Kinter v. Nichols
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1999 ME 11 
Docket: 	Ken-98-245
Submitted 
On Briefs: 	December 22, 1998
Decided:	January 14, 1999


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

MARION A. KINTER

v.

DENNIS A. NICHOLS

CALKINS, J.

	[¶1]  Marion Kinter appeals from the judgment of the Superior Court
(Kennebec County, Marden, J.) dismissing her motion to amend a divorce
judgment; denying her motion for the appointment of a guardian ad litem;
and denying her motion to waive mediation.  Kinter argues that she was
entitled to an evidentiary hearing on her post-judgment motion in which
she sought to change the primary physical residence of the parties' minor
children.  Because we agree that she was entitled to present evidence on the
issue of whether there was a substantial change in circumstances affecting
the best interests of the children, we vacate the judgment granting the
motion to dismiss.  We affirm the denial of Kinter's motions for the
appointment of a guardian ad litem and to waive mediation.
	[¶2]  The parties were divorced in January 1995.  The divorce was
uncontested, with both a settlement agreement and a marital property
agreement incorporated into the divorce judgment.  The judgment provides
that the parties share the parental rights of their two sons who are presently
fifteen and eight years old.  Pursuant to the settlement agreement, the
primary residence of the children is with the father, Dennis Nichols.  The
settlement agreement acknowledged that the mother, Marion Kinter, would
be moving to Alaska and provides that the children spend summer and
winter vacations there with her.
	[¶3]  In April 1997, Kinter filed a motion to amend the divorce
judgment seeking the primary physical residence of the children.  She also
requested the appointment of a guardian ad litem and sought to waive the
mediation requirement contained in the settlement agreement.  Nichols
responded by filing a motion to dismiss and opposing both the appointment
of a guardian ad litem and the waiver of mediation.{1}  A hearing was
scheduled on the pending motions for July 10, 1997, at which time there
was a discussion on the record between the court and both counsel as to
whether the matter was ready for an evidentiary hearing on the motion to
amend.{2}  After hearing the arguments of counsel, the court took under
advisement the motions to dismiss, for the appointment of a guardian ad
litem, and to waive mediation.  No evidence was presented.  In its written
decision the court granted Nichols' motion to dismiss; denied Kinter's
motion for appointment of a guardian; and denied Kinter's motion to waive
mediation. 
	[¶4]  Although the court did not expressly state that it was doing so, it
analyzed Nichols' motion to dismiss as though it were made pursuant to
M.R. Civ. P. 12(b)(6).  The court stated that it assumed the truth of the
allegations in the motion to amend, but they did not show a "change in
circumstances sufficiently substantial in its effect on the best interest of the
children as to justify a modification of the custody arrangement."  Villa v.
Smith, 534 A.2d 1310, 1312 (Me. 1987).
	[¶5]  We conclude that the allegations in Kinter's motion to amend are
adequate to show a change in circumstances which have a sufficiently
substantial effect on the best interests of the children to warrant a change of
primary residence.  In her motion, Kinter alleges that she is remarried; she
has a new job; she has nearly finished building a new home; and the
children's maternal grandmother, who has a close relationship with the
children, now lives with her.  She also alleges that the oldest child (fourteen
years old at the time of the motion) consistently states that he wants to live
with her; that Nichols has not been flexible about vacation time; that Nichols
is not supportive of communications between Kinter and the children; and
that Nichols conveys his anger about the divorce and Kinter to the children.
	[¶6]  The fact that Kinter now lives in Alaska is not a change in
circumstances because that fact was known at the time of the divorce, and it
was acknowledged that the children would have one parent living in Maine
and one living on the other side of the continent.  Kinter's argument focuses
on the desire of the older child to live with her, Nichols' attitude about
contact and visitation, and his display to the children of his anger at Kinter. 
These allegations, in combination, show a substantial change in
circumstances which affect the best interests of the children.  These facts, if
unrefuted, indicate that Nichols' anger and attitude are no longer conducive
to the same sharing of parental rights enjoyed by the parties in the past and
that his attitude may be the reason the older child wants to live with Kinter.  
	[¶7]  With which parent a child should primarily reside is a very
sensitive question and "heavily factbound."  Villa, 534 A.2d at 1312.  The
facts are often infused with nuances and coated with an emotional overlay. 
The bare written facts in the pleadings pale in comparison to the texture
and context that come from the testimony of witnesses.  The allegation that
a child wants to change his residence, combined with the changed attitude
of a parent that is detrimental to a shared parental rights arrangement,
requires the judge to see and hear the participants in order to sift through
the layers and ascertain the actual circumstances.  In so doing the court acts
as a "wise, affectionate and careful parent" to determine what custody
