MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 74 Docket: Aro-17-475 Submitted On Briefs: April 25, 2018 Decided: June 7, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
JACLYN E. PAPADOPOULOS
v.
BRANDON L. PHILLIPS
HUMPHREY, J.
[¶1] Jaclyn E. Papadopoulos appeals from a judgment of the District
Court (Houlton, O’Mara, J.) entered on October 16, 2017, granting Brandon
L. Phillips’s motion to modify the parties’ amended divorce judgment.
Papadopoulos contends, inter alia, that the court erred and abused its
discretion when it modified Phillips’s schedule of contact with the parties’ child
and his child support obligation.1 Because the child support order and the
judgment are inconsistent with each other and there seems to be an error in the
court’s establishment of Phillips’s monthly child support obligation, we vacate
1 Papadopoulos raised a number of other arguments on appeal that we do not address because
they were not properly preserved for appellate review or the alleged errors occurred because of her litigation strategy at the hearing. See Snow v. Bernstein, Shur, Sawyer & Nelson, P.A., 2017 ME 239, ¶ 8 n.3, 176 A.3d 729; Aucella v. Town of Winslow, 628 A.2d 120, 123 (Me. 1993). 2
the child support order and the associated part of the judgment and remand to
the trial court for clarification. We affirm the judgment in all other respects.
I. BACKGROUND
[¶2] Papadopoulos and Phillips are the parents of one minor child. In
2011, the parties were divorced by a New Hampshire judgment that allocated
primary residence of the minor child to Papadopoulos and rights of contact
(“parenting time”) to Phillips and required Phillips to pay child support. In
2014, the New Hampshire court entered a judgment that modified Phillips’s
contact schedule to accommodate his relocation to California by giving him less
frequent but longer contact with the child; and increased his child support
obligation to $510 per month, which reflected an agreement that the parties
would share the child’s travel expenses. Papadopoulos registered the amended
divorce judgment in Maine in October 2015. See 19-A M.R.S. § 1765 (2017).
[¶3] In 2017, Phillips’s wife was given a three-year assignment to a naval
duty station in Hawaii. In June 2017, Phillips filed a motion in the Maine District
Court to modify the contact schedule and child support order.2
2 Pursuant to 19-A M.R.S. § 1747 (2017), the Maine District Court had jurisdiction to modify the
child custody determination. 3
[¶4] The court held a testimonial hearing on October 10, 2017. At the
hearing, Phillips sought the right to contact with the child for the child’s entire
school summer vacations and every Christmas vacation. He also requested that
the court either impute minimum wage income to Papadopoulos because her
youngest child would soon be twenty-four months old, see 19-A M.R.S.
§ 2001(5)(D) (2017), or remove his child support obligation because of the
increased travel costs he would pay for the child to visit him, see 19-A M.R.S.
§ 2009 (2017).
[¶5] Papadopoulos, who was not represented by counsel, asked that the
court “speak with [the child] privately” without her and Phillips present. The
parties agreed that they did not want the child to take the stand and testify, and
they did not want to be present if the court spoke with the child. After noting
that Papadopoulos did not have an attorney, the court explained that it could
not meet with a witness without representatives from both sides present. The
court did not hear from or speak with the child.
[¶6] In a judgment entered on October 16, 2017, the court granted
Phillips’s motion to modify and awarded him contact for all but nine days of the
child’s summer school vacations and for alternating Christmas and Easter
vacation periods to ensure that the child had “frequent and continuing contact” 4
with Phillips, but only so long as Phillips lives outside of the continental United
States. The court also modified Phillips’s child support obligation. The
judgment granted no additional deviation in child support to Phillips, but stated
that Papadopoulos
is not now available for employment. Shortly [her youngest child] will be 24 months old. Considering the likely cost for child care and other work related expenses, the court does impute minimum wage to [Papadopoulos] in determining the amount of child support.
(Emphasis added.) The child support worksheet attached to the judgment,
however, did not impute income to Papadopoulos and calculated that Phillips
should pay $68 in child support each week. The child support order directed
Phillips to pay $200 each month, an amount that “constitutes a deviation from
the presumptive amount required by the child support guidelines” because of
the annual “$1,500.00 deviation to recognize travel expenses.”
[¶7] Papadopoulos timely appealed. See 14 M.R.S. § 1901 (2017); M.R.
App. P. 2B(c)(1).
II. DISCUSSION
A. Rights of Contact
[¶8] Papadopoulos argues that the court erred and abused its discretion
when it (1) determined that a substantial change in circumstances had
occurred since the previous decree because the 2014 modified judgment “was 5
designed with distance in mind”; and (2) ordered that Phillips would have
contact with the child for the entire summer because that was not in the child’s
best interest. See Jackson v. MacLeod, 2014 ME 110, ¶ 21, 100 A.3d 484. “We
review a trial court's decision on a motion to modify a divorce judgment for an
abuse of discretion or errors of law. A trial court is afforded broad discretion
to determine the custodial arrangements for a minor child, and the
determination of the weight to be given to each factor, see 19-A M.R.S. § 1653(3)
[2017], is left to the sound discretion of the trial court after careful
consideration.” Id. ¶ 23 (alteration omitted) (citations omitted) (quotation
marks omitted). Where, as here, “a party fails to move for findings of fact on
the issue of parental rights, we will infer that the trial court made all the
findings necessary to support its judgment, if those findings are supported by
the record.” Young v. Young, 2015 ME 89, ¶ 5, 120 A.3d 106 (quotation marks
omitted).
