Dupre v. Dupre

• Decision Date: 30 July 2004
• Docket Number: No. 2002-300-Appeal.,2002-300-Appeal.
• Citation: 857 A.2d 242
• Parties: Robert E. DUPRÉ v. Melanie S. DUPRÉ.
• Court: Rhode Island Supreme Court

857 A.2d 242

Robert E. DUPRÉ v. Melanie S. DUPRÉ.

No. 2002-300-Appeal.

Supreme Court of Rhode Island.

July 30, 2004.

Lauren E. Jones, Providence, for Plaintiff.

Karen A. Pelczarski, Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, and SUTTELL, JJ.

O P I N I O N

SUTTELL, Justice.

Huahine¹ — "Garden of Eden * * * with its lush forests, untamed landscape, and quaint villages, is one of Polynesia's best-kept secrets."² Huahine — its very name evokes images of endless white sand beaches, azure blue and emerald green waters and soft caressing breezes — a true tropical paradise. Unfortunately, our interest in Huahine is not for travel or adventure. Our interest in the island is rather more pedestrian, yet nevertheless of vital significance. In this appeal from a judgment of the Family Court, Huahine is the focal point of a contested dispute between two divorced parents, both of whom are fit and caring parents, over the appropriate placement of their two children.

Of the many emotional consequences attendant upon the dissolution of a marriage, perhaps none is more vexatious than that precipitated by the desire of a parent to relocate with a minor child of the marriage. From the child's perspective, a once-single family has become two, and the relationship and well-being of each of these family units necessarily will have a direct impact on the well-being of the child. Moreover, the desire and right of one parent to move to pursue new opportunities undoubtedly will conflict with the desire and right of the other parent to maintain a close relationship with his or her child. The issue of post-divorce relocation is a complex, but increasingly prevalent, occurrence in today's mobile society.

Relocation is a perplexing problem under the best of circumstances. Few cases, however, present the issues so acutely as this appeal. Not only do the parties enjoy joint legal custody, but also they were awarded joint physical placement by the terms of a property settlement agreement that was incorporated into the decision pending entry of final judgment. Of particular significance to our inquiry are the logistical challenges facing the parties and their two children. Father resides in Jamestown, Rhode Island, and mother in Huahine, more than 6,400 miles and twenty-four hours travel time distant. Even in an age of instant communications and global transportation, the logistics are daunting.

We also recognize that neither statutory nor previous Rhode Island case law provides much guidance in this very troublesome area. Here, after finding that "mother would best serve the emotional and physical needs of the children," the Family Court ruled that she had failed to show "a compelling reason" to reside in Huahine. It therefore denied her request to move the children there, and awarded placement to father. Because we conclude that the Family Court incorrectly applied a compelling-reason standard, we vacate the judgment and remand the case for further proceedings.

Facts and Travel

Robert E. Dupré, Jr., (Robert or plaintiff) and Melanie S. Dupré (Melanie or defendant) were married in 1987 in the south of France. Before their marriage, they had lived together for approximately seven months in 1979 in French Polynesia, both in Papeete, Tahiti, and on the island of Moorea. In September 1979, they moved to Aix-en-Provence in France, where they resided for approximately one year.

In 1980 Robert purchased an apartment building in the Armory District of Providence, and the parties moved to Rhode Island. According to Melanie, Robert told her that if they worked very hard for three or four years renovating the building, they would have a source of income to enable them to return to French Polynesia. After a couple of years, however, Robert purchased a second building. Melanie testified that although she supported Robert in this second project, she "got very frustrated" and told him "time and time again" that she was unhappy living in Providence and wanted to return to French Polynesia.

In 1987 Melanie became pregnant, and the parties decided to marry. They remained living in Providence, and Robert continued to acquire and renovate apartment buildings. At the time of trial, Robert operated a very successful business, the Armory Revival Company, with approximately thirty employees.

