McDonough v. McDonough

• Decision Date: 12 January 2009
• Docket Number: No. 2007-262-Appeal.,2007-262-Appeal.
• Citation: 962 A.2d 47
• Parties: Roy C. McDONOUGH v. Kelly M. McDONOUGH.
• Court: Rhode Island Supreme Court

962 A.2d 47

Roy C. McDONOUGH v. Kelly M. McDONOUGH.

No. 2007-262-Appeal.

Supreme Court of Rhode Island.

January 12, 2009.

H. Jefferson Melish, for Plaintiff.

Paul P. Pederzani, Warwick, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

The plaintiff, Roy C. McDonough, appeals from a Family Court order granting the request of the defendant, Kelly M. McDonough, to relocate the parties' two minor children to Indiana. The plaintiff also contends that the trial justice exceeded the scope of her authority by granting interim relief allowing the defendant to relocate the children while this appeal was pending. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be summarily decided. After examining the written and oral submissions of the parties, we conclude that this appeal may be resolved without further briefing or argument. For the reasons set forth in this opinion, we affirm the Family Court orders.

I Facts and Procedural History

The plaintiff, Roy,¹ and defendant, Kelly, were married on August 27, 1988, and have three children: Tyler, eighteen years old at the time of trial; Melainy, eleven years old; and Emma, two years old. Roy filed for divorce in September 2006 on the grounds of irreconcilable differences, seeking, inter alia, joint custody and the continuation of the children's residency in Rhode Island. Kelly counterclaimed for divorce, requesting permission to relocate their minor children outside Rhode Island. The trial commenced in June 2007, at the conclusion of which the parties entered into a property settlement agreement resolving all issues save the relocation of the children.²

We need not publish in detail all the evidence adduced at trial concerning the parties' nearly twenty-year marriage. The trial justice summarized their marriage as "tumultuous, characterized by Roy's alcoholism, domestic violence, [and] physical altercations between family members." We recount, therefore, only those facts necessary for an understanding of the issues raised in this appeal.

Roy and Kelly were married in Rhode Island, but moved shortly thereafter to Indiana, where they lived for a short time with Kelly's parents before getting their own apartment. Roy returned to Rhode Island after less than a year; Kelly followed two months later with their son, Tyler. The couple temporarily lived with Roy's parents, eventually settling in Exeter.

Various witnesses, including Roy, testified about Roy's alcohol use, as well as a number of incidents of Roy's abusive conduct —seemingly correlated behavior. According to Roy, his excessive drinking began around 1998. His abusive behavior, however, surfaced early in their marriage. While the parties were residing with Kelly's parents in Indiana, in their first year of marriage, Roy and his mother-in-law had a physical altercation for which he was arrested and criminally convicted. Sandra Burleson, Kelly's mother, explained that the incident occurred a few weeks before Kelly was due to deliver Tyler. According to Mrs. Burleson, Roy came home and began calling Kelly derogatory names. When Mrs. Burleson intervened, Roy struck her, bursting both her eardrums; he then kicked her when she fell to the floor. Mrs. Burleson also testified that when her daughter Christy attempted to come to her aid, Roy violently threw Christy against a wall, fracturing her arm.

Kelly and Tyler both testified that Roy's alcohol abuse was at its worst roughly three years before trial. In 2003, Roy was criminally charged in Rhode Island with domestic assault upon Kelly, to which he pled nolo contendere and received a one-year suspended sentence. Roy's mother, Donna McDonough, testified that Roy was admitted to Butler Hospital after another alcohol-related incident in 2005. Roy testified that, in 2004, while under the influence of alcohol, he lost control of the vehicle he was operating in which Tyler was a passenger. Roy was in a second automobile accident while on his way to pick up his daughter Emma. Although Roy admitted to drinking during his lunch breaks from work, he denied that he had been drinking before this particular accident. In June 2005, Roy slapped Tyler, then aged seventeen, after Tyler purportedly swore at him, and the two engaged in a heated physical altercation.

