Barry RODRIGUE v. Suzanne BREWER.
Supreme Judicial Court of Maine.
Decided Nov. 29, 1995.
605 A.2d 605
Submitted on Briefs March 31, 1995.
Roberta S. Kuriloff, Ellsworth, for Defendant.
DANA, Justice.
Suzanne Brewer appeals from the judgment entered in the Superior Court (Waldo County, MacInnes, A.R.J.) affirming a judgment of the District Court (Belfast, Staples, J.) providing for shared parental rights and responsibilities of their two and a half year old son, Kenai, with primary physical residence alternating every four weeks, parental rights and responsibilities over his religious upbringing being allocated to the mother, and parental rights and responsibilities over his education being allocated to the father. We affirm the judgment.
Suzanne Brewer and Barry Rodrigue were married in December 1989 after a brief courtship. They separated in February 1990, sometime after their child‘s conception. Although the couple reconciled briefly, they permanently separated in May 1992. The District Court determined that shared parental rights and responsibilities were called for but found that despite the willingness of Brewer and Rodrigue to share in parenting on an equal basis, their inability to separate themselves from their marital conflicts compelled the court to establish a detailed plan of parental contact with Kenai and to allocate certain functions between the parents. The Superior Court reviewed the findings of the District Court and held that the findings were neither clearly erroneous nor an abuse of discretion. This appeal followed.
When the Superior Court acts as an intermediate appellate court, we will directly review the decision of the District Court. Weeks v. Weeks, 650 A.2d 945, 946 (Me. 1994). The paramount consideration for the trial court when allocating parental rights and responsibilities is the best interests of the child.
Brewer complains that the court‘s allocation of sole responsibility for Kenai‘s education to Rodrigue on the basis of his relative educational qualifications was an abuse of discretion. The record indicates that at the time of the hearing Rodrigue, then age 44, was pursuing two Ph.D. degrees: one at the University of Maine in History and the other at Laval University in Quebec City in Geography, and working as a research assistant at the University of Maine. In contrast, Brewer was a high school graduate, a full-time mother, and had worked as a teacher‘s aide and was currently doing some part-time bookkeeping. The court relied on the testimony of three experts and the parties. Dr. Hamrick testified that compared to the father she would have more concern about the mother‘s ability to make appropriate choices for Kenai‘s education and growth. Dr. Gaffney described the father as “an intelligent, sophisticated, sensitive man, a hard-working, dedicated academician and father.” Gaffney also stated that the mother frequently deals with problems by withdrawing entirely from communication, and Hamrick testified that “as the development tasks of the child become that of separation from the parent ... the kinds of difficulties [the mother] has with resolving conflict are going to become very significant.” There is no suggestion that the court based its decision exclusively on an analysis of the parties’ relative educational credentials. The challenged factual findings
Further, given Kenai‘s young age and the uncertainty of the parents’ future living situations, Brewer questions the timing of the court‘s allocation of specific tasks to either parent. Generally, the allocation of parental rights and responsibilities can be modified if circumstances between the parties change. See
Brewer complains that it is not in Kenai‘s best interest given his need for stability for the primary residence to alternate monthly between Belfast and Quebec City. Because Rodrigue proposed to reside in Quebec City for perhaps eighteen months, the court‘s allocation of a shared primary residence required Kenai to readjust to a new home environment every four weeks.
The trial court had before it testimony that although both Rodrigue and Brewer are caring, loving, and capable people who desire to parent Kenai, the intense conflict between them substantially impairs their ability to cooperate in that parenting. At the time of the hearing Kenai was rotating between his parents’ homes every two or three days. Dr. Gaffney testified that transitions were stressful and longer visits would diminish that stress. He recommended that the court‘s order concerning parental responsibilities be postponed for one year while the parents engage in co-parenting counseling. Dr. Gaffney testified that if the decision could not be postponed until the parents were offered the opportunity to develop better skills for conflict resolution, he would recommend the allocation of sole parental responsibility to Brewer. Dr. Hamrick testified that because of the importance of maintaining Kenai‘s bond with each parent, joint parental responsibility is the favored arrangement. She also favored alternating the child‘s residence every three or four weeks until he reached school age.
