Berard v. Berard

• Court: Rhode Island Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Berard v. Berard, 749 A.2d 577 (R.I. 2000)
• Decision Date: 28 April 2000
• Docket Number: No. 99-365-Appeal.,99-365-Appeal.
• Parties: Michael J. BERARD v. Patricia A. BERARD.

749 A.2d 577

Michael J. BERARD v. Patricia A. BERARD.

No. 99-365-Appeal.

Supreme Court of Rhode Island.

April 28, 2000.

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.

Marc B. Press, Lise M. Iwon, Wakefield, for plaintiff.

Patricia J. Berard Pro Se.

OPINION

PER CURIAM.

This case came before the Court for oral argument on April 3, 2000, pursuant to an order directing both parties to appear in order to show cause why the issues raised by this appeal should not be summarily decided. After hearing the arguments of counsel for Michael Berard (Michael or plaintiff) and Patricia Berard (Patricia or defendant), who argued pro se, and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised by this appeal should be decided at this time. The facts pertinent to this appeal are as follows.

The defendant appeals, pro se, from a Family Court order that awarded sole custody of her three children, along with use of the marital domicile, to plaintiff, and denied defendant rehabilitative alimony. The parties, Patricia and Michael, were married on December 30, 1983, and separated on or around September 28, 1997. Three children were born of the marriage: Ryan M. Berard, date of birth 11/25/86, Makayla A. Berard, date of birth 12/25/91, and Sean M. Berard, date of birth 1/7/93. The plaintiff has been employed as an aircraft electrician for the Rhode Island Air National Guard since 1983. He grosses approximately $1,532 biweekly. The defendant was employed as a bus driver for Ryder for ten years, but was discharged on September 8, 1997. At the time of the hearing in Family Court she was unemployed.

Following a series of separations, plaintiff filed for divorce on June 30, 1998, and sought joint custody of the three children, and placement with their mother. Throughout the summer of 1998, defendant repeatedly refused plaintiff visitation and access to the marital domicile to obtain his belongings, despite the issuance of court orders. As a result, plaintiff filed a motion for emergency relief with the Family Court on July 16, 1998. The Department of Children, Youth and Families (DCYF) was ordered to conduct an immediate investigation and make recommendations for placing of the children. A social worker employed by DCYF recommended placing them with plaintiff. The plaintiff eventually was awarded temporary sole custody of the children,¹ and defendant was ordered to undergo psychiatric counseling. On February 5, 1999, a Family Court justice appointed a guardian ad litem for the three children and granted supervised visitation to defendant through the guardian, with telephone contact two times per week.

On July 21, 1999, a Family Court justice rendered a decision, pending entry of final judgment, granting plaintiff's complaint and defendant's counterclaim for an absolute divorce. He awarded sole custody of the three minor children to plaintiff, with reasonable supervised visitation to defendant. The trial justice ordered defendant to submit to a court-appointed psychological examination before allowing any unsupervised visits. He further assigned the marital assets 50 percent to each party, and awarded the sole use and title to the marital domicile to plaintiff so plaintiff could reside there with the children. The defendant requested, but was denied, alimony. She appeals from this decision.

On appeal, defendant argues that the best interests of the children require that they be placed with her, and that plaintiff's willful desertion, as well as his physical and verbal abuse, subjected her and the children to extreme cruelty and neglect. She challenges the trial justice's reliance on the DCYF report and the guardian ad litem's testimony in determining the children's best interests. She further contends that it was error to award the marital domicile to plaintiff, and that the denial of alimony imposed an extreme financial hardship upon her.

Child Custody

It is well-settled that the best interests of the child remain the "lode-star principle" for determining child custody awards. Sammataro v. Sammataro, 620 A.2d 1253, 1254 (R.I.1993). In support of her argument that she should have been awarded custody of the children, defendant relies upon Loebenberg v. Loebenberg, 85 R.I. 115, 127 A.2d 500 (1956), for the proposition that a mother who is "fit" should have custody of young children, especially girls. We stated in Loebenberg that this was merely a "general guide," and that the best interests of the child ultimately governed custody disputes. Id. at 120-21, 127 A.2d at 503.

This Court's standard of review on the issue of custody and the best interests of the child is limited to whether the trial justice abused his discretion in making a particular custody award. See Pettinato v. Pettinato, 582 A.2d 909, 914 (R.I. 1990). This Court will "not disturb findings of fact made by a Family Court justice unless * * * such findings are clearly wrong or * * * the trial justice overlooked or misconceived evidence relevant to the issues decided." D'Onofrio v. D'Onofrio, 738 A.2d 1081, 1083 (R.I.1999) (citing Lembo v. Lembo, 677 A.2d 414, 417 (R.I.1996)). An extensive review of the record reveals that there was ample evidence to support the trial justice's findings.

The trial justice, in an exhaustive opinion, meticulously discussed each of the eight factors set forth in the landmark opinion, Pettinato, 582 A.2d at 913-14. He discussed, in detail, the parents' wishes, the children's preferences, the interrelationship of the children with both parents and the paternal grandparents, the children's adjustment to their living arrangement and school, the mental and physical health of both parents, the stability of the children's home environment, the moral fitness of the parents, and the willingness of each parent to facilitate a close relationship between the children and the other parent. The trial justice considered defendant's erratic behavior, such as showing up at plaintiff's parents' domicile and forcibly removing the children from the home, along with the numerous incidents of defendant's noncompliance with the court's visitation orders. Such behavior can only be determined to be contrary to the children's best interests.

As a result, the trial justice concluded that defendant was not able to provide the children with the emotional support and guidance that they required, that they were currently living in a safe and nurturing environment, and that plaintiff was the more likely parent to help reestablish a relationship between the children and defendant. We are particularly persuaded that, in this case, defendant's documented psychological difficulties make her ability to parent the children quite doubtful.²

The defendant also raises a plethora of other challenges with respect to the guardian ad litem and the alleged abandonment and abuse by plaintiff. Briefly, we address these arguments. There is no indication in the record that the trial justice adopted the recommendations of the guardian to the exclusion of any other evidence presented by the parties. Rather, the trial justice based his custody determination not only on the report and the testimony of the guardian, which detailed accounts of defendant's failure to cooperate with interviews and scheduled visitation, but also on the DCYF report, which documented that during a visit with the children, defendant directed...