Heidi Vibert v. Antonios N. Dimoulas , 159 A.3d 325 ( 2017 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 62 Docket: Pen-16-292
Submitted
On Briefs: January 19, 2017
Decided: April 4, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
HEIDI VIBERT
v.
ANTONIOS N. DIMOULAS
PER CURIAM
[¶1] Heidi Vibert and Antonios N. Dimoulas never married but had been
in a long-term, high-conflict relationship. They are the parents of two minor
children. Dimoulas appeals from a judgment of the District Court (Bangor,
Jordan, J.) awarding sole parental rights and responsibilities and primary
residence of the children to Vibert, while granting Dimoulas supervised
contact conditioned on his submission to a psychological evaluation and the
results thereof. We affirm the judgment.
I. CASE HISTORY
[¶2] The trial court made detailed findings addressing all issues in this
parental rights matter. Those findings are supported by the evidentiary
record. The following facts are derived from the trial court record, which
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must be viewed in the light most favorable to the trial court’s judgment.
See Sloan v. Christianson, 2012 ME 72, ¶ 2, 43 A.3d 978.
[¶3] In October 2014, after Dimoulas had become increasingly
irrational and unpredictable, resulting in numerous contacts with law
enforcement, Vibert hid the children’s clothing in plastic bags behind their
home so that she and the children could leave without alerting Dimoulas.1
Vibert fled with the children to New Hampshire, where she had family
support.
[¶4] In January 2015, Vibert filed a complaint in Maine seeking a
determination of parental rights and responsibilities. See 19-A M.R.S.
§ 1653(2) (2016). Two months later, the court appointed a guardian ad litem.
On August 27, 2015, the court (Campbell, J.) held a hearing in response to
Vibert’s emergency motion for interim relief. At the conclusion of the hearing,
the court orally stated its order on the record, granting shared parental rights
and responsibilities to the parties and awarding primary residence of the
children to Vibert. The court awarded Dimoulas unsupervised contact on
alternating weekends, and because the children were visiting Dimoulas
1 The guardian ad litem reported that Dimoulas has had 211 contacts with local law
enforcement since 1989. From January 2015 to May 2015, Dimoulas was involved with law
enforcement eighteen times, usually as the complainant and sometimes in the presence of the
children.
3
immediately after the hearing, the court specifically directed Dimoulas to
return the children to their mother on September 2, 2015. The written
version of the court’s order was entered on September 3, 2015.
[¶5] On September 2, in direct violation of the interim order, Dimoulas
refused to return the children to Vibert. Two days later, Vibert, accompanied
by law enforcement, retrieved the children from Dimoulas. Although he was
in violation of the court’s order by refusing to return the children, Dimoulas
testified that the police “raided” his home and that he called 9-1-1 several
times while the police were still at his home to report that the police were
“kidnapping” his children.
[¶6] A few days later, Dimoulas drove to New Hampshire unannounced
and took his son out of school. Dimoulas attempted to take his daughter from
her school as well, but school officials refused to release her. Dimoulas
brought his son back to Maine and enrolled him in school.2 He kept his son for
several days without notifying Vibert of his whereabouts. At the time,
Dimoulas was subject to a protection from harassment order in New
Hampshire, and his conduct led to criminal charges in New Hampshire.
2 Whenever the children visited Dimoulas in Maine, he re-enrolled them in Maine schools even
though their primary residence was in New Hampshire and they attended school in
New Hampshire. School officials expressed concern about the impact that enrolling and
re-enrolling the children for a few days at a time had on the children.
4
Dimoulas’s attorney in the New Hampshire criminal action requested a
court-ordered psychological exam.
[¶7] The parties proceeded to a final hearing in the parental rights
action on April 28, 2016. The court (Jordan, J.) relied on the guardian
ad litem’s reports and testimony from the interim hearing and heard
testimony from Vibert, Dimoulas, and Dimoulas’s children from a previous
marriage.
[¶8] The court found that Dimoulas’s demeanor on the stand was
“somewhat unsettling,” that his account of events was disconnected from
what the objective information demonstrated, and that Dimoulas “ha[d]
shown a disturbing pattern of relating reality as he interprets it,” including his
description of a wonderful relationship with Vibert and his expressed belief
that the interim hearing was a “sham” that was “staged” by both attorneys, the
guardian ad litem, and the judge.
