MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2018	ME	48	
Docket:	      Aro-17-330	
Submitted	
  On	Briefs:	 January	11,	2018	
Decided:	     April	5,	2018	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                ERIC	N.	FITZPATRICK	
                                           	
                                          v.	
                                           	
                                 ARLENE	MCCRARY	
	
	
JABAR,	J.		

      [¶1]		Eric	N.	Fitzpatrick	appeals	from	a	judgment	entered	by	the	District	

Court	(Houlton,	O’Mara,	J.)	denying	his	M.R.	Civ.	P.	60(b)	motion	for	relief	from	

judgment	 after	 the	 court	 granted	 Arlene	 McCrary’s	 motion	 to	 modify	 a	

parental	rights	and	responsibilities	order	regarding	their	son.		We	affirm	the	

judgment.	

                                   I.		BACKGROUND	

      [¶2]	 	 Fitzpatrick	 and	 McCrary	 are	 the	 parents	 of	 a	 child,	 born	 June	 15,	

2013.	 	 In	 November	 2013,	 Fitzpatrick	 filed	 a	 complaint	 seeking	 a	

determination	 of	 parental	 rights	 and	 responsibilities.	 	 The	 District	 Court	

(Daigle,	 J.)	 entered	 a	 judgment	 and	 ordered	 shared	 parental	 rights	 with	

primary	 residence	 awarded	 to	 McCrary.	 	 Several	 years	 later,	 on	 January	 28,	
2	

2016,	the	District	Court	(Soucy,	J.)	granted	Fitzpatrick’s	subsequent	motion	to	

modify	after	the	parties	agreed	to	an	order	changing	primary	residence	from	

McCrary	to	Fitzpatrick.			

         [¶3]	 	 On	 April	 14,	 2016,	 McCrary	 filed	 a	 motion	 for	 contempt	 against	

Fitzpatrick,	 alleging	 that	 Fitzpatrick	 failed	 to	 comply	 with	 the	 modified	

parental	 rights	 and	 responsibilities	 order.	 	 Twelve	 days	 later,	 on	 April	 26,	

2016—while	that	motion	was	“out”	for	service—Fitzpatrick	filed	a	complaint	

in	 the	 Court	 of	 Common	 Pleas	 of	 Luzerne	 County,	 Pennsylvania,	 seeking	 an	

order	to	confirm	that	he	had	legal	custody	of	the	child.1		Less	than	two	months	

later,	 on	 June	24,	 2016,	 before	 her	 contempt	 motion	 was	 served	 on	

Fitzpatrick,	 McCrary	 filed	 a	 motion	 to	 modify	 the	 parental	 rights	 and	

responsibilities	order	in	the	District	Court	in	Houlton.		On	August	3,	2016,	the	

Pennsylvania	 Court	 of	 Common	 Pleas	 entered	 an	 “interim	 order”	 that	

purported	 to	 “supersede[]	 all	 prior	 Orders	 in	 any	 jurisdiction”	 and	 provided	

that	 “[j]urisdiction	 of	 this	 matter	 .	 .	 .	 and	 the	 child	 shall	 remain	 with	 [the	

Pennsylvania	Court]	until	further	Order	of	Court.”			

         [¶4]	 	 After	 he	 was	 finally	 served	 with	 McCrary’s	 motions	 early	 in	

August,	 Fitzpatrick	 filed	 a	 motion	 to	 dismiss	 McCrary’s	 motion	 to	 modify	 in	

     1		In	his	M.R.	Civ.	P.	60(b)	motion	for	relief	from	the	Houlton	District	Court	judgment,	Fitzpatrick	

alleged	that	he	had	been	living	with	the	child	in	Pennsylvania	since	October	23,	2015.				
                                                                                                        3	

the	 District	 Court	 in	 Houlton,	 arguing	 that	 Maine	 lacked	 subject	 matter	

jurisdiction	over	the	matter	because	“the	Pennsylvania	court	has	assumed	full	

jurisdiction	 over	 the	 matter,	 [and]	 superseded	 the	 Order	 of	 the	 State	 of	

Maine.”		Fitzpatrick’s	motion	to	dismiss	contained	factual	assertions—without	

any	 accompanying	 affidavits—and	 legal	 arguments.	 	 After	 a	 pretrial/status	

conference	 on	 the	 issue	 of	 jurisdiction,	 the	 court	 (O’Mara,	 J.)	 denied	 that	

motion,	determining,	in	relevant	part,	that	

      once	“Home	State”	jurisdiction	is	 established,	 no	other	state	 may	
      simply	“assume	full	jurisdiction”	such	that	its	orders	“supersede”	
      orders	of	the	“Home	State,”	unless	the	parties	 and	the	child	have	
      all	 left	 the	 “Home	 State.”	 	 Here,	 while	 [Fitzpatrick]	 and	 the	 child	
      have	moved	to	Pennsylvania,	[there]	is	not	even	an	allegation	that	
      [McCrary]	 no	 longer	 lives	 in	 Maine,	 or	 has	 left	 this	 immediate	
      area.	
      	
