Ayriyan v. Ayriyan

• Court: Rhode Island Supreme Court
• Writing for the Court: FLAHERTY
• Citation: Ayriyan v. Ayriyan, 994 A.2d 1207 (R.I. 2010)
• Decision Date: 10 May 2010
• Docket Number: 2009-30-Appeal.,No. 2009-29-Appeal,2009-29-Appeal
• Parties: Veronika AYRIYANv.Daniel AYRIYAN.

994 A.2d 1207

Veronika AYRIYANv.Daniel AYRIYAN.

Nos. 2009-29-Appeal, 2009-30-Appeal.

Supreme Court of Rhode Island.

May 10, 2010.

Thomas M. Dickinson, Esq., for Plaintiff.

Alan T. Dworkin, Esq., Warwick, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, and ROBINSON, JJ.

OPINION

Justice FLAHERTY, for the Court.

Before this Court is an appeal by Veronika Ayriyan from orders of the Family Court awarding Daniel Ayriyan full custody of their minor children and denying her motion to vacate the order of the Family Court entered on September 4, 2007. This case came before the Court for oral argument on April 8, 2010, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the parties' arguments and considering the memoranda submitted by them, we are satisfied that cause has not been shown, and we proceed to decide this appeal at this time without further briefing or argument. For the reasons set forth in this opinion, we affirm the orders of the Family Court.

IFacts and Travel

There are very few facts in this case that are not in dispute. The parties, Veronika and Daniel Ayriyan, do agree that a marriage ceremony took place in Portland, Maine, on February 12, 1999, and that they subsequently divorced on July 17, 2001.¹ It is also undisputed that Veronika was seventeen years old at the time of the marriage, and Daniel, Sr. was twenty-six years old. They have two children, Daniel, Jr., born in 1999, who is ten years old, and Rafael, born in 2004, who is five years old. The couple also acknowledges that they reconciled for several years after their divorce, during which time Rafael was born. They agree that the reconciliation ultimately failed, and that Veronika moved out of the family home in January 2005, although they disagree on the specific date. Beyond this paucity of common ground, the parties can agree on little else.

However, in spite of, or more likely because of, their deeply held differences Veronika and Daniel, Sr.'s most significant point of agreement is that the shared physical placement of their children is not appropriate. The parties successfully shared custody of their children for about a year until early 2007, when their troubles were reignited. On February 20, 2007, after picking up Daniel, Jr. and Rafael from visitation with their father, Veronika called the Attleboro, Massachusetts, police and alleged that she observed redness on Daniel, Jr.'s face and bruises on his body. The incident report prepared by the responding officer attributes the source of those injuries to Daniel, Sr.'s brother, Levon. The responding officer advised Veronika to take the child to Sturdy Memorial Hospital. According to the report of the hospital, Daniel, Jr. said that his uncle had struck him on his left buttock and on the right side of his face.

On February 21, 2007, Veronika filed a complaint and sought a protective order in District Court in Attleboro, Massachusetts, where she was living at the time. In an affidavit accompanying her complaint, Veronika alleged that Daniel, Sr. slapped Daniel, Jr. on the face with his hand, and that his brother, Levon, was responsible for Daniel, Jr.'s bruises. The Massachusetts Department of Social Services conducted an investigation and made a finding that Daniel, Sr. had excessively disciplined Daniel, Jr. The case then was referred to the Rhode Island Department of Children, Youth and Families (DCYF), which disagreed with the conclusion of the Massachusetts Department of Social Services that Daniel, Sr. had engaged in excessive discipline; DCYF determined that the allegations were unfounded.

On February 26, 2007, Daniel, Sr. filed a motion for emergency relief in Family Court. He alleged that Veronika had endeavored to prevent the exercise of his parental rights, and he cited Veronika's action in Attleboro District Court. Among other requests for relief, he sought sole custody of their children, the reappointment of a guardian ad litem, and a finding of contempt against Veronika, with appropriate sanctions.

On March 9, 2007, Veronika filed a motion for ex parte relief, seeking a temporary restraining order against Daniel, Sr. In an accompanying affidavit, she alleged physical abuse of Daniel, Jr. by his father and also that Daniel, Sr.'s motion filed on February 26 contained “many significant misrepresentations.” On the basis of these allegations, a justice of the Family Court issued an emergency ex parte order that temporarily required that Daniel, Sr.'s visitation be supervised and temporarily restrained Daniel, Sr. from “harassing” Veronika.

