James-Robert G. Curtis v. Florania Da Silva Medeiros

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2016 ME 180

Docket: Pen-15-618

Argued: October 27, 2016

Decided: December 15, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

JAMES-ROBERT G. CURTIS

v.

FLORANIA DA SILVA MEDEIROS

GORMAN, J.

[¶1] Florania Da Silva Medeiros (Medeiros) appeals from a judgment of

the District Court (Bangor, Campbell, J.) denying her motion to enforce her

2011 divorce from James-Robert G. Curtis and modifying the terms of that

2011 divorce judgment. Medeiros contends that the court erroneously

interpreted the original divorce judgment concerning her authority to take

her and Curtis’s minor child on an annual trip to Brazil, and that the court

violated her fundamental right to parent by modifying the divorce judgment

to award contact with the child to the paternal grandparents pursuant to

19-A M.R.S. § 1653(2)(B) (2015). We agree with Medeiros and vacate the

judgment.

2

I. BACKGROUND

[¶2] Medeiros and Curtis were married in 2002 and divorced by a

judgment of the District Court (Ende, J.) in 2011. The parties, who both reside

in Maine, have one minor child. Medeiros has American and Brazilian dual

citizenship, and her mother lives in Brazil.

[¶3] In the 2011 divorce judgment, the court awarded the parties

shared parental rights and responsibilities, and awarded Medeiros the right to

provide the child’s primary residence. The court also established a schedule

for Curtis’s contact with the child that accommodated his out-of-state work

schedule. With regard to Medeiros’s request to travel annually with the child

to Brazil, the divorce judgment states as follows:

7. TRIPS TO BRAZIL WITH [THE CHILD]: The parties disagree

over whether [Medeiros], who is a citizen of Brazil as well as a

naturalized United States citizen, may take [the child] with her

on her annual visits to Brazil each August, which are usually

10 to 14 days in duration. Their arguments are set out in the

Interim Order, dated August 24, 2010, and won’t be repeated

here. [Medeiros] may take [the child] with her as of August

2013, or such earlier time as:

a. the parties agree to such in writing; or

b. either of the parties complete the [legal] process of

registering this Divorce Judgment in Brazil.

8. [Curtis] shall return [the child’s] passport to [Medeiros], by

February 1, 2013 or six months before any earlier trip that the

3

defendant makes, pursuant to paragraphs 7a or 7b,

immediately above. [Curtis] shall cooperate and shall

promptly sign upon request all necessary paperwork from

either the United States government or the Brazilian

government for [Medeiros] to travel to Brazil with [the child]

in August 2013 or such earlier time as to enable [Medeiros] to

make an earlier trip, pursuant to paragraphs 7a or 7b,

immediately above.

No appeal was taken from the divorce judgment.

[¶4] On February 20, 2014, Medeiros moved to modify the divorce

judgment to request an amended contact schedule, noting that the child would

be starting school the following September. In the same motion, Medeiros

requested that child support be modified, and that Curtis be required to

complete the documents necessary to renew the child’s passport. Curtis

opposed this motion, asserting there had been no substantial change in

circumstances. Four months later, on June 12, 2014, while the motion to

modify was still pending, Medeiros moved to enforce the divorce judgment,

and asked that the motion be heard on an expedited basis because she was

seeking an order that would allow her to take the child to Brazil in 2014.

Curtis opposed both motions.

[¶5] In July of 2014, the court (Campbell, J.) denied Medeiros’s request

for an expedited hearing. Fourteen months later, on September 16, 2015, fully

two and a half years after Medeiros’s motion to modify was filed, the court

4

finally conducted a hearing on Medeiros’s motions to modify and enforce.

After that hearing, the court denied Medeiros’s motion to enforce the divorce

judgment regarding annual trips to Brazil, concluding that the divorce

judgment provided for Medeiros to take the child to Brazil on only one

occasion, in August of 2013, and that Curtis therefore had not violated the

divorce judgment by refusing to allow Medeiros to take the child to Brazil in

2014 or 2015.

