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Fitzpatrick v. McCrary

Supreme Court of Maine

April 5, 2018

ERIC N. FITZPATRICK
v.
ARLENE MCCRARY

          Submitted On Briefs: January 11, 2018

          James M. Dunleavy, Esq., Currier & Trask, PA, Presque Isle, for appellant Eric N. Fitzpatrick

          Arlene McCrary, appellee pro se

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          JABAR, J.

         [¶1] Eric N. Fitzpatrick appeals from a judgment entered by the District Court (Houlton, O'Mara, J.) denying his M.R. Civ. P. 60(b) motion for relief from judgment after the court granted Arlene McCrary's motion to modify a parental rights and responsibilities order regarding their son. We affirm the judgment.

         I. BACKGROUND

         [¶2] Fitzpatrick and McCrary are the parents of a child, born June 15, 2013. In November 2013, Fitzpatrick filed a complaint seeking a determination of parental rights and responsibilities. The District Court [Daigle, J.) entered a judgment and ordered shared parental rights with primary residence awarded to McCrary. Several years later, on January 28, 2016, the District Court [Soucy, J.) granted Fitzpatrick's subsequent motion to modify after the parties agreed to an order changing primary residence from McCrary to Fitzpatrick.

         [¶3] On April 14, 2016, McCrary filed a motion for contempt against Fitzpatrick, alleging that Fitzpatrick failed to comply with the modified parental rights and responsibilities order. Twelve days later, on April 26, 2016-while that motion was "out" for service-Fitzpatrick filed a complaint in the Court of Common Pleas of Luzerne County, Pennsylvania, seeking an order to confirm that he had legal custody of the child.[1] Less than two months later, on June 24, 2016, before her contempt motion was served on Fitzpatrick, McCrary filed a motion to modify the parental rights and responsibilities order in the District Court in Houlton. On August 3, 2016, the Pennsylvania Court of Common Pleas entered an "interim order" that purported to "supersede[] all prior Orders in any jurisdiction" and provided that "[jurisdiction of this matter . . . and the child shall remain with [the Pennsylvania Court] until further Order of Court."

         [¶4] After he was finally served with McCrary's motions early in August, Fitzpatrick filed a motion to dismiss McCrary's motion to modify in the District Court in Houlton, arguing that Maine lacked subject matter jurisdiction over the matter because "the Pennsylvania court has assumed full jurisdiction over the matter, [and] superseded the Order of the State of Maine." Fitzpatrick's motion to dismiss contained factual assertions-without any accompanying affidavits-and legal arguments. After a pretrial/status conference on the issue of jurisdiction, the court [O'Mara, J.) denied that motion, determining, in relevant part, that

once "Home State" jurisdiction is established, no other state may simply "assume full jurisdiction" such that its orders "supersede" orders of the "Home State, " unless the parties and the child have all left the "Home State." Here, while [Fitzpatrick] and the child have moved to Pennsylvania, [there] is not even an allegation that [McCrary] no longer lives in Maine, or has left this immediate area.

         Fitzpatrick filed a motion to reconsider, which included further factual assertions-again, without any accompanying affidavits-and legal arguments. The court denied that motion in an order dated February 21, 2017. On the same date, following a hearing where Fitzpatrick failed to appear, the court granted McCrary's motion to modify, awarding her primary residence of the child.[2]

         [¶5] Several weeks later, on March 8, 2017, the court had a telephone conference with the Pennsylvania Court of Common Pleas judge who had issued the "interim order" in August 2016, regarding home state jurisdiction. As a result of that conference, the Pennsylvania court entered an order "relinquishing] jurisdiction of this case and find[ing] that jurisdiction lies with the Maine District Court."

         [¶6] On April 3, 2017, Fitzpatrick filed in the Maine District Court a motion for relief from judgment and requested a hearing regarding that motion. See M.R. Civ. P. 60(b)(4). The court denied that motion on June 7, 2017. Fitzpatrick then filed a motion for findings of fact, which the court denied. See M.R. Civ. P. 52(b). This ...


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