Campbell v. Campbell

• Decision Date: 26 February 1992
• Citation: 604 A.2d 33
• Parties: Robert A. CAMPBELL v. Leatrice I. CAMPBELL.
• Court: Maine Supreme Court

Page 33

604 A.2d 33

Robert A. CAMPBELL v. Leatrice I. CAMPBELL.

Supreme Judicial Court of Maine.

Argued Jan. 8, 1992.

Decided Feb. 26, 1992.

Ronald P. Lebel, Rocheleau, Fournier & Lebel, P.A., Lewiston, for plaintiff.

Toby H. Hollander, Robert A. Laskoff, P.A., Lewiston, for defendant.

Christopher Leighton, Asst. Atty. Gen., Augusta, for amicus curiae.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, and COLLINS, JJ.

McKUSICK, Chief Justice.

In this divorce case we address for the first time the questions whether and to what extent the trial court in awarding parental rights and responsibilities may consider one parent's unsuccessful prosecution of a protection from abuse complaint against the other. We hold that the parent's action is relevant to the divorce court's consideration only if the court finds by clear and convincing evidence both 1) that the parent willfully misused the protection process in order to gain a tactical advantage in the divorce proceeding, and 2) that in the particular circumstances of the divorcing couple and their children, that willful misuse tends to show that the acting parent will after the divorce have a lessened ability and willingness to work with the other parent in their joint responsibilities for the children.

In allocating parental rights and responsibilities in the divorce action between Robert A. and Leatrice I. Campbell, the Superior Court (Oxford County, Alexander, J.) awarded to Mr. Campbell the primary physical residence of the Campbells' two sons, then aged 10 and 8. The court treated as a determinative factor in that decision the circumstances of Mrs. Campbell's prosecution of a protection from abuse proceeding against Mr. Campbell concurrently with the early stages of the divorce action.

We vacate the divorce judgment and remand the matter to the Superior Court for reconsideration in light of the principles we here set forth.

I.

Mr. Campbell commenced this divorce action in the District Court (South Paris) on July 12, 1989. Six days later Mrs. Campbell filed her answer and counterclaim, along with a notice of removal to the Superior Court. Before the District Court could hear and decide various motions for orders pending divorce filed by both parties, Mrs. Campbell on August 2, 1989, brought a separate protection from abuse proceeding against Mr. Campbell and obtained from the District Court (South Paris, Batherson, A.R.J.) an ex parte order immediately giving her exclusive custody of the two boys and possession of the marital home in Buckfield. ¹ With a modification to give Mr. Campbell shared custody of the children, that arrangement continued until the District Court (Sheldon, J.) on January 30, 1990, dismissed Mrs. Campbell's protection from abuse proceeding. That dismissal followed extensive joint hearings in the two pending actions between the Campbells. The District Court's opinion and order found that it was "patent" no credible evidence supported Mrs. Campbell's request for a protective order and that she had knowingly signed an untrue assertion that she was in immediate and present danger of physical abuse by Mr. Campbell. ²

The divorce action was then promptly removed to the Superior Court. After an extensive hearing, the divorce court (Oxford County, Alexander, J.) on November 26, 1990, filed its opinion and order announcing the decision that is now here on appeal. In allocating parental rights and responsibilities for the two boys, the divorce court assigned their primary physical residence, along with the marital home in Buckfield, to Mr. Campbell because of "the litigation tactics that Mrs. Campbell had invoked, particularly the baseless and traumatic protection from abuse process." ³ The court found both parties to be good parents who love their children very much and who are both well able to assume the responsibilities inherent in providing their primary residence. The court concluded that "the litigation tactics employed by Mrs. Campbell--tactics harmful to the children--turned the tide in what otherwise would have been a very close and difficult case." In reaching that conclusion the Superior Court relied upon the District Court's findings in the protection from abuse proceeding; the parties had no prior opportunity to present evidence or argument on the issue the court found determinative.

Mrs. Campbell appeals, challenging only the assignment of the children's primary residence and related decisions of the Superior Court.

II.

By statute, 19 M.R.S.A. § 752(5) (Supp.1991), ⁴ the controlling consideration in a divorce court's award of parental rights and responsibilities is the best interests of the children. In turn, the statute lists thirteen factors that the court is instructed to consider in determining the children's best interests in the matter. Id. To respond to the question posed by this appeal, we must define the circumstances in which one parent's prosecution of a protection from abuse proceeding against the other is relevant to one or more of those statutory factors. See M.R.Evid. 401. Because we here define those circumstances as a novel matter, we remand to the Superior Court for reconsideration of its parental rights allocation.

First, the court's decision on remand should recognize that it is the children's best interests after the divorce that control a parental rights award. To choose the parent with whom children will have their primary residence subsequent to the divorce, the divorce court may properly consider only the children's best interests in the same period of time. Evidence of tactical actions by a parent before entry of the divorce judgment, even if possibly adverse to the children's best interests at the time of those pendente lite actions, is relevant to the parental rights decision only if those actions tend to show that the children's best interests will be adversely affected in the period after the divorce case has been concluded by entry of a final judgment. To give any greater effect to a parent's resort to protection from abuse proceedings would be to impose punishment upon that parent for past actions, something that has no place in framing a divorce judgment that will advance the future best interests of the children. Cf. Huff v. Huff, 444 A.2d 396, 398 (Me.1982) (divorce court erred by awarding custody to mother because of father's contempt of court).

Second, the divorce court's decision on remand should articulate what relevance Mrs. Campbell's prosecution of a protection from abuse proceeding has to any of the thirteen "best interest" factors listed in section 752(5), see n. 3 above, as applied to the particular circumstances of the present case. Among those factors that the statute requires the court to consider in awarding parental rights and responsibilities, three factors stand out as potentially implicated if one parent has abused the protection process. Those factors, identified by the letters H, I, and J, may be compendiously described as each parent's ability and willingness to work with the other parent in carrying out their joint responsibilities toward the children. Analysis leads us to conclude that a parent's tactical abuse has a bearing upon the children's best interests after the divorce judgment only if that evidence reasonably supports an inference in the particular circumstances of those parents and those children that, during the children's remaining years of minority, that parent will have a diminished ability and willingness to work cooperatively with the other in discharging their joint parental responsibilities. In other words, there must be a demonstrable nexus between the misuse of the protection process at the time of the ongoing divorce litigation and the children's best interests after the divorce litigation is concluded. The divorce court cannot adequately determine whether that nexus exists unless the divorce court itself, independently of the District Court's earlier dismissal of the protection from abuse proceeding, examines the totality of the circumstances of the family and the litigation between the parents. In making that independent examination, the divorce court must accord the parties an opportunity to present evidence and argument.

Third, the divorce court's decision on remand should be arrived at in a way that does the least damage to the strong public interest in having available an expeditious and effective means of protecting victims of domestic abuse. ⁵ Plainly the legislature enacted the protection from abuse statute, 19 M.R.S.A. §§ 761-A to...