Although the record indicates that both parents are equally willing and capable of parenting and both requested the 50:50 arrangement to continue even when Rodrigue was in Quebec, Brewer finds fault with the trial court‘s order because it did not adopt the expert‘s suggestion that in the short run the ultimate parenting power reside not with either parent but with a “guardianship of some sort or some third party.” Even assuming that the court had the authority to suspend parental rights, see
The entry is:
Judgment affirmed.
WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD and LIPEZ, JJ., concurring.
RUDMAN, Justice, dissenting.
I respectfully dissent.
I have no quarrel with the District Court‘s findings of fact in this case. On the basis of those undisputed findings, however, the court must act within the bounds of its discretion in assigning parental rights and responsibilities. We review the court‘s assignment of parental rights for an abuse of the court‘s discretion in determining the consequences of its factual findings. Harmon v. Emerson, 425 A.2d 978 (Me. 1981). Discretion is not an absolute standard. The discretion accorded a trial court varies according to the principles identified as controlling a particular discretionary determination. When we say we review the court‘s determination for abuse of discretion we mean we have the responsibili-
The Source of Discretion in Assigning Parental Rights is Equity
The source of the principles that limit the court‘s discretion in parental rights determinations is venerable. The court‘s power derives from its general equity jurisdiction. Roussel v. State, 274 A.2d 909, 917-22 (Me. 1971).
The King, as pater patriae, has the direction of infants, which charge is administered in his Court of Chancery. Id. at 918 (quoting DeManneville v. DeManneville, 10 Vesey Jr‘s 52 (1804)).
That was not a jurisdiction to determine rights as between a parent and a stranger, or as between a parent and a child. It was a paternal jurisdiction, a judicially administrative jurisdiction, in virtue of which the Chancery Court was to act on behalf of the Crown, as being the guardian of all infants, in place of a parent, and as if it were the parent of the child, thus superseding the natural guardianship of the parent. Roussel v. State, 274 A.2d at 918 (quoting The Queen v. Gyngall, 2 Q.B. 232 (1893)).
The guardianship jurisdiction of Chancery, with all its old authority and bounded by its old principles, survives in the courts of Maine. In determining parental responsibility incident to its statutory divorce jurisdiction,1 a Maine trial court applies these principles of equity under its full equitable jurisdiction, (deriving from the English Court of Chancery) which was originally granted by the Legislature to the Supreme Judicial Court in 1874. Harmon v. Emerson, 425 A.2d at 984.
We find that the Legislature intended for courts in determining issues of custody in divorce proceedings to apply the equitably-based principles which are applied to custody determinations made under the full equitable jurisdiction. Harmon v. Emerson, 425 A.2d at 984.
Principles Limiting Discretion in Assigning Parental Rights
When properly exercised, a trial court‘s historic equitable discretion to assign parental rights and responsibilities is entitled to substantial deference. Ziehm v. Ziehm, 433 A.2d 725, 730 (Me. 1981) (citing Cooley v. St. Andre‘s Child Placing Agency, 415 A.2d 1084, 1086 (Me. 1980)). The court, however, may not do as it pleases. In discharging its responsibility to exercise its original equity jurisdiction over the custody of infants, the trial court must apply the substantive principles of equity. Roussel v. State, 274 at 925.
A judge in discharging his sobering responsibility of deciding the care and custody of a minor child acts not at all as a mere arbiter between two adult adversaries, simply reacting to the evidence they may see fit to adduce in support of their respective positions. Rather, his function is that described in the oft-quoted words used by Judge Cardozo in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 626 (1925):
He acts as parens patriae to do what is best for the interest of the child. He is to put himself in the position of a “wise, affectionate and careful parent” and make provision for the child accordingly.... He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights “as between a parent and a child” or between one parent and another. He “interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the [state] as parens patriae.”
Ziehm v. Ziehm, 433 A.2d at 728.
In Ziehm we not only identified the best interest of the child as the fundamental prin-
Although we have said repeatedly that the “delicate balancing” of the factors set forth in
The Best Interest of the Child
The trial court here dealt with the custody of a child less than three years of age.3 The court‘s decision provided for shared parental rights and shared primary residence, the child to live with each parent for alternating periods of four weeks duration. The court‘s decree contemplated the father would reside temporarily in Quebec and perhaps then permanently in Alaska and the mother would reside in Belfast, Maine. The decree further ordered the father was to have sole control over the child‘s education and the mother to have sole control over the child‘s religious training.
