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Hinkley v. Hinkley

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 64
Docket:	Som-99-545
on Briefs:	March 29, 2000
Decided:	April 12, 2000




	[¶1]  Christine Hinkley appeals the decision of the Superior Court
(Somerset County, Kravchuk, J.), which affirmed the judgment of the
District Court (Skowhegan, Clapp, J.) allocating to Steven Hinkley sole
medical decision-making rights for the parties' two minor daughters. 
Christine argues that the court erred by:  (i) ordering relief that neither
party requested from the court; (ii) failing to make its underlying factual
determinations based on a clear and convincing standard pursuant to 19-A
M.R.S.A. § 1653(3)(O) (1998); and (iii) admitting testimony about events
that occurred prior to the court's last modification order.  We affirm. 
	[¶2]  The parties to this case divorced in March 1995.  They have
two young daughters who reside with Steven.  At the time of the divorce,
Steven and the girls resided in Skowhegan.  Christine lives in Fairfield and
sees the children pursuant to a visitation schedule.  The record indicates
continuing conflict over parental rights including mediation sessions,
motions to amend, motions for contempt, and protection from abuse
proceedings.  In 1996, Steven and the girls moved to Greenville.  In July
1997, Christine filed a post-judgment motion to amend the parties' divorce
decree, asserting changed conditions and requesting that the court give her
primary physical custody of the girls.  Christine based her motion on, among
other factors, allegations that Steven was failing to obtain proper medical
attention for the parties' younger daughter, who suffers from a severe skin
condition.  Christine's motion and Steven's responsive motion for attorney
fees give rise to the present appeal.  
	[¶3] In March 1998, while these motions were pending, the younger
daughter suffered a flare-up in her skin condition during a scheduled visit
with Christine, and Christine took the girl to the hospital.  While at the
hospital, Christine misled hospital personnel to believe that the severity of
the girl's outbreak was caused, in part, by Steven's neglect of her condition. 
Christine then sought and obtained a temporary protection from abuse order
which had no proper basis and which she dismissed when Steven appeared
with the daughter's physician and nurse practitioner for the scheduled
expedited hearing.  
	[¶4] After this occasion, the parties conducted a course of mediation
that, inter alia, tentatively revised their visitation schedule.  The parties
then appeared for a hearing on Christine's motion to amend the divorce
decree.  In her opening comments to the court, Christine's counsel
informed the court that, as a result of mediation, Christine was no longer
seeking primary custody.  In his opening comments, Steven's counsel stated
that Steven "wants the original order to remain in place.  He is willing to act
in accordance with the agreement to just see if it works.  The agreement
includes a sharing of transportation.  It includes increased weekend contact.
. . .  And that's what we're here about." 
	[¶5]  During the hearing, both parties raised concerns regarding
medical decision-making issues.  In her closing, Christine's counsel
addressed medical decision-making responsibility, telling the court that
Christine wanted things to remain the same in that regard.  The court
questioned the reasonableness of Christine's actions relating to the
emergency hospital visit.  The court observed that "something happened in
triage where they got the impression that this child was being neglected
medically.  And not until they sat down with the records and [the child's
regular doctor] did it become evident that this child was not being
neglected."  In response to the court's disapproval of Christine's handling of
the situation, Christine's counsel argued that "we would just like to have an
order that cleans up the transportation problem, that maintains the medical
decision-making--we're the ones who questioned that, your Honor, and I'm
saying we're not questioning that anymore."  The court expressed grave
concern about the younger daughter's welfare: "I'm telling you that's an
issue that I'm seriously concerned with." 
	[¶6] Following the hearing, the court issued an order giving Steven
sole medical decision-making authority for the girls, finding it to be in the
girls' best interest.  Christine appealed the judgment to the Superior Court,
which affirmed.  Christine then filed a timely appeal to this Court.  
	[¶7] Where the Superior Court has presided as an intermediate
appellate court, we review the District Court's judgment directly.  See Glew
v. Glew, 1999 ME 114, ¶ 5, 734 A.2d 676, 679.  The court's decision
regarding the best interests of the child is entitled to substantial deference
and its findings will stand unless clearly erroneous.  See Rodrigue v. Brewer,
667 A.2d 605, 606 (Me. 1995).
	[¶8]  The trial court must assess the best interest of a child as a
competent and cautious guardian of the child's interest and determine what
parental rights arrangements will serve that interest.  See 19-A M.R.S.A.
§ 1653(3); see also Rodrigue, 667 A.2d at 606; Cyr v. Cyr, 432 A.2d 793,
796 (Me. 1981); Sheldon v. Sheldon, 423 A.2d 943, 946 (Me. 1980). 
	[¶9] The District Court appropriately considered the best interest of
the children in its decision to relieve Christine of medical decision-making
responsibility.  In this case, where the issue of medical decision-making was
generated by a pending motion and the parties' presentations to the court, 
the court was authorized to fashion an award to serve the children's best
interest, even though the parents did not specifically request such relief.   
The District Court's findings and conclusions, fully supported by the record,
reveal a cautious consideration of the children's best interest as required by
the general mandate of 19-A M.R.S.A. § 1653(3).  
	[¶10] The court's consideration of the children's best interest was
not subject to a clear and convincing legal standard, because it was not
premised on a willful misuse of the protection from abuse process.  Compare
19-A M.R.S.A. § 1653(3) and § 1653(3)(O).  We find no error in the court's
decision to admit evidence respecting events predating the parties' last
modification order because that evidence was relevant to the court's
assessment of the children's best interest.  See Fraser v. Boyer, 1998 ME
253, ¶ 12, 722 A.2d 354, 356.
	The entry is:
			Judgment affirmed.

Attorney for plaintiff: Paul Sumberg, Esq. Wright & Mills, P.A. P O Box 9 Skowhegan, ME 04976-0009 Attorney for defendant: M. Michaela Murphy, Esq. Daviau, Jabar & Batten One Center Street Waterville, ME 04901