Desmond v. Desmond
2012 ME 77
| Me. | 2012Background
- Andrew Desmond, a Marine stationed in Okinawa, seeks a summer 2011 visit with his Maine-based son; Abby Desmond is the child's mother.
- Divorce judgment (2007) awarded shared parental rights but primary residence with Abby; no fixed father visitation schedule due to Andrew's military assignments.
- Remand after a 2010 modification proceeding led to four status conferences to facilitate an eight-week summer visit in 2011.
- Delays and issues with medical paperwork for Okinawa required documents; last-minute arrival still left Andrew unable to host the visit.
- Court found Andrew would not agree to a later or shorter visit; guardian ad litem (GAL) remained involved; court ultimately denied the visit and terminated GAL.
- Appellant challenged the remand proceedings, the denial of a Rule 52(b) motion, and the GAL termination; appellee asked for trebled costs for frivolous appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court properly supervised the missed summer visit | Desmond argues court failed to compel a visit against Abby's conduct. | Desmond contends delays were Abby's fault and court should have concluded a visit was possible. | No reversible error; court acted within discretion to attempt and conclude no visit could occur. |
| Whether the denial of Andrew's Rule 52(b) motion was an abuse of discretion | Desmond asserts the court erred in treating the status conferences as decisive without proper findings. | Desmond claims the record supports not vacating the judgment and the recitation was accurate. | No abuse of discretion; the order accurately summarized proceedings and affirmed prior schedule. |
| Whether terminating the Guardian ad Litem was an abuse of discretion | Desmond contends GAL was still needed to oversee visitation issues. | Desmond argues financial resources warranted continued GAL involvement. | No abuse of discretion; GAL termination supported by factors and financial considerations. |
Key Cases Cited
- Desmond v. Desmond (Desmond I), 17 A.3d 1234 (2011 ME 57) (remand to ensure meaningful contact; eight-week summer visitation urged)
- Greaton v. Greaton, 36 A.3d 913 (Me. 2012) (necessity of showing prejudice on Rule 52(b) appeal)
- Roberts v. Roberts, 928 A.2d 776 (2007 ME 109) (abuse of discretion standard for Rule 52(b) motions)
- Sewall v. Saritvanich, 726 A.2d 224 (1999 ME 46) (standards for appellate review of trial court decisions)
- Finn v. Finn, 517 A.2d 317 (Me. 1986) (justiciability and status of equitable relief)
- Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 738 A.2d 1239 (Me. 1999) (justiciability and real controversy requirement)
- Desmond v. Desmond, 2011 ME 57 (Me. 2011) (appeal affirmed; emphasis on timely visitation on remand)