Arn H. PEARSON v. Mary Lou WENDELL
Docket No. Cum-15-63
Supreme Judicial Court of Maine
Oct. 22, 2015
2015 ME 136 | 125 A.3d 1149
Submitted on Briefs: July 23, 2015.
[¶ 31] Conclusive generalities asserting that the plaintiff was treated differently will not suffice. Gianfrancesco, 712 F.3d at 640; see Polk, 2000 ME 152, ¶¶ 15-16, 756 A.2d 510 (holding that vague allegations about a CEO‘s reasons for opposing a permit application were insufficient to support an equal protection claim). Rather, the complaint must allege facts that could demonstrate “that the challenged decision . . . had a discriminatory effect and that it was motivated by a discriminatory purpose.” Polk, 2000 ME 152, ¶ 14, 756 A.2d 510 (quotation marks omitted).
[¶ 32] Marshall‘s complaint fails altogether to include allegations concerning how similarly situated property owners were treated by the Town, and his complaint does not report any “gross abuse of power,” Tapalian, 377 F.3d at 6 (quotation marks omitted), that could demonstrate malicious or bad faith intent to injure him, id. at 5. Without alleging any facts that would, if proved, demonstrate that he was treated differently from others similarly situated based on an impermissible discriminatory purpose, the complaint does not survive the motion to dismiss.
IV. CONCLUSION
[¶ 33] Because Marshall (A) failed to allege that the CEO‘s actions were taken pursuant to a municipal policy, (B) failed to pursue available administrative relief, and (C) failed to allege that he faced discriminatory treatment as compared with others who were similarly situated, we affirm the court‘s dismissal of Marshall‘s complaint for injunctive relief and damages.
The entry is:
Judgment affirmed.
David J. Van Dyke, Esq., Lynch & Van Dyke P.A., Lewiston, for appellee Mary Lou Wendell.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
HJELM, J.
[¶ 1] In this high-conflict case, Arn H. Pearson appeals from a judgment of divorce from Mary Lou Wendell issued by the District Court (Portland, Eggert, J.). Pearson argues that the court erred by (1) awarding Wendell sole parental rights and responsibilities affecting the parties’ three minor children; (2) failing to properly apply statutory factors, see
I. BACKGROUND
[¶ 2] The challenges faced by the court, which are central to an examination of Pearson‘s contentions on appeal, are best illustrated by reviewing some of the four-year history of litigation and the court orders spawned by the parties’ general inability or unwillingness to make mutually agreeable decisions for the benefit of their children. We view the following facts in the light most favorable to the court‘s judgment. See Young v. Young, 2015 ME 89, ¶ 2, 120 A.3d 106.
[¶ 3] The parties were married in 1991 and are the parents of three children: a child born in 2001, and twins born in 2004. After he separated from Wendell by leaving the family home, in November 2011 Pearson filed a complaint for divorce in the District Court (Ellsworth), and, at the parties’ request, the court (Laskey, M.) promptly appointed a guardian ad litem to represent the children‘s best interests. In January 2012, by agreement of the parties, the court issued an interim order providing, in effect, that the children‘s primary residence would be with Wendell but that parental rights and responsibilities would be shared, directing Pearson to pay Wendell $3,500 per month in spousal support, and addressing ongoing financial issues.
[¶ 4] By May, Wendell had filed a motion to enforce several of the financial aspects of the January interim order, Pearson had filed a motion for Wendell to be
[¶ 5] Subsequently, the court bifurcated the parental rights issues from the parties’ financial dispute, in apparent response to a motion filed by Pearson where he argued the pressing need to address the former but recognized the parties’ unreadiness to litigate the latter.2 In January 2013, the court held what was intended to be a final hearing on issues affecting parental rights and responsibilities. The court issued a judgment on March 14, granting the parties a divorce. Addressing the parenting issues, the court found that “since the parties’ separation, there has been no functional parental cooperation.” While the court attributed blame to both parties, it found that Wendell bore “the vast, vast majority of responsibility for the lack of parental cooperation.” The judgment provided that the parties were to share many parental rights and responsibilities, except that Pearson would have sole authority to make decisions to secure mental health services for the children and to make medical decisions to address one child‘s diagnosed ADHD, but ordered Pearson to schedule a comprehensive psychological examination for that child. The court further ordered both parties to submit to a comprehensive parenting capacity evaluation and, again, to secure a parenting coordinator, and it established behavioral standards for the parties to help insulate the children from their conflict. Finally, in a supplemental order, the court awarded primary residence of one child to Pearson and the other two children to Wendell, and established a detailed schedule for parent-child contact.
