Conlogue v. Conlogue

• Decision Date: 09 February 2006
• Citation: 890 A.2d 691,2006 ME 12
• Parties: Herschel CONLOGUE et al. v. Patricia CONLOGUE.
• Court: Maine Supreme Court

Page 691

890 A.2d 691

2006 ME 12

Herschel CONLOGUE et al. v. Patricia CONLOGUE.

Supreme Judicial Court of Maine.

Argued: October 18, 2005.

Decided: February 9, 2006.

Richard L. Currier, Esq., Anthony A. Trask, Esq. (orally), Currier & Trask, P.A., Presque Isle, for plaintiffs.

Daniel R. Nelson, Esq., Stephen D. Nelson, Esq. (orally), Severson, Hand & Nelson, P.A., Houlton, for defendant.

G. Steven Rowe, Attorney General, Heidi D. Silver, Asst. Atty. Gen. (orally), Matthew E. Pollack, Asst. Atty. Gen., Augusta, for amicus curiae.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

DANA, J.

[¶ 1] Herschel and Jane Conlogue appeal from a judgment entered in the District Court (Houlton, O'Mara, J.) dismissing their petition under section 1803 of the Grandparents Visitation Act, 19-A M.R.S. §§ 1801-1805 (2005).¹ They argue that the court erred (1) in concluding that the Act's grant of standing to grandparents when one parent has died, id. § 1803(1)(A), is unconstitutional; and (2) in its award of costs, including attorney fees, to Patricia Conlogue. We affirm the court's dismissal of the petition on due process grounds, but we vacate the award of costs and fees.

I. BACKGROUND

[¶ 2] Kevin and Patricia Conlogue were married and had one daughter, born in 2000. Kevin died in 2003. In June 2004, Kevin's parents, Herschel and Jane (the grandparents), filed a petition under the Act, seeking court-ordered visitation with their granddaughter. Patricia filed a motion to dismiss because the grandparents had not filed an affidavit pursuant to section 1803(2)(A) of the Act alleging facts that would establish their standing under section 1803(1)(B) or (C). Patricia withdrew her motion when the grandparents objected that they were proceeding under section 1803(1)(A), which gives grandparents standing to file a petition when "[a]t least one of the child's parents or legal guardians has died" and does not require the filing of an affidavit.²

[¶ 3] Patricia then filed a second motion to dismiss on constitutional grounds and a motion for costs and fees, with a supporting affidavit setting forth her attorney fees of $1133.30. She later filed a second affidavit with information about her financial situation. The grandparents opposed both motions but did not file a financial affidavit. The court held a hearing in November 2004 at which it heard argument on the motion to dismiss. The grandparents' attorney then asked that the court defer ruling on the motion for costs and fees until a final hearing and that "if you want financial information from [the grandparents], that I have fourteen days to do that." The court replied, "[W]hat I'm going to do on that — that motion is defer it until a final hearing, if there is one. . . . So, on the motion for fees, that is deferred." The grandparents did not submit any financial information following the hearing.

[¶ 4] In January 2005, without holding an additional hearing, the court entered an order granting both of Patricia's motions. The order included an extensive analysis of the issues raised by the motion to dismiss, but the only discussion of the motion for fees and costs was the following: "After review of the pleadings, and fee affidavit, Respondent's Motion for Costs is GRANTED, pursuant to [19-A M.R.S.A. § 1803(6) (1998)]. Respondent is awarded $1,000.00 for her attorney's fees, execution to issue." The grandparents then brought this appeal.

II. DISCUSSION

A. Constitutionality of 19-A M.R.S. § 1803(1)(A)

1. Constitutional Issue on Appeal

[¶ 5] Patricia's motion to dismiss contended that section 1803(1)(A) is unconstitutional on its face and as applied under the due process and equal protection clauses of the United States and Maine Constitutions. We need not address all of these issues. First, we do not address Patricia's facial challenge to the statute. We note that nothing in the Act limits grandparent visitation petitions to situations where the child is in the custody of a biological or adoptive parent. To find section 1803(1)(A) is unconstitutional on its face, we would need to conclude that there are no circumstances in which it would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), cited in In re Heather C., 2000 ME 99, ¶ 20, n. 7, 751 A.2d 448, 454. To do this, we would need to explore the very different issues that would be raised by a petition to require visitation against the wishes of a nonparent custodian such as a legal guardian. Because this case can be resolved on an as-applied basis, we have no reason to address such issues.

