The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. Docket No. AP-99-29
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SHEILA DRISCOLL,
(f/k/a Sheila Fenderson)
Plaintiff,
ORDER ON APPEAL
MARK FENDERSON,
Defendant.
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This matter came before the court on the Defendant’s M.R. Civ. P. 76D appeal
of the District Court’s order dated October 23, 1998 amending his right to parent-
child contact. The court has fully considered the trial court decision, the record on
appeal and the parties’ briefs and oral argument. The appeal will be denied for
reasons set forth below.
Background
The parties were married and had one child, Natalie, who was born on
August 4, 1994. The parties were divorced by order of the Augusta District Court on
October 31, 1996. The court granted defendant limited visitation rights but deferred
ruling on the issue of overnight weekend contact and summer and vacation contact
“pending [defendant’s] completion of an alcohol abuse evaluation by a licensed
substance abuse counselor, and the submission of the report to the court and any
further proceedings before the court with respect to such issue.” Additionally, the
court ordered that all of defendant’s parent-child contact was conditioned on, among
other things, him not consuming “any alcoholic beverages before and during any
parent-child contact on the day of such contact.” IDefendant did not appeal this
order.
In March of 1997, a hearing was held at which defendant presented testimony
from two alcohol abuse experts regarding their evaluations of him. Based on this
evidence, the trial court gave defendant more extensive visitation rights including
overnight visits and holiday and vacation time. The court further ordered that if
plaintiff had probable cause to believe that defendant had not complied with its
order not to consume alcoholic beverages before or during his visitation with
Natalie, then she was entitled to “suspend parent-child contact and notify the court
of such suspension and the basis therefor by affidavit.” I Pursuant to this provision,
on July 31, 1998 and August 3, 1998, plaintiff filed affidavits notifying the court that
she had suspended defendant’s visitation rights for failure to comply with the
court’s order not to consume alcoholic beverages before or during his visitation
with Natalie. On August 4, 1998 the court issued an order suspending defendant’s
visitation rights pending further proceedings finding that there was probable cause
to believe that defendant had violated the court’s order.
On October 14, 1998 a hearing was held on the issue of suspension and the
court issued its second order amending the Divorce Judgment on October 23, 1998.
The court found that defendant had violated its prior order and ordered that
defendant’s parent-child contact remain suspended until he “successfully completes
a 28-day residential alcohol abuse program and a report from a qualified program
personnel is provided to the court and to [plaintiff’s] attorney.” Upon receipt of the
report, the court will hold a hearing on the issue of resumption of defendant's
parent-child contact. It is from this order that*the defendant, proceeding pro se,
now appeals to this court.
Di .
On motion of one or both parents, the trial court may alter its prior judgment
concerning parental rights and responsibilities or contact with respect to a minor
child upon a showing of a substantial change in circumstances. 19-A M.R.S.A. §
1657 (1998). The burden is on the moving party “to establish by a preponderance of
the evidence that, since the prior custody order, there has occurred a change in
circumstances sufficiently substantial in its effect on the best interests of the [child] to
justify a modification of the [visitation] arrangements.” Rowland v. Kingman, 1997
ME 80, { 4, 692 A.2d 939, 942. Once this burden is met, the court must “discern, ‘as a
wise, affectionate and careful parent,’ what .. . arrangements will further the child’s
best interest.” Id. ¥ 4 (citing Cyr v. Cyr, 432 A.2d 793, 796 (Me. 1981)). “On appeal, the
court's decision to modify a custody order will only be disturbed if the factual
findings on which it is based are clearly erroneous or if it has abused its discretion in
crafting the new order.” Ehrlich v. Bloom, 585 A.2d 809, 812 (Me. 1991). Under the
clearly erroneous test, “a lower court’s findings of fact will stand “unless they clearly
cannot be correct because there is no competent evidence to support them.’” This
court should not overturn a custody order “[a]s long as there is rational support for
the decision.” Ehrlich, 585 A.2d at 812 (quoting Sheldon v. Sheldon, 423 A.2d 943,
946 (Me. 1980)).
The defendant does not challenge any of the factual findings made by the
court. He does not dispute that he consumed alcoholic beverages during his
visitation with Natalie in July of 1998 in direct violation of the court’s order.
Specifically, defendant had Natalie for one week of vacation from July 4, 1998
through July 12, 1998. During this week, a private investigator, hired by plaintiff,
observed and filmed defendant buy and consume beer on two occasions. He does
not dispute that he was picked up for OUI on July 14, 1998 and was later convicted of
that charge. He does not dispute that just two weeks later, on July 25, 1998, he was
picked up again for OUI, this time during one of Natalie’s overnight visitations.
