Lisa Roalsvik v. Brett Comack , 208 A.3d 367 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 71Docket: Yor-18-443
Submitted
On Briefs: April 24, 2019
Decided: May 14, 2019
Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
LISA ROALSVIK
v.
BRETT COMACK
HJELM, J.
[¶1] Lisa Roalsvik appeals from orders entered in the District Court
(York, Sutton, J.) denying her motion to modify the parties’ divorce judgment
and her motion for the court to reconsider that order. The orders, among other
things, denied Roalsvik’s request that the parties’ child reside primarily with
her; allocated final parental decision-making authority regarding the child’s
education to Brett Comack; and increased Roalsvik’s child support obligation.
[¶2] In determining whether to modify parental rights and
responsibilities established in an existing judgment, “the trial court engages in
a two-step inquiry: [f]irst, whether since the prior order there has occurred a
change in circumstances sufficiently substantial in its effect upon the child’s
best interest to justify a modification; and second, if so, how should the custody
2
arrangement be modified in furtherance of the child’s best interest.”1 Bulkley v.
Bulkley, 2013 ME 101, ¶ 11, 82 A.3d 116 (alterations and quotation marks
omitted); 19-A M.R.S. §§ 1657(1)(A), (2) (2018). Because at trial Roalsvik bore
the burden of proof on her motion, see Little v. Wallace, 2016 ME 93, ¶ 13, 142
A.3d 585, she must demonstrate here that the evidence compelled the court to
make the findings necessary to grant her motion. See Handrahan v. Malenko,
2011 ME 15, ¶ 13, 12 A.3d 79. Contrary to Roalsvik’s assertion, the record
evidence did not compel the court to conclude that it would be in the child’s
best interest to reside primarily with her. See 19-A M.R.S. § 1653(3) (2018).
[¶3] Additionally, the court did not abuse its discretion by denying
Roalsvik’s motion for reconsideration because the motion comprised a
reiteration of arguments that she had already presented to the court and
allegations of events that occurred only after the hearing was held and the
record was closed. See M.R. Civ. P. 7(b)(5); M.R. Civ. P. 59(e); Shaw v. Shaw,
2003 ME 153, ¶¶ 7-8, 12, 839 A.2d 714.
[¶4] We write only to address two issues that Roalsvik raises on this
appeal.
1 The parties do not dispute that a “substantial change in circumstances” existed—specifically,
the relocation of each party and their inability or unwillingness to communicate with each other
effectively. See 19-A M.R.S. § 1657(2) (2018). Only the child’s best interest is at issue.
3
[¶5] The first issue relates to the recommendation presented by the
court-appointed guardian ad litem. The day-long motion hearing included the
presentation of testimony from the parties and a number of others, including
the GAL, whose report is also part of the record and whose ultimate
recommendation to the court was supportive of Roalsvik’s motion. Near the
end of Comack’s examination of the GAL, Roalsvik objected to several of
Comack’s questions that were designed to challenge the GAL’s opinion on
certain aspects of the case, but the court overruled most of those objections.
Immediately after the last of those colloquies and as the GAL’s testimony
concluded, the court explained,
The Court values the [GAL’s] input, but the Court is not going to just
do what the [GAL] says. The Court’s going to make a decision based
solely on the best interest of the child, using the statutory factors
that the Court needs to consider. It’s lovely to have a [GAL] in this
place. It’s lovely to have a report. But I’m not a rubber stamp for
the [GAL].
With that said, [the GAL] put an enormous amount of time
into the report, his testimony. And I want to know every aspect of
what he has to say.
Largely from this, Roalsvik asserts that “the court summarily dismissed the
[GAL’s] report, testimony and recommendations regarding primary residency.”
[¶6] For two reasons, Roalsvik’s claim reflects a fundamental
misunderstanding of the court’s remarks. First, utterly contrary to Roalsvik’s
4
view of the way the court treated the GAL’s recommendation, the court’s
statement constitutes an explicit expression of its intention to take the
recommendation seriously and a recognition of the value that a GAL’s
investigation and recommendation can provide to the court in these often
difficult cases. Indeed, the court explained that it wanted to know “every
aspect” of the GAL’s reasoning—an approach illustrated by the court’s rulings
that overruled Roalsvik’s own objections to a number of Comack’s questions
that explored the GAL’s opinion. The court’s order did not specifically refer to
the GAL’s recommendation, and its ultimate conclusion differed from the GAL’s.