[¶ 6] Second, we do not address the validity of the statute under the Maine Constitution. Patricia has not argued that the Maine due process and equal protection clauses provide her with any greater protection than their federal counterparts, cf. Carroll F. Look Constr. Co. v. Town of Beals, 2002 ME 128, ¶ 17, 802 A.2d 994, 999 (stating that federal and Maine due process rights are coextensive); Botting v. Dep't of Behavioral & Developmental Servs., 2003 ME 152, ¶ 23, 838 A.2d 1168, 1176 (stating that federal and Maine equal protection rights are coextensive), and the parties have not pressed any state constitutional arguments on appeal. Finally, our disposition of Patricia's due process argument makes it unnecessary for us to address her equal protection argument. Our discussion is thus confined to the issue of whether section 1803(1)(A), as applied in this case, violates Patricia's federal due process rights.³

2. Troxel and Rideout

[¶ 7] Our analysis of this question begins with the decisions of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and of this Court in Rideout v. Riendeau, 2000 ME 198, 761 A.2d 291. Although in neither case was a single opinion joined by the majority of the court,⁴ the plurality opinions in both cases offer significant guidance on the substantive due process implications of a statute providing for court-ordered grandparent visitation.

[¶ 8] In Troxel, the Supreme Court considered an order granting visitation to the paternal grandparents of two girls whose father was deceased, over the objections of their mother. 530 U.S. at 60-61, 120 S.Ct. 2054. The Washington statute at issue allowed a court to grant visitation to any person at any time if the court found visitation to be in the best interest of the child. Id. at 61, 120 S.Ct. 2054. The Supreme Court affirmed the judgment of the state supreme court holding the statute to be unconstitutional. Id. at 63, 120 S.Ct. 2054. Justice O'Connor's plurality opinion concluded that the statute, as applied violated the mother's fundamental substantive due process right to make decisions concerning the care, custody, and control of her children. Id. at 72, 75, 120 S.Ct. 2054. This conclusion rested on the "sweeping breadth" of the statute and the fact that the trial court had applied a presumption in favor of grandparent visitation rather than deferring to the mother's judgment on whether visitation was in the best interest of the children. Id. at 67-73, 120 S.Ct. 2054. According to the plurality, such a decision by a fit parent must be given "special weight," and can only be interfered with by the state on a showing of "special factors." Id. at 68-69, 120 S.Ct. 2054. The plurality declined to decide whether such special factors are limited to harm or potential harm to the child, because there were no special factors present that could justify the trial court's order of visitation.⁵ Id. at 73, 120 S.Ct. 2054.

[¶ 9] In Rideout, this Court examined the constitutionality of court-ordered visitation under the Maine Act in a situation where the grandparents asserted standing pursuant to 19-A M.R.S.A. § 1803(1)(B) (1998) based on a "sufficient existing relationship" with their grandchildren. 2000 ME 198, ¶ 17, 761 A.2d at 299. The District Court found that the grandparents met the statutory criteria and would be entitled to visitation, but held the Act to be unconstitutional and so dismissed the petition. Id. ¶ 6, 761 A.2d at 295. We vacated the judgment and remanded for further proceedings. Id. ¶ 34, 761 A.2d at 303.

[¶ 10] Justice Saufley's plurality opinion upheld the Act as applied against the parents' substantive due process challenge. Id. ¶ 33, 761 A.2d at 303. Because an order of visitation against the parents' wishes infringes upon a fundamental right that is well-established in Maine and federal precedent, the statute had to withstand strict scrutiny, which requires that the infringement be narrowly tailored to serve a compelling state interest. Id. ¶¶ 18-20, 761 A.2d at 299-300. The plurality concluded that a compelling state interest in interfering with the decision-making of a fit parent may exist not only when there is a threat of "harm" to the child, narrowly defined, but also when other "urgent reasons" are present. Id. ¶¶ 23-24, 761 A.2d at 300-01. One such urgent reason is the preservation of an existing relationship between grandparents and grandchildren when the grandparents functioned as parents to the children for a significant period of time, as the Rideouts alleged that they had done. Id. ¶¶ 25-27, 761 A.2d at 301-02.

[¶ 11] The plurality next considered whether the Act was narrowly tailored to serve this compelling interest, and concluded that it was. Id. ¶¶ 29, 33, 761 A.2d at 302-03. In sharp contrast to the statute at issue in Troxel, the Maine Act contains multiple layers of protections before grandparent visitation can be ordered: the grandparent must first establish standing; the court must consider the parent's objections; and the court may order visitation only if it would not significantly interfere with the parent-child relationship or the parent's rightful authority. Id. ¶¶ 29-32, 761 A.2d at 302-03. The plurality thus concluded that the Act could be applied without violating the parents'...