Jeffrey Murray v. Christine Jones ( 2021 )

May 19, 2021
Supreme Court
No. 2019-152-Appeal.
(P 09-333M)
Jeffrey Murray :
v. :
Christine Jones. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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typographical or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2019-152-Appeal.
(P 09-333M)
Jeffrey Murray :
v. :
Christine Jones. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Long, for the Court. The plaintiff, Jeffrey Murray, appeals from the
Family Court’s denial of his motion to modify visitation and contact with the two
children he shares with the defendant, Christine Jones. This case came before the
Supreme Court pursuant to an order directing the parties to appear and show cause
why the issues raised in this appeal should not be summarily decided. After
considering the parties’ written and oral submissions and reviewing the record, we
conclude that cause has not been shown and that this appeal may be decided without
further briefing or argument. For the reasons set forth in this opinion, we affirm the
order of the Family Court.
Facts and Procedural History
This dispute between Mr. Murray and Ms. Jones over Mr. Murray’s contact
with their two children dates back more than a decade. Initially denied visitation in
2010, when the children were ages four and two, Mr. Murray was later awarded
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supervised visitation, subject to drug and alcohol screens. However, Mr. Murray
failed to appear at a review hearing in October 2012 and was defaulted.1 By order
dated November 1, 2012, the court suspended all visitation “until Plaintiff files a
Motion for Visitation and complies with random screens.” Notwithstanding that
order, Mr. Murray subsequently saw the children in the spring of 2014. He has not
spoken with them since that visit, and he has been incarcerated at the Adult
Correctional Institutions since July 2015.
On July 6, 2018, Mr. Murray filed a motion seeking visitation at the ACI twice
per month, four photographs of the children per month, and telephone calls with the
children three times per week. In support of his motion, Mr. Murray submitted
copies of cards and notes addressed to the children, as well as receipts for gifts. Ms.
Jones filed a written objection, asserting that Mr. Murray had no relationship with
the children and that he had not sought visitation with them during the time he was
out of prison in 2014.
The parties appeared before a justice of the Family Court on August 22, 2018.
Mr. Murray testified that he “just want[ed] to be able to see [his] kids[.]” He
admitted “that a prison setting is not the ideal place to see children” but expressed
that he would like to see them after being released from prison.
1
Mr. Murray later claimed that his failure to appear in court was due to
hospitalization.
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Ms. Jones testified that she did not want Mr. Murray to establish a relationship
with the children because they had been through counseling and had, by then, been
through the “loss” of their father, Mr. Murray. However, she stated that she wanted
to ask the children if they would like to have any contact with him via telephone and
did not want to decide that for them.
The trial justice indicated that he was not inclined to grant visitation but that
telephone calls, letters, and cards could be a possibility. He asked Ms. Jones to speak
with the children regarding the latter and stated that “perhaps they should speak with
a counselor on those issues, because ultimately some day he will, in fact, be released,
and how are you going to structure the relationship between father and the children?
That’s a bridge that’s going to have to be crossed at some point.” The trial justice
also expressed some concern with whether the court had jurisdiction over the
children, given that, at the time of the hearing, they had lived in Massachusetts for
over four years. The trial justice provided Mr. Murray with an opportunity to submit
a memorandum to him on that issue.
When the parties appeared again before the trial justice on October 22, 2018,
he asked Mr. Murray how visitation would be in the best interests of the children.
Mr. Murray referenced “all the cards and letters * * * sent to [the] children over the
past few years” but made no argument regarding how visitation would be in their
best interests. He also discussed his lengthy history with the justice system and the
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reasons he should not be in prison. He concluded by admitting that he did not
“believe that prison [was] the best environment to see [his] children, and it would
hurt to actually see them in prison, and [he thought] it would hurt them.” In light of
that admission, he then asked the trial justice to allow him “at a minimum” to have
telephone calls with the children every week. Mr. Murray presented no further
testimony or documentary evidence in support of his motion.
Prior to the close of testimony, Ms. Jones testified that she had asked the
children if they wanted to speak with or see Mr. Murray, and she testified that they
said they did not. The trial justice then issued a ruling from the bench, finding that
there was “not a scintilla of evidence” in the record as to how it was in the children’s
best interests to see or communicate with Mr. Murray. The trial justice accepted as
credible Ms. Jones’s testimony that the children did not want to speak with Mr.
Murray and noted that testimony was unrebutted. Based on those findings, the trial
justice denied Mr. Murray’s motion.
Thereafter, on July 22, 2019, the trial justice entered an order deciding that
Rhode Island maintained jurisdiction over the case; denying Mr. Murray’s motion
for modification of the visitation order while he was incarcerated; and determining
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that it was not in the children’s best interests to have visitation or telephone or letter
contact with Mr. Murray while he was incarcerated. Mr. Murray appealed.2
Mr. Murray raises various arguments on appeal, only some of which were
preserved for review by this Court.3 He contends that the trial justice erred in finding
a lack of evidence to demonstrate that it was in the children’s best interests to visit
or have contact with him, and he points to photographs of himself with the children
and letters, cards, and books that he sent to the children as that evidence. He further
contends that the trial justice should not have accepted Ms. Jones’s “biased”
testimony as credible because there was nothing in the record to corroborate it. He
also maintains that the trial justice should have interviewed the children or had a
child psychologist interview the children.