[¶6] In addition, the court modified Curtis’s contact schedule and,

apparently in response to Medeiros’s motion to modify,1 the court modified

the divorce judgment in two other respects. First, the court ordered that

Medeiros could take the child on a trip to Brazil only every other year and,

second, it awarded contact with the child to the paternal grandparents, citing

19-A M.R.S. § 1653(2)(B):

The court has the authority pursuant to 19-A M.R.S. §1653(2)(B)

to award reasonable rights of contact with a minor child to a third

party. . . . The court agrees with [the guardian ad litem’s] opinion

regarding the importance of ordering that the paternal

grandparents are [to] have contact with [the child] one weekend a

month. The court finds, that not only is it in the best interest of

1 Curtis did not file any motion to modify the divorce judgment. He only opposed Medeiros’s

motions to modify and to enforce.

5

the child for [her] to have contact with her paternal grandparents

one weekend a month, but also that it is necessary to protect her

from a psychological perspective. The court further finds that this

contact will not interfere with the mother’s fundamental right to

parent her own child, nor will it infringe on the mother’s right to

make decisions regarding her child.

Therefore, the court modifies the prior contact Orders in this case

and hereby ORDERS that one weekend a month, while [Curtis] is

working out of State, [the paternal grandparents] shall have

contact with [the child from Saturday morning to Sunday

evening]. . . .

[¶7] Medeiros moved to reconsider and for further findings and

conclusions as to the Brazil travel and grandparent contact issues. See M.R.

Civ. P. 52(b), 59(e), 120(c). The court declined to reconsider its decision, but

issued further findings, and again invoked 19-A M.R.S. § 1653(2)(B) as its

authority for awarding reasonable rights of contact with a nonparent.

Medeiros timely appeals.

II. DISCUSSION

A. Travel to Brazil

[¶8] We first address Medeiros’s contention that the court

misinterpreted the 2011 divorce judgment to provide only for a single trip to

Brazil in 2013, and that the court therefore erred by declining to enforce the

term in the 2011 divorce judgment allowing her to take the child to Brazil on

an annual basis beginning in 2013. We review de novo whether a provision in

6

a divorce judgment is ambiguous, i.e., “reasonably susceptible to different

interpretations,” by examining that provision in the context of the divorce

judgment as a whole. Ramsdell v. Worden, 2011 ME 55, ¶ 17, 17 A.3d 1224;

Stockwell v. Stockwell, 2006 ME 114, ¶ 11, 908 A.2d 94. “An unambiguous

judgment must be enforced in accordance with the plain meaning of the

language in the judgment.” Ramsdell, 2011 ME 55, ¶ 17, 17 A.3d 1224. When

the judgment is unambiguous, the court “may not, under the guise of a

clarification order, make a material change that modifies the provisions of the

original judgment.” Burnell v. Burnell, 2012 ME 24, ¶ 15, 40 A.3d 390

(quotation marks omitted). If the divorce judgment is ambiguous, however,

the court has the inherent authority to construe and clarify the decision.

Bonner v. Emerson, 2014 ME 135, ¶ 12, 105 A.3d 1023.

[¶9] We conclude that the unambiguous language of the original 2011

divorce judgment allows Medeiros to take the child on an annual trip to Brazil.

It specifically refers to plural “TRIPS TO BRAZIL” and discusses Medeiros’s

request to take the child “with her on her annual visits to Brazil each August,

which are usually 10 to 14 days in duration.” (Emphases added.) By their

plain terms, the references in the divorce judgment to the trip in August of

7

2013 concern the timing and practicalities of the first trip, and not the

exclusivity of that trip.

[¶10] Indeed, any other interpretation would create the absurd result

that Medeiros would be forced to litigate the issue of travel every year that

she wanted to take the child to visit her maternal grandmother. See Griffin v.