Fitzpatrick	 filed	 a	 motion	 to	 reconsider,	 which	 included	 further	 factual	

assertions—again,	 without	 any	 accompanying	 affidavits—and	 legal	

arguments.	 	 The	 court	 denied	 that	 motion	 in	 an	 order	 dated	 February	 21,	

2017.	 	 On	 the	 same	 date,	 following	 a	 hearing	 where	 Fitzpatrick	 failed	 to	

appear,	the	court	granted	McCrary’s	motion	to	modify,	awarding	her	primary	

residence	of	the	child.2				


   2	 	 The	 court	 found	 that	although	 McCrary	 had	agreed	 to	 the	 January	28,	2016,	 order	 changing	

primary	residence	from	herself	to	Fitzpatrick	“[d]ue	to	problems	maintaining	her	sobriety,”	she	was	
“now	.	.	.	sober	in	excess	of	nine	months,”	and	had	“maintained	steady	employment,	maintained	her	
own	home,	and	maintained	her	sobriety	.	.	.	despite	challenges	including	the	death	of	her	father	and	
4	

         [¶5]		Several	weeks	later,	on	March	8,	2017,	the	court	had	 a	telephone	

conference	 with	 the	 Pennsylvania	 Court	 of	 Common	 Pleas	 judge	 who	 had	

issued	the	“interim	order”	in	August	2016,	regarding	home	state	jurisdiction.		

As	 a	 result	 of	 that	 conference,	 the	 Pennsylvania	 court	 entered	 an	 order	

“relinquish[ing]	 jurisdiction	 of	 this	 case	 and	 find[ing]	 that	 jurisdiction	 lies	

with	the	Maine	District	Court.”			

         [¶6]	 	 On	 April	 3,	 2017,	 Fitzpatrick	 filed	 in	 the	 Maine	 District	 Court	 a	

motion	 for	 relief	 from	 judgment	 and	 requested	 a	 hearing	 regarding	 that	

motion.	 	 See	 M.R.	 Civ.	 P.	 60(b)(4).	 	 The	 court	 denied	 that	 motion	 on	 June	 7,	

2017.	 	 Fitzpatrick	 then	 filed	 a	 motion	 for	 findings	 of	 fact,	 which	 the	 court	

denied.		See	M.R.	Civ.	P.	52(b).		This	appeal	followed.		See	14	M.R.S.	§	1901(1)	

(2017);	M.R.	App.	P.	2(b)(3)	(Tower	2016.))3	

                                          II.		DISCUSSION	

	        [¶7]	 	 On	 appeal,	 Fitzpatrick	 argues	 that	 the	 court	 erred	 in	 denying	 his	

M.R.	Civ.	P.	60(b)(4)	motion	because,	after	Pennsylvania	assumed	jurisdiction	

over	 the	 child	 custody	 matter,	 Maine	 necessarily	 lost	 jurisdiction	 over	 that	

lack	 of	 meaningful	 contact	 with	 [the	 child].”	 	 Furthermore,	 the	 court	 found	 that	 McCrary	 had	
“encountered	 great	 difficulty	 seeing	 [the	 child],	 or	 even	 learning	 about	 [the	 child],	 due	 to	
[Fitzpatrick’s]	actions,”	and	that	“[d]espite	traveling	to	Pennsylvania,	[McCrary]	has	seen	[the	child]	
only	twice	in	18	months.”	
     3		The	restyled	Maine	Rules	of	Appellate	Procedure	 do	not	apply	because	this	appeal	was	filed	

before	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).	
                                                                                          5	

matter.		Fitzpatrick	also	contends	that	the	court	erred,	pursuant	to	19-A	M.R.S.	

§	 1740,	 by	 not	 allowing	 him	 to	 “present	 facts	 and	 legal	 arguments	 [to	 the	

court]	before	a	decision	on	jurisdiction	was	made.”		We	address	each	of	these	

arguments	in	turn.	

A.    Jurisdiction	

      [¶8]	 	 “A	 Maine	 trial	 court’s	 ruling	 on	 a	 Rule	 60(b)	 motion	 is	 ordinarily	

subject	 to	 the	 deferential	 abuse	 of	 discretion	 standard	 on	 appeal.”	 	 Reliable	

Copy	 Serv.,	 Inc.	 v.	 Liberty,	 2011	 ME	 127,	 ¶	 8,	 32	 A.3d	 1041.	 	 However,	 that	

standard	 differs	 when	 “a	 party	 seeking	 relief	 from	 a	 judgment	 alleges	 a	

jurisdictional	defect	.	.	.	pursuant	to	M.R.	Civ.	P.	60(b)(4)	that	would	render	the	

judgment	void.”		Id.		Thus,	“[i]f	the	judgment	is	void,	there	is	no	room	for	the	

court	to	exercise	discretion—the	judgment	must	be	set	aside.”		Id.	(alteration	

omitted)	(quotation	marks	omitted).		

