Kenney v. Hickey, 83-366-A

• Decision Date: 23 January 1985
• Docket Number: No. 83-366-A,83-366-A
• Parties: Marie Hickey KENNEY v. William G. HICKEY. ppeal.
• Court: Rhode Island Supreme Court

Page 1079

486 A.2d 1079

Marie Hickey KENNEY v. William G. HICKEY.

No. 83-366-Appeal.

Supreme Court of Rhode Island.

Jan. 23, 1985.

Amy R. Tabor, Pawtucket, for plaintiff.

Raul L. Lovett, Lovett, Morgera, Schefrin & Gallogly Ltd., Providence, Catherine A. Gibran, Providence, on brief, for defendant.

OPINION

MURRAY, Justice.

This case comes to us on appeal from a Family Court order, which was entered pursuant to Rule 64(a) of the Family Court Rules of Procedure for Domestic Relations, modifying a previous custody order of the minor children of the parties. The defendant's appeal is sustained in part and the judgment below is affirmed in part; that portion of the judgment awarding a guardian ad litem fee in the amount of $1,786 plus interest is vacated, and the case is remanded to the Family Court for hearing on the issue of a reasonable guardian ad litem fee consistent with this opinion and for entry of judgment in Family Court.

The following facts have been established. The parties, William Hickey and Marie Hickey Kenney, were married in 1971, and three children were born of that marriage between 1971 and 1977. In December 1979 plaintiff mother filed for divorce on the ground of irreconcilable differences. An interlocutory divorce decree was granted on June 4, 1980, and a final decree was entered to that effect on January 5, 1981. Pursuant to that decree, plaintiff and defendant were awarded joint custody of the children with physical possession placed in the mother subject to the father's rights of reasonable visitation. The plaintiff was also awarded exclusive use of the marital domicile where she had lived with her fiance, David Kenney, for at least eight months prior to entry of the final order. Such living arrangement was acknowledged, and consented to, by both the trial justice and defendant. The plaintiff married David Kenney in April of 1981. Three months prior to their marriage, Mr. Kenney moved to Florida in an effort to secure more stable employment. The plaintiff remained behind in Rhode Island with her children and, optimistic about her husband's success in gaining employment, commenced plans to relocate herself and her children to Florida. Thus, she filed a motion to remove, seeking transference of physical custody of the children to herself as sole custodian contrary to the prior joint custody instituted in the final order. However, the mother's circumstances were such that the trial justice did not see fit to grant her motion and issued instead a consent order, entered May 19, 1981, amending the final divorce decree. This order transferred physical custody of the children to the father although prior joint custody was maintained. ¹

Approximately one and a half years subsequent to entrance of that consent order, the mother once again brought a motion to modify the amended final decree, pursuant to Rule 64(a), seeking transference of custody from her ex-husband to herself. Because of a significant change in circumstances, the trial justice granted the wife's motion; consequently, sole custody of the children was placed in the mother for the academic year. ²

A guardian ad litem, attorney Rogeriee Thompson, was appointed for the children by the trial justice. Attorney Thompson prepared an objective nine-page report, based upon her observations and conversations with the parties, relatives, family physicians, attorneys, and the children, prior to the hearing in which plaintiff sought once again to amend the final divorce decree in order to gain sole custody of the children. In her report, the guardian expressed her belief in the capabilities of both parties as parents and in their individual commitment to the children. However, she also described several traumatic incidents in which the children were caught in the crossfire of their parents' dispute. The guardian relayed the children's expressed preference to live with their mother and recommended that the court speak with the children on that matter. ³

There are three issues presented here on appeal. The first issue is whether the trial justice abused his discretion in exercising jurisdiction over plaintiff's motion to modify. The second issue is whether the trial justice committed error in misconstruing and misapplying the evidence that was before him. The third issue is whether the trial justice erred in ordering defendant to pay one-half of the guardian ad litem's fees and in subsequently ordering that execution issue.

