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Pearson v. Wendell

Supreme Court of Maine

October 22, 2015


Submitted On Briefs: July 23, 2015

Suzanne E. Thompson, Esq., Vincent, Kantz, Pittman & Thompson, Portland, for appellant Arn H. Pearson

David J. Van Dyke, Esq., Lynch & Van Dyke P.A., Lewiston, for appellee Mary Lou Wendell



[¶1] In this high-conflict case, Arn H. Pearson appeals from a judgment of divorce from Mary Lou Wendell issued by the District Court (Portland, Eggert, J.). Pearson argues that the court erred by (1) awarding Wendell sole parental rights and responsibilities affecting the parties' three minor children; (2) failing to properly apply statutory factors, see 19-A M.R.S. § 951-A(5) (2014), in its award of spousal support to Wendell; and (3) awarding attorney fees to Wendell. Finding no error, we affirm the judgment.


[¶2] The challenges faced by the court, which are central to an examination of Pearson's contentions on appeal, are best illustrated by reviewing some of the four-year history of litigation and the court orders spawned by the parties' general inability or unwillingness to make mutually agreeable decisions for the benefit of their children. We view the following facts in the light most favorable to the court's judgment. See Young v. Young, 2015 ME 89, ¶ 2, ___ A.3d ___.

[¶3] The parties were married in 1991 and are the parents of three children: a child born in 2001, and twins born in 2004. After he separated from Wendell by leaving the family home, in November 2011 Pearson filed a complaint for divorce in the District Court (Ellsworth), and, at the parties' request, the court (Laskey, M.) promptly appointed a guardian ad litem to represent the children's best interests. In January 2012, by agreement of the parties, the court issued an interim order providing, in effect, that the children's primary residence would be with Wendell but that parental rights and responsibilities would be shared, directing Pearson to pay Wendell $3, 500 per month in spousal support, and addressing ongoing financial issues.

[¶4] By May, Wendell had filed a motion to enforce several of the financial aspects of the January interim order, Pearson had filed a motion for Wendell to be held in contempt for interfering with his relationship with the children, and each party had filed a complaint for protection from abuse against the other. In early June, after the court (Mallonee, J.) continued the hearing on the motions due to a scheduling conflict involving Pearson's attorney, the parties agreed to an order establishing parental contact and regulating their interactions pending any subsequent agreement or court order. The interim order included prohibitions against "swear[ing] at, insult[ing] or threaten[ing] the other" and discussing marital conflicts in the children's presence, and it required the parties to take steps to secure a parenting coordinator, see 19-A M.R.S. § 1659 (2012).[1] The parties also agreed to dismiss their complaints for protection orders. Several weeks later, after a contested hearing on the parties' motions, the court found Wendell in contempt with respect to parental rights and responsibilities, but provided her with the opportunity to purge the contempt "by strictly adhering" to the court-ordered contact schedule.

[¶5] Subsequently, the court bifurcated the parental rights issues from the parties' financial dispute, in apparent response to a motion filed by Pearson where he argued the pressing need to address the former but recognized the parties' unreadiness to litigate the latter.[2] In January 2013, the court held what was intended to be a final hearing on issues affecting parental rights and responsibilities. The court issued a judgment on March 14, granting the parties a divorce. Addressing the parenting issues, the court found that "since the parties' separation, there has been no functional parental cooperation." While the court attributed blame to both parties, it found that Wendell bore "the vast, vast majority of responsibility for the lack of parental cooperation." The judgment provided that the parties were to share many parental rights and responsibilities, except that Pearson would have sole authority to make decisions to secure mental health services for the children and to make medical decisions to address one child's diagnosed ADHD, but ordered Pearson to schedule a comprehensive psychological examination for that child. The court further ordered both parties to submit to a comprehensive parenting capacity evaluation and, again, to secure a parenting coordinator, and it established behavioral standards for the parties to help insulate the children from their conflict. Finally, in a supplemental order, the court awarded primary residence of one child to Pearson and the other two children to Wendell, and established a detailed schedule for parent-child contact.

[¶6] Approximately one month later, in April 2013, Pearson filed motions to enforce and for contempt, alleging that Wendell had violated the parental rights provisions in the divorce judgment. The court ordered a prompt hearing, and in a June 18 order, it found Wendell in contempt for interfering with the children's mental health treatment and with Pearson's right to make medical decisions affecting the child with ADHD. The court declined to impose remedial or punitive sanctions but indicated that if Wendell engaged in further contemptuous conduct, sanctions would be "likely."