Considering this undisputed evidence, this court cannot conclude that the trial
court’s decision to suspend defendant's visitation rights and order participation in a
28 day residential treatment program before resuming visitation was clearly
erroneous or an abuse of discretion. See Lee v. Lee, 595 A.2d 408, 413 (Me. 1991)
(affirming custody order conditioning unsupervised visitation on parent remaining
sober and refraining from the use of alcohol during periods of contact with the child
and granting parent six consecutive weeks of summer contact only upon-parent’s
completion of an alcohol treatment program). It seems that the defendant is simply
dissatisfied with the trial court’s decision, but dissatisfaction alone is not a basis for
appeal. The question on appeal, as noted above, is not whether the appellate court
would have decided the motion differently, but whether the trial court decision was
clearly erroneous. Finding no error, the appeal must be denied.
The plaintiff has requested an award of her attorney fees for defense of the
appeal. The plaintiff was awarded such fees for prosecution of the motion which is
the subject of this appeal, and she should receive those fees for the appeal also. The
court finds the amount of the reasonable attorney fees to be $899.
Entry
For the reasons stated above, the entry will be: (1) Appeal denied; (2) Mark
Fenderson shall pay to Kristin Gustafson, Esq. the sum of $899 for Ms Driscoll’s
reasonable attorney fees, execution to issue; (3) Remanded to the District Court.
Dated: June 15, 2000
S. KIRK STUDSTRUP /
JUSTICE, SUPERIOR COURT
Augusta, Maine 04338
* Date Filed 4/23/99 _____ Kennebec Docket No. ___AP99-29
, County °
Action Appeal from District Court
Divorce
Sheila H. Fenderson Driscoll , VS. Mark Fenderson
Plaintiff's Attorney Defendant’s Attorney
Kristen A. Gustafson, Esq. . Mark Fenderson, Pro Se
One Weston Court Hilton Road, P.O. Box 39
P.O. Box 2147 North Whitefield, Maine 04345
Date of
Entry
4/26/99 Appeal from Northern Kennebec District Court with all Papers, filed.
s/Fenderson,Pro Se (filed 4/23/99)
wrono Notice of briefing schedule mailed to atty and Dft. of record.
6/4/99 Appellants brief filed. Jags se toon Pre Se
Notice of setting for / o/ UP?
9/15/99 Arto. Atiers oLnacard. of Time to Respond to Defendant's Brief, filed.
s/Gustafson, Esq.
Motion to Continue October 7, 1999 Hearing, filed. s/Gustafson, Esq.
9/17/99 MOTION FOR EXTENSION OF TIME, Hjelm, J.
Appellee's brief shall be due on October 15, 1999.
Copies mailed to atty and Dft.
ORDER ON MOTION TO CONTINUE, Hjelm, J.
GRANTED. Hearing on appeal continued to next available date after 10/29/99.
Copies mailed to atty and Dft.
, 10/13/99 Brief of appellee Sheila L Driscoll filed. s/Gustafson Esq
11/12/99 Motion to Continue November 23, 1999 Hearing, filed. s/Fenderson, Pro Se.
11/15/99 Letter from attorney Gustafson indicating no objection to the motion to
continue.
11/22/99 MOTION TO CONTINUE, Studstrup, J.
The motion to continue the hearing presently scheduled for November 23, 1999
is continued to the next civil motion day.
Copies mailed to atty and Dft.
Notice of setting for_e///op
sent to attorneys of record.
6/1/00 Hearing had on appeal with Justice Kirk Studstrup, presiding. Tape 530
Index 1022-1732.
Kristen Gustafson, Esq. for the Plaintiff and Mark Fenderson, Pro Se Deft.
~ Date of
Entry # Docket No.
------ Oral arguments made to the court.
Court to take matter under advisement. Court to issue Order.
6/14/00 Affidavit of Fees, filed. s/Gustafson, Esq.
6/19/00 ORDER ON APPEAL, Studstrup, J. (signed 6/15/00)
For thesreasons stated above, the entry will be: (1)Appeal denied; (2)
Mark Fenderson shall pay to Kristin Gustafson, Esq. the sum of $899
for Ms Driscoll's reasonable attorney fees, execution to issue; (3)
Remanded to the District Court. ,
Copies mailed to atty. of record and pro se defendant.
Copies mailed to Garbrecht Law Library, Deobrah Firstone,and Goss
Data Service, Inc.