[¶ 6] Approximately one month later, in April 2013, Pearson filed motions to enforce and for contempt, alleging that Wendell had violated the parental rights provisions in the divorce judgment. The court ordered a prompt hearing, and in a June 18 order, it found Wendell in contempt for interfering with the children‘s mental health treatment and with Pearson‘s right to make medical decisions affecting the child with ADHD. The court declined to impose remedial or punitive sanctions but indicated that if Wendell engaged in further contemptuous conduct, sanctions would be “likely.”
[¶ 7] In September 2013, both parties moved to modify the judgment on parental rights that had been issued only months
[¶ 8] The court held a two-day hearing in October 2013 on the parties’ cross-motions to modify. In the resulting order, the court found, “The children are in serious distress, and there is currently no effective system of coparenting or parental communication.” Importantly for purposes of this appeal, the court also stated, “Judicial efforts to alleviate the children‘s distress have been ineffective thus far.” The court then found both parties to be at significant fault for creating a damaging environment for the children. Specifically, the court found that Wendell had violated the court‘s prior orders by interfering with medical decisions and not honoring the contact schedule, and that Pearson “ha[d] more than once transgressed the bounds of good parenting.” Nonetheless, the court noted that the children continued to be “strongly connected” to both parties. The court granted Pearson sole parental rights and responsibilities, with contact between Wendell and the children at specified times, and ordered that the children be transferred from one party to the other at a police station or through a third-party intermediary that Pearson could designate.
[¶ 9] By this time, the parties had moved to Cumberland County. The financial issues remained to be litigated, and parenting issues were still fundamentally unsettled. In November 2013, the court held a conference with the parties, and, finding “that the children continue to be in active distress,” ordered a change of venue to Portland. The parties promptly filed more motions: Pearson moved to modify aspects of the October order and filed a motion for contempt, alleging in part that Wendell was “inflict[ing] emotional cruelty on [him] through the children as punishment for prevailing in court“; and, pursuant to
[¶ 10] The case was scheduled for a final, comprehensive hearing in July, but the court granted Wendell‘s motion to continue based on Pearson‘s failure to comply with an order to produce financial records. The case was rescheduled for trial in September. One week prior to that trial date, Pearson filed a petition for bankruptcy. Although Pearson himself filed a motion in the bankruptcy proceeding for relief from the automatic bankruptcy stay, it was not clear to the court if there was an order in that case that would allow the divorce action to proceed. The court (Eggert, J.) thus again continued the trial and rescheduled it to December, ordering that if the bankruptcy stay was lifted as of then, the trial would be plenary, but that otherwise, the trial would be limited to parenting disputes.
[¶ 12] The evidence presented by the parties at the final hearing included descriptions of mental health interventions for the children; violent conduct by one child toward Pearson, resulting in damage to an item of property, personal injury to Pearson, and medical attention given to the child, with Pearson preventing Wendell from going to the hospital with the child; calls to law enforcement about issues affecting the children; the parties’ mutual decision to disregard the designations of the children‘s primary physical residence as ordered by the court in March 2013, resulting in further conflict addressed in the October 2013 order; Pearson‘s decision in January 2014, without notice to Wendell, to return the children to her after he was granted sole parental rights and responsibilities in October 2013; and other events that illustrated both the parties’ contentiousness and the profound instability in the children‘s lives.
