MAINE	SUPREME	JUDICIAL	COURT	 	            	      	       	    	       Reporter	of	Decisions	
Decision:	    2017	ME	216	
Docket:	      Lin-17-227	
Submitted	
  On	Briefs:	 October	24,	2017	
Decided:	     November	14,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                                  BRIDGET	K.	MILLER	
                                          	
                                         v.	
                                          	
                                   DAVID	W.	NERY	
	
	
PER	CURIAM	

       [¶1]	 	 David	 W.	 Nery	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Wiscasset,	Raimondi,	J.)	modifying	a	divorce	judgment	to	confer	sole	parental	

rights	 and	 responsibilities	 on	 Bridget	 K.	 Miller	 and	 impose	 conditions	 on	

Nery’s	contact	with	the	parties’	four	children.		Nery	argues	(1)	that	the	court	

misinterpreted	 or	 misapplied	 the	 statute	 governing	 the	 determination	 of	 the	

children’s	best	interests,	and	(2)	that	it	abused	its	discretion	in	ordering	Nery	

to	undergo	sobriety	testing	before	and	during	all	visits	with	the	children,	and	

to	 have	 a	 psychological	 evaluation	 and	 begin	 any	 recommended	 treatment	

before	overnight	visits	may	be	resumed.		We	affirm	the	judgment.	
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                                  I.		BACKGROUND	

	     [¶2]	 	 Nery	 and	 Miller	 were	 married	 in	 1997,	 had	 their	 four	 children	

between	 2003	 and	 2010,	 and	 were	 divorced	 in	 November	 2014	 through	 a	

judgment	 entered	 by	 the	 District	 Court.	 	 As	 subsequently	 amended,	 the	

judgment	 provided	 for	 shared	 primary	 residence	 and	 parental	 rights	 and	

responsibilities,	 required	 counseling	 for	 the	 parties’	 youngest	 son,	 and,	 with	

the	 agreement	 of	 the	 parties,	 ordered	 that	 a	 referee	 would	 be	 appointed	 to	

resolve	parenting	disputes.			

	     [¶3]	 	 In	 December	 2016,	 Miller	 moved	 to	 modify	 and	 enforce	 the	

judgment	and	for	contempt	on	the	grounds	that	the	children’s	medical	needs	

were	 not	 being	 attended	 to	 adequately	 at	 Nery’s	 home,	 that	 Nery	 had	 been	

drinking	 alcohol	 to	 excess	 and	 arguing	 loudly	 with	 his	 current	 wife	 in	 the	

children’s	presence,	and	that	Nery	had	failed	to	execute	necessary	releases	for	

the	 parties’	 youngest	 child	 to	 attend	 counseling	 and	 obtain	 treatment	 as	

required	 by	 the	 divorce	 judgment.	 	 Nery	 moved	 to	 modify	 the	 divorce	

judgment	on	the	ground	that	Miller	had	been	unwilling	to	co-parent.			

	     [¶4]	 	 The	 court	 held	 a	 hearing	 on	 the	 motions	 in	 February	 and	 April	

2017.	 	 The	 court	 found,	 with	 evidentiary	 support,	 that	 Nery	 engaged	 in	 a	

pattern	 of	 behavior	 that	 undermined	 his	 youngest	 son’s	 medical	 treatment,	
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including	 by	 denying	 the	 existence	 of	 the	 child’s	 increasingly	 serious	 health	

problem;	refusing	to	administer	medications;	acting	in	conflict	with	Miller	to	

such	an	extent	that	one	doctor	refused	to	meet	with	the	parents	unless	a	third	

person	was	present;	and	asking	repetitive	questions	of	the	child’s	counselor,	

who	felt	badgered	by	Nery’s	questions	and	refused	to	treat	the	child.			

	     [¶5]		Nery	similarly	attempted	to	have	his	other	children	removed	from	

medications.		He	denied	his	oldest	child’s	need	for	an	asthma	inhaler	and	sent	

the	child	on	an	overnight	field	trip	without	it.		He	also	denied	that	his	youngest	

daughter	has	asthma	or	needs	an	inhaler.		He	made	unreasonable	demands	of	

the	 children’s	 pediatrician’s	 office,	 including	 a	 request	 that	 his	 children	 be	

removed	 from	 all	 medications,	 and	 he	 accused	 the	 doctor	 of	 drugging	 his	

children.	 	 When	 Miller	 brought	 the	 medical	 issues	 to	 the	 referee’s	 attention,	

the	 referee	 instructed	 the	 parents	 to	 follow	 the	 doctors’	 advice.	 	 The	 court	

found	that	Nery’s	behavior	with	medical	and	psychological	professionals	was	

not	in	the	children’s	best	interests.			

	     [¶6]	 	 The	 court	 further	 found	 that	 the	 children	 have	 been	 exposed	 to	

arguing	 and	 fighting	 between	 Nery	 and	 his	 current	 wife,	 including	 during	

times	when	the	parties’	oldest	son	believes	that	Nery	was	not	sober.		That	son	
4	

worries	about	Nery	because	Nery	often	smells	of	alcohol	and	has	driven	with	

the	children	in	the	car	at	times	when	he	did	not	seem	sober.			