The question before this Court is whether the Family Court erred in denying
Mr. Murray’s request to restore visitation and mandate contact with the children,
2
The plaintiff filed an incorrect notice of appeal on November 13, 2018, and a
proper—although premature—notice of appeal on April 5, 2019. Mr. Murray’s
premature notice of appeal is valid because the final order was, in fact, later entered.
See State v. Rolle, 84 A.3d 1149, 1154 n.6 (R.I. 2014) (premature notice of appeal
timely where final order entered nearly ten months after its filing).
3
During oral argument before this Court, Mr. Murray asserted that he believed that
the question of jurisdiction was the only issue to be decided at the October 2018
hearing before the Family Court, and, thus, he was unprepared to argue the merits of
his motion for visitation in that court; however, he conceded that he did not ask for
a continuance. He also conceded before this Court that visitation at the ACI would
not be in the children’s best interests.
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where the trial justice found that there was no evidence to indicate that it is in their
best interests to have a relationship with Mr. Murray while he is incarcerated.
Modification of Visitation
This Court reviews a Family Court’s decision on the issue of whether to
modify visitation on an abuse-of-discretion standard. Pacheco v. Marulanda, 108
A.3d 1007, 1011 (R.I. 2015). “A trial justice’s findings in this regard will not be
disturbed on appeal unless he or she overlooked or misconceived evidence or was
clearly wrong.” Laurence v. Nelson, 785 A.2d 519, 520 (R.I. 2001). However,
“[v]isitation rights are strongly favored and should be denied only in situations in
which the child’s physical, mental, or moral health would be endangered by contact
with the parent.” Id. “[I]t is well established that the court’s foremost consideration
when making a decision that affects visitation rights is the ‘best interests of the
child.’” Pacheco, 108 A.3d at 1011 (quoting Waters v. Magee, 877 A.2d 658, 664
(R.I. 2005)).
We have previously held that the following factors, when relevant, must be
considered by the trial justice in order to determine the best interests of a child:
“1. The wishes of the child’s parent or parents regarding
the child’s custody.
“2. The reasonable preference of the child, if the court
deems the child to be of sufficient intelligence,
understanding, and experience to express a preference.
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“3. The interaction and interrelationship of the child with
the child’s parent or parents, the child’s siblings, and any
other person who may significantly affect the child’s best
interest.
“4. The child’s adjustment to the child’s home, school, and
community.
“5. The mental and physical health of all individuals
involved.
“6. The stability of the child’s home environment.
“7. The moral fitness of the child’s parents.
“8. The willingness and ability of each parent to facilitate
a close and continuous parent-child relationship between
the child and the other parent.” Pettinato v. Pettinato, 582
A.2d 909, 913-14 (R.I. 1990) (footnotes omitted).
In the present case, Mr. Murray has conceded—before both this Court and the
Family Court—that visitation at the ACI would “hurt” the children, and, thus, he has
waived the issue of visitation on appeal.
Concerning the other forms of contact Mr. Murray requested—i.e., telephone
calls and letters—our review of the record reveals that the trial justice did not
overlook or misconceive evidence relevant to the Pettinato factors, nor were his
findings clearly wrong. Put simply, Mr. Murray failed to provide evidence with
respect to any of the Pettinato factors. As noted by the trial justice, when asked to
explain why the relief he sought would be in the children’s best interests, Mr. Murray
briefly referred to intermittent correspondence he had sent over the years and then
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complained at length about why he should not be in prison. The trial justice
reviewed the case history and noted Mr. Murray’s default for failure to appear at a
review hearing in October 2012. Furthermore, the trial justice determined that Ms.
Jones’s testimony was credible regarding her children’s disinterest in
communication with Mr. Murray, a finding that is entitled to our deference. See
Pacheco, 108 A.3d at 1012 (“It is well established that the credibility determinations
made by a trial justice sitting without a jury are entitled to substantial deference.”).
The trial justice was permitted to consider the children’s “reasonable preference” in
his decision, Pettinato, 582 A.2d at 913, and here, their preference was not to have
communication with Mr. Murray. Finally, the trial justice was not required to take
evidence from a child psychologist, a hypothetical expert from whom neither party
offered evidence or even engaged. See In re Alexis L., 972 A.2d 159, 170 (R.I. 2009)
(noting, in the context of termination of parental rights, that “we never have required
that a child be evaluated by a psychiatrist or psychologist before the Family Court
may properly terminate parental rights”). Thus, “[a]lthough there is a strong
presumption in favor of visitation,” Laurence, 785 A.2d at 522, we conclude that the
trial justice did not abuse his discretion by denying Mr. Murray’s motion.
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Conclusion
For the foregoing reasons, the plaintiff’s appeal is denied, and the order
appealed from is affirmed; the record in this case may be returned to the Family
Court.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Jeffrey Murray v. Christine Jones.
SU-2019-0152-Appeal
Case Number (P 09-333M)
Date Opinion Filed May 19, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Melissa A. Long
Source of Appeal Providence County Family Court
Judicial Officer from Lower Court Associate Justice Felix E. Gill
For Plaintiff:
Jeffrey S. Murray, Pro Se
Attorney(s) on Appeal
For Defendant:
Christine A. Jones, Pro Se
SU-CMS-02A (revised June 2020)