Griffin, 2014 ME 70, ¶ 18, 92 A.3d 1144 (requiring courts to interpret plain

language to avoid “absurd, illogical or inconsistent results” (quotation marks

omitted)). To interpret the divorce judgment to invite or require a yearly

motion to modify is contrary to the strong public policy in favor of finality in

divorce judgments and in decisions regarding the care of children.2 See Black

v. Black, 2004 ME 21, ¶ 15, 842 A.2d 1280; Spaulding v. Spaulding, 460 A.2d

1360, 1364 (Me. 1983) (recognizing the “compelling need to give a measure of

finality to custody decrees in order to [ensure] a more stable environment for

the child”). “If the divorce judgment had intended that the [order] would

deviate so substantially from the approach contemplated by the . . . statute, it

would have so provided.” Corcoran v. Marie, 2011 ME 14, ¶ 16, 12 A.3d 71.

2 Moreover, it is unlikely that Medeiros would be permitted to do so given that a motion to

modify is appropriate only when there is a significant change in circumstances, see 19-A M.R.S.

§ 1653(10)(B), 1657(2) (2015); Sargent v. Braun, 2006 ME 96, ¶¶ 6-8, 902 A.2d 839, and her desire

each year to take the child to Brazil is unlikely to qualify as a significant change in circumstances.

As noted throughout this opinion, Curtis did not file a motion to modify and, in fact, asserted that

there had been no substantial change in circumstances since the time of the divorce.

8

[¶11] Because the divorce judgment unambiguously provides for the

child’s annual travel to Brazil, the denial of the motion to enforce that

provision and the court’s modification of that provision were error. See

Burnell, 2012 ME 24, ¶ 15, 40 A.3d 390; Ramsdell, 2011 ME 55, ¶ 17, 17 A.3d

1224; see also Corcoran, 2011 ME 14, ¶ 17, 12 A.3d 71 (“[T]he court’s

amendment of the judgment exceeded its clarification authority because the

amendment was not required to give effect to the [terms] established by the

divorce judgment, and it materially altered the substance of the . . . award.”).

We therefore vacate both (1) the denial of Medeiros’s motion to enforce this

provision of the judgment and (2) the portions of the modified divorce

judgment providing for biennial trips to Brazil. We remand for the court to

enter an order granting the motion to enforce and establishing the terms of

enforcement.3

B. Grandparent Contact

[¶12] Medeiros also challenges the court’s modification of the divorce

judgment to award contact with the child to the paternal grandparents

pursuant to 19-A M.R.S. § 1653(2)(B). That provision allows that “[t]he court

3 On remand, the grant of the motion to enforce should be entered as expeditiously as possible

given that Medeiros has already lost the opportunity to take her child to Brazil in 2014, 2015, and

2016.

9

may award reasonable rights of contact with a minor child to a 3rd person” in

the context of a parental rights and responsibilities order. 19-A M.R.S.

§ 1653(2)(B). It otherwise gives no guidance as to who may seek such contact

and in what circumstances it may be ordered.4

[¶13] Medeiros indicated that she was more than willing to allow her

daughter to continue to spend time with her paternal grandparents, but that

she did not want that contact to occur pursuant to the rigid schedule or

authority of a court order. She argues that the third-party contact award is a

violation of her fundamental right to parent. We agree. Our decisions

regarding parents’ rights all begin with the same premise—that, as a matter of

substantive due process, parents enjoy a fundamental constitutional right to

determine the “‘care, custody, and control of their children.’” Rideout v.

Riendeau, 2000 ME 198, ¶¶ 12, 21, 28, 761 A.2d 291 (quoting Troxel v.

Granville, 530 U.S. 57, 65 (2000)) (presuming that fit parents act in their

children’s best interests); see Conlogue v. Conlogue, 2006 ME 12, ¶ 12,

890 A.2d 691. Included within that right is a parent’s authority to decide who

4 We noted in Pitts v. Moore, “We have not yet evaluated the nature or extent of the remedy

provided by 19-A M.R.S. § 1653(2)(B).” 2014 ME 59, ¶ 13 n.6, 90 A.3d 1169; see, e.g., Young v.

Young, 2004 ME 44, ¶ 4 & n.3, 845 A.2d 1144 (remanding the matter for the District Court to

consider section 1653(2) and de facto parenthood principles in evaluating a stepfather’s

relationship to a child).

