Douglas v. Douglas
| Decision Date | 22 May 2012 |
| Docket Number | Docket No. Kno–11–321. |
| Citation | 2012 ME 67,43 A.3d 965 |
| Parties | Paul S. DOUGLAS v. Lisa M. DOUGLAS. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Christopher K. MacLean, Esq., Elliott & MacLean, LLP (orally), Camden, for appellant Lisa M. Douglas.
Eric B. Morse, Esq., Strout & Payson, P.A. (orally), Rockland, for appellee Paul S. Douglas.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
[¶ 1] Lisa M. Douglas appeals from the District Court's (Rockland, Tucker, J.) order granting Paul S. Douglas's motion to modify the couple's 2008 divorce judgment. Lisa argues that the court abused its discretion in modifying the divorce judgment to permit supervised, therapeutic reunification of the couple's child with Paul and that the court erred in finding the guardian ad litem fees reasonable. We affirm the judgment granting the motion to modify but vacate the judgment regarding the guardian ad litem fees.
[¶ 2] Lisa and Paul Douglas were married on August 23, 2003. The couple had a son born on March 29, 2004. Lisa filed a complaint for divorce on August 24, 2007. On April 14, 2008, the court held a contested divorce hearing, and it issued a divorce judgment on April 24, 2008.
[¶ 3] The court awarded Lisa sole parental rights and responsibilities of the couple's son because of the caustic relationship that existed between the parties, Paul's authoritarian and controlling behavior during the marital relationship, and an allegation that Paul had perpetrated sexual abuse upon the couple's child. The allegations of sexual abuse culminated in Paul being charged with a Class B unlawful sexual contact charge and the imposition of bail conditions that prevented Paul from having any contact with his son. The court did leave open the possibility of reasonable visitation in the future:
At the present time, reasonable visitation between [the child] and his father cannot be determined, and therefore none is ordered. After the pending criminal charges are resolved, one way or the other, and if there are other changes in circumstances, the parties may petition the court to amend this judgment to provide for reasonable visitation. [The child] is still young. There is potential for reunification after the current crisis has been resolved.
Less than one month after the court issued the divorce judgment, the unlawful sexual contact charge filed against Paul was dismissed, and the accompanying “no contact” bail conditions were discharged. Paul filed an initial motion to modify the divorce judgment on May 23, 2008, but he voluntarily withdrew the motion on October 7, 2008.
[¶ 4] A year later, on October 29, 2009, Paul filed the “Emergency Motion to Modify” that became the subject of this appeal. In the motion, Paul alleged that because the criminal charges had been dismissed and because he had undergone “an extensive psychosexual/psychological examination and risk assessment,” there was a substantial change in circumstances; therefore, he requested that the divorce judgment be modified to allow contact with his son. Following the divorce judgment in April 2008, there had been no contact, incidental or otherwise, between Paul and his son.
[¶ 5] At the hearing, the court received testimony from the guardian ad litem (GAL), the child's current counselor and therapist, the child's former therapist, and Paul.
[¶ 6] The GAL testified that her primary focus during the pendency of Paul's motion was to determine whether it would be safe to initiate contact between Paul and his son. To make that determination, the GAL recommended that Paul needed to take certain steps, in terms of examination and counseling, to ensure it would be safe to begin a reunification effort. As part of this process, Paul participated in an evaluation with the Spurwink Clinic and sought counseling. Since the fall of 2010, Paul had been attending therapy sessions. Paul's therapist reported to the GAL that Paul had been “very committed” to therapy and felt that Paul's feelings of “hopelessness, rage, [and] despair” were “contained.” Paul's therapist also relayed to the GAL that he had no concerns about the prospect of starting reunification efforts between Paul and his son.
[¶ 7] The GAL also testified that, after the 2008 divorce judgment, Paul had fathered another son with a different woman. Paul's therapist, who had an opportunity to observe Paul with his younger son at one of their counseling sessions, relayed to the GAL that Paul appeared to maintain a normal, appropriate relationship with his younger son. In September 2010, Paul participated, along with Lisa and their son, in an evaluation at the Spurwink Clinic. The purpose of the evaluation was to ascertain whether there was any truth to the sexual abuse allegations that guided the court's 2008 divorce judgment. Through interviews with the child and Paul, the Spurwink evaluators concluded that they could not substantiate any allegation that Paul had sexually abused his son.
[¶ 8] The GAL stated that since she began working with him in the fall of 2010, Paul had complied with all of her recommendations, and she sensed that Paul was enthusiastic about his therapy and the possibility of reunification. Near the conclusion of the modification hearing, the GAL opined, on direct inquiry from the court, that there had been a substantial change in circumstances since the time of the divorce judgment based on the child's age and development, the significant amount of time that Paul and Lisa had had to move on from the divorce, the parties' independent participation in counseling, and the child's continuing involvement with his own therapist.
