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Costa v. Vogel
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 131
Docket:	Pen-01-102	
on Briefs:	June 28, 2001
Decided: 	August 8, 2001




	[¶1] Adam W. Vogel, defendant in an action to determine parental
rights and responsibilities, appeals from a judgment entered in the Superior
Court (Penobscot County, Hjelm, J.) affirming that part of a judgment
entered in the District Court (Bangor, Russell, J.) granting primary physical
residence of the couple's minor child, Kalvin, to Plaintiff Darby J. Costa.{1} 
Vogel argues that the award of primary residence was in error, based on the
factors enumerated in 19-A M.R.S.A. § 1653(3) (1998 & Supp. 2000).   
Finding no error, we affirm the judgment.  
	[¶2] The facts may be summarized as follows:  Adam W. Vogel and
Darby J. Costa are unmarried persons who lived together for almost thirteen
years before they separated in 1999. They are the parents of Kalvin Costa-
Vogel, born August 8, 1994.  After separating, Costa filed a complaint
seeking a determination of parental rights and responsibilities.  Vogel
moved to dismiss Costa's complaint and counterclaimed for determination
of parental rights and responsibilities. The District Court entered a
judgment and ordered, inter alia, shared parental rights with primary
residence awarded to Costa.  Vogel appealed to the Superior Court, which
affirmed the judgment as to parental rights, responsibilities, and primary
residence. Vogel now appeals to us.
	[¶3] Vogel contends that the trial court abused its discretion, ignored
evidence, and substituted its understanding of child development for an
individualized assessment of Kalvin's situation. Based on testimony that
showed Kalvin was "happy and well adjusted," Vogel submits that the court
"clearly erred" in determining the best interests of the child with reference
to the parties' prior arrangements for Kalvin's shared residence.  We
	[¶4] We review directly the judgment of the District Court when the
Superior Court has presided as an intermediate appellate court. Hinkley v.
Hinkley, 2000 ME 64, ¶ 7, 749 A.2d 752.  "The [trial] court's decision
regarding the best interests of the child is entitled to substantial deference
and its findings will stand unless clearly erroneous." Id.  To determine the
best interests of the child, the trial court must act as a "competent and
cautious guardian of the child's interest and determine what parental rights
arrangements will serve that interest." Id.; see also 19-A M.R.S.A. § 1653(3)
(1998 & Supp. 2000); Rodrigue v. Brewer, 667 A.2d 605, 606 (Me. 1995).
	[¶5] In contradiction to Vogel's argument, the record reveals that the
District Court focused on Kalvin and his best interests.  The court
specifically noted that the child should not be "yawed back and forth with
one set of rules at one house, and one bedtime at one house, and one set of
rules in the other house."  The record reveals Kalvin's occasional confusion
about his residence on a particular day, and the court acknowledged that
Kalvin's confusion from repetitive transitions "is understandable and a valid
concern."   The court concluded that the "major bone of contention is the
number of transitions that the child is required to make between homes,
particularly during the school week" and ordered primary residence to
	[¶6]  Beyond the question of residence, the court concluded that
shared parenting was appropriate and awarded extensive contact rights to
Vogel which included: alternating weekends from Friday at 5:00 p.m. until
Sunday at 6:00 p.m. (and until Monday at 6:00 p.m. when Kalvin does not
have school and Vogel does not have to work); five weeks during the
summer; four holidays alternating on even- and odd- numbered years; half of
the Christmas/holiday school vacation, alternating on even- and odd-
numbered years; either the winter or spring school vacation, alternating on
even- and odd-numbered years; two hours on Kalvin's birthday; Father's Day;
any day (and the prior evening) that Kalvin does not have school and that
Costa has to work; one overnight per week prior to a school day until Kalvin
reaches age eight; and after reaching age eight, the school nights would be
expanded to include every night prior to a school day on which Costa is
required to work (but not excluding reasonable opportunity for care or
contact with grandparents and other extended family).  Reasonable
telephone contact was granted to both parties.  In explaining the expanded
contact on school nights, the court noted, "Age eight is selected based upon
the court's general understanding of child development, that children are
better able to adapt to change after that age."
	[¶7] The court was explicitly authorized by 19-A M.R.S.A. § 1653
(3)(E) to consider the stability of Kalvin's living arrangements.   By ordering
shared parenting and extensive rights of contact, the court acknowledged
the parties' success in parenting Kalvin.  The court committed no error,
clear or otherwise, in considering Kalvin's need for stability and
predictability with respect to his living arrangements.
	The entry is: 
Judgment of the Superior Court affirmed. 

Attorney for the plaintiff; Jane S. E. Clayton, Esq. Vafiades, Brountas & Kominsky 23 Water St. P.O. Box 919 Bangor, Maine 04402-0919 Attorney for the defendant: Martha J. Harris, Esq. Paine, Lynch & Harris 123 Center St. P.O. Box 1451 Bangor, Maine 04402-1451
FOOTNOTES******************************** {1} 1. Defendant also argues on appeal that the Superior Court correctly vacated an award of attorney fees to plaintiff and that the District Court erred in requiring him to maintain health insurance for his son. Neither issue is before us. Vogel appealed the issue of attorney fees to the Superior Court, and the Superior Court vacated the award. Although we review the District Court directly, the appeal is from the Superior Court judgment. Costa, the nonprevailing party at the Superior Court level on this issue, did not cross-appeal. Thus, the issue of attorney fees is not properly preserved for our consideration of the merits. Cf. Town of Mount Desert v. Smith, 2000 ME 88, ¶ 8, 751 A.2d 445 (finding that Town failed to properly preserve issue of attorney fees because, although it properly filed cross-appeal at Superior Court level, it failed to file cross-appeal at District Court level). Nor is the issue concerning health insurance preserved because Vogel failed to raise this issue in his appeal to the Superior Court. See id.