10

is allowed to associate with the child. Pitts v. Moore, 2014 ME 59, ¶ 11,

90 A.3d 1169; Rideout, 2000 ME 198, ¶¶ 12, 18, 761 A.2d 291. Because a

fundamental constitutional right is at issue, we evaluate with strict scrutiny

the State’s interference with that right; “the State’s action [must] be narrowly

tailored to serve a compelling state interest.” Rideout, 2000 ME 198, ¶ 19,

761 A.2d 291.

[¶14] We interpret section 1653(2)(B) de novo as a matter of law by

first evaluating the plain language of the provision. See In re Jacob C., 2009 ME

10, ¶ 9, 965 A.2d 47. In doing so, we must presume that the statute is

constitutional; it is Medeiros’s burden to establish otherwise. See Rideout,

2000 ME 198, ¶ 14, 761 A.2d 291. Our role in deciding the constitutionality of

a provision is guided by two principles: “‘one, never anticipate a question of

constitutional law in advance of the necessity of deciding it; the other, never

formulate a rule of constitutional law broader than is required by the precise

facts to which it is to be applied.’” Id. ¶ 15 (alterations omitted) (quoting

United States v. Raines, 362 U.S. 17, 21 (1960)).

[¶15] In keeping with these two principles, we need go no further in

evaluating the court’s application of section 1653(2)(B) than the preliminary

procedure by which the contact award was made. We have consistently

11

held—in the context of both the Grandparents Visitation Act, 19-A M.R.S.

§§ 1801-1805 (2015), and de facto parenthood matters—that a third party

seeking to interfere with the fundamental right to parent must affirmatively

demonstrate, on a prima facie basis, standing to commence the litigation

sufficient to justify the interference that is created just by having to defend

against such a petition. 19-A M.R.S. §§ 1803(2), 1891(2) (2015); Pitts,

2014 ME 59, ¶¶ 12, 14 & n.3, 35, 90 A.3d 1169 (stating that a compelling state

interest exists only in “exceptional circumstances,” that is, when the child will

suffer “harm” without state intervention); see Philbrook v. Theriault, 2008 ME

152, ¶¶ 16-22, 957 A.2d 74; Conlogue, 2006 ME 12, ¶¶ 13, 15-18, 890 A.2d

691; Robichaud v. Pariseau, 2003 ME 54, ¶¶ 4-11, 820 A.2d 1212; Rideout,

2000 ME 198, ¶¶ 22-30, 761 A.2d 291. Such a third-party petitioner is

therefore required to attest, from the outset of the litigation, to the sufficiency

of his or her relationship with the child or to some other extraordinary

circumstance.5 19-A M.R.S. §§ 1803(2), 1891(2); see Pitts, 2014 ME 59, ¶ 35,

90 A.3d 1169; Rideout, 2000 ME 198, ¶ 30, 761 A.2d 291.

5 Standing may be determined based only on the affidavit, or after a testimonial hearing at

which only the issue of standing is considered. Eaton v. Paradis, 2014 ME 61, ¶ 8 n.5, 91 A.3d 590;

Davis v. Anderson, 2008 ME 125, ¶ 17, 953 A.2d 1166.

12

[¶16] Our decision in Davis v. Anderson, 2008 ME 125, 953 A.2d 1166, is

directly on point. In that case, the paternal grandparents moved to intervene

in a parental rights dispute between the parents. Id. ¶ 5. The trial court

granted the motion to intervene pursuant to section 1653(2)(B) and M.R.

Civ. P. 24(a)(2). Davis, 2008 ME 125, ¶ 12, 953 A.2d 1166. We rejected the

result, holding that the grandparents’ petition to intervene in the parental

rights action pursuant to section 1653(2)(B) “should be considered with at

least the same level of scrutiny as that required for a petition under the

Grandparents Visitation Act,” that is, by demonstrating, on a prima facie basis,

their standing as de facto parents, or according to some other extraordinary

circumstance. Davis, 2008 ME 125, ¶ 12, 15, 17, 953 A.2d 1166; see Katon v.

