Wendell K. Brasier v. Vanessa L. Preble , 2013 Me. LEXIS 110 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 109
Docket: Pis-13-142
Submitted
On Briefs: October 31, 2013
Decided: December 17, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and JABAR, JJ.
WENDELL K. BRASIER
v.
VANESSA L. PREBLE
MEAD, J.
[¶1] Vanessa L. Preble appeals from a judgment entered by the District
Court (Dover-Foxcroft, Stitham, J.) modifying a parental rights and responsibilities
order by awarding primary residence of the parties’ two children to Wendell
K. Brasier. Vanessa contends that the evidence presented at a hearing was
insufficient to establish a substantial change in circumstances justifying a change
in the children’s primary residence. We affirm the judgment.
I. BACKGROUND
A. Procedure
[¶2] In June 2006, Wendell filed a complaint to determine parental rights
and responsibilities concerning the children. The court (R. Murray, J.) awarded
shared rights and responsibilities, with Vanessa having primary residence and
Wendell having specified rights of contact. In 2007, Wendell filed motions to
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enforce and to modify. The court (Stitham, J.) found that the provisions of the
original order concerning Wendell’s contact with the children were not working
well, and that a substantial change in circumstances warranted the establishment of
a more detailed visitation schedule. The court declined to change the children’s
primary residence.
[¶3] In November 2012, Wendell again filed motions to enforce and to
modify. The court held a hearing at which Wendell and his wife, and Vanessa and
her father, testified. At the conclusion of the hearing, the court ruled from the
bench that there had been a substantial change in circumstances since the 2007
modification, and that it was in the children’s best interest that their primary
residence be changed to Wendell. The court ordered that the change be effective
immediately and directed the parties and counsel to remain in the courtroom to
work out the details. That decision was memorialized in a written order entered
the same day. This appeal followed.
B. Facts
[¶4] The court’s factual findings are supported by the record. Wendell has
lived in Cambridge for the past five years with his wife and two stepchildren, who
are the same ages as his two children. He is a self-employed carpenter. When they
are all together, Wendell, his wife, and the four children have, the court found, a
nurturing, “great” relationship. In April 2010, Vanessa moved from Bremen,
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where she lived at the time of the 2007 modifications, to Swan’s Island. She stays
home and takes care of her two children and two stepchildren. The court found
that it had “absolutely no evidence to make a finding as to [Vanessa’s] two
children’s relationship with their stepfather . . . or his two children.”
[¶5] Wendell’s contact with the children as mandated by the 2007 order was
the court’s major concern and the primary focus of the hearing. The court heard
evidence that from 2007 through the spring of 2010 visitation went reasonably
well, although transportation issues precluded some visits. Shortly after the
children began their 2010 summer vacation, Wendell picked them up for one of his
three court-ordered weeks of summer visitation. During that week Vanessa called
him and said she was moving to Swan’s Island the following day. For the next two
months Wendell received phone calls and text messages delaying the children’s
return to Vanessa. After two months, Vanessa called to say that she was coming
for the children the next day. Wendell testified that he refused “because . . . the
kids . . . had been there for two months, and in my eyes she abandoned them.”
[¶6] Four days later, late in the evening, Wendell was served with a
temporary protection order by law enforcement officers and the children were
turned over to Vanessa’s father. The next day, Wendell saw Vanessa and her
father at a department store and she allowed him to hug the children. The
temporary protection order was dismissed when Vanessa did not appear for the
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final hearing. She told the court during the hearing on the motion to modify that in
applying for the protection order she did not allege that Wendell had been abusive
toward her or the children, and that she did not appear for the final hearing because
the only purpose of the order was to get the children back from him.
[¶7] From the fall of 2010 through the early summer of 2011, visitation
went fairly well, but shortly thereafter the situation grew markedly worse.
Wendell had the children for a week in late summer and then did not see them
again from August 2011 until April 2012. He testified that the eight-month
interval without visits was due to Vanessa’s schedule and her lack of money for
gas and fares for the ferry to bring the children to the exchange point. Wendell had
asked to see the children during February school vacation, but Vanessa said he
could not because “there was something going on.” He then saw the children for a
day and a half during April school vacation, but had to send them back to Vanessa
because she wanted to take them to a movie at the library and their son had karate
practice.
[¶8] In the summer of 2012, Wendell did not have any visits because
Vanessa’s phone had been shut off, and she said that she did not want to send the
children to him without having a working phone in case of an emergency. For
several weeks that summer, Wendell had no phone contact with the children
because Vanessa did not have a working phone.
