Light v. D'Amato
| Decision Date | 02 December 2014 |
| Docket Number | Docket No. Cum–14–71. |
| Citation | 2014 ME 134,105 A.3d 447 |
| Parties | Peter E. LIGHT v. Paola D'AMATO. |
| Court | Maine Supreme Court |
Gene R. Libby, Esq. (orally), and Tyler J. Smith, Esq., Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellant Paola D'Amato.
Joe Lewis, Esq. (orally), Port City Legal, Portland, for appellee Peter E. Light.
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Opinion
[¶ 1] Paola D'Amato appeals from a divorce judgment and post-judgment findings of fact and conclusions of law entered by the District Court (Portland, Mulhern, J. ) and from the court's denial of her motion to reopen the evidence, which she filed after the divorce judgment was entered. See M.R. Civ. P. 43(j), 52. D'Amato wants to move to Italy and take the parties' daughter with her. Peter E. Light has been an involved father and opposes D'Amato's relocation with their daughter. We affirm the judgment except to remand the matter for the court to dispose of a deferred compensation plan that the parties agree must be distributed as marital property.
[¶ 2] Light and D'Amato were married in Maine on February 1, 2000. They are the parents of one daughter, who was born in July 2005. Light filed a divorce complaint in February 2012, and a four-day trial was ultimately held in July 2013. After the court entered a divorce judgment in December 2013, both parties moved for additional findings of fact and conclusions of law and to alter or amend the judgment pursuant to M.R. Civ. P. 52(b) and 59(e). The court amended some findings and corrected clerical errors. Through its judgment and its post-judgment rulings, the court found the following facts, all of which are supported by competent evidence in the record. See Akers v. Akers, 2012 ME 75, ¶ 3, 44 A.3d 311.
[¶ 3] The parties' daughter attended kindergarten and first grade in public school in Falmouth. She has done well in the Falmouth school and participates in extracurricular activities. She has close friends who live in Falmouth, and her after-school care provider is in Falmouth. At the time of trial, she was almost eight years old.
[¶ 4] After the divorce proceedings began, the child began seeing a therapist because she was having nightmares about her parents disappearing. By the time of trial, the child's therapist had met with the child more than forty times. The child's progress has been slower than that of other children. Her sources of stability are her parents, her school, her peers, her after-school care provider, and her therapist. Mental health care providers who have observed the child have noted that she has difficulty separating from either parent. She has a close emotional bond with each parent, and prolonged periods of separation from either parent would be harmful to her.
[¶ 5] Although the record reflects that Light has not been the child's primary caregiver for any extended period of time, he has been regularly and actively involved in her life. Light struggles with several challenges. He has abused alcohol and used pornography excessively. He has also been diagnosed with attention-deficit hyperactivity disorder.
[¶ 6] Light sees a psychotherapist weekly and intends to continue therapy. He has made progress with his alcohol treatment. At the time of trial, he had a diagnosis of alcohol abuse in remission despite “slips” in October and November 2012, New Year's 2013, and March 2013, and he had not had a drink since that March. Light's excessive use of pornography had a significant impact on the parties' marriage and their finances. Light has installed Net Nanny on his computer and eliminated cable and Internet service from his home.
[¶ 7] Despite his challenges, Light has proved capable of taking the child to school and appointments on time. He is able to manage the child's schedule, and D'Amato has trusted Light as a safe caregiver for their daughter. She left the child in his care when she traveled to other states and countries during the pendency of the divorce. At the time of trial, Light intended to find a suitable home for himself and the child in Falmouth.
[¶ 8] D'Amato has been the primary custodial parent during the pendency of the divorce, and her ability to provide nurturing care for the child has not been questioned. D'Amato wants to move back to Italy, her country of origin, to live near her mother and stepfather, and her current boyfriend. The child has only visited Italy when on vacation with both of her parents. She understands some Italian language, but she cannot converse fluently and is reluctant to speak the language. At the time of the trial, D'Amato was equivocal as to whether she would move to Italy if she could not take her daughter with her.