After the altercation between Roy and Tyler, Kelly decided she "could no longer stay in the situation." In August 2005, she took their three children to Indiana to visit her family and attend the state fair, as they did every summer. Normally they would stay for two weeks, but this time Kelly decided they were not going back to Rhode Island. She did not tell the children until they were already in Indiana. They lived with Kelly's parents for a few months, and they then moved into a four-bedroom apartment across the street. The plaintiff testified that he was not consulted about his wife's move to Indiana, and, although he did not agree with it, he thought she might have needed some time away. He said he spoke frequently with his wife and with his daughter Melainy while they were in Indiana. Emma was still too young to carry on a telephone conversation. The plaintiff did not visit his children while they were in Indiana, stating that he was not financially able to do so.

Kelly moved back to Rhode Island in July 2006 with the children because, she said, she missed Roy. The reconciliation was not successful, however, and in September 2006 Roy filed a petition for divorce.

Roy began seeing a counselor for his alcohol abuse a few months after his family left for Indiana, and he remained in treatment throughout trial. He testified that he had been sober since the fall of 2006, when the Family Court issued an order requiring he refrain from drinking. However, Roy also admitted that he had sought alcohol counseling, unsuccessfully, on three or four previous occasions. Kelly testified that she suspected Roy of drinking on two or three different occasions since the court order. She said she noticed he was "sluggish or tired or just laid on the bed." Tyler also believed his father was still drinking. Melainy, however, told the trial justice that her father had not been drinking recently. Roy's mother, Donna McDonough, and his sister, Donna Nadiau, testified that, this time, Roy seemed to have finally been successful in combating his alcohol abuse. The counselor Roy had been seeing for over a year wrote in her report that "Roy has demonstrated a willingness to work on his issues. * * * We plan to continue to meet and work together on * * * abstinence from alcohol."

Members on both sides of Kelly's and Roy's family expressed a desire and willingness to be involved in the children's lives and to assist their parents in childrearing if the children were living nearby. Roy expressed strong reservations about the church in which his wife's parents were heavily involved, especially its lack of tolerance for people outside their faith. Mr. Burleson admitted that family members who are not baptized or do not attend church are not considered to be members of their community; in his view, they have "absent[ed]" themselves.

Melainy said she enjoyed spending time with her father and expressed reservations about moving to Indiana. She told the judge in camera that she did not like the area where her mother intended to live, did not like the school there, and did not feel close to her maternal grandparents or family. Melainy told the trial justice that Roy's family had more time for them and was more fun than Kelly's family.

On July 30, 2007, the trial justice issued a written decision in which she reviewed the testimony of the parties and the various witnesses. She examined defendant's request to relocate in conjunction with the evidence presented and in accordance with the factors set out in Dupré v. Dupré, 857 A.2d 242 (R.I.2004).³ The court concluded that it was in the children's best interests to relocate to Indiana. She found that Melainy's school performance had been affected by plaintiff's alcoholism, that the children had been subjected to domestic violence and their parents' on-again, off-again marriage, and that moving to Indiana would provide all of them with greater stability. She noted that defendant had decided to relocate to Indiana because her parents lived there, she would have better housing and employment opportunities, and the school system seemed more advanced. The Family Court's decision generated a flurry of activity by both parties. Anticipating an appeal, defendant filed a motion on August 6, 2007, "to enforce compliance with marital settlement agreement and affirm relocation pending appeal." On the same day, plaintiff filed both an objection to defendant's motion and a motion for stay pending appeal pursuant to Rule 62 of the Family Court Rules of Procedure for Domestic Relations.⁴ On August 7, 2007, the Family Court entered an order granting defendant's motion to relocate. At a hearing on August 10, 2007, plaintiff informed the court that he intended to file an appeal. Based on his representation, the trial justice treated defendant's motion as a request for interim relief.

After argument by counsel, the trial justice granted the request for interim relief, allowing defendant to relocate with the children pending appeal.⁵ The court found that this was "clearly in the best interest of the children, given the decision * * * already rendered in this matter and also in accordance with [Article I,] Rule 7 of the Supreme Court Rules of Appellate Procedure."⁶ The trial justice thought that to conclude otherwise would be the equivalent of plaintiff "leapfrogging the authority of this court and the decision of this court." The court emphasized that the family had a long-standing history of domestic violence and alcoholism, that...