December 12, 2019



                                                                     Supreme Court

                                                                     No. 2016-310-Appeal.
                                                                     (N 08-154)

                     Jamie Souza                  :

                          v.                      :

                    Michael Souza.                :




                    NOTICE: This opinion is subject to formal revision before
                    publication in the Rhode Island Reporter. Readers are requested to
                    notify the Opinion Analyst, Supreme Court of Rhode Island,
                    250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                  Supreme Court

                                                                  No. 2016-310-Appeal.
                                                                  (N 08-154)

                Jamie Souza                   :

                     v.                       :

               Michael Souza.                 :


                   Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

                                         OPINION

         Justice Indeglia, for the Court. The defendant father, Michael Souza (defendant),

appeals from a Family Court order denying his motion for a new trial following a decision and

order that denied his motion to change custody and awarded sole custody to the plaintiff mother,

Jamie Souza (plaintiff).    On appeal, the defendant claims that the trial justice erred by

overlooking and misconceiving evidence. He argues that the trial justice was clearly wrong

when she determined that the defendant failed to carry his burden of demonstrating a substantial

change in circumstances warranting the change of custody of his two children. For the reasons

set forth below, we affirm in part and vacate in part the September 17, 2015 order of the Family

Court.

                                                  I

                                        Facts and Travel

         The defendant and the plaintiff were married on June 30, 1995. They are the parents of

two minor children. The parties divorced in 2009. As part of their divorce, they entered into a

marriage settlement agreement (the MSA). In the MSA, the parties agreed to joint custody of the




                                             -1-
children with placement with plaintiff and with defendant having all reasonable rights of

visitation.1

        Thereafter, following the entry of final judgment of divorce, defendant moved to modify

placement, seeking an order awarding him placement of the children. 2          A guardian ad litem

(GAL) was appointed for the two children on August 18, 2010. The Family Court heard

testimony on defendant’s motion over a four-year period.3 Both parties filed various motions to

modify placement and custody during the trial. Additionally, during that time, there were

periods when defendant had his visits modified, supervised, and, at some points, suspended.

Specifically, his visits were suspended when the Department of Children, Youth, and Families

became involved in two incidents that were “indicated” against defendant based on calls to the

DCYF hotline. With regard to defendant’s motion to modify custody, the trial justice heard from

“no less than fifteen (15) witnesses presented by [d]efendant[,]” including the GAL.             The

plaintiff and the defendant also testified. Additionally, hundreds of exhibits were introduced at




1
  The parties’ children were born on February 4, 2002, and May 8, 2004. It appears that the
parties adopted the younger child from Korea when he was seven months old. It was
additionally brought out in oral argument that a dependency petition was granted with regard to
the younger child. Based on our review, this child remains in the custody of the Department of
Children, Youth, and Families, and the proceedings in that matter are ongoing.
2
  In her decision that forms the basis of the order on appeal, the trial justice ruled on “Plaintiff’s
Motion to Dismiss Defendant’s Post Final Judgment Motion to change custody” and on
defendant’s “Motion to Change Custody.” Frequently, throughout that decision as well as in the
submissions of the parties, the motion to change custody is referred to as a “motion to modify
placement.” While the latter is a more generic term, which can encompass change of placement,
visitation rights, or a change of custody, the trial justice ultimately decided the case on
defendant’s motion for sole custody of the two children. As such, defendant’s motion for sole
custody is the modification before us on appeal.
3
  The hearings in this case span over six years and across two counties, with a total of 45 hearing
dates. Such a large number of hearing dates is discouraged. Custody and placement
determinations such as those presented in this case should be decided as expeditiously and
efficiently as possible. We have not been apprised of an adequate explanation for the
unreasonable delay in this case.


                                              -2-
trial, including reports from DCYF regarding the two allegations of abuse against defendant and

a report by the GAL.

       After defendant rested his case, plaintiff moved to dismiss the motion to change custody,

pursuant to Rule 41(b)(2) of the Family Court Rules of Domestic Relations Procedure, arguing

that defendant had failed to meet the required burden of proof. On August 14, 2015, the trial

justice issued a twenty-six-page written decision granting the motion to dismiss. In that decision,

the trial justice noted that “it would be [defendant] as the moving party’s burden to show by a

preponderance of the evidence that the circumstances existing at the time the decree was entered

has so changed that custody should be modified in the interest of the child’s welfare” and “[a]s

always, the best interest of the child must be considered.”