[¶ 9] The court analyzed the relevant statutory factors, see 19–A M.R.S. § 1653(3)(A)–(N), (S) (2013), and found that, while the parties are both in Maine, it is in the child's best interest to remain in the primary custodial care of her mother. Light did not, at trial or before us, challenge that finding.
[¶ 10] The court also concluded, however, that if D'Amato relocates to Italy, the child's need for stability requires that she remain in Maine. The court found that she will have a more stable environment by living primarily in Falmouth where she can remain at her school and enjoy her substantial support network of friends, paternal family, and neighbors. The court placed significant weight on the stability that the child would obtain by living primarily in her existing school district and keeping in contact with her friends and her therapist. The court also found that, although both parents are involved and capable of providing love, affection, and guidance, D'Amato appears to be placing her desire to relocate above her daughter's needs. In addition, the court expressed some concern that D'Amato would not allow and encourage frequent contact between the child and Light, especially if she moved to Italy. The court found that child would benefit from the parents learning to cooperate and resolve disputes effectively through an organized program—a task that they would likely be unable to undertake if D'Amato moved to Italy.
[¶ 11] Ultimately, the court ordered that, until D'Amato moves to Italy—or if she chooses not to move to Italy—primary residence of the child will remain with D'Amato. The order directs that the child be with her father every Monday and Tuesday night, and alternating weekends. If D'Amato moves to Italy, however, primary residence will shift to Light and the child will remain enrolled in school in Falmouth. The court divided holiday time for purposes of each possible residency situation.
[¶ 12] The court entered a child support order and directed that the marital real estate be sold and the proceeds divided equally between the parties. The court also reached findings about the parties' earning capacities and ordered Light, who is employed by the Royal Bank of Canada as a financial advisor, to pay D'Amato general spousal support for six and a half years. The court found that Light had committed economic waste amounting to $160,503 and ordered him to pay one-half of that value to D'Amato.
[¶ 13] The court divided the parties' financial assets and debts roughly evenly. In doing so, it found that Light's RBC Deferred Compensation Plan, which will vest on January 1, 2021, if Light is still employed at RBC on that date, had no marital value. The court did not allocate that asset to either party in its disposition of the marital property.
[¶ 14] After the court entered its judgment, D'Amato moved to reopen the evidentiary record because, she contended, she missed the opportunity for an Italian position that would have paid her $53,595; her hours working at her place of employment in the United States were reduced; in late September 2013, Light indicated that he was living in Portland and could not afford to move to Falmouth; and D'Amato intended to move to South Portland. The court denied the motion to reopen.
[¶ 15] D'Amato timely appealed, and Light timely cross-appealed. 14 M.R.S. § 1901 (2013) ; M.R.App. P. 2(b)(3). Light thereafter filed for bankruptcy, and the United States Bankruptcy Court for the District of Maine granted him relief from the automatic stay in bankruptcy so that these divorce proceedings could be completed.
[¶ 16] D'Amato and Light raise several issues, most of which we find unpersuasive. We affirm the trial court's judgment in most respects and write to address only three issues: (A) whether the court unconstitutionally restricted D'Amato's right to travel by ordering that the parties' daughter will remain in Maine if D'Amato chooses to move to Italy, (B) whether the court abused its discretion in refusing to reopen the evidentiary record to allow D'Amato to present evidence of the parties' changed residential circumstances and work prospects, and (C) whether the court erred in failing to dispose of Light's deferred compensation account after determining that it had no marital value.
[¶ 17] D'Amato contends that, by awarding her primary residence of the child only if she remains in the United States, the trial court has unconstitutionally interfered with her right to travel. “We review questions of law, including alleged constitutional violations ... de novo.” In re G.W., 2014 ME 30, ¶ 6, 86 A.3d 1228 (quotation marks omitted).
[¶ 18] The United States Constitution provides that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V ; see also U.S. Const. amend. XIV. “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.” Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 2...
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