The linguist refused to give an opinion on anything other than the general virtue of bilingual education and the availability of bilingual education in Quebec. He specifically, clearly, and properly refused to address the psychological and social issues associated with moving a child back and forth every four weeks between Quebec and Belfast but limited his testimony to addressing factors of the linguistic challenge facing a child in such an arrangement. His positive evaluation of bilingual education provides nothing to guide the court in assessing the difficult psychological questions involved here.
Evidence addressing the psychological best interest of the child came in the form of testimony by the psychologists. Both expressed their explicit and unequivocating belief that these parents would be incapable of sustaining a joint parenting arrangement.
One of the psychologists, a university counselor who did initial couple therapy for the parties but later provided individual counseling for the father alone, advised that joint responsibility should not be assigned unless a third-party mediator were appointed to negotiate the inevitable conflicts between the parents. She characterized continuing mediation as an “essential ingredient” in any assignment of shared responsibilities. Unfortunately she did not address what should happen if mediation were unavailable. Her testimony therefore provided only an insoluble conundrum for a court financially locked out of the disposition she advised. There must be no shared responsibility, she said, but neither should either parent be given “most” authority. Her advice recommended against both of the only two avenues open to the court and provided no rational basis for choosing either.
The other psychologist, a clinical and school practitioner, also advised against shared responsibility. He recommended that joint responsibility could not work unless the parties could be given time first for counseling to develop an ability to resolve their deep seated conflicts. This psychologist, however, did testify expressly as to a recommended disposition should such help be unavailable. He advised that if a decision had to be made as things stood, the mother should be given sole parental responsibility.
The trial court found that “even though the parties are intelligent and reasonably mature, they are unable to divorce themselves from the stress and rancor that characterized their short term marriage.” The court then, recognizing the incapability of the parents to work together, having before it no helpful psychological information from the linguist and an impossible recommendation from the counselor, chose to ignore the clinical psychologist‘s direct advice. Although there is no evidence of any kind in the record that shared parenting responsibility here is in the best interest of the child, the trial court assigned shared responsibility.
I am sympathetic to the financial and time strictures that bar the trial court from structuring what could be an optimal solution to this difficult dispute. That limited resources make recommended alternatives impossible, however, does not mean that the court by default must assign the very joint parenting responsibility both psychologists recommended against. There is no rational support in the record for the court‘s assigning to these parents, in light of the unavailability of mediation or further counseling, shared parental rights and responsibilities.
The court parceled out parental rights with obvious attention to balancing the parents’ interests. Four weeks with father. Four weeks with mother. Educational responsibility to father. Religious responsibility (that the mother did not seek and had not asked for) to mother. The court‘s strain to effect a kind of legal equipoise is palpable. Such balancing, however, does not satisfy equity‘s principled command that the court must make its determination in the best interest of the child.
The court‘s assignment of joint parental rights and responsibilities, split as to time and split as to function, impels the parties,
Internal Consistency of a Discretionary Order
A second principle, beyond the equitable and statutory requirement that the court must act in the best interest of the child, also bounds a trial court‘s discretion. A court order must be internally consistent. As the trial court must follow applicable principles of equity, so must it follow principles of logic. It must avoid issuing an inherently contradictory order. The District Court order allocating parental rights and responsibilities between Barry Rodrigue and Suzanne Brewer fails to adhere to this fundamental principle of discretion. The order is internally inconsistent.
The order assigns to Rodrigue and Brewer the ultimate in shared parental rights and obligations: to provide their son a primary home. This shared responsibility for guiding and guarding their child‘s growth and development, just provided by the trial court, is immediately shattered by the trial court‘s assigning to the father sole decision-making power over the boy‘s education. The court has given the father the power to place the child in any school he decides, even if such placement destroys shared residency.
Such an inherently contradictory allocation of parental rights and responsibilities cannot be justified as a response to the parents’ inability to resolve their conflicts. Although shared parental rights and responsibilities generally may be appropriate, such co-parenting is not always in the best interest of the child and is especially inappropriate when the parties are found to be “unable to divorce themselves from the stress and rancor that characterized their short-term marriage.”
I would vacate the judgment of the District Court.
PAUL L. RUDMAN
ASSOCIATE JUSTICE, MAINE SUPREME JUDICIAL COURT