arrangement is in the child's best interest.  See Cyr v. Cyr, 432 A.2d 793,
796 (Me. 1981) (quoting Sheldon v. Sheldon, 423 A.2d 943, 946 (Me.
1980)).  This role of the judge, peculiar to parental rights disputes, requires
an evidentiary hearing in this case.{3}
	[¶8]  Kinter also appeals the denial of her motion for the appointment
of a guardian ad litem.  The motion alleges that because Kinter lives in
Alaska it is necessary to appoint a guardian to travel to Alaska to interview
witnesses there and to provide the court with an objective opinion as to the
children's best interests.  The Superior Court opined that the motivation
behind the motion was the anticipated cost of litigation, and it is obvious
that the court did not deem this an adequate basis for the appointment.
	[¶9]  The statute governing the appointment of guardians ad litem
gives the court the authority to appoint a guardian ad litem in contested
cases in which a minor child is involved or whenever the court "has reason
for special concern as to the welfare of a minor child."  19-A M.R.S.A.
§ 1507(1).{4}  Although the court did not expressly refer to the statute, it
considered the factors listed in it.  The court knew the wishes of the
parties, that is, one party wanted a guardian and the other did not.  See 19-A
M.R.S.A. § 1507(1)(A).  It was aware of the ages of the children.  See id. at
§ 1507(1)(B).  The court discussed the nature of the proceeding (see id. at
§ 1507(1)(C)) and the financial resources of the parties (see id. at
§ 1507(1)(D)).{5}  The court also considered the "extent to which a guardian
may assist in providing information concerning the best interest of the
child" (see id. at § 1507(1)(E); and it noted the lack of allegations of abuse
(see id. at § 1507(1)(G) and (H)).  The court did not base its decision to
deny the appointment of a guardian ad litem on its dismissal of the
underlying motion to amend.  The court clearly viewed the parties' dispute
as an on-going one. 
	[¶10]  In Cyr v. Cyr, 432 A.2d 793, 798 (Me. 1981) we made it clear
that "the decision to appoint a guardian ad litem is left to the discretion of
the presiding justice, who is in a better position than the Law Court to
determine whether the present parties to the action can protect the
minor's interests."  Kinter argues that Cyr is inapplicable because it was
decided before the enactment of the predecessor to 19-A M.R.S.A. § 1507
and our decision in Miller v. Miller, 677 A.2d 64, 69 (Me. 1996).  In Cyr we
stated that a guardian ad litem is needed when "the minor's interests
require separate representation."  Cyr, 432 A.2d at 798.  In Miller we noted
that according to case law, which formed the basis for the statute, "a
guardian ad litem's central responsibility is to assist the court in its role as
parens patriae to determine the best interests of the child(ren)."  Miller,
677 A.2d at 69 n.8 (citations omitted).  Although Miller and the statute have
helped to clarify the role of the guardian ad litem, neither has changed the
standard of review of decisions on appointments of guardians ad litem.  Only
if the court has abused its discretion will we overturn its decision.  The
court in this case did not abuse its discretion in denying the motion for a
guardian ad litem.{6}   
	[¶11]  Kinter also appeals the denial of Kinter's motion for a waiver of
mediation.  The court specifically ordered the parties to undertake
mediation:  "on any major issues relating to the children upon which they
are unable to agree."  The parties complied with the statutory requirement
of mediation (see 19-A M.R.S.A § 251(2)),{7} by participating in a telephonic
mediation session with a court-appointed mediator two days before the
July 10, 1997 hearing.  At the July 10 hearing counsel for the parties
acknowledged that the mediation session occurred.{8}
	[¶12]  In their settlement agreement the parties agreed to submit
disputes about the children, such as the dispute regarding the primary
residence, to mediation before filing any motion in court, and it is for this
provision that Kinter seeks a waiver.  She cites no authority, either in her
motion or her brief on appeal, for a court to order the waiver of a contractual
provision agreed to by the parties.  She alleges no grounds for the motion
except the unlikelihood of a successful mediation and that it would be more
efficient to hold mediation after a guardian ad litem has been involved.  The
first ground would not support a motion to waive the statutory mediation,
which requires "extraordinary cause" for a waiver (19-A M.R.S.A.
§251(2)(B)), and should not be sufficient to undo a requirement established
by the parties themselves.  The second ground became meaningless once
the appointment of a guardian ad litem was denied.  Therefore, the denial of
the motion was not an abuse of discretion.  Furthermore, even though a
mediation was held in July 1997 on the issue of the primary residence of
the children, the court's order to mediate further seems particularly
appropriate on remand given the extraordinary amount of time that has
passed since that mediation and the number of changes that may have
occurred in the lives of the parties and the children since that point in time.
	The entry is
Judgment dismissing Kinter's motion to
amend vacated.  Judgment denying motions for
appointment of guardian ad litem and to waive
mediation affirmed.  Remanded to Superior
Court for proceedings consistent with this
opinion.
Attorney for plaintiff:	

