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Little v. Wallace

Supreme Court of Maine

June 21, 2016


          Submitted On Briefs: April 21, 2016

          Stephen C. Smith, Esq., and Caleb J. Gannon, Esq., Lipman & Katz, P.A., Augusta, for appellant Stephen W. Wallace

          Timothy J. Kimpton, Esq., Gallagher, Villeneuve and DeGeer, PLLC, Damariscotta, for appellee Erin W. Wallace


          SAUFLEY, C.J.

         [¶1] The now nine-year-old girl at the center of this appeal has been seriously emotionally injured by the chronic conflict between her divorced parents and the complex schedules and transitions from one parent's household to the other. After she had a serious breakdown, she found respite in a new, less complex schedule, ordered while the parties' post-divorce motions were pending. At the conclusion of the trial on those motions, the District Court (Wiscasset, Raimondi, J.) determined that a similar schedule should become part of the parties' modified divorce judgment. The child's father appeals from the resulting judgment, which established primary residence of the parties' daughter with the mother. We affirm the judgment.

         I. BACKGROUND

         [¶2] The facts are drawn from the court's extensive and thoughtful findings of fact, which are fully supported by evidence in the record. See Pearson v. Ellis-Gross, 2015 ME 118, ¶ 4, 123 A.3d 223. The parties met when Erin (Wallace) Little was nineteen and Stephen W. Wallace was forty-eight years old. Wallace was a friend of Little's mother. Wallace and Little were married in September 2005, and their daughter was born one year later. The marriage broke down in 2008, and Little filed for divorce in February 2009.

         [¶3] By agreement, a divorce judgment was entered by the court (Mathews, M.) in December 2009 that provided for shared primary residence of the child with a weekly alternating schedule and transitions during the middle of the week. In October 2011, acting upon the father's post-divorce motion to modify, the court (Tucker, J.) modified the divorce judgment based on the terms of a mediated agreement. The resulting judgment created an even more complicated schedule of contact, requiring mid-week transitions on varying days of the week during the school year, with the child alternating weekends between her parents.

         [¶4] Over time, and in the face of the frequent transitions between parental homes, the child became increasingly depressed as the tensions between her parents grew. By August 2014, at less than eight years old, she was talking about "not wanting her life." During one major incident, the father sent messages to the mother indicating that the child was distressed and asking the mother to delay in picking her up at 9:00 a.m. as scheduled. The mother declined. When the mother arrived to pick the child up at 9:00 a.m., the parents engaged in a dispute in the child's presence. The child became hysterical and remained inconsolable upon arriving at her mother's home. She was curled up in a fetal position and could not calm herself. The mother called a crisis line, and the social worker who arrived to evaluate the situation expressed a concern that the child may have been sexually abused by her father.

         [¶5] The mother obtained a protection from abuse order, which was later voluntarily dismissed, and moved to modify the divorce judgment. As amended, her motion to modify asserted as one of the changes in circumstances the possibility that the child had been sexually abused by her father. The father filed a motion for contempt on the ground that the mother had prevented all contact with his daughter in violation of the existing contact schedule. The court appointed a guardian ad litem and entered an interim order establishing a limited schedule of contact for the child with her father.

         [¶6] After the child was evaluated professionally for evidence of sexual abuse, the GAL reported to the court that there was no clear evidence of sexual abuse but that "there is clearly an issue to be solved with [the child]." The GAL emphasized that the child is highly sensitive to the parents' conflict and to the changes in their relationships with their romantic partners-most recently involving the father's break-up with a woman who had been close to the child.

         [¶7] The court entered an interim order in January 2015 granting the father increased contact with the child. After a trial held on all motions in June 2015, the court granted the mother's motion to modify the divorce judgment and denied the father's motion for contempt.[1] The court then granted post-judgment motions to alter or amend, and for reconsideration, and entered a corrected judgment and findings of fact.

         [¶8] In its extensive factual findings, the court determined that it could not "find abuse based on the evidence presented." However, the court found that the child "was in an intolerable situation where she was being forced to transition between warring parents on a weekly basis. Since [the child]'s contacts with her father have been limited, she has been freed from the unbearable stress and tension of those transitions." The court further found that "the parents' enmity towards each other has been profoundly damaging to [the child, ] . . . that both parties bear a measure of responsibility for that damage, " and that "it is clear that [the child] is well aware that [the mother] and her husband do not like her father, and are highly critical of him. [The child] knows that she does not have their support in loving her father and wanting to spend time with him."

         [¶9] The court determined that this parental acrimony was particularly difficult for the child, who was also worried about her father's sadness at the recent break-up with his girlfriend. Despite the father's protestations, he gave the court the impression of "profound depression." Noting that it is "a parent's responsibility to care for the child, not the child's responsibility to care for the parent, " the court found that, "[t]o the extent that [the father] may unwittingly present himself as the sad ...

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