D'ONOFRIO v. D'ONOFRIO

• Decision Date: 21 October 1999
• Docket Number: No. 98-149-Appeal.,98-149-Appeal.
• Citation: 738 A.2d 1081
• Parties: Maureen E. D'ONOFRIO v. David P. D'ONOFRIO.
• Court: Rhode Island Supreme Court

738 A.2d 1081

Maureen E. D'ONOFRIO v. David P. D'ONOFRIO.

No. 98-149-Appeal.

Supreme Court of Rhode Island.

October 21, 1999.

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

Louis M. Pulner, William J. Lynch, Providence, for Plaintiff.

Lauren E. Jones, Providence, for defendant.

OPINION

PER CURIAM.

This case concerns the evidentiary significance of a guardian ad litem's report in a dispute involving a requested change in the physical placement of a divorced couple's child. The plaintiff, Maureen E. D'Onofrio (mother), appeals from a Family Court order denying her motion for a change of physical possession concerning the minor child of her marriage to the defendant, David P. D'Onofrio (father). We ordered the parties to show cause why we should not decide this appeal summarily. None having been shown, we proceed to do so.

The parties divorced in 1996. Pursuant to a January 1996 decision pending entry of final judgment, the Family Court awarded custody of the minor child to the mother and the father jointly, but physically placed the child with the mother. At that time both parties resided in this state. Prior to the entry of the final-divorce judgment in May 1996, the mother decided to move to England to reside with one Michael Tierney, her soon-to-be husband. As a result of the mother's relocation outside the country, the mother and the father agreed that the interlocutory decree would be amended to award custody to both parents but with physical placement of the child given to the father in Rhode Island, subject to extended visitations with the mother. In May 1996 a final judgment reflecting these changes entered, and the mother remarried in July.

Thereafter, in October 1996, the mother filed a motion to change these custody arrangements, requesting that she be awarded physical placement of the child. The mother further petitioned that she be allowed to relocate with the child to England. Despite the fact that just five months prior to the filing of this motion the final divorce decree provided that the father was to assume parental care and responsibility for the child in Rhode Island, the mother alleged that the child's maternal grandmother, who also resided in this state, had been and remained the child's primary caretaker.¹ In November 1996, before a hearing on the mother's motion, an order entered appointing a guardian ad litem for the child.

At the hearing on the mother's motion for a change in the parties' physical possession of the child, the court heard from numerous witness. In his 1997 decision the trial justice recognized that in addition to seeking a change in the physical possession of the child, the mother also wanted to relocate with the child to England. He stated that he had considered the evidence presented, as well as the applicable statutory and case law. The trial justice found that the mother, in moving to England, "made, what was undoubtedly a very difficult decision to at least temporarily put her romantic interest ahead of her child's interest." The court also found that the father had provided a stable and consistent life for the child. Recognizing that the mother had the burden of proving a substantial change in circumstances since the entry of the final judgment, the trial justice concluded that "there is not a substantial change in circumstances justifying a change in physical possession." An order embodying this ruling entered in September 1997, and the mother filed a timely notice of appeal.

On appeal the mother asserts that the trial justice disregarded the testimony and the recommendation of the court-appointed guardian ad litem (guardian) that the child's best interest would be served by living with her mother in England. The mother disputes the trial justice's findings and suggests that the trial justice should have given more weight to the guardian's testimony and that he abused his discretion in having failed to do so.

In this state no statutory mandate requires the appointment of a guardian ad litem in child-custody disputes. See G.L.1956 § 15-5-16.2(c) ("[t]he court may, if in its discretion it deems it necessary or advisable, appoint an attorney or a guardian ad litem to represent the interest of a minor or dependent child with respect to his or her * * * custody"). Rather, a "trial justice has the inherent power to appoint a guardian ad litem whenever it appears that there are interests of minor to be protected." Parrillo v. Parrillo, 495 A.2d 683, 686 (R.I.1985) (citing Zinni v. Zinni, 103 R.I. 417, 421, 238 A.2d 373, 376 (1968)). Pursuant to an order of the court entered in January 1997, a guardian was appointed in this case "to interview the defendant and plaintiff's mother for purposes of presenting to [the Family] Court a report on the health, welfare and living arrangements for the parties [sic] minor child Jordan." By agreement of the parties, the court appointed an attorney to serve as the guardian. In February 1997 the court entered an order directing the guardian to travel to England to conduct a review of the mother's living arrangements to assist the court in evaluating whether to allow the child to move to England to join her mother.

At the hearing the guardian testified that as part of her investigation, she interviewed the parents, the grandparents, teachers, and the minor child. She also testified about the abilities of each parent to care for the minor child, relying upon her conversations with the parties. Despite the father's having physical possession of the minor child, the child spent a significant amount of time with the maternal grandmother, because of the father's work schedule. The guardian also noted that the child had expressed the desire to stay in one place, as opposed to shuttling between her father's and her grandmother's homes. According to the guardian, both the father and the maternal grandmother demonstrated considerable hostility toward the mother's remarriage.

In April of 1997 the guardian accompanied the child on a visit to her mother's...