Judtih W. Andrucki, Esq.	
Hark · Andrucki	
P O Box 7120	
Lewiston, ME 04243-7120

For defendant:

Dennis A. Nichols
P O Box 13
Hallowell, ME 04347?


FOOTNOTES********************************

{1} . Nichols also filed a motion for contempt which the court denied. The ruling on the
motion for contempt was not appealed.
{2} . Nichols was prepared to present evidence on the motion to amend but asked to be
heard first on his motion to dismiss. Kinter's counsel stated that she understood that only the
nontestimonial motions were for hearing. Nichols did not press for holding an evidentiary
hearing that day or object to the procedure utilized by the court, that is, hearing argument on
the other motions and taking them under advisement.
Kinter did not attend the hearing. Her counsel stated that Kinter preferred to remain in
Alaska with the children who were on their summer visitation with her rather than travel to
Maine and lose time away from the children.
{3} . Because of this conclusion we do not reach Kinter's argument that motions to
dismiss for failure to state a claim upon which relief can be granted are never appropriate for a
post-divorce motion to modify primary residence of a child and that an evidentiary hearing
must be held in all such cases. See M.R. Civ. P. 80(k) (requiring a hearing on all post-judgment
divorce motions unless there is a stipulated judgment or amendment).
{4} . At the time of the hearing, the statute in effect was 19 M.R.S.A. § 752-A which was
repealed by P.L. 1995, c. 694, § B-1 (effective Oct. 1, 1997) and recodified at 19-A M.R.S.A.
§ 1507(1). The substance of the statute remained the same for purposes of this case, so we cite to
the current version for convenience.
{5} . Kinter's motion for the appointment of a guardian ad litem alleges that the parties
have the capacity to pay the guardian's fees, although Kinter's motion to waive mediation
alleges that both parties have "limited resources." In his objection to the motion for guardian
ad litem, Nichols alleges that he does not have the ability to pay for a guardian. The court had
the child support affidavits filed by the parties which showed the limited amount of their
resources including the fact that Nichols was unemployed.
{6} . We express no view as to any action that the trial court should take on remand if the
parties again request the appointment of a guardian ad litem because of circumstances that
may have changed in the time that has passed since the July 10, 1997 hearing.
{7} . The mediation statute in effect at the time this motion was filed was 19 M.R.S.A.
§ 752(4), which was repealed by P.L. 1995, c. 694, § B-1 (effective Oct. 1, 1997) and recodified at
19-A M.R.S.A. § 251(2). The substance of the statute remained the same for purposes of this
case, so we cite to the current version for convenience.
{8} . In its written decision, the court stated that the parties had not participated in
mediation, but this statement is incorrect.