[¶9] The court found that Dimoulas’s testimony and demeanor
demonstrated that he felt entitled to make all the decisions for the children
and that he was willing to co-parent “as long as [the mother] does what he
wants.” The court also found that if Dimoulas were given primary residence
or shared decision-making authority, he was unlikely to foster cooperation,
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contact between the children and Vibert, or stability for the children.3 The
court’s findings were based, in part, on Dimoulas’s verbal and emotional
abuse of Vibert4 and the negative effect that Dimoulas’s behavior had on the
children’s emotional, physical, and academic well-being. The court found that
Dimoulas’s behavior was unlikely to change without some form of
psychological intervention.
[¶10] In its judgment entered on May 24, 2016, the court considered
the best interest factors set forth in 19-A M.R.S. § 1653(3) (2016), and
specifically addressed factors (A)-(K). In particular, the court noted that
(1) the children had significant relationships with both parents and their
extended families; (2) Vibert had done well at settling the children into their
new community in New Hampshire where Vibert had stable relationships;
(3) both parties were capable of giving the children love and affection;
(4) Vibert was more capable of providing appropriate guidance and being
3 Conversely, the court found that Vibert was more credible and that her decisions and behavior
were reasonable. She had made numerous efforts to co-parent with Dimoulas, to foster consistent
telephone contact between Dimoulas and the children, and to shield the children from the parents’
disputes. The court found that it was remarkable that the record contained no evidence of the
children being upset with their mother and that this was likely due to Vibert’s appropriate
behavior.
4 The guardian ad litem’s reports—which contained observations by independent witnesses,
school officials, and counselors—confirmed that Dimoulas disparaged Vibert in front of the children
and that Dimoulas was “unable to separate his intense anger [with Vibert] from his appropriate
interaction with the children.” For example, Dimoulas repeatedly called and texted Vibert, using
vulgar language and calling her vulgar names.
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cooperative; (5) Dimoulas’s anger with Vibert interfered with his judgment;
and (6) Vibert having sole authority over decision-making would provide
more stability for the children.
[¶11] Finding that the previous award of shared rights and
responsibilities and unsupervised contact had proven to be an unworkable
arrangement, subjecting the children to a “tug-of-war,” as demonstrated by
Dimoulas’s conduct after the interim order, the court awarded sole parental
rights and responsibilities and primary residence to Vibert.
[¶12] The court granted Dimoulas supervised contact on alternating
weekends and reasonable telephone contact during the week to be monitored
by Vibert. Dimoulas’s contact was conditioned upon the performance and
results of a psychological evaluation. The court further required Dimoulas to
sign releases allowing Vibert to present her account of Dimoulas’s behavior to
the psychological examiner and authorizing Vibert to receive a copy of the
examiner’s report.
[¶13] The court ordered that the children not be exposed, directly or
indirectly, to behavior or comments that disparage either parent. The court
also made findings regarding the parties’ incomes and support obligations.
The court found that Dimoulas had not made any child support payments, nor
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other court-ordered payments, and that Dimoulas’s testimony that he was
unaware that he had to make such payments was not credible and constituted
further evidence of Dimoulas’s disregard of court orders. As such, the court
ordered Dimoulas to pay a portion of Vibert’s attorney fees.
[¶14] No motion for further findings of fact and conclusions of law was
filed. See M.R. Civ. P. 52. Dimoulas filed this timely appeal. See 14 M.R.S.
§ 1901 (2016); 19-A M.R.S. § 104 (2016); M.R. App. P. 2.
II. LEGAL ANALYSIS
[¶15] “When a court determines parental rights and responsibilities, it
applies the best interest of the child standard as set forth in 19-A M.R.S.
§ 1653(3).” Grant v. Hamm, 2012 ME 79, ¶ 6, 48 A.3d 789. We review the trial
court’s factual findings for clear error and its ultimate conclusion for an abuse
of discretion. Id. “The judgment of the trial court is entitled to very
substantial deference because the court is able to appraise all the testimony of
the parties and their [witnesses].” Id. “[W]e review the record, and
reasonable inferences that may be drawn from the record, in the light most
favorable to the trial court’s judgment to determine if the findings are
supportable by competent evidence.” Sloan, 2012 ME 72, ¶ 2, 43 A.3d 978.
