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Supreme Court No. 2003-630-Appeal. (W02-79M) Paula J. Waters v. Charles F. Magee, Jr. : : :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 2223258 of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court No. 2003-630-Appeal. (W02-79M) Paula J. Waters v. Charles F. Magee, Jr. : : :

Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ. OPINION PER CURIAM. This case involves a custody dispute over the parties' two daughters, who are now five and six years old. The defendant, Charles F. Magee, Jr., appeals from a Family Court order granting sole custody of the children to the plaintiff, Paula J. Waters, setting forth a visitation schedule, ordering the payment of current and retroactive child support, and restraining him from assaulting, molesting, or otherwise interfering with the plaintiff in any manner until April 7, 2006.1 This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing arguments of counsel and reviewing the materials submitted by the parties, we are satisfied that cause has not been shown.2 Accordingly, we shall decide the appeal at this time. For the reasons hereinafter set forth, we affirm the order of the Family Court.

1

In her bench decision the trial justice permitted communication by telephone concerning the children's visitation. This provision, however, is not reflected in the restraining order that subsequently was issued. 2 It is of note that plaintiff in this case did not submit a statement of the case, pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure. -1-

Facts and Procedural History The parties lived together in North Kingstown for approximately seven years until January 2002, during which time their two daughters were born. Shannon was born August 27, 1998, and Jillian was born December 11, 1999.3 On January 28, 2002, plaintiff filed a complaint for protection from abuse, and obtained an ex parte temporary restraining order against defendant as a result of an incident that had occurred five days earlier in which he clenched his fists at her. A hearing on the restraining order was held on February 8, 2002, in the Family Court, after which the hearing justice dismissed the ex parte restraining order, ruling that plaintiff did not meet her burden of proof in showing that she was in fear of imminent serious physical harm. On the same day, plaintiff filed a miscellaneous petition in which she sought sole custody and physical possession of the two minor children, reasonable visitation for defendant on the condition that he attend anger management and parental counseling classes, and an order of child support. In addition, plaintiff requested that defendant be restrained from assaulting, or

otherwise harassing her, that he be restrained from drinking alcohol before and during visitation with the children, and that he be required to secure all his firearms at a location not visited by the children. The defendant answered and counterclaimed, seeking joint custody and physical

placement of the children, with reasonable rights of visitation for plaintiff, and mutual restraining orders. In April 2002, the parties entered into a temporary consent order in which they agreed to joint legal custody of the children, with plaintiff having care and control of the children on Monday, Tuesday, and Wednesday after 5 p.m. until 7:15 a.m. the following morning, and all day on Friday until Saturday at 5 p.m. The defendant was awarded care and control of the
3

In the record, Jillian's birthday also erroneously is given as December 6, 1999, and December 16, 1999. -2-

children from 5 p.m. on Saturday until 5 p.m. the following Monday, every Tuesday and Wednesday from 7:15 a.m. until 5 p.m. and all day Thursday. The consent order also provided that "[c]hild support shall remain open at this time." The trial on plaintiff's miscellaneous petition and defendant's counterclaim was held before a second justice of the Family Court between March 7 and April 7, 2003. The plaintiff testified that defendant physically and mentally abused her in front of her children. She

conceded on cross-examination that the physical abuse by defendant Charles Magee occurred before February 2002, but said that the mental abuse had been continuing. The plaintiff also testified that before the children were born, defendant daily drank a "mid sized jug" of vodka. She acknowledged that defendant repeatedly sought help for his substance abuse problem in 1995 and 1998, but that his drinking would start again after a short while, and continued to occur after the children were born. Ms. Waters said that she observed defendant drink on numerous occasions between 1998 and 2002. She described finding full and empty beer bottles in the house before the couple separated. In addition, she recalled an incident when she and defendant attended a family wedding in November 2001. According to her, defendant drank vodka tonic at the wedding and became verbally abusive toward her. Although she acknowledged that the drink looked like Sprite, Ms. Waters said she confirmed it was alcohol by dipping her finger in it and tasting it. The defendant admitted that when he drank alcohol he would consume two to eight beers or three to four vodka drinks per day, acknowledging that during one period he would consume a quart of vodka a day. He said, however, that the last time he drank any alcohol was in the summer of 1997. The defendant denied drinking alcohol at the wedding in 2001, and said that, instead, it was plaintiff who became intoxicated at the wedding because she had four to eight

-3-

glasses of wine. The defendant testified that he had been depressed throughout the years and that he was at the time taking Ativan as a prescription medication. The defendant denied ever physically abusing Ms. Waters. He conceded, however, that he had yelled at her in the past. Mr. Magee currently is disabled because of a permanent knee injury he suffered while working at UPS in March 2000. He has not worked since March 2000, and has been receiving $480.11 per week in workers' compensation. At the time of the trial, he was living with his parents in North Kingstown. Before becoming disabled, he also worked as a private investigator in his father's company. He admitted that he owns one gun. Since about November 2002, plaintiff has lived with her fianc

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