[¶ 13] On December 18, 2014, the court issued a judgment awarding sole parental rights and responsibilities to Wendell for one year. The court based this order in part on its finding that during the pendency of the case, Pearson had been granted sole parental rights and responsibilities but ceded that role to Wendell.
This occurred in early January 2014 and life has continued to be [in] constant turmoil for the parties and their children since that time. The parties have been unable to cooperate as parents and they have engaged in constant warfare over the children and other divorce issues. As a result the children do not behave well and are abusive both verbally and physically to [Pearson] and at least verbally to [Wendell].
[¶ 14] The court further found that prior to the parties’ separation, Wendell was the primary care provider for the children because of Pearson‘s work responsibilities: “The steady parent was [Wendell] and the family was doing well as far as the development of the children went. . . . The Court finds that it is in the best interests of the children to go back to a situation [where Wendell] is the primary parent for all three children because the experiment of trying to install [Pearson] in that role has failed miserably.”
[¶ 15] The court ordered that during the year in which Wendell was to have sole parental rights,
a therapeutic reunification process [shall be] guided by a counselor between [Pearson] and the parties’ children and relating to the parties’ ability to co-parent and the parties’ ability to act in the children‘s best interests. It is through this process that a contact schedule will be developed for contact between [Pearson] and the parties’ children. After one year, there should be an assessment of the parties’ abilities to co-parent and parties’ ability to act in the children‘s best interests by counselors who will be involved in stabilizing the children. If the parties are deemed able to co-parent and . . . act in the best interests of the children, co-parenting may commence,
the parties shall have shared parental rights and responsibilities and a comprehensive contact schedule shall be put into effect.
The court further ordered that Wendell was to ensure that Pearson “has time with the children both together and individually.”
[¶ 16] In addition to ordering the therapeutic reunification process guided by a counselor, the court also directed the parties to engage in both individual and co-parenting counseling that would include a parental capacity evaluation, and directed Wendell to ensure that the children engage in counseling.
[¶ 17] Addressing financial issues, the court ordered, among other things, that Pearson pay Wendell $3,000 per month in spousal support, and $20,000 in “attorney‘s fees as part of his spousal support obligation, in addition to the $10,000 earlier awarded.”3
[¶ 18] Pearson moved for the court to issue further findings of fact and conclusions of law on various issues, see
The key factor is that the children seemed to be doing well when [Wendell] was the primary parent for the children and not well when [Pearson] had sole parental rights and responsibilities. Shared rights and responsibilities are not an option at this time because the parents are unable to function in a joint decision making role. Therefore, the Court was left with a decision as to granting sole parental rights and responsibilities to one parent or the other. Historically, the children have done better with [Wendell] providing . . . parental leadership . . . , and [Pearson] has not been successful in that role.
[¶ 19] On the issue of spousal support, the court found that the parties had been married for more than twenty years; that Pearson, an attorney, earned around $140,000 annually, while Wendell had not earned employment income during the past ten years because she was the primary homemaker and caregiver for the children; that Wendell‘s support of Pearson while he was in school was greater than Pearson‘s similar support of Wendell; and that spousal support would constitute taxable income to Wendell but that Pearson would be able to deduct the payments. Pearson filed a timely appeal from the judgment.
II. DISCUSSION
[¶ 20] We address Pearson‘s arguments on appeal in turn.
A. Parental Rights and Responsibilities
[¶ 21] Pearson makes four principal arguments that bear on the parental rights and responsibilities established in the divorce judgment: (1) that the court did not give proper deference and weight to prior orders issued in the case, (2) that the court erred in awarding sole parental rights and responsibilities to Wendell, (3) that the court improperly delegated decision-making authority over Pearson‘s contact rights to a third party, and (4) that the court‘s parental rights determination violated the children‘s constitutional rights to procedural due process.
[¶ 22] Pearson contends that the prior orders issued in this case had a res judicata effect and barred relitigation of the issues addressed in those orders, or alternatively that they constitute the “law of the case,” with a similar effect. From this, Pearson argues that the court erred in adjudicating those issues de novo. We disagree.