Melanie is an artist. She testified that she was able to support herself in Papeete and France by selling her pen and ink drawings and paintings, but that it was a struggle for her in Providence because she did not "feel inspired by the landscape here." She said that she tried to find a niche for herself in the New England area, but "was never able to hook up with either a rep or a gallery where [she] felt [her] work could easily sell." She displayed her work at an average of two art shows a year, but generated very little income therefrom. Sometimes she vacationed in the south of France with the children "just to get some inspiration back because [she] felt so deprived of inspiration." For a year and a half she also worked as a real estate agent, earning approximately $45,000, to help her husband's company and to put some money aside for her trips to Tahiti.

Melanie's discontent and desire to leave the New England area was not lost upon Robert. He did not wish to relocate, however; his business was thriving, and his family, friends, and community were in Rhode Island. According to Robert, Melanie's desire to live somewhere else ultimately led to the dissolution of their marriage. In August 1999, he filed for divorce.

On August 23, 1999, a consent decree was entered by agreement of the parties in which Melanie was permitted to remove the children to Tahiti for the 1999-2000 school year. When they returned to Rhode Island, another order was entered, providing for alternating placement of the children in Rhode Island and also permitting Melanie to take the children to Tahiti for approximately two months. The divorce was scheduled for hearing on April 4, 2001, on which date the parties executed a property settlement agreement. That agreement was incorporated but not merged in the decision pending entry of final judgment that was entered on April 20, 2001. Final judgment was entered on December 31, 2001.

The parties agreed to joint custody and shared physical possession and placement of their two minor children, then nine and thirteen years old, in accordance with a schedule. The schedule provided for placement with Melanie in Rhode Island for the remainder of the school year, then with her in Huahine during the summer until August 19, 2001, after which time they would reside primarily with Robert. Notwithstanding the interlocutory order that the children would reside primarily with Melanie in Rhode Island until the end of the school year, she returned to Huahine on April 29, 2001. Because Robert was out of the country at the time, she left the children separately with a friend and a neighbor until he returned. The property settlement agreement and court order also provided that "if the parties cannot agree as to the primary placement of the children for the academic year 2001-2002 this issue shall be determined by the Providence County Family Court."

The parties indeed could not agree, and submitted the issue of primary placement to the Family Court. In addition, Melanie filed a motion to modify the visitation schedule in light of her desire that the children be placed with her in Huahine. Hearings were held in October and November 2001. Both parties testified, and the trial justice interviewed the children in camera. The defendant also presented as an expert witness Brian Hayden, Ph.D. (Dr. Hayden), a child psychologist who had been asked to do an evaluation and make recommendations with respect to the children's placement for the 2000-2001 academic year. He testified that he interviewed each parent individually, had each complete a psychological questionnaire, spoke to both children, and assessed the interaction between the children and each parent.

Doctor Hayden further testified that Melanie seemed to have a more significant parent/child relationship with the children, and was viewed by them "as their primary caregiver, and the person that provided, at least to them, the greatest sense of psychological security." Although he considered Robert to be a good father, he thought that the children were far more relaxed with their mother and had "a greater exchange of emotion and ideas and play" with her. He said it was clear, however, that they loved their father and enjoyed their time with him.

Doctor Hayden also said that he had seen the children only a week before the trial at a time when they had been living with Robert. Doctor Hayden thought that they were not very happy living with their father. They felt they were not seeing very much of him and were frustrated by their inability to communicate with their mother by E-mail. One complained about his father's disciplinary techniques, and the other "vehemently wanted to be with her mother."

When Dr. Hayden was asked whether he had an opinion about which parent should be the primary caregiver, he responded,

"as long as these comments are understood in terms of the children [having] made a clear statement that they would like to live with their mother. I don't know where that would be, but I would support, or at least articulate that their desire is well-founded on their experience with their mother, and they have been consistent over the last thirteen months that the primary parent from their vantage point has been their mother."

He added, "I would be in favor of them living with their mother without any statement as to where that is, but state living with her would be in the best interests of the children." Doctor Hayden also allowed, however, that ideally children thrive on having contact with both parents, that the quality of a child's relationship with a parent can be...