Olson v. Olson

• Decision Date: 29 October 1997
• Docket Number: No. 96-525-A,96-525-A
• Citation: 701 A.2d 1030
• Parties: Christen OLSON v. William M. OLSON. ppeal.
• Court: Rhode Island Supreme Court

Page 1030

701 A.2d 1030

Christen OLSON v. William M. OLSON.

No. 96-525-Appeal.

Supreme Court of Rhode Island.

Oct. 29, 1997.

John Coughlin, Providence.

Henry H. Katz, Pawtucket.

ORDER

This matter came before the Supreme Court on October 6, 1997, pursuant to an order directing both parties to show cause why the issues raised in this appeal should not be summarily decided. The defendant, William Olson (defendant) appeals from a Family Court judgment awarding joint custody of the parties' child to both parties and physical possession of the child to the plaintiff, Christine Olson (plaintiff).

After hearing the arguments of counsel for the parties and after reviewing the memoranda of the parties, we are of the opinion that cause has not been shown and the appeal will be decided at this time.

The plaintiff and defendant were divorced on May 8, 1987 and sole custody of the couple's only child was awarded to plaintiff. On December 20, 1989, a consent decree entered amending the final judgment of divorce by awarding physical custody of the child to defendant. On January 22, 1992, another order entered further amending the final decree and awarding sole custody of the child to defendant and suspending plaintiff's visitation rights altogether. In March of 1992, however, a consent order entered reinstating plaintiff's visitation rights.

On July 29, 1994, plaintiff petitioned the court for sole custody and physical possession of the child. In conjunction with this petition, plaintiff sought and received an ex-parte order awarding her temporary custody and physical possession of the child. Sometime thereafter, while the plaintiff's petition was pending, the parties entered into a consent decree in which both parties retained joint custody of the child with physical possession continuing temporarily with plaintiff. It appears from the record that the impetus for the change in possession was the fact that defendant had become seriously ill.

The plaintiff's petition for sole custody and physical possession remained pending throughout this period. A hearing on the petition began on May 23, 1995. On September 20, 1995, the trial justice rendered a bench decision in which he found that both parties were fit and proper parents to have custody of the child. He stated that he had considered the testimony of the child as well as the recommendation of the clinical psychologist and determined it would be in the child's best interest for her to remain with her mother. The trial justice found that neither party was at fault for the custodial situation as it then existed, but that a change of circumstances had occurred such that physical placement was now with plaintiff. He further found that it would be detrimental to change the child's residence in opposition to her wishes.

The defendant appealed that decision to this court. On appeal defendant argues that the trial justice erred in finding a change of circumstances sufficient to change physical placement and that he overlooked material evidence in...