[¶9] Contrary to Papadopoulos’s contentions, the court did not err or
abuse its discretion when it determined that there had been a substantial
change in circumstances and then modified the contact schedule. The court’s
implicit finding of a substantial change in circumstances is supported by the
increase in time, distance, and cost for the child to travel from Maine to Hawaii 6
as opposed to California. See Jackson, 2014 ME 110, ¶ 24, 100 A.3d 484. The
new contact schedule is supported by the court’s findings on the importance of
the child’s contact with her father, and the court plainly took into account the
relevant best interest factors to reach its conclusion. See 19-A M.R.S. § 1653(3)
(2017). For these reasons, we affirm the contact provisions of the judgment.3
B. Child Support
[¶10] Papadopoulos also contends that it is unclear how the court
calculated the child support award.
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 74 Docket: Aro-17-475 Submitted On Briefs: April 25, 2018 Decided: June 7, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
JACLYN E. PAPADOPOULOS
v.
BRANDON L. PHILLIPS
HUMPHREY, J.
[¶1] Jaclyn E. Papadopoulos appeals from a judgment of the District
Court (Houlton, O’Mara, J.) entered on October 16, 2017, granting Brandon
L. Phillips’s motion to modify the parties’ amended divorce judgment.
Papadopoulos contends, inter alia, that the court erred and abused its
discretion when it modified Phillips’s schedule of contact with the parties’ child
and his child support obligation.1 Because the child support order and the
judgment are inconsistent with each other and there seems to be an error in the
court’s establishment of Phillips’s monthly child support obligation, we vacate
1 Papadopoulos raised a number of other arguments on appeal that we do not address because
they were not properly preserved for appellate review or the alleged errors occurred because of her litigation strategy at the hearing. See Snow v. Bernstein, Shur, Sawyer & Nelson, P.A., 2017 ME 239, ¶ 8 n.3, 176 A.3d 729; Aucella v. Town of Winslow, 628 A.2d 120, 123 (Me. 1993). 2
the child support order and the associated part of the judgment and remand to
the trial court for clarification. We affirm the judgment in all other respects.
I. BACKGROUND
[¶2] Papadopoulos and Phillips are the parents of one minor child. In
2011, the parties were divorced by a New Hampshire judgment that allocated
primary residence of the minor child to Papadopoulos and rights of contact
(“parenting time”) to Phillips and required Phillips to pay child support. In
2014, the New Hampshire court entered a judgment that modified Phillips’s
contact schedule to accommodate his relocation to California by giving him less
frequent but longer contact with the child; and increased his child support
obligation to $510 per month, which reflected an agreement that the parties
would share the child’s travel expenses. Papadopoulos registered the amended
divorce judgment in Maine in October 2015. See 19-A M.R.S. § 1765 (2017).
[¶3] In 2017, Phillips’s wife was given a three-year assignment to a naval
duty station in Hawaii. In June 2017, Phillips filed a motion in the Maine District
Court to modify the contact schedule and child support order.2
2 Pursuant to 19-A M.R.S. § 1747 (2017), the Maine District Court had jurisdiction to modify the
child custody determination. 3
[¶4] The court held a testimonial hearing on October 10, 2017. At the
hearing, Phillips sought the right to contact with the child for the child’s entire
school summer vacations and every Christmas vacation. He also requested that
the court either impute minimum wage income to Papadopoulos because her
youngest child would soon be twenty-four months old, see 19-A M.R.S.
§ 2001(5)(D) (2017), or remove his child support obligation because of the
increased travel costs he would pay for the child to visit him, see 19-A M.R.S.
§ 2009 (2017).
[¶5] Papadopoulos, who was not represented by counsel, asked that the
court “speak with [the child] privately” without her and Phillips present. The
parties agreed that they did not want the child to take the stand and testify, and
they did not want to be present if the court spoke with the child. After noting
that Papadopoulos did not have an attorney, the court explained that it could
not meet with a witness without representatives from both sides present. The
court did not hear from or speak with the child.
[¶6] In a judgment entered on October 16, 2017, the court granted
Phillips’s motion to modify and awarded him contact for all but nine days of the
child’s summer school vacations and for alternating Christmas and Easter
vacation periods to ensure that the child had “frequent and continuing contact” 4
with Phillips, but only so long as Phillips lives outside of the continental United
States. The court also modified Phillips’s child support obligation. The
judgment granted no additional deviation in child support to Phillips, but stated
that Papadopoulos
is not now available for employment. Shortly [her youngest child] will be 24 months old. Considering the likely cost for child care and other work related expenses, the court does impute minimum wage to [Papadopoulos] in determining the amount of child support.
