Wendell K. Brasier v. Vanessa L. Preble

2013 ME 109, 82 A.3d 841, 2013 WL 6620991, 2013 Me. LEXIS 110
CourtSupreme Judicial Court of Maine
DecidedDecember 17, 2013
DocketDocket Pis-13-142
StatusPublished
Cited by5 cases

This text of 2013 ME 109 (Wendell K. Brasier v. Vanessa L. Preble) 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
Wendell K. Brasier v. Vanessa L. Preble, 2013 ME 109, 82 A.3d 841, 2013 WL 6620991, 2013 Me. LEXIS 110 (Me. 2013).

Opinion

*842 MEAD, J.

[¶ 1] Vanessa L. Preble appeals from a judgment entered by the District Court (Dover-Foxcroft, Stitham, J.) modifying a parental rights and responsibilities order by awarding primary residence of the parties’ two children to Wendell K. Brasier. Vanessa contends that the evidence presented at a hearing was insufficient to establish a substantial change in circumstances justifying a change in the children’s primary residence. We affirm the judgment.

I. BACKGROUND

A. Procedure

[¶ 2] In June 2006, Wendell filed a complaint to determine parental rights and responsibilities concerning the children. The court (RMurray, J.) awarded shared rights and responsibilities, with Vanessa having primary residence and Wendell having specified rights of contact. In 2007, Wendell filed motions to enforce and to modify. The court (Stitham> J.) found that the provisions of the original order concerning Wendell’s contact with the children were not working well, and that a substantial change in circumstances warranted the establishment of a more detailed visitation schedule. The court declined to change the children’s primary residence.

[¶ 3] In November 2012, Wendell again filed motions to enforce and to modify. The court held a hearing at which Wendell and his wife, and Vanessa and her father, testified. At the conclusion of the hearing, the court ruled from the bench that there had been a substantial change in circumstances since the 2007 modification, and that it was in the children’s best interest that their primary residence be changed to Wendell. The court ordered that the change be effective immediately and directed the parties and counsel to remain in the courtroom to work out the details. That decision was memorialized in a written order entered the same day. This appeal followed.

B. Facts

[¶ 4] The court’s factual findings are supported by the record. Wendell has lived in Cambridge for the past five years with his wife and two stepchildren, who are the same ages as his two children. He is a self-employed carpenter. When they are all together, Wendell, his wife, and the four children have, the court found, a nurturing, “great” relationship. In April 2010, Vanessa moved from Bremen, where she lived at the time of the 2007 modifications, to Swan’s Island. She stays home and takes care of her two children and two stepchildren. The court found that it had “absolutely no evidence to make a finding as to [Vanessa’s] two children’s relationship with their stepfather ... or his two children.”

[¶ 5] Wendell’s contact with the children as mandated by the 2007 order was the court’s major concern and the primary focus of the hearing. The court heard evidence that from 2007 through the spring of 2010 visitation went reasonably well, although transportation issues precluded some visits. Shortly after the children began their 2010 summer vacation, Wendell picked them up for one of his three court-ordered weeks of summer visitation. During that week Vanessa called him and said she was moving to Swan’s Island the following day. For the next two months Wendell received phone calls and text messages delaying the children’s return to Vanessa. After two months, Vanessa called to say that she was coming for the children the next day. Wendell testified that he refused “because ... the *843 kids ... had been there for two months, and in my eyes she abandoned them.”

[¶ 6] Four days later, late in the evening, Wendell was served with a temporary protection order by law enforcement officers and the children were turned over to Vanessa’s father. The next day, Wendell saw Vanessa and her father at a department store and she allowed him to hug the children. The temporary protection order was dismissed when Vanessa did not appear for the final hearing. She told the court during the hearing on the motion to modify that in applying for the protection order she did not allege that Wendell had been abusive toward her or the children, and that she did not appear for the final hearing because the only purpose of the order was to get the children back from him.

[¶ 7] From the fall of 2010 through the early summer of 2011, visitation went fairly well, but shortly thereafter the situation grew markedly worse. Wendell had the children for a week in late summer and then did not see them again from August 2011 until April 2012. He testified that the eight-month interval without visits was due to Vanessa’s schedule and her lack of money for gas and fares for the ferry to bring the children to the exchange point. Wendell had asked to see the children during February school vacation, but Vanessa said he could not because “there was something' going on.” He then saw the children for a day and a half during April school vacation, but had to send them back to Vanessa because she wanted to take them to a movie at the library and their son had karate practice.

[¶ 8] In the summer of 2012, Wendell did not have any visits because Vanessa’s phone had been shut off, and she said that she did not want to send the children to him without having a working phone in case of an emergency. For several weeks that summer, Wendell had no phone contact with the children because Vanessa did not have a working phone.

[¶ 9] By Christmas 2012, Wendell had not seen the children since April, another eight-month interval. The parties agreed that during Christmas vacation Wendell would have the children from December 26-29. The court found that Wendell could have spent more time with the children but for (1) Vanessa’s decision not to send them to his house on the 25th when her father was returning home from a visit to Swan’s Island; and (2) her decision to let her father keep the children at his house in Guilford for two days after picking them up on the 29th, even though her father was going to see them over the New Year’s holiday and Wendell had asked her for another night with them. When asked by the court why, in light of all of the visits Wendell had missed, she did not send the children to Wendell with her father when he returned home Christmas afternoon, Vanessa said “they wanted to stay and play with [their] toys,” and sending them to Wendell a day early “didn’t even occur to me, really.”

[¶ 10] After the four-day Christmas visit, Wendell did not see the children again before the hearing in February 2013. He asked Vanessa if he could have them for the February school vacation in lieu of some of his weekend visits; she replied that their son had a basketball game. Wendell was able to speak to their daughter on the phone once, but Vanessa told him that the children generally did not want to talk to him on the phone.

[¶ 11] Vanessa told the court that she had not done anything in January or February 2013 to try to have the children see Wendell and asserted that Wendell had not done anything to facilitate visits either. Vanessa acknowledged that the children had visited her father at his home in Guil- *844 ford, thirty minutes from Wendell’s residence, three or four times without seeing Wendell, and that absent a reliable vehicle, all she would do to facilitate visitation was deliver the children at the mainland ferry terminal.

II.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 ME 109, 82 A.3d 841, 2013 WL 6620991, 2013 Me. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wendell-k-brasier-v-vanessa-l-preble-me-2013.