Nonetheless, particularly given that Comack’s cross-examination of the GAL
generated testimony that could reasonably be seen to bring several aspects of
the GAL’s recommendation into question, it cannot be fairly maintained that the
court improperly ignored or “summarily dismissed” the GAL’s testimony.
Indeed, the record establishes just the opposite.
[¶7] This ties into the second element of the court’s comment quoted
above, namely, that the court intended to adjudicate the question of where the
parties’ child should primarily reside “based solely on the best interest of the
child, using the statutory factors that the Court needs to consider” and not
based “just” on a “rubber stamp” acceptance of the GAL’s recommendation.
5
This is an indelibly correct statement of the court’s responsibility to exercise its
independent judgment based on the record as a whole and within the analytical
framework established by the Legislature. Here, the court was presented with
the testimony of multiple witnesses—including the GAL—and voluminous
exhibits. Consistent with what the court told the parties it would do, the court
stated plainly in its order that its decision was based on that full record and that
it had considered “each” of the statutory factors that pertain a proper analysis
of the child’s best interest. See Vibert v. Dimoulas, 2017 ME 62, ¶ 15, 159 A.3d
325 (“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.” (alteration and quotation marks omitted)); see also In re Caleb M.,
2017 ME 66, ¶ 27, 159 A.3d 345 (“The weight and credibility of the testimony
and other evidence, including GAL reports, is for the fact-finder’s
determination.” (emphasis added) (quotation marks omitted)). Roalsvik’s
contention that the court’s analysis was incomplete is without merit.
[¶8] The second of Roalsvik’s contentions that warrants comment is her
assertion that the court erred by denying her motion for reconsideration. Two
of the grounds for that motion comprised events that occurred only after the
hearing was held, and, for that reason, the court did not err by denying the
6
motion.2 One of those post-hearing developments was the birth of Roalsvik’s
new child with her new wife several weeks after the hearing, which could affect
Roalsvik’s child support obligation relating to the parties’ child. See 19-A M.R.S.
§ 2006(5)(A) (2018) (stating that a child support obligation is subject to
adjustment based on the obligor’s legal obligation to support a child in that
party’s household other than the child who is the subject of the child support
order). Although at the motion hearing the court was presented with evidence
of the expected due date, it would have been premature for the court to adjust
Roalsvik’s child support obligation pursuant to section 2006(5)(A)—and in fact
Roalsvik never argued to the court that it should do so, thereby waiving the
issue, see Homeward Residential, Inc. v. Gregor, 2017 ME 128, ¶ 9, 165 A.3d 357(“To preserve an issue for appeal, the party seeking review must first present
the issue to the trial court in a timely fashion. . . . Otherwise, the issue is deemed
waived.”) (quotation marks and citation omitted)). The other post-hearing
development was that soon after the judgment was issued, Comack changed
employment, which could affect the calculation of child support if Comack’s
income also changed as a result.
2As noted above, see supra ¶ 3, the remaining ground for the motion was a restatement of
arguments Roalsvik had already presented to the court and thus did not constitute a proper basis for
reconsideration. See M.R. Civ. P. 7(b)(5).
7
[¶9] Even though the court properly denied the motion for
reconsideration, should Roalsvik seek a modification of child support based on
these changed circumstances, the issue can be addressed promptly, and even
without a hearing if none is requested or the matter is otherwise uncontested,
provided that the amount of the proposed child support obligation is not less
than that set out in the guidelines. See 19-A M.R.S. § 2009(6) (2018); see also
Higgins v. Wood, 2018 ME 88, ¶¶ 25-27, 189 A.3d 724. Additionally, no filing
fee will be required if the motion is limited to a modification of child support.
Revised Court Fees Schedule and Document Management Procedures,
Me. Admin. Order JB-05-26 (as amended by A. 7-18) (effective July 1, 2018);
M.R. Civ. P. 120. Consequently, the only issue raised in Roalsvik’s motion that
might merit the court’s attention can be presented in an efficient manner and
resolved expeditiously.
The entry is:
Judgment affirmed.
8
Anthony P. Shusta II, Esq., Law Offices of Anthony P. Shusta II, Madison, for
appellant Lisa Roalsvik
Keri J. Marshall, Esq., Marshall Law, PLLC, East Kingston, New Hampshire, for
appellee Brett Comack
York District Court docket number FM-2015-170
FOR CLERK REFERENCE ONLY