Philbrick v. Cummings

Supreme Judicial Court of Maine

Philbrick v. Cummings

534 A.2d 1307, 1987 Me. LEXIS 882

CourtSupreme Judicial Court of Maine

DecidedDecember 24, 1987

StatusPublished

Cited by7 cases

This text of 534 A.2d 1307 (Philbrick v. Cummings) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Philbrick v. Cummings, 534 A.2d 1307, 1987 Me. LEXIS 882 (Me. 1987).

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McKUSICK, Chief Justice.

On June 9, 1986, the District Court (Augusta) denied the motion of Stephen Cummings to amend a 1980 divorce judgment to shift the primary custody of his two daughters (then aged 9 and 10) to him from their mother, Brenda L. Philbrick. The Superior Court (Kennebec County) affirmed the District Court denial. On further appeal, we also affirm.

Once the divorce court has made a determination of child custody arrangements, it may on motion alter those arrangements “as circumstances require.” [1308]*130819 M.R.S.A. § 752(12) (Supp.1986). We have made clear in the past, however, that “[o]nly a substantial change in circumstances since the prior custody decree can justify modifying that decree; and at all times the overriding consideration must be the best interests of the children.” Boutin v. Dionne, 458 A.2d 426, 426 (Me.1983). Thus the District Court correctly noted that for Mr. Cummings to prevail he had to sustain the burden of establishing that “since the divorce on July 8, 1980, there has been a substantial change in circumstances affecting the interests] of the two minor children of the parties.” The court determined that “[njothing in evidence relative to [the mother’s] several moves reflects substantially changed circumstances affecting the interests of the children.” On appeal we will disturb the court's determination only for clear error in the court’s finding of the historical facts of change, see Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981), or for abuse of discretion in its evaluation of the substantiality of the effect upon the children’s interests of any factual change, see Ziehm v. Ziehm, 433 A.2d 725, 730 (Me.1981). We find no reversible error in the court’s conclusion.

The evidence did show that the circumstances for both the mother and the father of the Cummings children had changed to some extent in the six years since the divorce. The question before the motion judge, however, was whether the father had proved by a preponderance of the evidence that those changes were of sufficient substantiality in their effect upon the interests of the Cummings children to warrant changing their primary custody from the mother to the father. Exercising the broad discretion vested in him to find the facts and to make the required judgment call, the motion judge found such proof absent. We cannot say that the evidence compelled him to reach a contrary conclusion.

The entry is:

Judgment affirmed.

GLASSMAN and CLIFFORD, JJ., concur.

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McKUSICK, Chief Justice.

On June 9, 1986, the District Court (Augusta) denied the motion of Stephen Cummings to amend a 1980 divorce judgment to shift the primary custody of his two daughters (then aged 9 and 10) to him from their mother, Brenda L. Philbrick. The Superior Court (Kennebec County) affirmed the District Court denial. On further appeal, we also affirm.

Once the divorce court has made a determination of child custody arrangements, it may on motion alter those arrangements “as circumstances require.” [1308]*130819 M.R.S.A. § 752(12) (Supp.1986). We have made clear in the past, however, that “[o]nly a substantial change in circumstances since the prior custody decree can justify modifying that decree; and at all times the overriding consideration must be the best interests of the children.” Boutin v. Dionne, 458 A.2d 426, 426 (Me.1983). Thus the District Court correctly noted that for Mr. Cummings to prevail he had to sustain the burden of establishing that “since the divorce on July 8, 1980, there has been a substantial change in circumstances affecting the interests] of the two minor children of the parties.” The court determined that “[njothing in evidence relative to [the mother’s] several moves reflects substantially changed circumstances affecting the interests of the children.” On appeal we will disturb the court's determination only for clear error in the court’s finding of the historical facts of change, see Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981), or for abuse of discretion in its evaluation of the substantiality of the effect upon the children’s interests of any factual change, see Ziehm v. Ziehm, 433 A.2d 725, 730 (Me.1981). We find no reversible error in the court’s conclusion.

The evidence did show that the circumstances for both the mother and the father of the Cummings children had changed to some extent in the six years since the divorce. The question before the motion judge, however, was whether the father had proved by a preponderance of the evidence that those changes were of sufficient substantiality in their effect upon the interests of the Cummings children to warrant changing their primary custody from the mother to the father. Exercising the broad discretion vested in him to find the facts and to make the required judgment call, the motion judge found such proof absent. We cannot say that the evidence compelled him to reach a contrary conclusion.

The entry is:

Judgment affirmed.

GLASSMAN and CLIFFORD, JJ., concur.

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534 A.2d 1307, 1987 Me. LEXIS 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philbrick-v-cummings-me-1987.

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