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Berg v. Bragdon
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 129
Docket:	Ken-96-687
Argued:	May 5, 1997
Decided:	June 6, 1997




	[¶1]  Nancy Berg appeals from the judgment entered in the Superior
Court (Kennebec County, Alexander, J.) vacating a judgment entered in the
District Court (Augusta, Anderson, J.) granting to Berg visitation rights with
her granddaughter Bianca Rose Badershall.  The Superior Court based its
ruling on constitutional grounds.  Berg challenges the Superior Court ruling
and argues that because Lee-Ann Bragdon, the child's mother, did not
challenge the constitutionality of the statute during the trial in the District
Court, the issue has not been preserved.  Because we agree that the
challenge to the constitutionality of the statute has not been preserved, we
vacate the judgment of the Superior Court.
	[¶2]  Berg filed a verified petition dated December 15, 1994, for
grandparent visitation rights with Bianca pursuant to the Grandparents
Visitation Act, 19 M.R.S.A. §§ 1001-1004 (Supp. 1996).  Roger Badershall
and Bragdon are the natural parents of Bianca, and Bragdon is the adopted
daughter of Berg.  Bianca was born on February 13, 1991.  Berg testified that
when Bianca was a few months old, she would baby-sit her about three
nights a week while Bragdon operated her dance studio located in the
basement of Berg's house.  Berg stated that Bragdon and Badershall took two
trips during Bianca's first year, one for a couple of days and the other for two
weeks, and that Berg cared for Bianca during those times.  Berg had a crib,
highchair, walker, food, clothes, and a separate room for Bianca at her
house.  When Berg could not care for Bianca, Berg's mother, Yvon Doyon,
who lived across the street, would help with Bianca's care.  The family spent
holidays together, and Berg also took Bianca to one or two medical
appointments.  Other witnesses testifying at the hearing corroborated Berg's
testimony about the amount of time that she spent with Bianca.
	[¶3]  Bragdon disputed the amount of time that Berg spent with Bianca
and stated that her grandmother, Doyon, and not her mother, was the
primary day-care provider.  Bragdon stated that the only major contact
between Berg and Bianca was during holidays.  Bragdon testified that her
mother did not provide significant baby-sitting except for a ten-day vacation
that Bragdon took.  She testified that she has never had a good relationship
with her mother and that she feels that she is treated differently because
she is adopted.  Both Berg and Bragdon recounted two altercations involving
themselves and Bragdon's husband Reginald, although they disagreed as to
who was at fault.  The altercations involved arguments over Bianca and police
interventions to quiet the situation.
	[¶4]  Brian Rines, a psychologist, testified that he interviewed Bragdon
in January of 1994 at a time when Bragdon was involved in a dispute with
Badershall, who was never married to Bragdon, regarding Badershall's
visitation with Bianca.  He stated that Bragdon told him that Berg frequently
took care of Bianca and that Doyon was the supervisor of the visitation and
was back-up for the day-time coverage.  He stated that he interviewed
Bragdon again in March of 1995 and that at that time she attempted to
downplay the amount of time that Berg spent with Bianca.  Rines
interviewed Bianca alone, and she told him that she wanted the situation to
be like before when she spent time with her grandmother.  Rines testified
that in his opinion, it would be in Bianca's best interest for her relationship
with her grandmother to continue.  Rines stated, however, that possible
harm could come to the child from the rift between Berg and Bragdon and
their failure to realize and address problems surrounding their relationship. 
Bianca told Rines that the fighting scared her.  When Rines suggested future
consultations with Bianca, Bragdon told him that Bianca was uncomfortable
having any further discussions with him.
	[¶5]  The court determined the Grandparents Visitation Act to be
applicable and concluded that it was in Bianca's best interest for the
grandmother to have visitation.  The court acknowledged that the visitation
would cut into both parents' time albeit in an insignificant fashion.  The
court ordered visitation of Bianca with Berg each Wednesday from 3 p.m. to
7 p.m., and every other Saturday from 9 a.m. to 3 p.m.  The written order
signed by the court did not contain factual findings addressing the statutory
criteria.  See 19 M.R.S.A. § 1003(2) (Supp. 1996).  Neither Bragdon nor
Badershall, however, requested that the court make any further written
findings of fact.
	[¶6]  On October 26, 1995, Berg filed a motion for contempt alleging
that no visitation had taken place.  On November 3, 1995, Bragdon filed
objections to the motion as well as a countermotion to alter the visitation
schedule.  On November 13, 1995, the same day she filed a notice of appeal
to the Superior Court from the entry of the original visitation order, Bragdon
filed an amendment to her objections challenging, for the first time, the
constitutionality of the Grandparents Visitation Act.  The court (Perry, J.)
subsequently concluded that the judgment would be stayed pending appeal
pursuant to M.R. Civ. P. 62(a), dismissed the contempt motion "as
premature," and additionally decided that it was without authority to act at
that time on Bragdon's motion for modification pending the appeal.  