Brandi M., 2011 ME 131, ¶¶ 2-3, 32 A.3d 1047 (upholding the dismissal of a

grandparent visitation petition when the contact alleged was “typical for a

grandparent and not extraordinary”); Philbrook, 2008 ME 152, ¶¶ 2-5, 16-22,

26, 957 A.2d 74 (concluding that the “loving and helpful grandparents” with

whom the children had lived periodically did not establish standing);

Robichaud, 2003 ME 54, ¶¶ 6-11, 820 A.2d 1212 (holding that a “pattern of

intermittent contact” in the form of “occasional visits . . . lasting from one day

to one week over three and one-half years, intermixed with several periods of

13

daily contact . . . typified [the contact] that one would anticipate from a

connected, extended family” and was “not extraordinary” enough to establish

a compelling state interest).

[¶17] Of course, one predicate to all of this process is that the person to

whom contact may be awarded must be both a party to the action and a

petitioner seeking such contact. See M.R. Civ. P. 17(a) (“Every action shall be

prosecuted in the name of the real party in interest.”); M.R. Civ. P. 24

(providing for the intervention of a person who claims an interest in the

outcome of the litigation); Poulos v. Mendelson, 491 A.2d 1172, 1175

(Me. 1985). Here, the paternal grandparents are not parties to the action, did

not seek to intervene in the matter pursuant to M.R. Civ. P. 24, did not file an

affidavit or offer any testimony to establish their standing on a prima facie

basis, did not testify at the hearing, and did not institute any separate

proceeding for contact with the child. Notwithstanding these failings, the

court found that the paternal grandparents “would clearly have been able to

establish standing either to intervene pursuant to [M.R. Civ. P.] 24 or pursuant

to the Grandparents Visitation Act.” As in Davis, this evaluation of standing

does not satisfy the requirements of strict scrutiny. In fact, in none of the

cases discussing the avenues for a third party to obtain parental rights and

14

responsibilities or contact with a child have we even contemplated a scenario

in which the third parties are not “parties” to the action at all.

[¶18] Consistent with the minimum procedural requirements we have

announced as safeguards on the fundamental right to parent, we conclude that

before a court may grant a third party contact with a child pursuant to

19-A M.R.S. § 1653(2)(B), the third party must file both a motion to intervene

in the matter and his or her own motion seeking such contact. The motion for

contact must—at a minimum—be accompanied by an affidavit that

demonstrates, on a prima facie basis, the party’s standing to interfere with the

fundamental right to parent. Because these requirements were not met as to

the paternal grandparents here, we vacate the modified divorce judgment on

that basis and remand for reconsideration of Medeiros’s motion to modify to

the extent the portions of the order that allocated contact between the parents

may be affected by the absence of the award of contact to the paternal

grandparents.6

[¶19] Finally, Curtis’s suggestion that the court was not ordering

contact with the grandparents pursuant to 19-A M.R.S. § 1653(2)(B), but was

6 Medeiros’s request for attorney fees in prosecuting this appeal should be addressed by the

trial court on remand. See 19-A M.R.S. § 105 (2015); True v. Harmon, 2015 ME 14, ¶ 10, 110 A.3d

650; Conlogue v. Conlogue, 2006 ME 12, ¶ 24, 890 A.2d 691.

15

instead establishing a “scheduling mechanism rooted in the rights of the

father” is not accurate. Curtis did not actually seek to modify the support

order, he did not request that his own contact (to be exercised on many

weekends by his parents instead of himself) be scheduled on those weekends,

and he did not make this argument to the trial court with any clarity. The

court expressly relied on and cited to section 1653(2)(B) in both its modified

divorce judgment and its order on the motion for further findings. We express

no opinion as to what relief a court might grant to a parent who makes such a

request.

The entry is:

Judgment vacated. Remanded for further

proceedings consistent with this opinion.

Christopher R. Largay, Esq. (orally), Largay Law Offices, P.A., Bangor, for

appellant Florania Da Silva Medeiros

Jason C. Barrett, Esq. (orally), Eaton Peabody, Ellsworth, for appellee James-

Robert G. Curtis

Bangor District Court docket number FM-2010-160

FOR CLERK REFERENCE ONLY