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Kelley v. McKee

Supreme Court of Maine

October 31, 2019

CORY M. KELLEY
v.
LAURA E. MCKEE

          Submitted On Briefs: October 24, 2019

          Peggy L. McGehee, Esq., Perkins Thompson, Portland, for appellant

          Laura E. McKee Cory M. Kelley did not file a brief

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.

          PER CURIAM.

         [¶1] Laura McKee appeals from a judgment of the District Court (Portland, Darvin, J.) denying her motion to modify an order determining her and Cory Kelley's parental rights and responsibilities with respect to the parties' daughter. McKee argues that the court erred or abused its discretion by (1) failing to find that a substantial change in circumstances had occurred since the original determination of Kelley's visitation rights with the child, and (2) determining that the child's best interests would not be served by granting her motion to modify.[1] We affirm the judgment.

         I. CASE HISTORY

         [¶2] Viewed in the light most favorable to the court's judgment, the record supports the following facts. See Young v. Young, 2015 ME 89, ¶ 2, 120 A.3d 106.

         [¶3] McKee and Kelley are the parents of a three-year-old child. Shortly after the child was born, McKee left Maine with the child because Kelley had acted violently toward McKee. Kelley subsequently filed a petition to determine parental rights and responsibilities in September 2016. In August 2017, the District Court [Montgomery, J.) issued a judgment determining the parties' parental rights and responsibilities. McKee was awarded primary physical residence, and Kelley was allowed weekly supervised visits at the Maine Supervised Visitation Center (MSVC). The court's judgment also established Kelley's child support obligations and directed the return to McKee of certain personal property, including her dog, Boomer.

         [¶4] Following the entry of that judgment, Kelley had weekly visits with the child at MSVC until McKee suspended them in October 2018, at which time she filed the present motion to modify. The District Court [Darvin, J.) held a hearing on the motion on February 21, 2019.

         [¶5] Evidence at the hearing indicated that McKee stopped bringing the child to supervised visits as a result of several incidents. First, McKee learned that, in August 2018, Kelley had abused his son from a different relationship. Specifically, Kelley had struck or slapped his son on the back, resulting in "scarring." Second, McKee was concerned about her child's safety after hearing from the owner of MSVC that Kelley had, during a visit on September 27, 2018, picked up the child and insisted on receiving a hug even after the child had told Kelley, "No." The incident on September 27 was the only negative interaction that the owner of MSVC had witnessed between Kelley and the child in roughly fifty visits. Third, on at least three occasions, Kelley had violated a no-contact order in place between the parties.

         [¶6] The District Court denied McKee's motion, finding that McKee had not shown either (1) a substantial change in circumstances or (2) that a modification to the parties' parental rights and responsibilities was in the child's best interests. McKee filed a motion for further findings of fact, which the court denied. McKee timely appealed the District Court's judgment. See M.R. App. P. 2B.

         II. LEGAL ANALYSIS

         [¶7] We review a ruling on a motion to modify a parental rights and responsibilities order for findings unsupported by the record, an abuse of discretion, or an error of law. See Jackson v. MacLeod,2014 ME 110, ¶¶ 10, 23, 100 A.3d 484. The movant "must demonstrate that a substantial change in circumstances has occurred since the previous decree and that the modification is in the best interests of the child[] as determined through an analysis of the factors in 19-A M.R.S. § 1653(3) [(2018)]." Id. ¶ 21. When the District Court finds that there has been a substantial change in circumstances, "the court must consider the factors provided in 19-A M.R.S. § 1653(3)... to determine what, if any, modification of the existing order is in the child's best interest." Sargent v. Braun,2 ...


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