[¶ 23] First, res judicata is a general doctrine that “prevents the relitigation of matters already decided.” Portland Water Dist. v. Town of Standish, 2008 ME 23, ¶ 7, 940 A.2d 1097. Under its umbrella are two applications: issue preclusion, or collateral estoppel, and claim preclusion. Guardianship of Jewel M., 2010 ME 80, ¶ 39, 2 A.3d 301. Here, Pearson contends that Wendell should have been collaterally estopped from presenting evidence about facts underlying prior orders in this action, and that the court was required to accept those prior orders and the findings therein.
[¶ 24] A party is foreclosed from relitigating factual issues that have already been decided “if the identical issue was determined by a prior final judgment, and . . . the party estopped had a fair opportunity and incentive in an earlier proceeding to present the same factual issue or issues it wishes to litigate again in a subsequent proceeding.” Id. (alteration in original) (emphasis added) (quotation marks omitted). We have held that “[p]rinciples of res judicata must be applied with caution in domestic relations cases” because of changing developments that affect a child‘s best interests. Id. ¶ 41; cf. Preston v. Tracy, 2008 ME 34, ¶¶ 12, 15, 942 A.2d 718 (holding that a finding that a party willfully misused the protection from abuse process was not binding on the court in a subsequent divorce action because, “when determining parental rights and responsibilities, a court . . . must make an independent examination of the totality of the circumstances after hearing fresh evidence“).
[¶ 25] Here, at the time of the final hearing in December 2014, none of the prior orders constituted a final judgment. Although the March 2013 order was originally issued as a final judgment on the grant of the divorce itself and on parental rights and responsibilities, the nature and effect of that order changed in March 2014 when, with the parties’ agreement, the court vacated the judgment and correctly recharacterized it, and all subsequent orders, as interim orders. See Gulesian v. Gulesian, 377 A.2d 119, 120 (Me. 1977) (holding that an order pending divorce is not a final judgment that creates a right of appeal). Accordingly, the doctrine of collateral estoppel was inapplicable, and none of the orders, including the one issued in October 2013, had a preclusive effect.
[¶ 26] Pearson‘s alternative argument is that the prior orders contained the “law of the case,” and that they were therefore entitled to deference. For two reasons, this argument fails. First, the “law of the case” doctrine “relates only to questions of law.” Blance v. Alley, 404 A.2d 587, 589 (Me. 1979). Here, Pearson argues that the court should have deferred to prior findings and conclusions with respect to the best interests of the parties’ children. However, because the best interest analysis is not a pure question of law, see
[¶ 28] While rejecting Pearson‘s argument that the evidence presented at the December 2014 trial should be limited to events that post-dated the October 2013 order, the court made clear that it had reviewed the court file and was familiar both with the difficult family history and the prior findings and adjudications adverse to Wendell, which is the material that Pearson wanted the court to consider. The court therefore was fully aware of the background of the case as revealed in the court file. The court, however, did not err by adjudicating the parties’ claims de novo.
2. Determination of Parental Rights and Responsibilities
[¶ 29] Pearson argues that the court erred in awarding sole parental rights and responsibilities to Wendell because, he contends, the court did not properly evaluate the factors germane to the best interests of the children. See
[¶ 30] Contrary to Pearson‘s contention, the court did not abuse its discretion when it concluded that the children‘s best interests would be promoted if Wendell were to have sole parental rights and responsibilities. This case illustrates that the courts are simply not able to provide stability and emotional protection to children caught between two parents who are unwilling or unable to stand down from their conflict with each other. Here, the court had imposed parenting orders of varying configurations: initially, shared parental rights and responsibilities with the children living primarily with Wendell; then allocated parental rights and responsibilities with the children not living together primarily; and finally sole parental rights and responsibilities to Pearson, who then abdicated primary physical residence of the children by unilaterally transferring them to Wendell. The parties’ conduct ultimately frustrated the court‘s extensive efforts to provide judicial relief, and none of those prior efforts proved to be effective
[¶ 31] Particularly when viewed in light of the prior attempts to impose stability, the evidence supported the court‘s findings that Pearson and Wendell continued to be unable to co-parent effectively for the benefit of their children; that the children‘s best interests militated toward an award of sole parental rights and responsibilities to one of the parties; that the children were in a more stable and emotionally healthy environment when they lived primarily with Wendell; and that parental rights and responsibilities therefore should be awarded to her. This is not a conclusion that Wendell has been free from fault but rather demonstrates that the court properly maintained its focus on the best interests of the children. This focus is apparent in the judgment itself, and, even more explicitly, in the court‘s order on Pearson‘s motion for further findings of fact and conclusions of law, where the court confirmed that it had considered the factors prescribed in
3. Pearson‘s Rights of Contact
[¶ 32] Pearson next argues that the court erred in assigning responsibility to a counselor for establishing a schedule of his rights of contact with the children.