(Emphasis added.) The child support worksheet attached to the judgment,
however, did not impute income to Papadopoulos and calculated that Phillips
should pay $68 in child support each week. The child support order directed
Phillips to pay $200 each month, an amount that “constitutes a deviation from
the presumptive amount required by the child support guidelines” because of
the annual “$1,500.00 deviation to recognize travel expenses.”
[¶7] Papadopoulos timely appealed. See 14 M.R.S. § 1901 (2017); M.R.
App. P. 2B(c)(1).
II. DISCUSSION
A. Rights of Contact
[¶8] Papadopoulos argues that the court erred and abused its discretion
when it (1) determined that a substantial change in circumstances had
occurred since the previous decree because the 2014 modified judgment “was 5
designed with distance in mind”; and (2) ordered that Phillips would have
contact with the child for the entire summer because that was not in the child’s
best interest. See Jackson v. MacLeod, 2014 ME 110, ¶ 21, 100 A.3d 484. “We
review a trial court's decision on a motion to modify a divorce judgment for an
abuse of discretion or errors of law. A trial court is afforded broad discretion
to determine the custodial arrangements for a minor child, and the
determination of the weight to be given to each factor, see 19-A M.R.S. § 1653(3)
[2017], is left to the sound discretion of the trial court after careful
consideration.” Id. ¶ 23 (alteration omitted) (citations omitted) (quotation
marks omitted). Where, as here, “a party fails to move for findings of fact on
the issue of parental rights, we will infer that the trial court made all the
findings necessary to support its judgment, if those findings are supported by
the record.” Young v. Young, 2015 ME 89, ¶ 5, 120 A.3d 106 (quotation marks
omitted).
[¶9] Contrary to Papadopoulos’s contentions, the court did not err or
abuse its discretion when it determined that there had been a substantial
change in circumstances and then modified the contact schedule. The court’s
implicit finding of a substantial change in circumstances is supported by the
increase in time, distance, and cost for the child to travel from Maine to Hawaii 6
as opposed to California. See Jackson, 2014 ME 110, ¶ 24, 100 A.3d 484. The
new contact schedule is supported by the court’s findings on the importance of
the child’s contact with her father, and the court plainly took into account the
relevant best interest factors to reach its conclusion. See 19-A M.R.S. § 1653(3)
(2017). For these reasons, we affirm the contact provisions of the judgment.3
B. Child Support
[¶10] Papadopoulos also contends that it is unclear how the court
calculated the child support award. We review child support awards for an
abuse of discretion and the court’s factual findings for clear error. See Akers v.
Akers, 2012 ME 75, ¶ 2, 44 A.3d 311.
[¶11] We normally direct parties to bring mathematical or other
asserted errors in the calculation of child support directly to the attention of
the trial court, see id. ¶ 9, but here there is an error in either the child support
3 Papadopoulos argues that the judge should have interviewed the child, who was ten years old
at the time, without the parties present. Contrary to her contention, the court did not abuse its discretion when it refused to speak with the child privately and would not allow the child to testify as a witness with only Phillips’s attorney present. We note that other options may be available to a trial court. For example, it is generally an acceptable practice to interview a child of that age in a case where the only issue is contact, the child is not asked to choose between the contending parents or state a preference for one parent over the other, and the court employs available mechanisms to ensure the circumstances are fair and appropriate. See Hutchinson v. Cobb, 2014 ME 53, ¶¶ 13-14, 90 A.3d 438 (even though done with the parties’ consent, the court erred in interviewing the child privately in chambers and unrecorded). Alternately, if the circumstances allow it, the court may consider appointing a limited guardian ad litem for the express purpose of interviewing the child in a less stressful setting. See 19-A M.R.S. § 1507 (2017). 7
order or the judgment that is more than a mere calculation error. In its
judgment, the court’s language appeared to indicate that it would impute
minimum wage income to Papadopoulos pursuant to 19-A M.R.S. § 2001(5)(D),
but neither the child support worksheet nor the child support order does that.4
This inconsistency, coupled with the unsupported determination that Phillips
must pay $200 per month in child support, make effective appellate review
impossible because we cannot ascertain the court’s intent with regard to
Phillips’s child support obligation. See McBride v. Worth, 2018 ME 54, ¶¶ 14-15,
--- A.3d ---; Miliano v. Miliano, 2012 ME 100, ¶ 28, 50 A.3d 534. Accordingly, we
vacate the child support order, vacate the child support provisions of the
judgment, and remand for the trial court to clarify its award.
The entry is:
Child support order and provisions of judgment governing child support vacated. Judgment affirmed in all other respects. Remanded for further proceedings consistent with this opinion.
Jaclyn E. Papadopoulos, pro se appellant
James M. Dunleavy, Esq., Currier & Trask, P.A., Presque Isle, for appellee Brandon L. Phillips
Houlton District Court docket number FM-2015-101 FOR CLERK REFERENCE ONLY
4 The child support order does provide for a “$1,500.00 deviation to recognize travel expenses.”