       After reviewing the testimony of many of the witnesses at trial, the trial justice found that

defendant had not met his burden of showing a substantial change in circumstances and that

there was not any evidence to support the motion to modify in order to award custody of the

children to him. She found that none of the testimony substantiated defendant’s assertions that

plaintiff had mistreated or failed to provide for the children. The trial justice further found “by a

preponderance of the evidence that these two (2) people cannot co-parent these children to the

extent necessary to support the continued order of joint custody.” Based on that finding, the trial

justice ultimately granted sole custody to plaintiff, and an order to that effect followed.

       The defendant subsequently filed one motion both to reopen the case and for a new trial,

pursuant to Rules 52 and 59 of the Family Court Rules of Domestic Relations Procedure, which

was denied. It is from this order that defendant timely appealed.4



4
 We pause to note that this case was remanded to the Family Court on three different occasions
while pending review before this Court, once for proper entry of an order, which was not
complied with, and twice at the parties’ request.


                                              -3-
                                                 II

                                        Standard of Review

          With respect to a motion for new trial in Family Court proceedings, “we have established

that ‘the trial justice acts as a superjuror in considering a motion for a new trial.’” Andreozzi v.

Andreozzi, 813 A.2d 78, 83 (R.I. 2003) (quoting Rezendes v. Beaudette, 797 A.2d 474, 477 (R.I.

2002)).     If the trial justice has articulated adequate grounds for denying the motion, “his

determination either granting or denying a motion for new trial will not be disturbed unless he

has overlooked or misconceived material and relevant evidence or was otherwise clearly wrong.”

Id. (deletions omitted) (quoting Rezendes, 797 A.2d at 478).

          “We review a Family Court justice’s denial of a motion to modify a prior custody award

to determine whether an abuse of discretion has occurred.” Vicente v. Vicente, 950 A.2d 461, 462

(R.I. 2008) (quoting Recard v. Polite, 935 A.2d 101, 101 (R.I. 2007) (mem.)). “Because of this

deferential standard of review, the Court will not disturb the factual findings made by the [trial]

justice absent a showing that the ‘findings are clearly wrong or that the trial justice overlooked or

misconceived evidence relevant to the issues decided.’” Id. (quoting D’Onofrio v. D’Onofrio,

738 A.2d 1081, 1083 (R.I. 1999)).

          “In pressing a motion for a change of child custody or placement in the Family Court, the

moving party must show, ‘by a fair preponderance of the evidence that the conditions or

circumstances existing at the time the original decree was entered have so changed that the

decree should be modified in the interest of the child’s welfare.’” Vicente, 950 A.2d at 462

(brackets omitted) (quoting Suddes v. Spinelli, 703 A.2d 605, 607 (R.I. 1997)). “Unless the

movant meets this stringent evidentiary standard, the prior custody decision should remain

intact.” Id.




                                              -4-
                                                III

                                            Discussion

                                                 A

                                    Modification of Custody

       On appeal, defendant argues that the trial justice overlooked and misconceived evidence

in finding that he had failed to demonstrate by a preponderance of the evidence that a substantial

change in circumstances had occurred and that the children were in harm’s way while placed

with plaintiff. The defendant contends that the trial justice committed multiple errors in this

respect. We address each of defendant’s contentions below.

       The defendant begins by arguing that the trial justice “gave no weight” to the portions of

the GAL report and testimony that characterized defendant positively and plaintiff negatively.