	[¶7]  On September 24, 1996, the Superior Court, acting in its
capacity as an intermediate appellate court, concluded that the trial court
did not abuse its discretion or commit clear error in awarding Berg
visitation with Bianca pursuant to the statutory criteria.  The court rejected
Berg's contention that the issue had not been preserved, however, and
addressed the constitutionality of the Grandparents Visitation Act,
concluding that it was unconstitutional as applied in this case because the
statute did not require a finding of harm to the child before visitation with a
grandparent was ordered.  In addition, the court concluded that for the
statute to be constitutional, the statutory factors would have to be proved by
clear and convincing evidence.  Berg filed this appeal.
	[¶8]  Berg contends both that the Superior Court erred in finding the
Grandparents Visitation Act unconstitutional and in addressing the act's
constitutionality because Bragdon failed to preserve the issue in the trial
court.  We note that courts from other jurisdictions have reached varied
conclusions on the constitutionality of their respective grandparent
visitation acts.{1}  Because we agree with Berg that the constitutional issue was
not adequately preserved for appellate review, we must vacate the judgment
of the Superior Court based, as it is, on the act's unconstitutionality.
	[¶9]  We have stated that "issues raised for the first time on appeal are
generally unpreserved."  Scott v. Lipman & Katz, P.A., 648 A.2d 969, 974
(Me. 1994).  We have applied this rule consistently whether the alleged
right is constitutional or based on the common law.  See McAfee v. Cole, 637
A.2d 463, 466-67 (Me. 1994) (failure to seek leave to amend complaint);
Wright v. Saco School Dep't, 610 A.2d 257, 258 (Me. 1992) (equal
protection and due process); Cyr v. Cyr, 432 A.2d 793, 797-98 (Me. 1981)
(alleged constitutional issue regarding right of children to guardian ad litem
in custody action); Salamone v. City of Portland, 398 A.2d 49, 51 (Me. 1979)
(due process).  In Teel v. Colson, we stated that:

The reason for the rule is that a contrary rule of appellate
procedure would deprive the trial justice of the opportunity to
rule on the issue raised for the first time on appeal and deny the
appellate court the trial court's decision thereon made in the
atmosphere of the trial, with [the court's] informed thinking on
the matter.  It would oftentimes present issues at the appellate
level, where the necessary subsidiary facts in support thereof
have not been fully developed for a proper determination on

396 A.2d 529, 534 (Me. 1979) (citation omitted).  
	[¶10]  Bragdon raised the constitutional issue for the first time in an
amended objection to an ancillary post-trial motion that subsequently was
dismissed by the court following Bragdon's appeal of the underlying order.
Consequently, the trial court was entirely deprived of the opportunity of
ruling on this issue, and we are deprived of the trial court's "informed
thinking on the matter" made in "the atmosphere of the trial."  Moreover,
in ruling on an as applied constitutional challenge, a trial court's factual
findings and ultimate legal conclusion depend on its determinations
regarding the credibility of the witnesses.  The trial court, and not an
appellate court, is the appropriate arbiter of the credibility of witnesses'
testimony and the weight of evidence.  See Qualey v. Fulton, 422 A.2d 773,
776 (Me. 1980) ("The trial court has the opportunity to see and hear the
witness whereas an appellate tribunal is restricted to a consideration of the
cold, written record of the testimony."); Young v. Witham, 75 Me. 536, 537
(1884) ("Often there are things passing before the eye of a trial judge that
are not capable of being preserved in the record.  A witness may appear
badly upon the stand and well in the record).  The issue of the
constitutionality of the Grandparents Visitation Act is not properly before us
at the present time.{2}  
	[¶11]  Bragdon contends in the alternative that the trial court
committed clear error and abused its discretion in making the factual
determinations it made in this case and concluding that visitation was
appropriate.  Bragdon argues that because her relationship with Berg has
deteriorated, forced visitation between Bianca and Berg is not in Bianca's
best interest.  Moreover, Bragdon argues that the court erred by failing to
require Berg to prove that visitation would not significantly interfere with
the parent-child relationship.