[¶ 9] The court issued its modification order approximately one week after the hearing on May 9, 2011. The court's order outlines in great detail the nature of the gradual, therapeutic reunification plan that requires Paul to initiate the process through his therapist, who would share his recommendations for the structure of the contact with Lisa, Lisa's attorney, and the child's therapist. The court also highlighted the limited nature of the reunification plan: “The parties are ordered to take reasonable steps to prepare [the child] for a graduated and therapeutically sound reunification effort, with the goal to be a once monthly supervised visit with [Paul]....”
[¶ 10] Between the time of the hearing and the court's order, the GAL filed a fee affidavit with the court requesting that it apportion her outstanding fee of $2400, from a total fee of $4900, between Lisa and Paul. The total fee included a “[f]ull day hearing flat fee” of $1500 and $3400 for her thirty-four hours of “[t]otal time spent” on the case, less the $2500 retainer fee the parties had already paid the GAL. Because the court acted on the GAL's fee request immediately, neither Lisa nor Paul had the opportunity to respond to the GAL's requested fees. In the modification order, the court stated that the GAL's “services were reasonable and necessary, and her charges usual and customary.” The court ordered Lisa and Paul to each pay $1200 of the outstanding balance.
[¶ 11] Upon receiving the Court's order, Lisa moved for findings of fact and conclusions of law pursuant to M.R. Civ. P. 52(a). Additionally, Lisa's Rule 52 motion requested the court to “identify the facts” used to find the GAL's $4900 fee “reasonable and necessary” in circumstances where the GAL did not author a final written report or submit an itemized statement of the services she provided.
[¶ 12] The court responded to Lisa's Rule 52 motion on June 3, 2011. In the order, the court addressed the visitation issue but did not address the GAL fee issue. The court stated:
The finding of a change of circumstances is based on several facts: [The child's] change in age from 3 to 7 years old; criminal charges have been dropped against [Paul] based on [the child's] testimony; criminal bail conditions of ‘no contact’ have been dropped; the immediate crisis of the divorce proceeding is concluded, and [Lisa] has established a new stable household in Portland, away from the Rockland area; [Paul] has had another child since [his last interaction with his son] and is allowed visitation and contact with this new child; [and Paul] has engaged in clinical therapy with [his therapist] in Augusta.
Following the June 2011 court order on Lisa's Rule 52 motion, Lisa filed a timely notice of appeal on June 22, 2011.
[¶ 13] The Court “review[s] an order on a post-divorce motion for abuse of discretion or other error of law.” Smith v. Padolko, 2008 ME 56, ¶ 9, 955 A.2d 740.
[¶ 14] In the context of a motion to modify a divorce decree brought pursuant to 19–A M.R.S. § 1657(1)(A) (2011), we have consistently held that the trial court must engage in a two-fold inquiry: “First, whether since the prior order there has occurred a change in circumstances sufficiently substantial in its effect upon the children's best interests to justify a modification; and second, if so, how should the custody arrangement be modified in furtherance of the children's best interests.” Smith, 2008 ME 56, ¶ 11, 955 A.2d 740 (quotation marks omitted).
[¶ 15] Lisa's primary argument is not that the court erred or abused its discretion in finding a substantial change in circumstances, but instead that the court failed to “articulate how any of the changes related to the best interest factors in 19–A M.R.S.A. § 1653(3) [ (2011) ].” See Smith, 2008 ME 56, ¶ 11, 955 A.2d 740 ().
[¶ 16] Although the District Court's order did not specifically address how the various substantial changes had affected the child, it is clear that the court did consider many of the section 1653(3) best interest factors by noting in its findings (1) that the child had nearly doubled in age since the issue...
To continue reading
Request your trial
-
H & B Realty, LLC v. JJ Cars, LLC
...motion for further findings has been denied, we do not infer findings from the evidence in the record. See M.R. Civ. P. 52(b) ; Douglas v. Douglas , 2012 ME 67, ¶ 27, 43 A.3d 965. Rather, we confine our review to the trial court's explicit findings and determine whether those findings are s......
-
Sulikowski v. Sulikowski
...explicit findings and determine whether those findings are supported by the record. Ehret , 2016 ME 43, ¶ 12, 135 A.3d 101 ; Douglas v. Douglas , 2012 ME 67, ¶¶ 26-27, 43 A.3d 965. Although the trial court's judgment must be "supported by express factual findings that are based on record ev......
-
McMahon v. McMahon, Docket: And-18-74
...well beyond parties' ability to pay. These abuses, particularly to middle-income litigants, were documented in our opinions in Douglas v. Douglas , 2012 ME 67, ¶¶ 10-12, 19-28, 43 A.3d 965, and Desmond v. Desmond , 2011 ME 57, ¶ 7, 17 A.3d 1234. Following those opinions, the courts adopted ......
-
Dube v. Dube
...see 19–A M.R.S. § 951–A(5)(B), (E), we cannot assume that the court's findings were sufficient to support the judgment. See Douglas v. Douglas, 2012 ME 67, ¶ 27, 43 A.3d 965 (stating that when a motion for findings has been filed and denied, "the court's decision must include sufficient fin......