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Fraser v. (Fraser) Boyer, corrected 12-2-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998  ME 253 
Docket:	Aro-98-125
Argued:	November 4, 1998
Decided:	November 25, 1998

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.



TODD FRASER v. JOANNE BOYER


ALEXANDER, J.

	[¶1]  Joanne Boyer appeals from an order of the Superior Court
(Aroostook County, Pierson, J.) affirming a post-judgment order of the
District Court (Caribou, Daigle, J.) awarding primary physical residence of
her son, Michael Fraser, to her former husband, Todd Fraser.  On this
appeal, Boyer argues that the District Court abused its discretion in granting
primary physical residence to Fraser and in considering evidence regarding
her pre-divorce conduct as part of the evidence evaluated in reaching its
decision.  We disagree and affirm the judgment of the District Court.
	[¶2]  The parties were married in 1990.  Their son, Michael, was born
in 1991.  In 1994, a judgment of divorce was entered based in part on a
written agreement.  In that agreement, the parties undertook to share
parental rights and responsibilities, with Michael's primary physical
residence with Boyer.  Fraser was permitted to "visit and be visited by the
child at all reasonable and proper times, including but not limited to having
the child for three nights every week. . . ."
	[¶3]  Both parties have remarried after the divorce.  In September of
1995, Boyer filed a motion to amend the divorce agreement to obtain full
custody of Michael to facilitate a move to Ohio with her new husband.  Fraser
filed a responding motion to amend the divorce judgment to allocate to him
primary physical residence of Michael.
	[¶4]  A hearing was held on the motions in April 1996.  Over Boyer's
objections, the court admitted evidence offered by Fraser regarding Boyer's
pre-divorce conduct.  The court also admitted evidence regarding Todd
Fraser's pre-divorce conduct, the post-divorce conduct of both parties and
the difficulties between the parties both before and after the divorce.
	[¶5]  After hearing, the District Court found that:
Given the history of their marriage, and the history of their
respective performances as parents during the course of that
marriage and subsequent thereto, that [Fraser] is substantially
the more responsible of the two parents and substantially the
more stable of the two parents.
Accordingly, the court granted primary physical residence of Michael to
Fraser.  The court ordered that Boyer would have visitation rights for eight
weeks during the summer, ten days during Christmas vacation, and seven
days during April vacation.  Boyer appealed, and the Superior Court affirmed
the order.
	[¶6]  Where, as here, the Superior Court acts as an intermediate
appellate court, this Court reviews directly the decision of the District Court. 
Cloutier v. Lear, 1997 ME 35, ¶ 2, 691 A.2d 660, 661.  "On appeal, the
court's decision to modify a custody order will only be disturbed if the
factual findings on which it is based are clearly erroneous or if it has abused
its discretion in crafting the new order."  Ehrlich v. Bloom, 585 A.2d 809,
812 (Me. 1991).
	[¶7]  Either parent may move the court to modify an order regarding
parental rights and responsibilities as circumstances require.  19 M.R.S.A.
§ 752(12) (Supp. 1996), repealed by P.L. 1995, ch. 694, § B-1 (effective
October 1, 1997) and recodified as 19-A M.R.S.A. § 1657 (1998).
	[¶8]  Section 752(12) provided that:  "The relocation, or intended
relocation, of a child resident of this state to another state by a parent, when
the other parent is a resident of this State and there exists an award of
shared or allocated parental rights and responsibilities concerning the
child," is a substantial change of circumstances justifying review of any
preexisting order governing parental rights and responsibilities.  19 M.R.S.A.
§ 752(12) (Supp. 1996); see Rowland v. Kingman, 629 A.2d 613, 615 (Me.
1993).
	[¶9]  Boyer argues that principles of res judicata should bar the
District Court from considering evidence of pre-divorce conduct in
evaluating a post-divorce motion for change of parental rights and
responsibilities.  Because the original divorce was granted by the court
pursuant to an agreement, however, the parties did not litigate issues of
their pre-divorce conduct and parenting.
	[¶10]  This is not a case like Cloutier, where we upheld a trial court's
excluding evidence of events before a previous custody hearing in
determining if a substantial change of circumstances had occurred.  1997
ME 35, ¶ 3, 691 A.2d at 662.  The central issue in such "substantial
change" hearings is what has occurred since the last court order. 
Post-order events are the primary focus of the court's concern in such
hearings.  Here there is no issue of substantial change of circumstances; that
issue is established by operation of law.  19 M.R.S.A. § 752(12) (Supp. 1996). 
With substantial change of circumstances established by law, and some
change in the parental rights order required by Boyer's move to Ohio, the
issue for the court was what modification of the preexisting custody order
was in Michael's best interest.  See Cloutier, 1997 ME 35, ¶ 8, 691 A.2d at
663.
	[¶11]  In this case the court heard the motion to change the primary
physical residence of the child approximately two years after the divorce. 
The relative quality of the parties' parenting had not previously been
litigated, and with a four night - three night split of the child's residence,
the original divorce order did not suggest that either parent had been
assigned a dominant amount of time with Michael.  In these circumstances
where the court was required, for the first time, to assign one parent a
dominant relationship with the child, evidence of relatively recent
pre-divorce conduct was relevant, along with all of the evidence of
post-divorce conduct.  Accordingly, the District Court did not abuse its
discretion in admitting evidence of the parties' pre-divorce conduct to serve
as a contextual basis for evaluating post-divorce conduct.
	[¶12]  Decisions on admissibility of evidence are an area where we
accord trial courts considerable discretion.  A ruling excluding the evidence
at issue here, considering the remoteness in time of the conduct, the
potential to reopen old disputes that may have a detrimental effect on the
child, or the risk of unduly extending the proceeding, could also have been
within the trial court's discretion.  The relevance and admissibility of such
pre-divorce evidence in post-divorce hearings must be evaluated based on
the issues and circumstances of each case.
	[¶13]  Boyer also argues that the District Court's granting primary
physical residence of Michael to Fraser is unsupported by the evidence,
particularly in light of the child's expressed preference and the guardian ad
litem's recommendation supporting primary physical residence with Boyer. 
The District Court, however, is in the best position to evaluate the evidence
in such cases involving difficult determinations of best interest of the child
as between two competing parents.  The District Court did not abuse its
discretion in this case.
	The entry is:
					Judgment affirmed.

Attorney for plaintiff: Richard W. Hall, Esq., (orally) Hall & Lunn 107-111 Columbia Street Bangor, ME 04401 Attorney for defendant: Richard C. Cleary, Esq., (orally) Cleary & Gordon, P.A. 21 Military Road Houlton, ME 04730