Rodrigue v. Brewer , 667 A.2d 605 ( 1995 )

DANA, Justice.

Suzanne Brewer appeals from the judgment entered in the Superior Court (Waldo County, Maclnnes, A.R.J.) affirming a judgment of the District Court (Belfast, Staples, J.) providing for shared parental rights and responsibilities of their two and a half year old son, Kenai, with primary physical residence alternating every four weeks, parental rights and responsibilities over his religious upbringing being allocated to the mother, and parental rights and responsibilities over his education being allocated to the father. We affirm the judgment.

Suzanne Brewer and Barry Rodrigue were married in December 1989 after a brief courtship. They separated in February 1990, sometime after their child’s conception. Although the couple reconciled briefly, they permanently separated in May 1992. The District Court determined that shared parental rights and responsibilities were called for but found that despite the willingness of Brewer and Rodrigue to share in parenting on an equal basis, their inability to separate themselves from their marital conflicts compelled the court to establish a detailed plan of parental contact with Kenai and to allocate certain functions between the parents. The Superior Court reviewed the findings of the District Court and held that the findings were neither clearly erroneous nor an abuse of discretion. This appeal followed.

When the Superior Court acts as an intermediate appellate court, we will directly review the decision of the District Court. Weeks v. Weeks, 650 A.2d 945, 946 (Me.1994). The paramount consideration for the trial court when allocating parental rights and responsibilities is the best interests of the child. 19 M.R.S.A § 752(5) (Supp.1994); Lane v. Lane, 446 A.2d 418, 419-20 (Me.1982). In doing so, the trial court “must seek not merely to preserve the child from harm, but to discern, ‘as a wise, affectionate and careful parent,’ what custody arrangement will further the child’s best interests.” Cyr v. Cyr, 432 A.2d 793, 796 (Me.1981) (citing Sheldon v. Sheldon, 423 A.2d 943, 946 (Me.1980)). The trial court’s decision is entitled to substantial deference, Lee v. Lee, 595 A.2d 408, 412 (Me.1991), and we will let the trial court’s findings stand unless clearly erroneous, see Ehrlich v. Bloom, 585 A.2d 809, 812 (Me.1991), cert. denied, 502 U.S. 870, 112 S.Ct. 201, 116 L.Ed.2d 161 (1991) (modification of custody order). MacCormick v. MacCormick, 513 A.2d 266, 268 (Me.1986). We have stated in a custody case that the “essential impact of the ‘clearly erroneous rule’ is that the trial judge’s findings stand unless they clearly cannot be correct because there is no competent evidence to support them.” Harmon v. Emerson, 425 A.2d 978, 982 (Me.1981) (emphasis in original).

Brewer complains that the court’s allocation of sole responsibility for Kenai’s education to Rodrigue on the basis of his relative educational qualifications was an abuse of discretion. The record indicates that at the time of the hearing Rodrigue, then age 44, was pursuing two Ph.D. degrees: one at the University of Maine in History and the other at Laval University in Quebec City in Geography, and working as a research assistant at the University of Maine. In contrast, Brewer was a high school graduate, a full-time mother, and had worked as a teacher’s aide and was currently doing some part-time bookkeeping. The court relied on the testimony of three experts and the parties. Dr. Hamrick testified that compared to the father she would have more concern about the mother’s ability to make appropriate choices for Kenai’s education and growth. Dr. Gaff-ney described the father as “an intelligent, sophisticated, sensitive man, a hard-working, dedicated academician and father.” Gaffney also stated that the mother frequently deals with problems by withdrawing entirely from communication, and Hamrick testified that “as the development tasks of the child become that of separation from the parent ... the kinds of difficulties [the mother] has with resolving conflict are going to become very significant.” There is no suggestion that the court based its decision exclusively on an analysis of the parties’ relative educational credentials. The challenged factual findings are not clearly erroneous. Nor was the allocation of responsibility to Barry an abuse of discretion.

Further, given Kenai’s young age and the uncertainty of the parents’ future living situations, Brewer questions the timing of the court’s allocation of specific tasks to either parent. Generally, the allocation of parental rights and responsibilities can be modified if circumstances between the parties change. See 19 M.R.S.A. § 752(12); Rowland v. Kingman, 629 A.2d 613 (Me.1993), cert. denied, — U.S. —, 114 S.Ct. 884, 127 L.Ed.2d 78 (1994) (party filed motion to modify parental rights and responsibilities when party with primary residence intended to relocate out of state). If there is a change in circumstances that substantially affects the best interests of the child, either parent may petition the court to have the plan modified. Villa v. Smith, 534 A.2d 1310, 1312 (Me.1987).

Brewer complains that it is not in Kenai’s best interest given his need for stability for the primary residence to alternate monthly between Belfast and Quebec City. Because Rodrigue proposed to reside in Quebec City for perhaps eighteen months, the court’s allocation of a shared primary residence required Kenai to readjust to a new home environment every four weeks.

The trial court had before it testimony that although both Rodrigue and Brewer are caring, loving, and capable people who desire to parent Kenai, the intense conflict between them substantially impairs their ability to cooperate in that parenting. At the time of the hearing Kenai was rotating between his parents’ homes every two or three days. Dr. Gaffney testified that transitions were stressful and longer visits would diminish that stress. He recommended that the court’s order concerning parental responsibilities be postponed for one year while the parents engage in co-parenting counseling. Dr. Gaffney testified that if the decision could not be postponed until the parents were offered the opportunity to develop better skills for conflict resolution, he would recommend the allocation of sole parental responsibility to Brewer. Dr. Hamrick testified that because of the importance of maintaining Kenai’s bond with each parent, joint parental responsibility is the favored arrangement. She also favored alternating the child’s residence every three or four weeks until he reached school age.

Although the record indicates that both parents are equally willing and capable of parenting and both requested the 50:50 arrangement to continue even when Rodrigue was in Quebec, Brewer finds fault with the trial court’s order because it did not adopt the expert’s suggestion that in the short run the ultimate parenting power reside not with either parent but with a “guardianship of some sort or some third party.” Even assuming that the court had the authority to suspend parental rights, see 19 M.R.S.A. § 752(6), neither parent was economically able to afford the services of a “third” parent. Moreover, the court did urge the parties to undergo co-parenting counseling after Rodrigue returns from Quebec. The court’s decision to provide for joint parental responsibility and alternating primary custody for four week periods was not an abuse of discretion.

The entry is:

Judgment affirmed.

WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD and LIPEZ, JJ., concurring.