Costa v. Vogel
| Decision Date | 08 August 2001 |
| Citation | 777 A.2d 827,2001 ME 131 |
| Parties | Darby J. COSTA v. Adam W. VOGEL. |
| Court | Maine Supreme Court |
Jane S.E. Clayton, Vafiades, Brountas & Kominsky, Bangor, Maine, for the plaintiff.
Martha J. Harris, Paine, Lynch & Harris, Bangor, Maine, for the defendant.
Panel: WATHEN, C.J. and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
[¶ 1] Adam W. Vogel, defendant in an action to determine parental rights and responsibilities, appeals from a judgment entered in the Superior Court (Penobscot County, Hjelm, J.) affirming that part of a judgment entered in the District Court (Bangor, Russell, J.) granting primary physical residence of the couple's minor child, Kalvin, to Plaintiff Darby J. Costa.1 Vogel argues that the award of primary residence was in error, based on the factors enumerated in 19-A M.R.S.A. § 1653(3) (1998 & Supp.2000). Finding no error, we affirm the judgment.
[¶ 2] The facts may be summarized as follows: Adam W. Vogel and Darby J. Costa are unmarried persons who lived together for almost thirteen years before they separated in 1999. They are the parents of Kalvin Costa-Vogel, born August 8, 1994. After separating, Costa filed a complaint seeking a determination of parental rights and responsibilities. Vogel moved to dismiss Costa's complaint and counterclaimed for determination of parental rights and responsibilities. The District Court entered a judgment and ordered, inter alia, shared parental rights with primary residence awarded to Costa. Vogel appealed to the Superior Court, which affirmed the judgment as to parental rights, responsibilities, and primary residence. Vogel now appeals to us.
[¶ 3] Vogel contends that the trial court abused its discretion, ignored evidence, and substituted its understanding of child development for an individualized assessment of Kalvin's situation. Based on testimony that showed Kalvin was "happy and well adjusted," Vogel submits that the court "clearly erred" in determining the best interests of the child with reference to the parties' prior arrangements for Kalvin's shared residence. We disagree.
[¶ 4] We review directly the judgment of the District Court when the Superior Court has presided as an intermediate appellate court. Hinkley v. Hinkley, 2000 ME 64, ¶ 7, 749 A.2d 752. "The [trial] court's decision regarding the best interests of the child is entitled to substantial deference and its findings will stand unless clearly erroneous." Id. To determine the best interests of the child, the trial court must act as a "competent and cautious guardian of the child's interest and determine what parental rights arrangements will serve that interest." Id.; see also 19-A M.R.S.A. § 1653(3) (1998 & Supp.2000); Rodrigue v. Brewer, 667 A.2d 605, 606 (Me.1995).
[¶ 5] In contradiction to Vogel's argument, the record reveals that the District Court focused on Kalvin and his best interests. The court specifically noted that the child should not be "yawed back and forth with one set of rules at one house, and one bedtime at one house, and one set of rules in the other house." The record reveals Kalvin's occasional confusion about his residence on a particular day, and the court acknowledged that Kalvin's confusion from repetitive transitions "is understandable and a valid concern." The court concluded that the "major bone of contention is the number of transitions that the child is required to make between homes, particularly during the school week" and ordered primary residence to Costa.
[¶ 6] Beyond the question of residence, the court concluded that shared parenting was appropriate and awarded extensive contact rights to Vogel which included: alternating weekends from Friday at 5:00 p.m. until Sunday at 6:00 p.m. (and until Monday at 6:00 p.m. when Kalvin does not have school and Vogel does not have to work); five weeks during the summer; four holidays alternating on even-and odd-numbered years; half of the Christmas/holiday school vacation, alternating on even-and odd-numbered years; either the winter or...
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Thompson v. Rothman
...JUDGMENT [¶ 6] We review the District Court's judgment directly when the Superior Court has acted in its appellate capacity. Costa v. Vogel, 2001 ME 131, ¶ 4, 777 A.2d 827, 828. We have applied a two-part test to determine whether an order clarifying a divorce judgment should (1) whether th......
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In re Los
...the mother's appeal challenging a jeopardy order when the mother filed a brief but did not file a notice of appeal); see also Costa v. Vogel, 2001 ME 131, ¶ 1 n.1, 777 A.2d 827; Town of Mount Desert v. Smith, 2000 ME 88, ¶ 8, 751 A.2d 445 (holding that the timely filing of a cross-appeal to......
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In re Paige L., Docket: Ken–16–423
...the mother's appeal challenging a jeopardy order when the mother filed a brief but did not file a notice of appeal); see also Costa v. Vogel , 2001 ME 131, ¶ 1 n.1, 777 A.2d 827 ; Town of Mount Desert v. Smith , 2000 ME 88, ¶ 8, 751 A.2d 445 (holding that the timely filing of a cross-appeal......
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U.S. Bank Trust, N.A. v. MacKenzie
...the change in the judgment sought by the appellant.” Alexander, Maine Appellate Practice § 2.7(a) at 39 (4th ed. 2013); see also Costa v. Vogel , 2001 ME 131, ¶ 1 n.1, 777 A.2d 827. Because the Bank failed to file a cross-appeal, it has forfeited any opportunity to argue on appeal that the ......