Rowland v. Kingman
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MAINE SUPREME JUDICIAL COURT       Reporter of Decisions
Decision: 1997 ME 80
Docket: CUM-96-466
Argued March 5, 1997
Decided April 17, 1997

Panel: WATHEN, C.J., ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and DANA, JJ.  

MARGARET ROWLAND

v.

ROBERT E. KINGMAN

GLASSMAN, J.
  
	[¶1]  Robert E. Kingman appeals from the judgment entered in the
Superior Court (Cumberland County, Wheeler, J.){1} granting Margaret
Rowland's motion to amend the judgment of divorce granted to the parties
to provide, inter alia, that the primary residence of their two minor children
be with Rowland in Lake Oswego, Oregon, and denying Kingman's motions
to reopen the record, pursuant to M.R. Civ. P. 43(j), and for relief from
judgment, pursuant to M.R. Civ. P. 60(b).  Kingman contends the court erred
by failing to apply the correct burden of proof required of Rowland to
establish a change of circumstances, and the court abused its discretion by
its determination that the change substantially affected the best interests of
the children and by denying his motion, pursuant to M.R. Civ. P. 60(b), to
vacate its judgment.  We affirm the judgment.  
	[¶2]  The record discloses the following pertinent facts: The parties
were granted a judgment of divorce on May 16, 1991, that provided, inter
alia, the primary physical residence of their two minor children, Edwin,
born on January 13, 1983, and Meagan, born on April 17, 1985, be with
Rowland at her residence in Yarmouth with reasonable rights of visitation
with the children by Kingman, who resided in Winslow.  In Rowland v.
Kingman, 629 A.2d 613 (Me. 1993), cert. denied, 114 S. Ct. 884 (1994), we
affirmed the November 19, 1992, decision of the trial court, on Kingman's
motion to amend the judgment, providing, inter alia, that the primary
physical residence of the children remain with Rowland if she resided in
Yarmouth, but should she move to Oregon to be with her present husband
the children's primary physical residence would be with Kingman on
condition that he reside in Yarmouth.  Both parties presently reside in
Yarmouth.  
	[¶3]  Rowland filed the present motion in April 1994, seeking a
modification of the November 1992 judgment to allow her to move to
Oregon with the parties' two children.  Kingman opposed the motion on the
ground that since November 1992 there had occurred no change that
substantially affected the best interests of the children.  Following a four-day
evidentiary hearing in September 1995, the court issued its order on April
12, 1996, granting Rowland's motion, and a judgment was entered
accordingly.  Thereafter, Kingman filed motions for appointment of counsel
for the children, to reopen the record pursuant to M.R. Civ. P. 43(j), and for
relief from judgment, pursuant to M.R. Civ. P. 60(b).  Following a hearing,
the court appointed a guardian ad litem for the children.  After receipt of
the guardian ad litem's report and following a hearing, the court denied
Kingman's motions, and Kingman appeals.  
	Kingman first contends the court failed to require that Rowland, as
the moving party, establish by a preponderance of the evidence that since
November 1992 there had occurred a change in circumstances sufficiently
substantial in its effect on the best interests of the children to justify a
modification of the custody arrangement.  Although Kingman acknowledges
that the doctrine of res judicata cannot be applied to child custody
proceedings, he argues that the November 1992 judgment established that
Rowland's proposed relocation was not in the best interests of the children
and the court improperly allowed Rowland's continuing desire to relocate to
be a basis for the reevaluation of the children's best interests.  
	[¶4]  The law is well established that pursuant to 19 M.R.S.A. § 752
(1996), in the context of a divorce action, the trial court "has the sole and
continuing authority to determine parental rights and responsibilities with
respect to a minor child of the parties . . . ." Gerber v. Peters, 584 A.2d 605,
607 (Me. 1990).  On the motion of one or both parents the trial court may
alter its prior judgment concerning parental rights and responsibilities or
contact with respect to a minor child as circumstances require.  19 M.R.S.A.
§ 752(12) (Supp. 1996).  When, as here, both parents and the children have
been residing in this state and one parent seeks by a proper motion to alter
a prior judgment on the ground of an intended relocation of the children to
another state, section 752(12) provides that this is a substantial change in
circumstances warranting a review by the court of any previous
arrangements of parental rights and responsibilities with respect to minor
children.  Rowland v. Kingman, 629 A.2d at 615.  Kingman cites no
authority, and we know of none, that specifies when a parent can file a
motion seeking to alter a prior judgment relating to the custody
arrangements for minor children.  It is self-evident that abuses of the
provisions of section 752(12) are reduced by the burden placed on the
moving party to establish by a preponderance of the evidence that, since the
prior custody order, there has occurred a change in circumstances
sufficiently substantial in its effect on the best interests of the children to
justify a modification of the custody arrangements.  Philbrick v. Cummings,
534 A.2d 1307, 1308 (Me. 1987).  
	[¶5] We find nothing in this record to support Kingman's contention
that Rowland, as the moving party, was relieved of this burden of proof.  The
trial court expressly stated that the intended relocation was not the decisive
factor in its determination.  The record reflects that Rowland's proposed
relocation and the evidence of any other change in circumstances that had
occurred since the November 1992 judgment was considered by the court
to determine if the requisite change had occurred.  Ehrlich v. Bloom, 585
A.2d 809, 812 (Me. 1991), cert. denied, 112 S. Ct. 201 (1991).  Our review
of the record in this case discloses no clear error in the court's finding of
the historical facts.  Philbrick v. Cummings, 534 A.2d at 1308.  
	[¶6] Kingman next contends the trial court abused its discretion by its
determination that the change of circumstances was sufficiently substantial
in its effect on the best interests of the children to justify the court's
modification of the primary physical residence of the children.  He does not
challenge the court's findings; rather, he argues that the findings "are based
on a clear misapprehension by the court of the meaning of the pertinent
evidence." We disagree.  
	[¶7] We have recently stated that "[i]n connection with both the
original divorce judgment and any motions for a change of the primary
physical residence [of minor children] 'the sensitive questions relating to
the upbringing of minor children of divorced parents must of necessity be
committed to the sound judgment of the trial [court that] hears the
witnesses who describe the relevant circumstances of the case.'" Cloutier v.
Lear, 1997 ME 35, ¶ 4,       A.2d       (Me. 1997) (citing Boutin v. Dionne,
458 A.2d 426 (Me. 1983)).  The court must "discern, 'as a wise, affectionate
and careful parent,' what custody arrangements will further the child's best
interest." Cyr v. Cyr, 432 A.2d 793, 796 (Me. 1981) (citation omitted).  Our
review of this record discloses no abuse of discretion in the court's
evaluation of the substantiality of the effect on the children's interests of any
factual change.  Cloutier v. Lear, 1997 ME 35, ¶ 4.  As we stated in Ehrlich v.
Bloom: 