[¶ 33] We have held that it is error for a court to delegate responsibility to a third party to decide when a parent can have contact with his children. See Knight v. Knight, 680 A.2d 1035, 1038 (Me. 1996). In Knight, because one of the parties (the father) was serving a lengthy prison sentence, the parties contested his contact rights, and the court‘s judgment allowed him to have contact only if the children‘s guardian ad litem or other mental health professional determined that the children were “willing and ready” to see their father. Id. at 1036 (quotation marks omitted). On appeal, we held that the requirement of third-party approval for contact was error because it improperly “transfer[red] the court‘s responsibility for determining the best interest of the child to the therapist. Although the court can consider the expression of such an expert opinion by a therapist, the court cannot make the visitation outcome dependent upon that opinion.” Id. at 1038.
[¶ 34] In the judgment at issue here, the court ordered the parties to engage in a therapeutic reunification process guided by a counselor relating to the parties’ ability to co-parent and the parties’ ability to act in the children‘s best interests. It is through this process that a contact schedule will be developed for contact between [Pearson] and the parties’ children. . . . The holiday schedule shall be determined as part of the therapeutic reunification process. After prescribing a one-year term for the therapeutic reunification process, the judgment went on to provide, “During the one year counseling process [Wendell] shall be responsible for making sure that [Pearson] has time with the children both together and individually.”
[¶ 35] Pearson argues that the judgment transferred to a third party, i.e., the counselor, the ultimate responsibility for decisions affecting Pearson‘s rights of contact. Because Pearson‘s construction of the judgment would violate our holding in Knight, we must examine the judgment to determine whether Pearson‘s construction is correct. If the judgment is ambiguous but is amenable to a construction that
[¶ 36] The judgment did not unambiguously grant the counselor authority to determine Pearson‘s rights of contact with the children. Rather, pursuant to the judgment, a contact schedule would be developed “through this [therapeutic reunification] process,” in which both parties would engage with a counselor. This arrangement is materially different from the one vacated in Knight, where a third person alone would have ultimately controlled whether the father could have any contact with his children. Here, in contrast, the creation of a contact schedule is to be the product of a cooperative venture in which the parties themselves are among the principals.
[¶ 37] Additionally, the judgment assigns specific responsibility to Wendell to ensure that Pearson has contact with the children. This further demonstrates that the court did not give decision-making authority to the counselor, but rather that the counselor‘s role would be to “guide[]” the parties to a breakthrough in their conflict and to develop a capacity to co-parent effectively, including establishing Pearson‘s rights of contact. Therefore, even if the judgment is ambiguous because the internal dynamics of the process leading to a contact schedule were not fully explained, the judgment can be reasonably construed in a way that does not run afoul of our holding in Knight. Accordingly, we conclude that the court‘s creative approach to formulating a contact schedule was not error.
4. Constitutional Rights of the Children
[¶ 38] Relying on Miller v. Miller, 677 A.2d 64 (Me. 1996), Pearson argues that the court‘s best interest determination impinged on the children‘s constitutional right to procedural due process because of the judgment‘s effect on their familial relationships.
