Deprete v. Deprete

• Decision Date: 20 June 2012
• Docket Number: No. 2010–233–Appeal.,2010–233–Appeal.
• Parties: Beth A. DEPRETE v. Michael F. DEPRETE.
• Court: Rhode Island Supreme Court

44 A.3d 1260

Beth A. DEPRETE

v.Michael F. DEPRETE.

No. 2010–233–Appeal.

Supreme Court of Rhode Island.

June 20, 2012.

Nicholas L. Colangelo, Esq., Cranston, for Plaintiff.

Molly Kapstein Cote, Esq., Warwick, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice ROBINSON, for the Court.

The plaintiff, Beth A. DePrete, appeals from an order of the Family Court reflecting the court's denial of her motion seeking leave of court to relocate the parties' two minor children from Rhode Island to Texas and seeking modification of the final judgment of divorce to reflect same. On appeal, the plaintiff contends (1) that the justice of the Family Court who passed upon her motion abused his discretion, overlooked or misconceived the evidence, and was clearly wrong in finding that it was not in the best interests of the children to allow them to relocate to Texas; and (2) that, in determining whether relocation served the best interests of the children, the Family Court justice failed to properly apply the criteria set forth in this Court's opinion in Dupre v. Dupre, 857 A.2d 242 (R.I.2004).

This case came before the Supreme Court for oral argument pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After reviewing the record and considering the written and oral submissions of the parties, we are satisfied that cause has not been shown and that this appeal may be resolved without further briefing or argument.

For the reasons set forth in this opinion, we affirm the order of the Family Court.

IFacts and Travel

The parties to the case at bar were married on August 11, 2000, and two minor children were born of that marriage.¹ On March 20, 2007, the plaintiff filed for divorce on the ground of irreconcilable differences that she alleged had caused the irremediable breakdown of the marriage. A final judgment of divorce was entered on May 16, 2008; that judgment awarded joint custody of the children to the parties, with physical possession being granted to plaintiff and with defendant having all reasonable rights of visitation. In June of 2009, an order was entered which granted more extensive visitation rights to defendant during school vacations and the Summer months.

On August 6, 2009, defendant filed an ex parte emergency motion seeking an order enjoining and restraining plaintiff from permanently removing the children from Rhode Island without first obtaining the approval of the Family Court. The Family Court granted that motion.

Thereafter, on October 19, 2009, plaintiff filed the motion which is the focus of the instant appeal. That motion sought leave of court to relocate with the two minor children to San Antonio, Texas, and it sought modification of the final judgment of divorce to reflect same. As her reason for filing said motion, plaintiff stated that she had become engaged to Lieutenant Colonel Paul A. Longo (Colonel Longo), “an active duty dental officer in the United States Air Force,” who was stationed in San Antonio. The plaintiff argued that the “general quality of life” of the parties' children would improve by their moving to Texas. In due course, defendant filed an objection to plaintiff's motion.

A hearing on plaintiff's motion was held by the Family Court over six days in February of 2010. The plaintiff presented three witnesses in support of her motion, and she also testified in support thereof. The defendant likewise testified in support of his objection, and he presented the testimony of one additional witness.

AThe Testimony of Lieutenant Colonel Longo

Colonel Longo was the first witness to testify on behalf of plaintiff. Colonel Longo testified that he had known plaintiff since 1995 and that he became engaged to her on July 3, 2009. Colonel Longo further testified that, as of the time of the hearing before the Family Court, he had been residing in San Antonio for approximately eighteen to nineteen months; he further stated that it was his second time living in San Antonio. Colonel Longo stated that he was an Air Force officer on active duty; he added that he had been on active duty for twelve years. He testified that he was stationed at Lackland Air Force Base in San Antonio and that he would be required to remain stationed at that base until August of 2012. Colonel Longo stated that he was currently serving as the “director of clinical prosthodontics for the United States Air Force” and was also the “regional prosthodontics consultant.” He stated that his annual rate of pay at the time of the hearing was $160,000 and that, in addition to that salary, he received a monthly food allowance of approximately $158 and a monthly housing allowance of $1,343.

