Harmon v. Emerson

• Decision Date: 13 February 1981
• Citation: 425 A.2d 978
• Parties: Moira Emerson HARMON v. Erlon L. EMERSON.
• Court: Maine Supreme Court

Page 978

425 A.2d 978

Moira Emerson HARMON v. Erlon L. EMERSON.

Supreme Judicial Court of Maine.

Argued Sept. 17, 1980.

Decided Feb. 13, 1981.

Linnell, Choate & Webber, Robert E. Mullen (orally) and John R. Linnell, Auburn, for plaintiff.

Grover G. Alexander, Gray (orally), for defendant.

Before WERNICK, GODFREY, NICHOLS, GLASSMAN, ROBERTS and CARTER, JJ., and DUFRESNE, A. R. J.

CARTER, Justice.

This appeal results from a divorce action commenced in March, 1974, in the District Court in Lewiston. The District Court awarded temporary custody of the parties' two minor children, Erlon Emerson III and Cameron Emerson, to the plaintiff-mother on April 18, 1974. Subsequently, a divorce was granted to the plaintiff on December 1, 1977. That decree left open for further hearing all remaining matters including custody and support of the children. After further hearing, the District Court, by decree dated January 16, 1979, awarded custody of both children to the plaintiff, with visitation rights in the defendant. ¹

The defendant-father appealed the award of custody to the Superior Court, which sustained his appeal and remanded the matter to the District Court with instructions to award custody to the defendant. Plaintiff appeals from this decision. We sustain the appeal and vacate the judgment of the Superior Court.

The District Court record consisted of testimony taken at a January, 1979, hearing, certain exhibits, and, by stipulation of the parties, the report of the Maine Department of Human Services dated October 25, 1977. The District Court did not make, and was not requested by either party to make, any findings of fact.

The record before the District Court reflects that the plaintiff and defendant were married in 1965. In 1971, after the birth of their two children, they moved to Durham, Maine, where they resided together with the children until they separated in March of 1974. At that time, the defendant moved to Massachusetts, and a divorce action was commenced. After an attempt at reconciliation, the parties separated finally in September of 1975. The children remained with the plaintiff in Durham. The defendant returned to Massachusetts where he has been employed since as a public accountant.

The children have done well in school and appear to have a close and happy relationship with the plaintiff. They have had little exposure, since the separation, to the defendant. Sometime in 1976, the plaintiff developed a relationship with her present husband, Stephen Harmon, who moved into the family household at Durham in 1976. They were married in November of 1978. ² The children get along well with Mr. Harmon, and a supportive relationship exists among them. The departmental report indicates that both Erlon and Cameron stated that they liked him, and that he spends a lot of time with them. Mr. Harmon testified that he enjoys a "beautiful" relationship with the boys and that there were "no problems whatsoever" in that relationship. There is no evidence in the record indicating any difficulty between Mr. Harmon and either of the boys.

That relationship is in marked contrast to the relationship which exists between the children and the defendant. On at least one occasion, when the children visited with the defendant at his home in Massachusetts, strife developed which resulted in the boys, by their own choice, returning home sooner than expected. Defendant had otherwise seen these children on a few isolated occasions as of the time of the District Court hearing. Such meetings usually occurred when defendant was at the family home in Durham for other purposes and the children happened to be there.

Since the time of the separation, the plaintiff has received Aid to Families with Dependent Children (AFDC) benefits for the two children. The plaintiff applied for AFDC benefits because the defendant had failed to make support payments after November, 1977.

The appeal to the Superior Court was taken pursuant to the provisions of D.C.C.R. 73(a), which states in pertinent part that the appeal shall be "on questions of law only.... Any findings of fact of the District Court shall not be set aside unless clearly erroneous." The Superior Court, purporting to follow this Rule, noted in its opinion that "a finding of fact is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." This is the early formulation of the "clearly erroneous" test set forth in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). ³

In reversing the District Court judgment, the Superior Court stated:

Although the District Court judge did not give reasons for awarding custody to the mother, the transcript of pertinent portions of the record suggests that he did not include in his consideration the threat to the physical and psychological security of the children which was posed by an unstable stepfather, and although he permitted questioning of Mr. Harmon's propensity for violence, he gave little weight to it.