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[¶9] By Christmas 2012, Wendell had not seen the children since April,
another eight-month interval. The parties agreed that during Christmas vacation
Wendell would have the children from December 26-29. The court found that
Wendell could have spent more time with the children but for (1) Vanessa’s
decision not to send them to his house on the 25th when her father was returning
home from a visit to Swan’s Island; and (2) her decision to let her father keep the
children at his house in Guilford for two days after picking them up on the 29th,
even though her father was going to see them over the New Year’s holiday and
Wendell had asked her for another night with them. When asked by the court why,
in light of all of the visits Wendell had missed, she did not send the children to
Wendell with her father when he returned home Christmas afternoon, Vanessa said
“they wanted to stay and play with [their] toys,” and sending them to Wendell a
day early “didn’t even occur to me, really.”
[¶10] After the four-day Christmas visit, Wendell did not see the children
again before the hearing in February 2013. He asked Vanessa if he could have
them for the February school vacation in lieu of some of his weekend visits; she
replied that their son had a basketball game. Wendell was able to speak to their
daughter on the phone once, but Vanessa told him that the children generally did
not want to talk to him on the phone.
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[¶11] Vanessa told the court that she had not done anything in January or
February 2013 to try to have the children see Wendell and asserted that Wendell
had not done anything to facilitate visits either. Vanessa acknowledged that the
children had visited her father at his home in Guilford, thirty minutes from
Wendell’s residence, three or four times without seeing Wendell, and that absent a
reliable vehicle, all she would do to facilitate visitation was deliver the children at
the mainland ferry terminal.
II. DISCUSSION
[¶12] 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, as long as such modification serves the
best interest of the child.” Neudek v. Neudek, 2011 ME 66, ¶ 10, 21 A.3d 88
(discussing 19-A M.R.S. § 1657(1) (2012)) (quotation marks omitted). “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.” Desmond
v. Desmond, 2011 ME 57, ¶ 2, 17 A.3d 1234.
[¶13] We find no abuse of discretion on this record. To the contrary, the
court conducted a thorough and thoughtful analysis in finding that there had been a
substantial change in circumstances since the 2007 order, and that a change in
primary residence was in the children’s best interest.
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A. Substantial Change in Circumstances
[¶14] Concerning the court’s finding of a substantial change in
circumstances, the Legislature has said that
[i]n reviewing a motion for modification or termination [of a parental
rights and responsibilities order] . . . the following constitute[s] a
substantial change in circumstances:
....
The relocation, or intended relocation, of a child that will disrupt the
parent-child contact between the child and the parent who is not
relocating, if there exists an award of shared or allocated parental
rights and responsibilities concerning the child. Relocating the child
more than 60 miles from the residence of the parent who is relocating
or more than 60 miles from the residence of the parent who is not
relocating is presumed to disrupt the parent-child contact between the
child and the parent who is not relocating[.]
19-A M.R.S. § 1657(2)(A-1) (2012).
[¶15] Here, Wendell has lived in the Town of Cambridge for the past five
years. Vanessa acknowledged moving in April 2010 from Bremen to Swan’s
Island. Swan’s Island is more than sixty miles from Cambridge, plus a ferry ride,
and also more than sixty miles, plus a ferry ride, from Bremen. Accordingly, the
court was required by statute to presume that the move disrupted Wendell’s contact
with his children. Beyond the statutory presumption, the court emphatically found
that to be the case, terming Vanessa’s move “a huge change in circumstances.”
Wendell testified, and the court accepted, that Vanessa’s residence on an island
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accessible only by ferry greatly increases the difficulty of Wendell maintaining
contact with the children.
B. Best Interest of the Children
[¶16] The court systematically applied each of the nineteen factors set out in
19-A M.R.S. § 1653(3) (2012) in concluding that “it is in the best interests of each
child that [Wendell] be awarded the primary residence of each child immediately.”
See Sloan v. Christianson, 2012 ME 72, ¶ 40, 43 A.3d 978 (noting the trial court’s
“proper[] and very thorough[]” application of each factor). In making its
assessment, the court, as it was entitled to do, found Vanessa and her father to be
less than credible on key points, and found that Wendell was credible. See id. ¶ 29
(“[B]ecause of the trial court’s superior vantage point . . . we will not substitute our
judgment for that of the trial court as to the weight or credibility of the
evidence . . . .”).
[¶17] The court’s careful analysis, in which it (1) detailed the significant
events that had occurred since the 2007 order, (2) explained how those events
constituted a substantial change in circumstances, and (3) explicitly applied each of
the statutory best interest factors set out in 19-A M.R.S. § 1653(3), was exemplary,
and we discern no error in the court’s decision.
The entry is:
Judgment affirmed.
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On the briefs:
Ferdinand A. Slater, Esq., Ellsworth, for appellant Vanessa Preble
Wayne Doane, Esq., Exeter, for appellee Wendell Brasier
Dover-Foxcroft District Court docket number FM-2006-68
FOR CLERK REFERENCE ONLY