Lindsay E. Verite v. Eric J. Verite
151 A.3d 1
| Me. | 2016Background
- Lindsay and Eric Verite divorced in 2011 and were awarded shared parental rights; Lindsay had primary residence of three children (born 2005, 2008, 2010).
- Eric filed a motion to enforce visitation (Oct 2014); Lindsay filed a motion to modify seeking sole parental rights (Nov 2014). The court entered interim temporary sole custody to Lindsay and ordered evaluations and a guardian ad litem.
- A two-day hearing was held (Dec 9, 2015 and Jan 5, 2016). The court denied Eric’s enforcement motion, concluding Lindsay’s withholding of visits was motivated by reasonable safety concerns (OUI charge, prior suicidal ideation, refusal of counseling).
- The court found a substantial change in circumstances and awarded Lindsay sole parental rights and responsibilities, citing Eric’s hostile communications, a psychological evaluation suggestive of a personality disorder, a domestic-abuse incident at the children’s school, and misuse of protection-from-abuse proceedings.
- The court addressed Lindsay’s potential temporary relocation to Switzerland (raised during testimony) and found the move reasonable and in the children’s best interests; it gave Lindsay discretion over contact frequency/duration but required Skype communication and facilitation of visits if she relocates.
- The court ordered Eric to reimburse Lindsay $7,500 in attorney fees and half of $15,812 in expert fees for Eric’s psychological evaluation and testimony.
Issues
| Issue | Plaintiff's Argument (Eric) | Defendant's Argument (Lindsay) | Held |
|---|---|---|---|
| Whether court could consider Lindsay’s proposed relocation though not pleaded and without formal 30-day notice | Statute requires notice and relocation was not pleaded; he did not consent to litigating relocation | Relocation was tried by implicit consent during the hearing; Eric knew and litigated the issue | Court may consider relocation; issue was tried by implicit agreement and §1653(14) did not bar consideration |
| Whether lack of written 30-day notice under 19-A M.R.S. §1653(14) precluded litigation of relocation at the hearing | Failure to give statutory notice invalidates addressing relocation | Statute requires notice in orders, not notice prior to court proceedings; parties litigated by implicit consent | Statute does not require 30-day notice before a hearing; consideration appropriate where parties had full opportunity to address issue |
| Whether the court erred in awarding attorney fees to Lindsay without articulating basis | Fees award lacked adequate explanation of factors and basis | Court considered parties’ positions, ability to bear costs, reviewed fee affidavits and explained its reasoning | Fee award was within discretion; court considered relevant factors and provided sufficient explanation |
| Whether the expert-fee award requiring Eric to pay half of the psychologist fees was improper | Expert fees were excessive and inadequately justified | Evaluation was necessitated by Eric’s behavior; Eric’s income supported allocation | Court did not abuse discretion in ordering Eric to reimburse half of expert fees given conduct and relative ability to pay |
Key Cases Cited
- Efstathiou v. Aspinquid, 956 A.2d 110 (Me. 2008) (statutory interpretation reviewed de novo)
- Bank of Am., N.A. v. Cloutier, 61 A.3d 1242 (Me. 2013) (plain-language statutory interpretation controls)
- Malenko v. Handrahan, 979 A.2d 1269 (Me. 2009) (relocation notice and contest procedure described)
- Bernier v. Merrill Air Eng’rs, 770 A.2d 97 (Me. 2001) (issue tried by consent requires clear record of consent)
- DiBiase v. Universal Design & Builders, Inc., 473 A.2d 875 (Me. 1984) (issue may be tried by implied consent when one party generates it and opposing party does not object)
- Steinberg v. Elbthal, 463 A.2d 731 (Me. 1983) (failure to object to evidence relevant only to unpleaded issue suggests acquiescence)
- Pearson v. Wendell, 125 A.3d 1149 (Me. 2015) (attorney-fee awards reviewed for abuse of discretion)
- Smith v. Padolko, 955 A.2d 740 (Me. 2008) (trial court may consider factors bearing on fairness when awarding fees)
- Jandreau v. LaChance, 116 A.3d 1273 (Me. 2015) (relevant fee factors include ability to absorb costs and conduct increasing litigation costs)
- Miele v. Miele, 832 A.2d 760 (Me. 2003) (trial court should state reasons for fee awards)
- Wooldridge v. Wooldridge, 791 A.2d 107 (Me. 2002) (trial court’s allocation of third-party fees reviewed for abuse of discretion)
- Cole v. A.J. Cole & Sons, Inc., 567 A.2d 1342 (Me. 1989) (standards for discretionary fee awards)