitions.” The court further found that “the parents’ enmity towards
each other has been profoundly damaging to [the child,] . . . that both parties bear a
measure of responsibility for that damage,” and that “it is clear that [the child] is
well aware that [the mother] and her husband do not like her father, and are highly
1
Because the final judgment resulted in an overpayment—not an arrearage—in child support, the
court also denied a motion that the mother had filed to enforce the payment of child support.
5
critical of him. [The child] knows that she does not have their support in loving
her father and wanting to spend time with him.”
[¶9] The court determined that this parental acrimony was particularly
difficult for the child, who was also worried about her father’s sadness at the recent
break-up with his girlfriend. Despite the father’s protestations, he gave the court
the impression of “profound depression.” Noting that it is “a parent’s
responsibility to care for the child, not the child’s responsibility to care for the
parent,” the court found that, “[t]o the extent that [the father] may unwittingly
present himself as the sad victim, needing and relying on [the child]’s love and
affection for him, he places yet another burden upon [the child].”
[¶10] The court found that the child had more recently been thriving due to
the elimination of the complex and conflict-inducing transition schedule. The
child’s anxiety had decreased, she had gained healthy weight, and, although the
new schedule had reduced the amount of contact she had with her father, the child
had “not expressed feelings of sadness or said that she [was] missing her father.”
Furthermore, the child was enjoying her mother’s more social household, whereas
there was less evidence of social interaction with others while she was with her
father.
[¶11] The court concluded that, although it might seem unfair to the father
given that the change in the child’s residential arrangement resulted from an
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investigation that ultimately resulted in no findings of sexual abuse, the evidence
demonstrated that primary residence with the mother was nonetheless in the child’s
best interest. The court ordered a phased-in schedule of contact for the father
during the weekend, and during specified holidays and vacations, with a mid-week
after-school visit each week lasting slightly more than three hours. The father
timely appealed from the judgment. See 14 M.R.S. § 1901 (2015); 19-A M.R.S. §
104 (2015); M.R. App. P. 2.
II. DISCUSSION
[¶12] “We review the findings of fact in an order on a post-divorce motion
for clear error, and the court’s ultimate decision for an abuse of discretion or error
of law.” Brasier v. Preble, 2013 ME 109, ¶ 12, 82 A.3d 841 (quotation marks
omitted). We will affirm the judgment over a challenge to the court’s findings of
fact as long as there is competent evidence in the record to support the court’s
findings. Pearson, 2015 ME 118, ¶ 4, 123 A.3d 223.
[¶13] “A parental rights and responsibilities order may be modified only
when the moving party can demonstrate a substantial change in circumstances
since the entry of the most recent decree” that affects the child’s best interest, and
that the “modification serves the best interest of the child.” Brasier, 2013 ME 109,
¶ 12, 82 A.3d 841 (quotation marks omitted); see 19-A M.R.S. § 1657 (2015);
Jackson v. MacLeod, 2014 ME 110, ¶ 22, 100 A.3d 484. For this purpose, the best
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interest of the child is determined through an analysis of the factors in 19-A M.R.S.
§ 1653(3) (2015). See Jackson, 2014 ME 110, ¶ 21, 100 A.3d 484.
[¶14] The Legislature has established the child’s well-being as the primary
factor for consideration by the court. “In making decisions regarding the child’s
residence and parent-child contact, the court shall consider as primary the safety
and well-being of the child.” 19-A M.R.S. § 1653(3) (emphasis added); see
Jackson, 2014 ME 110, ¶ 21, 100 A.3d 484. In so doing, the court must consider a
range of factors, including the child’s age; her relationship with her parents and
their significant others; the adequacy and desirability of continuing the child’s
existing living arrangements; the stability of any proposed living arrangements; the
parties’ motivations “and their capacities to give the child love, affection and
guidance”; the “capacity of each parent to allow and encourage frequent and
continuing contact between the child and the other parent”; and the parents’
capacity to cooperate in caring for the child and willingness to use “[m]ethods for
assisting parental cooperation.” 19-A M.R.S. § 1653(3)(A)-(B), (D)-(F), (H)-(J).
The court must also consider “[a]ll other factors having a reasonable bearing on the
physical and psychological well-being of the child.” Id. § 1653(3)(N).