Specifically, he argues that much of the GAL report paints plaintiff in a negative light, in that it

reports that plaintiff ignored the younger child and, even further, that plaintiff had not wanted to

adopt him. Based on these facts, as well as other factual findings by the GAL, the report

recommended that defendant be awarded sole custody and primary physical placement of the

children. The trial justice, however, was not required to act on that recommendation. Indeed, in

D’Onofrio, this Court agreed with the conclusion of the New Hampshire Supreme Court that

“[t]he recommendations of the guardian ad litem do not, and should not, carry any greater

presumptive weight than the other evidence in the case. The guardian ad litem is appointed to

represent the best interests of the child, not to make a conclusive or presumptive determination;

that is the province of the court[.]” D’Onofrio, 738 A.2d at 1084 (quoting Richelson v. Richelson,

536 A.2d 176, 180 (N.H. 1987)).




                                             -5-
       In her decision, the trial justice considered the GAL’s testimony, and she questioned the

GAL’s recommendation on custody based on (1) the absence of a professional opinion on the

effects of separating the children; (2) the GAL’s testimony that the younger child was the focus

of her investigation and that defendant’s parents typically took the children during visits; and (3)

other sources who told the GAL that defendant was not involved with the children or

emotionally present and that he had never asked for more visitation. Additionally, she discussed

the GAL report, noting that “[t]he court reviewed the GAL reports submitted as [d]efendant’s

full exhibits A, B, and C.” The trial justice did not overlook the contents of the GAL report;

rather, she considered it along with all the other evidence before her, as was required. See

D’Onofrio, 738 A.2d at 1084.

       The defendant also argues that the trial justice was clearly wrong to reiterate the findings

by DCYF regarding two allegations of abuse by defendant.             According to defendant, the

allegations should not have been weighed by the trial justice because the clear and convincing

standard set forth in Rule 17(b) of the Family Court Rules for Juvenile Proceedings regarding the

question of whether a child was abused, neglected, or dependent should have been applied. To

support this argument, defendant references In re Sophia M., 204 A.3d 605 (R.I. 2019), arguing

that the DCYF findings of abuse did not meet the clear-and-convincing-evidence burden. In re

Sophia M., however, dealt with an abuse and neglect petition against the mother and father,

whereas here, the issue of whether abuse occurred was not before the trial justice; rather, she

considered the allegations of abuse as reported and testified to by DCYF in the context of a

custody determination. See In re Sophia M., 204 A.3d at 605. The trial justice in the present case

exercised her discretion in assessing the credibility of DCYF’s officers and reports, as well as the

credibility of other witnesses involved in DCYF’s investigation. See In re Jermaine H., 9 A.3d




                                             -6-
1227, 1232 (R.I. 2010) (“It is well established that ‘the task of determining the credibility of

witnesses is peculiarly the function of the trial justice when sitting without a jury.’”) (brackets

omitted) (quoting Parella v. Montalbano, 899 A.2d 1226, 1239 (R.I. 2006)). “This Court will

not disturb findings of fact made by the Family Court on the issue of custody and the best

interests of the child unless the trial justice abused [his or] her discretion in making a particular

award.” McDonough v. McDonough, 962 A.2d 47, 52 (R.I. 2009). There is no evidence here of

such an abuse of discretion, because the trial justice properly considered the credibility of the

witnesses and reports before her.

       The defendant argues that the trial justice was clearly wrong in her findings in four

additional respects.     First, defendant argues that the trial justice “overlooked and/or

misconceived” testimony that indicated that he was a better parent; defendant points specifically

to the testimony of family members and the GAL report. Second, defendant argues that the trial

justice’s finding that defendant was attempting to emotionally and financially ruin plaintiff was

incorrect. Third, defendant argues that the trial justice was mistaken when she found that no

other witnesses shared his view of the case. Fourth, defendant argues that the trial justice erred

when she found that defendant failed to substantiate his claim that the children would be better

off in his custody.

       With regard to each of these contentions, we conclude that there is no indication that the

trial justice misconceived or overlooked evidence. Here, the trial justice in her decision found

that defendant had “failed to provide any evidence that this [c]ourt would find to substantiate his

claim that these children would be better off with him.” (Emphasis added.) Her decision

suggests that she rejected the evidence submitted by defendant in support of his motion.