	        [¶7]		The	court	granted	both	Miller’s	motion	to	modify	and	her	motion	

for	contempt.1		It	modified	the	divorce	judgment	to,	among	other	things,	grant	

Miller	 sole	 parental	 rights	 and	 responsibilities,2	 provide	 Nery	 a	 schedule	 of	

contact	 with	 the	 children,	 require	 Nery	 to	 enroll	 and	 participate	 in	 Level	 1	

Soberlink	services	six	hours	before	scheduled	contact	and	at	least	every	four	

hours	 during	 his	 contact	 with	 the	 children,3	 and	 condition	 Nery’s	 overnight	

contact	with	the	children	on	the	following:	

     • Completion	 of	 a	 substance	 abuse	 evaluation	 that	 includes	 input	 from	
       Miller;	
	
     • Completion	 of	 a	 psychological	 evaluation	 focused	 on	 Nery’s	 parenting	
       capacity	and	co-parenting	skills;	
	
     • Engagement	 in	 recommended	 treatment	 regarding	 any	 identified	
       issues;	and	
	
     • The	 filing	 of	 an	 affidavit	 with	 the	 court	 establishing	 successful	
       completion	of	these	requirements.	



     1		The	judgment	on	the	motion	for	contempt	is	not	on	appeal.	


     2		The	court	specifically	found,	“Shared	parental	rights	is	not	workable	with	this	family.”			


     3		On	the	first	day	of	the	hearing,	in	February	2017,	Nery	agreed	to	engage	in	Level	2	Soberlink	

testing,	which	called	for	testing	every	day	at	regular	intervals,	but	he	later	denied	that	he	had	given	
his	consent,	and	he	had	not	initiated	testing	by	the	time	of	the	April	hearing	dates.	
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	       [¶8]	 	 Nery	 timely	 appealed.	 	 See	 14	 M.R.S.	 §	 1901	 (2016);	 19-A	 M.R.S.	

§	104	(2016);	M.R.	App.	P.	2	(Tower	2016).4			

                                          II.		DISCUSSION	

        [¶9]		The	court	did	not	misinterpret	or	misapply	19-A	M.R.S.	§	1653(3)	

(2016)	in	prioritizing	the	children’s	safety	and	well-being	when	determining	

their	 best	 interests.	 	 See	 id.;	 Curtis	 v.	 Medeiros,	 2016	 ME	 180,	 ¶	 14,	 152	 A.3d	

605	 (citing	 In	 re	 Jacob	 C.,	 2009	 ME	 10,	 ¶	 9,	 965	 A.2d	 47).	 	 In	 a	 detailed	 and	

thoughtful	 judgment,	 the	 court	 explained	 that	 Nery’s	 behavior	 presented	 a	

heightened	 concern	 “with	 respect	 to	 the	 basic	 care	 and	 safety	 of	 the	

children”—a	 concern	 that	 must	 take	 priority	 in	 determining	 child	 residence	

and	 rights	 of	 contact.	 	 See	 19-A	 M.R.S.	 §	 1653(3)	 (“In	 making	 decisions	

regarding	 the	 child’s	 residence	 and	 parent-child	 contact,	 the	 court	 shall	

consider	as	primary	the	safety	and	well-being	of	the	child.”).	

        [¶10]	 	 As	 the	 court	 found,	 Nery	 at	 times	 “repeats	 his	 points	 multiple	

times,	 appearing	 to	 be	 entirely	 deaf	 to	 anything	 anyone	 has	 to	 say	 to	 the	

contrary”;	his	“behavior	with	medical	and	psychological	professionals	who	are	

trying	to	assist	his	children	has	been	unreasonable,	irrational,	confrontational,	

and	 sometimes	 downright	 harassing”;	 he	 “denies	 the	 existence	 of	 his	

    4	 	 This	 appeal	 was	 commenced	 before	 September	 1,	 2017,	 and	 therefore	 the	 restyled	 Maine	

Rules	of	Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).	
6	

children’s	 medical	 issues”;	 and	 whatever	 the	 cause	 of	 his	 “complete	 inability	

to	co-parent,”	the	issue	“must	be	addressed	before	overnight	visitation	can	be	

restored.”		The	court	found,	with	support	in	the	evidentiary	record,	that	“[a]t	

one	time	or	another,	[Nery]	has	been	unwilling	to	cooperate	with	Ms.	Miller	as	

a	 co-parent	 in	 almost	 every	 child	 related	 area:	 medical,	 educational,	

extracurricular	 activities,	 daycare,	 uninsured	 medical	 expenses	 and	 child	

support.”			

       [¶11]		The	cause	of	Nery’s	unreasonable,	uncooperative,	and	often	odd	

behavior	is	not	known,	and	the	court	found	that	it	was	“not	in	the	position	to	

diagnose	the	nature	of	the	problem.”		In	these	circumstances,	the	court	acted	

well	within	its	discretion	in	ordering	Nery’s	sobriety	testing	before	and	during	

any	 visits	 to	 ensure	 the	 children’s	 safety,	 see	 Pearson	 v.	 Ellis-Gross,	 2015	 ME	

118,	 ¶	4,	 123	 A.3d	 223,	 and	 in	 requiring	 that,	 before	 the	 children	 resume	

overnight	 visits	 in	 Nery’s	 home,	 he	 undergo	 substance	 abuse	 and	

psychological	 evaluations	 and	 follow	 any	 recommended	 treatment	 to	 modify	

his	pattern	of	behavior	that	is	demonstrably	harming	the	children,	see	Vibert	v.	

Dimoulas,	2017	ME	62,	¶¶	18-19,	159	A.3d	325.			

       The	entry	is:	

                     Judgment	affirmed.	
	                         	
                                                                                     7	

	     	      	     	        	    	
	
Jennifer	A.	Davis,	Esq.,	Law	Office	of	Jennifer	A.	Davis,	Topsham,	for	appellant	
David	W.	Nery	
	
Justin	 W.	 Andrus,	 Esq.,	 Andrus	 Law,	 LLC,	 Brunswick,	 for	 appellee	 Bridget	 K.	
Miller	
	
	
Wiscasset	District	Court	docket	number	FM-2013-89	
FOR	CLERK	REFERENCE	ONLY	
	