	[¶12]  The act provides for the court to make several findings before it
may grant visitation rights to a grandparent.  Initially, the court must
"determine on the basis of the petition and the affidavit whether it is more
likely than not that there is a sufficient existing relationship [between the
grandparent and the child] or, if a sufficient relationship does not exist, that
a sufficient effort to establish one has been made." 19 M.R.S.A. § 1003 (1-
A)(C) (Supp. 1996).{3}  On making that finding and holding a hearing, the
court "may grant a grandparent reasonable rights of visitation or access to a
minor child upon finding that rights of visitation or access would be in the
best interest of the child and would not significantly interfere with any
parent-child relationship or with the parent's rightful authority over the
child." 19 M.R.S.A. § 1003(2).{4}  In addition, section 1003(3) provides that
"[t]he court may modify or terminate any rights granted under this section
as circumstances require."  19 M.R.S.A. § 1003(3).
	[¶13]  The court in this case found that visitation with Berg was in
Bianca's best interest.  In reviewing the testimony, the court stated on the
record that it did not find credible the argument that the events that
occurred between the mother and grandmother would make the child afraid
to ever see her grandmother.  The court further stated that it did not
anticipate that visitation would have any bad effects on the child.  The court
also acknowledged that although both parents' time with Bianca would be
affected by the order, the intrusion was not significant.  Although the court's
written order did not specifically address whether the parent-child
relationship or the parent's rightful authority over the child would be
significantly affected, criteria set out by the statute, Bragdon requested no
further findings of fact regarding these issues.  When a party fails to make
that request, we assume that the court made all the findings necessary to
support its conclusions.  Huff v. Huff, 444 A.2d 396, 399 (Me. 1982).  There
is no clear error in the court's findings that Bianca's visitation with her
grandmother would not significantly interfere with the parent-child
relationship or the parent's rightful authority over her child and would be in
Bianca's best interest. 
	The entry is:
Judgment vacated.  Remanded to the Superior
Court for entry of a judgment affirming the
judgment of the District Court.	

Attorney for plaintiff: Dennis L. Jones, Esq. (orally) 2 Chruch Street Gardiner, ME 04345 Attorney for defendant: Peter B. Bickerman, Esq. (orally) P O Box 897 Augusta, ME 04332-0897
FOOTNOTES******************************** {1} See Spradling v. Harris, 778 P.2d 365 (Kan. Ct. App. 1989) (statute constitutional); King v. King, 828 S.W.2d 630 (Ky. 1992) (same); Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993) (en banc) (same); Ridenour v. Ridenour, 901 P.2d 770 (N.M. Ct. App. 1995), cert. denied, 898 P.2d 120 (N.M. 1995) (same); R.T. v. J.E., 650 A.2d 13 (N.J. Super. Ct. Ch. Div. 1994) (constitutional but using rational relation test); Michael v. Hertzler, 900 P.2d 1144 (Wyo. 1995) (constitutional); Campbell v. Campbell, 896 P.2d 635 (Utah Ct. App. 1995) (constitutional); compare Beagle v. Beagle, 678 So.2d 1271 (Fla. 1996) (statute unconstitutional under Florida Constitution); Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995), cert. denied, 116 S. Ct. 377 (1995) (unconstitutional); Hawk v. Hawk, 855 S.W.2d 573, 582 (Tenn. 1993) (same but only applying State constitution). According to one court, the "vast majority of courts that have addressed the constitutionality of grandparent visitation statutes authorizing visitation if in the best interest of the child, have upheld these statutes as constitutional." Campbell v. Campbell, 896 P.2d at 643 n.18. See also Steward v. Steward, 890 P.2d 777 (Nev. 1995) (requiring clear and convincing evidence when both divorced parents object to visitation). {2} We have articulated certain exceptional circumstances in which addressing an unpreserved issue would be appropriate for an appellate court. See Scott v. Lipman & Katz, P.A., 648 A.2d 969, 974 (Me. 1994) (unpreserved issue addressed because no further fact finding was required, and the "error is apparent on the face of the record."); Teel v. Colson, 396 A.2d at 534 (application of the general rule "would obviously result in a plain miscarriage of justice. . . .") The decision of the District Court does not result in a plain miscarriage of justice compelling us to address the unpreserved issue. {3} Bragdon does not challenge the court's determination that there is a sufficient relationship between Berg and Bianca to meet the requirement of 19 M.R.S.A. § 1003(1-A)(C). {4} Section 1003(2) provides that in making the best interest determination, the court shall consider the following factors: A. The age of the child; B. The relationship of the child with the child's grandparents, including the amount of previous contact; C. The preference of the child, if old enough to express a meaningful preference; D. The duration and adequacy of the child's current living arrangements and the desirablilty of maintaining continuity; E. The stability of any proposed living arrangements for the child; F. The motivation of the parties involved and their capacities to give the child love, affection and guidance; G. The child's adjustment to the child's present home, school and community; H. The capacity of the parent and grandparent to cooperate or to learn to cooperate