Although defendant put forth evidence in support of his motion to modify custody at trial, it is




                                              -7-
within the trial justice’s discretion to weigh that evidence in rendering her decision. See Ayriyan

v. Ayriyan, 994 A.2d 1207, 1215 (R.I. 2010) (holding that the trial justice did not abuse her

discretion where she carefully weighed the evidence and did not blindly accept all testimony and

evidence before her as true). Although the trial justice did not go through the testimony of each

witness or analyze each piece of evidence in her written decision, it is clear that she considered

and weighed their testimony in rendering that decision. See Notarantonio v. Notarantonio, 941

A.2d 138, 147 (R.I. 2008) (“A trial justice need not ‘categorically accept or reject each piece of

evidence in his [or her] decision for this Court to uphold it because implicit in the trial justice[’]s

decision are sufficient findings of fact to support his [or her] rulings.’”) (quoting Narragansett

Electric Co. v. Carbone, 898 A.2d 87, 102 (R.I. 2006)).

       Finally, defendant argues that the trial justice erred in not allowing him to present tape

recordings of the children into evidence. The defendant asserts that he should have been allowed

to present the recordings to prove his innocence regarding the DCYF allegations of abuse,

despite a court order barring such tape recording of the minor children. He asserts on appeal that

“[t]he children were the best evidence.” Upon a careful review of the record, we conclude that

the trial justice did not err in preventing tape recordings from being admitted into evidence.

       Indeed, it is clear from the record that the trial justice restricted the tape recordings from

being entered into evidence to prevent further instances of the children “bringing tape recorders

with them [to visits] in hopes of catching mother or father or somebody in a lie[.]” The trial

justice made it clear that the purpose of that decision was to prevent interrogation of the children.

“It is well established that the admissibility of evidence * * * is confided to the sound discretion

of the trial justice; moreover, ‘this Court will not interfere with the trial justice’s decision unless

a clear abuse of that discretion is apparent.’” Giammarco v. Giammarco, 959 A.2d 531, 533 (R.I.




                                               -8-
2008) (quoting Soares v. Nationwide Mutual Fire Insurance Co., 692 A.2d 701, 701-02 (R.I.

1997) (mem.)). We therefore decline to overturn a discretionary decision of the trial justice, who

was in the best position to discern the admissibility of the tape recordings and who put forth a

clear reason and rationale for denying their admission.

       The trial justice did not overlook or misconceive evidence in determining that defendant

failed to show a substantial change in circumstances. Accordingly, we conclude that she did not

abuse her discretion when she denied defendant’s motion to modify custody and granted

plaintiff’s motion to dismiss. Therefore, we will not disturb the trial justice’s denial of the

motion for a new trial on appeal.

                                                B

                                          Sole Custody

       The second issue before the Court is the fact that the trial justice, in the order granting

plaintiff’s motion to dismiss, indeed modified custody by awarding sole custody of the children

to plaintiff. The defendant takes issue with this decision, arguing that the “children are in harms

way as long as they remain with Jamie” and by reiterating the two-part test required to modify

custody or placement. If the two-part test is not met, “the prior custody decision should remain

intact.” Vicente, 950 A.2d at 462.

       Here, the trial justice changed the prior agreed-upon joint custody arrangement, which

was memorialized in the final judgment of divorce in 2010, to sole custody in favor of the

plaintiff, seemingly based upon the determination that the parties cannot co-parent, without

reference to the best interests of the children. Awarding sole custody here goes a step too far.

The plaintiff, to succeed on such a motion, would have to show by a fair preponderance of the

evidence that circumstances had changed such that the placement should be modified in the




                                             -9-
interest of the children’s welfare and that the change of placement was in the best interests of the

children. See Vicente, 950 A.2d at 462. Here, the trial justice applied no such test in concluding

that the plaintiff should be awarded sole custody. We therefore vacate the portion of the order

that awards sole custody to the plaintiff, and remand the case to the Family Court for further

proceedings consistent with this opinion.

                                                   IV

                                               Conclusion

       For the foregoing reasons, we affirm in part and vacate in part the September 17, 2015

order of the Family Court and remand the case for further proceedings on the issue of sole

custody.

       Justice Flaherty did not participate.




                                                - 10 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Jamie Souza v. Michael Souza.
                                     No. 2016-310-Appeal.
Case Number
                                     (N 08-154)
Date Opinion Filed                   December 12, 2019

Justices                             Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.

Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Newport County Family Court

Judicial Officer From Lower Court    Associate Justice Karen Lynch Bernard
                                     For Plaintiff:

                                     Thomas M. Dickinson, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Russell Bramley, Esq.




SU‐CMS‐02A (revised June 2016)