      [¶9]	 	 Jurisdictional	 questions	 regarding	 determinations	 of	 parental	

custody	 are	 governed	 by	 both	 the	 Uniform	 Child	 Custody	 Jurisdiction	 and	

Enforcement	 Act	 (UCCJEA),	 19-A	 M.R.S.	 §§	 1731-1783	 (2017),	 and	 the	

Parental	 Kidnapping	 Prevention	 Act	 (PKPA),	 28	 U.S.C.S.	 §	 1738A	 (LEXIS	

through	 Pub.	 L.	 No.	 115-137).	 	 Barclay	 v.	 Eckert,	 2000	 ME	 10,	 ¶	 8,	 743	 A.2d	

1259.	 	 In	 the	 event	 of	 a	 conflict,	 the	 PKPA	 preempts	 the	 UCCJEA.	 	 Id.		
6	

“Otherwise,	 the	 statutes	 are	 considered	 in	 conjunction	 with	 one	 another.”		

Cole	v.	Cushman,	2008	ME	72,	¶	6,	946	A.2d	430.			

      [¶10]	 	 The	 PKPA	 provides	 for	 the	 continuing	 jurisdiction	 of	 the	 state	

that	initially	enters	a	child	custody	order:	

      The	 jurisdiction	 of	 a	 court	 of	 a	 State	 which	 has	 made	 a	 child	
      custody	 or	 visitation	 determination	 consistently	 with	 the	
      provisions	of	this	section	continues	as	long	as	the	requirement	of	
      subsection	 (c)(1)	 of	 this	 section	 [requiring	 that	 the	 State	 have	
      jurisdiction	 under	 its	 own	 laws]	 continues	 to	 be	 met	 and	 such	
      State	remains	the	residence	of	the	child	or	of	any	contestant.	
	
28	 U.S.C.S.	 §	 1738A(d).	 	 Pursuant	 to	 the	 UCCJEA,	 Maine	 has	 initial	 child	

custody	jurisdiction	if	it	is		

     the	 home	 state	 of	 the	 child	 on	 the	 date	 of	 the	 commencement	 of	
     the	proceeding	or	was	the	home	state	of	the	child	within	6	months	
     before	 the	 commencement	 of	 the	 proceeding	 and	 the	 child	 is	
     absent	 from	 [Maine]	 but	 a	 parent	 or	 person	 acting	 as	 a	 parent	
     continues	to	live	in	[Maine].			
     	
19-A	M.R.S.	§	1745(1)(A).		Maine	has	“exclusive,	continuing	jurisdiction”	over	

a	child	custody	order	pursuant	to	19-A	M.R.S.	§	1746(1)(A),	(B),	which	states,	

in	relevant,	

           1.		 Exclusive,	 continuing	 jurisdiction.		Except	 as	
      otherwise	provided	in	section	1748,	a	court	of	this	State	that	has	
      made	a	child	custody	determination	consistent	with	section	1745	
      or	 1747	 has	 exclusive,	 continuing	 jurisdiction	 over	 the	
      determination	until:	
      	
                                                                                          7	

             A.		A	 court	 of	 this	 State	 determines	 that	 neither	 the	 child,	
             nor	 the	 child	 and	 one	 parent,	 nor	 the	 child	 and	 a	 person	
             acting	 as	 a	 parent	 have	 a	 significant	 connection	 with	 this	
             State	and	that	substantial	evidence	is	no	longer	available	in	
             this	 State	 concerning	 the	 child’s	 care,	 protection,	 training	
             and	personal	relationships;	or	
             	
             B.		A	 court	 of	 this	 State	 or	 a	 court	 of	 another	 state	
             determines	 that	 the	 child,	 the	 child’s	 parents	 and	 any	
             person	 acting	 as	 a	 parent	 do	 not	 presently	 reside	 in	 this	
             State.	
             	
	      [¶11]	 	 Pursuant	 to	 the	 above-cited	 statutes,	 Maine	 maintains	

jurisdiction	 over	 a	 custody	 matter	 as	 long	 as	 (1)	 it	 had	 initial	 child	 custody	

jurisdiction;	 (2)	 it	 remains	 the	 residence	 of	 the	 child	 or	 any	 contestant;	 and	

(3)	 a	 court	 has	 not	 made	 any	 of	 the	 determinations	 provided	 in	 19-A	 M.R.S.	