A. Review of Factual Findings Related to a Change in Circumstances
[¶15] The father argues that the evidence does not support findings that he
provided the child with only limited social interaction or that he was depressed,
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given that no evidence of a diagnosis was provided. The father further argues that
the mother failed to meet her burden of proving a substantial change in
circumstances because she did not prove her allegation of sexual abuse and the
child’s change in residence arose from the mother’s unilateral conduct.
[¶16] The court’s factual findings are well supported by the record.
Regarding the level of social interaction that the child had with others when with
the father, even if there was some evidence of activities that the father engaged in
with the child, the court did not err in finding that “[t]here was little evidence” of
interaction with others while the child was with the father, whereas her mother’s
home is at the center of family activities. The challenged findings regarding the
effect that the father’s mental state had on the child after his most recent break-up
are also supported by competent evidence in the record. The father testified that he
took responsibility for “not holding that sadness back” with the child after his
break-up, and the mother testified that the child was “very obsessive about her
father and how he had been feeling. And she would say often that she was sad
because her father’s lonely without her, that he’s sad when she goes away, and so
she worried.” Furthermore, the court’s reference to the father’s demeanor at trial
as presenting the appearance of depression does not require diagnostic evidence.
[¶17] With respect to the ultimate determination that there had been a
substantial change in circumstances, although the court did not find that sexual
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abuse had occurred, it did find substantial changes in the parents’ relationships
with significant others, in their residences, in the child’s schooling, in the level of
parental conflict, and—most significantly—in the child’s alarming level of distress
in response to the existing schedule of contact and the heightened conflict between
her parents. Because the circumstances of families do not remain static during
litigation, the court acted well within its authority in considering all of the changes
affecting the child as of the time of the hearing. The mother alleged that there had
been a substantial change due to “[c]ircumstances indicating that my daughter may
be the victim of sexual abuse by her father.” Many of the circumstances that
initially suggested possible abuse, such as the child’s increasing depression and the
need for crisis intervention, were precisely the circumstances that guided the
court’s findings regarding the child’s needs and her best interest. The court did not
err in finding a substantial change in circumstances, even when there was no
finding of sexual abuse and the child’s change in residence initially occurred partly
because of the ultimately unsubstantiated suspicion of sexual abuse.2 The court’s
carefully considered findings support the existence of a substantial change in
circumstances.
2
The father does not contend that he lacked notice that the court would be considering evidence of
circumstances beyond whether sexual abuse was substantiated for purposes of deciding whether to grant
the motion to modify. Cf. Smith v. Hawthorne, 2002 ME 149, ¶ 11, 804 A.2d 1133 (discussing notice
pleading standards).
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B. Review of the Best Interest Determination
[¶18] Although parents who are focused on their own conflicts may each
claim that he or she has a right to equal time with a child, the court’s responsibility
is to ensure that the child’s health and safety are not threatened by the adults’ battle
for control. See 19-A M.R.S. § 1653(3). Notwithstanding the court’s authority to
award shared primary residential care, a court may do so only if such an award is
in the best interest of the child. See 19-A M.R.S. § 1653(2)(D)(1) (2015).
Complex, complicated, or convoluted schedules, established to vindicate adults’
desires for equal time, may be contrary to a child’s needs and ultimately contrary
to the best interest of the child. The court acts appropriately when it considers this
factor, among all relevant factors, as it is bound to do by statute. See id. §
1653(2)(D)(1), (3).
[¶19] The record before us fully supports the court’s determination that
establishing a primary residence with the mother and modifying the schedule of
contact was in the child’s best interest because (1) the parents could not avoid
conflict; (2) transitions, with the inevitable added conflict, were too frequent; and
(3) the child had been affirmatively harmed by the level of parental conflict to
which she was exposed through these frequent transitions. The child’s
demonstrable and profound need for the security of a primary residence, with the
benefit of fewer transitions, especially during the school week, was evident
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throughout the record. The court took into account all of the applicable factors and
gave priority to the child’s safety and well-being as the statute requires, ultimately
entering an order that is appropriately focused on the child’s best interest. See id.
The entry is:
Judgment affirmed.
On the briefs:
Stephen C. Smith, Esq., and Caleb J. Gannon, Esq., Lipman & Katz, P.A.,
Augusta, for appellant Stephen W. Wallace
Timothy J. Kimpton, Esq., Gallagher, Villeneuve and DeGeer, PLLC,
Damariscotta, for appellee Erin W. Wallace
Wiscasset District Court docket number FM-2009-36
FOR CLERK REFERENCE ONLY