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A. Best Interest
[¶16] Dimoulas argues that the court’s factual findings were clearly
erroneous and that the court abused its discretion in its award of sole parental
rights and responsibilities and primary residence to Vibert. Dimoulas
challenges many aspects of the court’s order but primarily argues that the
court erred by having an unwaveringly favorable view of Vibert, discounting
Dimoulas’s claimed good behavior in the seven months before the final
hearing, and giving too much weight to Dimoulas’s disregard for prior court
orders. These arguments are directed to the weight and credibility the court
attached to particular evidence. On appellate review, “we will not substitute
our judgment as to the weight or credibility of the evidence for that of the
fact-finder if there is evidence in the record to rationally support the trial
court’s result.” State v. Connor, 2009 ME 91, ¶ 9, 977 A.2d 1003.
[¶17] Here, the court undertook a comprehensive best interest
determination, see 19-A M.R.S. 1653(3), with all the statutory factors in mind
before reaching its conclusion. The court found that the children have strong
familial relationships with both Vibert and Dimoulas and that both parents are
capable of giving love and affection to their children. Most important to the
safety and well-being of the children, however, was the court’s finding that
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Dimoulas was incapable of co-parenting with Vibert and acting appropriately
in front of the children. This finding was supported by Dimoulas’s pattern of
disregard for court orders and frequent disparagement of Vibert in the
children’s presence. In contrast, the court found that Vibert made significant
efforts to foster a co-parenting relationship with Dimoulas, making her better
suited for decision-making authority and providing the children’s primary
residence. Therefore, the court did not commit clear error in its factual
findings or abuse its discretion in its ultimate conclusion. See Bulkley v.
Bulkley, 2013 ME 101, ¶ 14, 82 A.3d 116 (“The ultimate determination of the
weight to be given each factor requires careful consideration by the court and
is done on an individualized, case-by-case basis.”).
B. Psychological Examination
[¶18] Dimoulas argues that the court abused its discretion by requiring
him to participate in a psychological examination before having any contact
with his children, including contact by telephone. He contends that the court
erroneously relied on information that was stale and that the court should not
have considered the request for a competency evaluation in New Hampshire
in ordering a psychological evaluation in Maine. Furthermore, Dimoulas
argues that the court abused its discretion in requiring Dimoulas to provide
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Vibert with the results of his psychological exam because it would contain
confidential information, Vibert would not be restricted from further
disseminating that private information, and the court would be in a better
position to review it in camera.
[¶19] Section 1653(3) affords the trial court broad discretion in making
its best interest determination, so long as children’s safety and well-being are
central to the court’s decision. Bulkley, 2013 ME 101, ¶ 13, 82 A.3d 116.
“Moreover, 19-A M.R.S. § 1653(3)(N) provides that the trial court has the
discretion to consider all other factors having a reasonable bearing on the
physical and psychological well-being of the child.” Id. ¶ 17 (alterations
omitted). Here, the court expressly stated that the children’s safety and
well-being were its primary concern. The court found that many persons
involved in the case—including Vibert, the guardian ad litem, the police,
school officials, the children’s therapists and counselors, and, most
importantly, the children—had observed Dimoulas’s emotional and erratic
behavior. Thus, it was neither unreasonable nor unusual for the court to
order a psychological examination and require disclosure of the results to
Vibert, who will have sole decision-making authority for the children.
See Verite v. Verite, 2016 ME 164, ¶¶ 3-6, 151 A.3d 1; Sloan, 2012 ME 72,
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¶¶ 19, 22, 43 A.3d 978; Neudek v. Neudek, 2011 ME 66, ¶ 3,
21 A.3d 88; Malenko v. Handrahan, 2009 ME 96, ¶ 17, 979 A.2d 1269. The trial
court did not abuse its discretion in awarding supervised contact with the
children to Dimoulas conditioned on submitting to a psychological evaluation
and disclosing the results to Vibert.
The entry is:
Judgment affirmed.
Dennis R. Hamrick, Esq., Bangor, for appellant Antonios N. Dimoulas
Daniel A. Pileggi, Esq., Acadia Law Group, LLC, Ellsworth, for appellee Heidi
Vibert
Bangor District Court docket number FM-2015-06
FOR CLERK REFERENCE ONLY