We find that the trial justice did not err in exercising jurisdiction over plaintiff's motion to modify pursuant to Rule 64(a). However, defendant appellant insists that plaintiff, as movant, did not meet her burden of proving a substantial alteration or change in circumstances as required prior to modification of a child-custody decree and that consequently the court did not have jurisdiction to grant the modification order.

In this state, the question of the custody of minor children of divorced parties, whether provided for in a final decree or otherwise, continues within the jurisdiction and control of the trial court. ⁴ However, as defendant argues, the trial court should not exercise that jurisdiction without a showing that there has been some alteration or change in circumstances and conditions that existed at the time of the entry of the final decree. King v. King, 114 R.I. 329, 331, 333 A.2d 135, 137 (1975). The burden of showing a change is on the moving party, and until such a point, the prior custody award contained in a decree is conclusive. Id.; Vieira v. Vieira, 98 R.I. 454, 457, 204 A.2d 431, 433 (1964); Lawrence v. Lawrence, 85 R.I. 13, 16, 125 A.2d 218, 220 (1956); Kelley v. Kelley, 77 R.I. 229, 231, 74 A.2d 452, 453 (1950). Once the record discloses a sufficient change in circumstances to permit a reopening of the decree, then the "polestar for the trial justice's guidance" is what, in the circumstances of the particular case, is best for the children's welfare. Goldstein v. Goldstein, 115 R.I. 152, 154, 341 A.2d 51, 52 (1975).

In our opinion, the mother has met the burden of proof on the question of the requisite change in circumstance or condition. ⁵ The record clearly discloses significant changes in circumstances sufficient to warrant a reopening of the decree, and as a result we conclude that the trial justice did not abuse his discretion by exercising jurisdiction in this situation. Rather, he acted properly within the guidelines of our statutes and case law.

The defendant argues further that since the trial justice failed to use the term "change in circumstances" itself, he did not require proof of such a change prior to exercising jurisdiction over the matter. Although it is evident from the record that the trial justice did fail to employ this language, such an omission is of no legal significance. As we expressed in Lannon v. Lannon, 86 R.I. 451, 454, 137 A.2d 529 (1957), even when a trial justice fails expressly to articulate findings of fact (which is not the case here), we shall not, for that reason alone, refuse to accord the decision the persuasive force usually accorded such decisions on review. This is for the reason that implicit in a decision there are such findings of fact as are necessary to support it. Id. In the instant case, findings of fact were in fact made in regard to numerous changed circumstances, and implicit in those findings was the term "change in circumstances." The mere absence of the term itself is of no legal significance whatsoever. In addition, according to G.L.1956 (1981 Reenactment) § 15-5-16.2, as amended by P.L.1981, ch. 320, § 1, the court's responsibility is to set forth in its decision the specific findings of fact that show a substantial change in circumstances and upon which findings of fact the court has decided to make the decree retroactive. We find that the trial justice complied with his statutory duty. Having determined that a sufficient change in circumstances existed and having set forth the relevant findings of fact, the trial justice properly proceeded to render his decision based upon the appropriate standard, that is, the best interests of the children. Goldstein v. Goldstein, 115 R.I. at 154, 341 A.2d at 52.

The second issue raised by defendant involves the question of the trial justice's treatment of the evidence. The defendant argues that the trial justice committed reversible error by (1) overlooking or misconceiving expert testimony, and (2) affording improper weight to the preferences of the children as expressed to him in his chamber.

Upon reviewing the record, we conclude that the trial justice did not overlook or misconceive expert testimony. The defendant's argument on this point is that the trial justice based his decision to allow the children to be removed to Florida on a false premise. He claims that the trial justice erroneously interpreted the medical experts' testimony as advising that Florida would be a better environment for the middle child's health. ⁶ We find that there is no language or other evidence in the record to support defendant's conclusion. It is clear to us that the trial justice evaluated and weighed the expert medical testimony about the best climate for Rebecca's health and, upon that basis, made a well-reasoned decision.

The defendant's contention that the trial justice afforded improper weight to the children's...