[¶ 39] In Miller, the minor children of parties to a divorce action sought to become parties so that they would have an opportunity to advocate in favor of their “custodial interest[s].” Id. at 68-70. We held that the children did not have a constitutional right to be joined as parties based on their right to procedural due process because “any” constitutional interest they might have would be satisfied by the participation of a guardian ad litem, who would promote their best interests pursuant to the standards set out in
[¶ 40] Our discussion in Miller does not support Pearson‘s claim. First, Miller did not hold that children of divorcing parents have the constitutional right to participate as a party would. See id. at 70; see also Levy, Maine Family Law § 6.3[6] at 6-34 (8th ed. 2013). Second, even if such a right exists, it is fulfilled by the court‘s overarching best interest analysis, in which the children‘s preference is one of many factors, none of which is dispositive. See
[¶ 41] We therefore conclude that because the court‘s decision to grant sole parental rights and responsibilities to Wendell was predicated on a best interest analysis, the judgment did not violate any constitutional interest the children may have.
B. Spousal Support
[¶ 42] The court awarded Wendell monthly spousal support of $3,000, to terminate upon her remarriage or “cohabitation in the manner of marriage,” or upon the death of either party. Pearson argues here that the court‘s spousal support order is not supported by substantial evidence. We review an order of spousal support for an abuse of discretion. Jandreau v. LaChance, 2015 ME 66, ¶ 14, 116 A.3d 1273.
[¶ 43] In its order on Pearson‘s Rule 52 motion, the court identified the bases for its spousal support order: the parties were married for more than twenty years; Pearson‘s annual income as an attorney is approximately $140,000; Wendell had not received employment income since around 2005 because of her responsibilities as the primary parent and homemaker; although each supported the other‘s education and development of earning potential, Wendell‘s support of Pearson while he attended law school was more substantial than Pearson‘s similar support of Wendell; and Wendell‘s spousal support would be taxable, whereas Pearson would be entitled to deduct those payments. Thus, in its support analysis, the court properly considered a number of factors outlined in
C. Attorney Fees
[¶ 44] In its judgment, the court ordered that Pearson pay Wendell $20,000 in attorney fees “as part of his spousal support obligation.” This supplemented an order issued by the court prior to trial requiring Pearson to pay $10,000 in attorney fees. After the court issued its judgment, Pearson moved for the court to issue findings of fact and conclusions of law on, among other things, attorney fees, arguing that most of Wendell‘s attorney fees
[¶ 45] A court is authorized to issue an award of reasonable attorney fees based on a determination of “the parties’ relative capacity to absorb the costs of litigation . . . as well as all relevant factors that serve to create an award that is fair and just under the circumstances.” Miele v. Miele, 2003 ME 113, ¶ 15, 832 A.2d 760 (citations omitted) (quotation marks omitted); see also
[¶ 46] Beyond that, although the court‘s order on Pearson‘s Rule 52 motion did not include a compartmentalized finding that the amount of the attorney fees award was reasonable, the findings in both the judgment and the order on Pearson‘s motion reasonably extend to that issue. In both the judgment and the order on Pearson‘s motion, the court discussed the long, contentious, and complicated history that bears on the issues central to this action, particularly as those issues relate to the children. The court‘s discussion encompassed both the facts themselves and the significance of those facts as applied to the governing legal principles. Those findings and conclusions, although presented in the context of other issues, were sufficient to apprise the parties of the reasons why the amount of attorney fees awarded to Wendell was reasonable under the circumstances. The court was not required to further elucidate its rationale. See Wandishin v. Wandishin, 2009 ME 73, ¶ 19, 976 A.2d 949.
[¶ 47] The determination of attorney fees is a factual matter, Efstathiou v. Efstathiou, 2009 ME 107, ¶ 17, 982 A.2d 339, which we review for an abuse of discretion, Kezer v. Cent. Me. Med. Ctr., 2012 ME 54, ¶ 28, 40 A.3d 955. Just as the court did not err in its award of monthly
The entry is:
Judgment affirmed.