The court further observed that: "The best interests of the minor children go beyond the question of the mother's fitness whereby remarriage she injects a third party into the environmental picture, whose instability threatens their physical and psychological security " (emphasis added). The Superior Court considered nine factual aspects of the District Court record, ⁴ most relating to Mr. Harmon's past conduct, his personal attributes, and his potential to be an adverse influence on the children. The Superior Court made its own factual determinations on a record which provided conflicting factual data on each of these points. Concluding that, as a matter of fact, Mr. Harmon was "a dangerous daily exposure" for the children, the court noted that failure to take this into account was "an error of law" on the part of the District Court.

This record and the decision of the Superior Court raise serious and delicate issues as to the proper standard of review of child custody determinations in divorce cases on appeal from the District Court. First, we must determine the proper role to be given by the Superior Court Justice to the "clearly erroneous" test. Next to be considered is his application of the appropriate legal standard of review.

I.

We hold that on the facts of this case the Superior Court committed error in its application of the "clear error" standard. Here, no findings of fact were made by the District Court on the custody issue. In such circumstances:

(I)t must be assumed that he (the District Court Judge) found for the plaintiffs upon all issues of fact necessarily involved in his ultimate decision which was favorable to them.

Jacobs v. Boomer, Me., 267 A.2d 376, 379 (1970); Small v. Small, Me., 362 A.2d 178 (1976). Such "assumed" findings of fact may not be set aside unless clearly erroneous. Boynton v. Adams, Me., 331 A.2d 370, 374-75 (1975). Therefore, the Superior Court in the instant case was required to assume factual findings favoring the plaintiff. Then, only if the assumed findings were clearly erroneous could the Superior Court disregard factual findings in the resolution of the appeal before it. See Bangor Spiritualist Church, Inc. v. Littlefield, Me., 330 A.2d 793, 794 (1975); Blue Rock Industries v. Raymond International, Inc., Me., 325 A.2d 66, 73 (1974).

As a matter of specific technique, any finding, whether express or assumed, is tested under the "clearly erroneous" standard by determining whether there is any competent evidence in the record to support it. Moores v. Structural Concrete Corporation of Maine, Me., 255 A.2d 892 (1969). If there is such evidence, the finding must stand.

Under Rule 52(a) and its interpretation in the United States Gypsum Co. case, there must exist a stronger basis for overthrowing a finding of fact than a mere difference in personal judgment. Such evidentiary weight and such convictional certainty must be present that the appellate court does not feel able to escape the view that the trial court has failed to make a sound survey of or to accord the proper effect to all of the cogent facts, giving due regard, of course, to the trial court's appraisal of witness credibility where that factor is involved.

Nee v. Linwood Securities Co., 174 F.2d 434, 437 (8th Cir. 1949).

In applying this standard in an appellate proceeding, the factual findings of the District Court are not to be altered or overturned by the Superior Court simply because an alternative finding also finds support in the evidence.

It is settled that where evidence would sustain a conclusion either way and the trial court decided it to weigh more heavily for the defendant, that such a choice between two permissible views of the weight of the evidence is not "clearly erroneous" within the meaning of Rule 52. (emphasis added).

Hadco Products, Inc. v. Frank Dini Co., 401 F.2d 462, 464 (3d Cir. 1968). See also United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949).

The essential impact of the "clearly erroneous" rule is that the trial judge's findings stand unless they clearly cannot be correct because there is no competent evidence to support them. An appellate court can reverse a finding of fact only where (1) there is no competent evidence in the record to support it, or (2) it is based upon a clear misapprehension by the trial court of the meaning of the evidence, or (3) the force and effect of the evidence, taken as a total entity, rationally persuades to a certainty that the finding is so against the great preponderance of the believable evidence that it does not represent the truth and right of the case. See Western Cottonoil Co. v. Hodges, 218 F.2d 158 (5th Cir. 1955).

Applying the above analysis to the facts of the instant case, we find that the Superior Court erred when it...