	When [the trial court], acting as a wise and affectionate and
careful parent . . . concludes after a thorough and careful review
of the evidence . . . that a custody order is the best arrangement
for the child, this court will not overturn it, as long as there is
rational support for the decision.  

585 A.2d at 812 (citations, quotations, and brackets omitted).  This record
clearly discloses that the trial court carefully considered and evaluated the
evidence before it in reaching its determination as to the best arrangement
for the minor children of the parties, and that there is rational support for
its decision.  
	[¶8] Finally, Kingman contends the court abused its discretion by
denying his motion pursuant to M.R. Civ. P. 60(b).  He states none of the
grounds set forth in Rule 60(b){2} as a basis for granting relief from the
court's April 1996 judgment.  Rather, he argues that in the unique
circumstances of this case the court should have vacated its judgment to
allow testimony by the children.  We disagree.  
	[¶9] The law is well established that we review the denial of a motion
for relief from a judgment pursuant to M.R. Civ. P. 60(b) for an abuse of
discretion.  Meiners v. Aetna Casualty and Surety Co., 663 A.2d 6, 8 (Me.
1995).  Here, the issue centers around the letters written to the court by
the children after they learned the contents of the April 1996 judgment. 
After a hearing, inter alia, on Kingman's motion pursuant to Rule 60(b), the
court found that the information in the letters fell into two general
categories: (1) the children's views as to their own and Rowland's
relationship with their stepfather and (2) the children's preference to have
both their parents reside in Yarmouth.  The court noted that the children's
relationships with their mother, their father and their stepfather were
extensively explored at the September 1995 hearing and that Kingman had
ample opportunity to explore the relationship between Rowland and her
husband at that hearing.  It determined that the perspective of the children
as expressed in the letters, written by them in circumstances outlined in
the guardian ad litem's report, did not overcome the weight of the evidence
adduced at the September 1995 hearing.  With regard to the children's
preference, the court stated, and the April 1996 decision of the court
reflects, that this preference was consistent with the information provided
to the court at the September 1995 hearing and was considered by the
court in reaching its decision on Rowland's motion.  The court concluded
that Kingman failed to establish that the information contained in the
children's letters fell within the purview of Rule 60(b)(1), (2), (3), or (6),
and accordingly denied his motion.  On this record, we cannot say the court
abused its discretion by denying Kingman's motion.  
	The entry is: 
						Judgment affirmed. 
                                                                      
Attorney for plaintiff:	
			
E. Stephen Murray, Esq. (orally)		
Murray, Plumb & Murray		
P O Box 9785		
Portland, ME 04l04-5085

Attorney for defendant:

Peter B. Bickerman, Esq. (orally)
P O Box 897
Augusta, ME 04332-0897

FOOTNOTES******************************** {1} Sitting by designation pursuant to 4 M.R.S.A. § 157-C (1989). {2} Maine Rule of Civil Procedure 60(b) provides: On motion and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . . . Based on Kingman's motion, the court properly did not consider the applicability of (4) or (5).