Colonel Longo further testified that he was a Rhode Island native and that “[a]ll of [his] extended family” lives in Rhode Island; he specifically noted that his parents and both of his sisters live in Rhode Island. Colonel Longo testified that he visits the members of his extended family in Rhode Island “[t]wo to three times a year” for periods varying from four days to one week.

Colonel Longo further testified at the February 2010 hearing that he had plans to be married to plaintiff on July 10 of that year.² He stated that, upon marrying plaintiff, his monthly housing allowance would increase to $1,600 and that plaintiff and her children would become eligible to benefit from his medical insurance. He testified that it was his belief that the medical insurance would be provided to them at no extra cost. He further testified that, once plaintiff and he were married, she and her children would become eligible to benefit from his dental insurance, although he would be required to make an additional monthly payment of $39 for the dental insurance. Colonel Longo also testified that he owned the three-bedroom house in which he resided in San Antonio. He stated that the house was located in a community with a homeowners' association; he said that the association provided certain amenities to its members—including a playground, a basketball court, a swimming pool, and a recreation center.

Colonel Longo testified that he and plaintiff had twice traveled to Texas with her two children. He further testified that he had also spent time with the children in Rhode Island. With respect to his relationship with the two children, Col. Longo described that relationship as follows:

“Positive. It's a work in progress. Every time I come home, I feel like I get to know them a little better and they know me a little better.”

He then proceeded to list several activities that he and the children had engaged in during his visits to Rhode Island.

Colonel Longo testified that, if the court were to grant permission for the relocation of the children, he would “have no problem” with the children traveling with plaintiff to Rhode Island for the purpose of facilitating the children's relationship with defendant; he added that in fact he “would encourage it.” With respect to his observations of the relationship between plaintiff and the children, Col. Longo stated:

“They are very close. They have a great relationship. They open up to their mother. Beth does an amazing job taking care of them.”

In response to a question posed by plaintiff's attorney concerning what he would deem his role to be with respect to the children upon marrying plaintiff, Col. Longo testified as follows:

“Well, as a stepparent or stepfather, I am certainly not trying to take the place of [defendant]. He will always be their father and I will respect and honor that. I see my role as a mentor, a role model for the children, friend and a male figure on whom they can rely.”

On cross-examination, Col. Longo acknowledged that he did not have a guarantee or agreement with the military that he would remain in San Antonio after his current assignment. He acknowledged that, after his present four-year term in San Antonio comes to an end, he could not “personally control the [next] assignment” and that it would be his “boss” who would determine his next assignment. He further testified that he would “make every attempt” to remain in San Antonio after the expiration of his current assignment, and he added that there were “other assignments within the city.” Later in his testimony, Col. Longo elaborated that there are only forty-five prosthodontists in the Air Force and that they tend to “go to bigger Air Force bases;” he added that there are “about thirteen locations within the continental United States.” Colonel Longo also acknowledged that, on reassignment, he could be sent to Alaska, Hawaii, Japan, or England.

Colonel Longo further acknowledged on cross-examination that neither he nor plaintiff had any relatives in Texas. With respect to his relationship with plaintiff, he stated that, between the point in time when he began talking with plaintiff on the telephone (February of 2009) and the date on which she and he became engaged (July 3, 2009), he had visited Rhode Island “about five times.” He further testified that, once he retired, he planned on moving back to Rhode Island.³ Colonel Longo also testified that, if the children were not permitted to relocate to Texas, he and plaintiff had agreed that they “would certainly get married and continue seeing each other * * *.”

BThe Testimony of Plaintiff

The plaintiff herself was the next witness to testify at the hearing. She testified that she had “been the primary caretaker” of her two children and that “they have resided with [her] all of [the] time.” With respect to her day-to-day involvement with the children, plaintiff testified that it was her responsibility to “get [them] up and ready for school,” to feed and dress them, to “get them to school,” and then to pick them up after school. She further testified that she makes supper for the children and that they then eat together; she added that, after supper, she helps...