[¶7] In September 2013, both parties moved to modify the judgment on parental rights that had been issued only months earlier. Pearson's motion alleged that Wendell was engaging in "irrational behavior . . . rais[ing] serious questions about her ability to provide a stable and nurturing environment for the children." Wendell's motion asserted, among other things, that Pearson's "focus is more on the power and control given him by the Court's order than on doing what is best for the children." Responding to the cross-motions to modify and an increasing accumulation of other motions, the court issued a procedural order, noting that "[b]oth the substance and the tone of these pleadings suggest ongoing chaos in the children's lives that must be addressed immediately."

[¶8] The court held a two-day hearing in October 2013 on the parties' cross-motions to modify. In the resulting order, the court found, "The children are in serious distress, and there is currently no effective system of coparenting or parental communication." Importantly for purposes of this appeal, the court also stated, "Judicial efforts to alleviate the children's distress have been ineffective thus far." The court then found both parties to be at significant fault for creating a damaging environment for the children. Specifically, the court found that Wendell had violated the court's prior orders by interfering with medical decisions and not honoring the contact schedule, and that Pearson "ha[d] more than once transgressed the bounds of good parenting." Nonetheless, the court noted that the children continued to be "strongly connected" to both parties. The court granted Pearson sole parental rights and responsibilities, with contact between Wendell and the children at specified times, and ordered that the children be transferred from one party to the other at a police station or through a third-party intermediary that Pearson could designate.

[¶9] By this time, the parties had moved to Cumberland County. The financial issues remained to be litigated, and parenting issues were still fundamentally unsettled. In November 2013, the court held a conference with the parties, and, finding "that the children continue to be in active distress, " ordered a change of venue to Portland. The parties promptly filed more motions: Pearson moved to modify aspects of the October order and filed a motion for contempt, alleging in part that Wendell was "inflict[ing] emotional cruelty on [him] through the children as punishment for prevailing in court"; and, pursuant to M.R. Civ. P. 60(b)(6), Wendell moved to vacate the March 2013 divorce judgment and to convert the judgment into an interim order because of ongoing parental rights issues. Although Pearson initially filed a written objection to Wendell's motion, in March 2014 the court (Moskowitz, J.) granted the motion with the parties' agreement. In its order, the court struck the grant of the divorce itself and redesignated the remaining aspects of the March 2013 order, and all subsequent orders, as interim orders.

[¶10] The case was scheduled for a final, comprehensive hearing in July, but the court granted Wendell's motion to continue based on Pearson's failure to comply with an order to produce financial records. The case was rescheduled for trial in September. One week prior to that trial date, Pearson filed a petition for bankruptcy. Although Pearson himself filed a motion in the bankruptcy proceeding for relief from the automatic bankruptcy stay, it was not clear to the court if there was an order in that case that would allow the divorce action to proceed. The court (Eggert, J.) thus again continued the trial and rescheduled it to December, ordering that if the bankruptcy stay was lifted as of then, the trial would be plenary, but that otherwise, the trial would be limited to parenting disputes.

[¶11] As the trial date approached, Pearson filed a motion in limine to restrict the evidence to events that occurred after the October 2013 order, which awarded sole parental rights and responsibilities to him. Following from the motion in limine, at the commencement of trial on December 1, 2014, Pearson requested that the court take judicial notice of the prior findings and orders in the case. The court ruled that because the March 2013 judgment and all subsequent orders had been converted to interim orders, the court would determine the contested issues de novo. The court made clear, however, that it had reviewed the orders issued previously.

[¶12] The evidence presented by the parties at the final hearing included descriptions of mental health interventions for the children; violent conduct by one child toward Pearson, resulting in damage to an item of property, personal injury to Pearson, and medical attention given to the child, with Pearson preventing Wendell from going to the hospital with the child; calls to law enforcement about issues affecting the children; the parties' mutual decision to disregard the designations of the children's primary physical residence as ordered by the court in March 2013, resulting in further conflict addressed in the October 2013 order; Pearson's decision in January 2014, without notice to Wendell, to return the children to her after he was granted sole parental rights and responsibilities in October 2013; and other events that illustrated both the parties' contentiousness and the profound instability in the children's lives.

[¶13] On December 18, 2014, the court issued a judgment awarding sole parental rights and responsibilities to Wendell for one year. The court based this order in part on its finding that during the pendency of the case, Pearson had been granted sole parental rights and responsibilities but ceded that role to Wendell.

This occurred in early January 2014 and life has continued to be [in] constant turmoil for the parties and their children since that time. The parties have been unable to cooperate as parents and they have engaged in constant warfare over the children and other divorce issues. As a result the children do not behave well and are ...

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