The trial justice also reappointed attorney Janice Head as the guardian ad litem for the couple's two children.² Soon after her reappointment as guardian, Ms. Head investigated the parties' living conditions and submitted a preliminary report to the Family Court on April 13, 2007. After a hearing was held before the trial justice on April 16, 2007, the trial justice reinstated unsupervised visitation between the children and Daniel, Sr. and established a visitation schedule.

On July 5, 2007, Daniel, Sr. filed a motion for emergency relief, in which he alleged that his children's living arrangement with their mother and her boyfriend was harmful to them, and he sought physical placement of his children, subject to Veronika's visitation rights. A hearing was held on July 11, 2007, resulting in an order reinstating shared physical possession, and the matter was subsequently continued for review until mid-August. After an in-chambers conference among counsel for the parties and the guardian held on August 16, 2007, the trial justice issued an order, dated September 4, 2007, which awarded Daniel, Sr. physical possession of the parties' two children and continued the matter for a hearing on October 4, 2007. Veronika filed a petition for a writ of certiorari with this Court on August 29, 2007, in which she sought review of that order, which was made without an evidentiary hearing to supplement the recommendations of the guardian ad litem. This Court entered an order that directed the Family Court to conduct an evidentiary hearing forthwith.

In compliance with our order, the Family Court conducted evidentiary hearings on the issue of custody and placement over several days in September, October, and November, 2007. Several witnesses were called to testify, in addition to the parties, including the guardian ad litem, the boys' pediatrician, a child psychologist who examined the parties and Daniel, Jr., a former coworker of Veronika, and Veronika's fiance, Todd Quinter. The hearings revealed divergent testimony among Daniel, Sr., Veronika, her fiance, and the guardian.

Ms. Head testified that when she conducted her investigation of the parties' living arrangements in March 2007, Veronika was living in Attleboro, Massachusetts, with her fiance, her younger brother, and her two sons. As of the date of the hearing, she said that Veronika had moved, and was living in Smithfield, Rhode Island, in a nice home and that she “didn't see any evidence that [her fiance] was living there” when she visited. According to the guardian, however, Veronika told her that after she moved to Smithfield, “she was living with her boyfriend and had been for some months before that.” The guardian testified that there was no indication that Daniel, Sr. had either a wife or girlfriend.

In her report, the guardian recommended to the Family Court that the children should be placed with their father. In her testimony, she said that she felt that it was most appropriate for the children to live with their father “because of the lack of [Veronika's] fostering [of a] relationship between the children and their father, and because my belief is that [Veronika] has been pressuring Daniel[, Jr.] to say certain things to certain people.” Ms. Head also recounted several episodes that were of concern to her that decreased her confidence in Veronika. She discussed an incident in which Veronika contacted the Attleboro police on January 7, 2006, because she thought that Daniel, Sr. was driving by her house, although no charges were filed. According to Ms. Head, Daniel, Sr. informed her that he was at home sleeping at the time. The guardian testified that Veronika's report of alleged abuse of Daniel, Jr. by Daniel, Sr. on February 20, 2007, also factored into her recommendation. She said that she particularly considered the discrepancies between the police and hospital records reporting that Daniel, Jr.'s uncle was solely responsible, and Veronika's subsequent assertion in Attleboro District Court that Daniel, Sr. was responsible for the boy's injuries, as well.³

Next, she expressed her concern about a notation placed in Daniel, Jr.'s school records at the request of Veronika that no information was to be given to Daniel, Sr. The guardian said that she believed this to be inappropriate because the parties had joint custody at that time. Ms. Head also was alarmed by obscenities that eight-year-old Daniel, Jr. wrote on his school desk, in which he disparaged himself. She suspected that Rafael, who was also swearing in English, and Daniel, Jr. learned these offensive words from Veronika's fiance. She also was deeply troubled by Daniel, Jr.'s assertion that he saw his mother and her fiance being inappropriately affectionate, which made him very upset to the point of declaring that it made him want to die. Overall, Ms. Head testified that she perceived “a clear pattern that [Veronika] is attempting to disrupt the relationship the children have with [Daniel, Sr.],” while she did not detect such a destructive effort on the part of Daniel, Sr.

In their testimony at the hearings, both Veronika and Mr. Quinter adamantly denied the conduct that the guardian attributed to them. They each testified that they purposely did not display any signs of affection in front of the children. According to...