Rowland v. Kingman

629 A.2d 613, 1993 Me. LEXIS 220
CourtSupreme Judicial Court of Maine
DecidedAugust 11, 1993
StatusPublished
Cited by15 cases

This text of 629 A.2d 613 (Rowland v. Kingman) 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.

Bluebook
Rowland v. Kingman, 629 A.2d 613, 1993 Me. LEXIS 220 (Me. 1993).

Opinions

GLASSMAN, Justice.

Both the plaintiff, Margaret S. Rowland, and the defendant, Robert E. Kingman, appeal from a judgment entered in the Superior Court (Cumberland County, Beau-doin, J. (sitting in the Superior Court)), amending the provisions of their divorce judgment relating to the primary physical residence of and support for their two minor children. Finding no error in the record, we affirm the judgment.

The record reflects the following: On May 6, 1991, Rowland and Kingman obtained a divorce judgment providing that the primary physical residence of their two minor children, Edwin and Meagan, be with Rowland; that parental rights and responsibilities be shared by Rowland and King-man; and that Kingman pay child support to Rowland. Following the divorce, Rowland remained with the children at the family home in Yarmouth, where she maintained her medical practice, and Kingman moved to Winslow. Rowland subsequently remarried and began planning to move to Oregon where her husband was located. In March 1992, Kingman filed a motion to modify the divorce judgment to change the primary physical residence of the children to be with Kingman and to amend the child support provision should Rowland move to Oregon. In early August, pending a final hearing on Kingman’s motion, there was a hearing before the court on the limited issue of whether the children would travel to Oregon with Rowland on August 24, the date of Rowland’s intended move. On August 17, the trial court issued an order providing that if Rowland moved to Oregon the primary physical residence of the children would shift to Kingman, on the condition that he reside in Yarmouth.

As a consequence of the August 17 order, Kingman located several potential homes in Yarmouth. Because Kingman wanted to know whether he should sign a lease, he asked Rowland directly about her plans to move to Oregon. Rowland replied that “if I need to stay in Maine to keep my children, I will.” When Kingman later attempted to verify his next visitation period with the children, Rowland did not inform him that because of the planned move the visit would be impossible. When Edwin asked Rowland if his father knew they were going to Oregon, Rowland replied that Kingman “knew of the plane tickets.” Rowland took the children to Oregon on August 24. Kingman was advised of the move on the following day.

In response to Kingman's ex parte motion, the August 27 order of the trial court (Cleaves, J. (sitting in the Superior Court)) provided, inter alia, for the issuance of a writ of habeas corpus for the return of the children to Kingman and granted Kingman sole parental rights and responsibilities of the parties’ children until further order of the court. Kingman flew to Oregon and [615]*615returned with the children to Yarmouth where he had rented an apartment.

In September 1992, the court held a hearing on all outstanding motions in this matter, including Kingman’s original motion to modify the divorce judgment and Rowland’s motions for findings of fact and conclusions of law regarding the August 17 order and reconsideration of that order, and her motion to vacate the August 27 order. By its order dated November 19, 1992, the trial court, inter alia, provided that the primary physical residence of the children be with Rowland if she resided in Yarmouth, but should Rowland move to Oregon the children’s primary physical residence would be with Kingman on the condition that Kingman reside in Yarmouth; that the parents have shared parental rights and responsibilities, except Kingman would have the sole right to determine day care issues for the children; and that King-man’s child support obligation be increased. It is from this judgment that the parties appeal.

Rowland first contends that the trial court committed an error of law in its determination relating to the best interests of the children by failing to afford an appropriate level of deference to her decision, as the parent with whom the children had their primary physical residence, that it was in the best interests of the children to reside with her in Oregon.1 She argues that such parent should be permitted to decide where that parent and any minor children will reside, and that decision should be disregarded by the court only when it would present a clear danger to the children’s well being. We disagree.

By P.L.1987, eh. 721, 19 M.R.S.A. § 752(12), amended by P.L.1987, ch. 179, § 3, was repealed and replaced by the following provision:

The relocation, or intended relocation, of a child resident in this State to another state by a parent, when the other parent is a resident in this State and there exists an award of shared or allocated parental rights and responsibilities concerning the child, is a substantial change in circumstances.

See 19 M.R.S.A. § 752(12) (Supp.1992). It is not disputed that Rowland intended to relocate the children to Oregon. Pursuant to section 752(12) this intended relocation was a substantial change in circumstances that on a proper motion by either party warranted a review by the court of any previous arrangement of parental rights and responsibilities with respect to a minor child. We have previously stated:

[T]he question that the court must first consider on a motion to modify a custody arrangement is whether there “[h]as occurred since the prior custody order a change in circumstances sufficiently substantial in its effect upon the best interests of the children as to justify a modification of the custody arrangement.”

Ehrlich v. Bloom, 585 A.2d 809, 812 (Me.1991) (quoting Villa v. Smith, 534 A.2d 1310, 1312 (Me.1987)), cert. denied, — U.S. -, 112 S.Ct. 201, 116 L.Ed.2d 160 (1991).

Factors to be considered by the court in applying the standard of the best interest of the child are set forth in section 752(5).2 [616]*616The provisions of section 725(5) do not foreclose the court’s consideration of either parent’s decision relating to the residence of that parent and any minor child. However, we find nothing in the statutes governing parental rights and responsibilities with respect to a minor child of divorced parents, or in our case law to support Rowland’s contention that the court should defer to the decision of that parent with whom the child has primary physical residence in determining the best interests of that minor child.

Rowland also contends that the trial court abused its discretion by ordering that the primary physical residence of the children be with Kingman if Rowland moved to Oregon. Here, the trial court found that Rowland’s intended move to Oregon would constitute a change in circumstances substantially affecting the children’s best interests. See Villa, 534 A.2d at 1312. Consequently, the court provided that the primary physical residence of the children would remain with Rowland if she remained in Yarmouth, however, should she move to Oregon the best interests of the children would be served by the children’s primary physical residence being with Kingman on the condition that he reside with the children in Yarmouth. The court in its order specifically stated that because Rowland had testified several times that it would not occur, the court did not address the issue of parental contact should Rowland move to Oregon.

In Boutin v.

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629 A.2d 613, 1993 Me. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowland-v-kingman-me-1993.