§	1746(1)(A)	or	(B).		28	U.S.C.S.	§	1738A(d);	19-A	M.R.S.	§§	1745,	1746.		

	      [¶12]	 	 Here,	 Fitzpatrick	 does	 not	 dispute	 that	 Maine	 had	 initial	 child	

custody	 jurisdiction.	 	 However,	 he	 argues	 that	 the	 Pennsylvania	 court	

“implicit[ly]”	determined,	pursuant	to	19-A	M.R.S.	§	1746(1)(B),	that	McCrary	

no	longer	lived	in	Maine.			

	      [¶13]	 	 This	 argument	 is	 without	 merit.	 	 In	 its	 interim	 order,	 the	

Pennsylvania	Court	of	Common	Pleas	did	not	acknowledge	McCrary’s	state	of	

residence,	 let	 alone	 make	 a	 finding	 that	 she	 no	 longer	 resided	 in	 Maine.		

Moreover,	in	his	complaint	to	confirm	custody,	Fitzpatrick	twice	averred	that	
8	

McCrary	 lived	 in	 Houlton,	 Maine.	 	 Accordingly,	 even	 assuming	 the	

Pennsylvania	 court	 could	 make	 such	 an	 “implicit	 finding,”4	 there	 is	 no	

competent	 record	 evidence	 to	 support	 that	 finding.	 	 For	 this	 reason,	 Maine	

maintained	 exclusive,	 continuing	 jurisdiction	 over	 the	 child	 custody	 matter	

pursuant	 to	 19-A	 M.R.S.	 §	 1746(1),	 and	 the	 court	 therefore	 did	 not	 err	 in	

denying	Fitzpatrick’s	Rule	60(b)	motion.	

B.      Communication	Between	Courts	

        [¶14]		Fitzpatrick	next	argues	that,	pursuant	to	19-A	M.R.S.	§	1740,	the	

court	 erred	 by	 not	 permitting	 him	 to	 “present	 facts	 and	 legal	 arguments	

before	a	decision	on	jurisdiction	was	made.”		Because	Fitzpatrick’s	argument	

here	 is	 not	 jurisdictional,	 the	 court’s	 handling	 of	 its	 communication	 with	 the	

Pennsylvania	 court	 is	 reviewed	 for	 an	 abuse	 of	 discretion.	 	 See	 Town	 of	

Wiscasset	v.	Mason	Station,	LLC,	2015	ME	59,	¶	6,	116	A.3d	458.		However,	we	

review	 the	 interpretation	 of	 the	 UCCJEA	 de	 novo.	 	 Cole,	 2008	 ME	 72,	 ¶	 8,	

946	A.2d	430.			

        [¶15]	 	 Section	 1740(1)	 provides,	 “A	 court	 of	 this	 State	 may	

communicate	 with	 a	 court	 in	 another	 state	 concerning	 a	 proceeding	 arising	
   4	 	 Because	 one	 of	 the	 UCCJEA’s	 purposes	 was	 to	 “enunciate[]	 a	 standard	 of	 continuing	

jurisdiction	and	clarif[y]	modification	jurisdiction,”	L.D.	432,	Prefatory	Note	(119th	Legis.	1999),	we	
express	 deep	 apprehension	 at	 the	 notion	 that	 a	 court,	 pursuant	 to	 the	 UCCJEA,	 could	 assume	
jurisdiction	 by	 making	 an	 implicit	 finding	 on	 such	 an	 important	 issue	 as	 a	 parent’s	 state	 of	
residence.	
                                                                                           9	

under	 this	 chapter.”	 	 19-A	 M.R.S.	 §	 1740(1)	 (emphasis	 added).	 	 Section	

1740(2)	 then	 provides	 that	 “[t]he	 [Maine]	 court	 may	 allow	 the	 parties	 to	

participate	in	the	communication.		If	the	parties	are	not	able	to	participate	in	

the	 communication,	 they	 must	 be	 given	 the	 opportunity	 to	 present	 facts	 and	

legal	 arguments	 before	 a	 decision	 on	 jurisdiction	 is	 made.”	 	 19-A	 M.R.S.	

§	1740(2)	(emphasis	added).			

	      [¶16]	 	 The	 Legislature’s	 use	 of	 “may”	 rather	 than	 “shall”	 in	 sections	

1740(1)	 and	 (2)	 is	 significant.	 	 See	 Lopez	 v.	 Davis,	 531	 U.S.	 230,	 240	 (2001).		

“In	general,	the	word	‘may,’	used	in	statutes,	will	be	given	ordinary	meaning,	

unless	it	would	manifestly	defeat	the	object	of	the	statute,	and	when	used	in	a	

statute	 is	 permissive,	 discretionary,	 and	 not	 mandatory.”	 	 Collins	 v.	 State,	

161	Me.	 445,	 449,	 213	 A.2d	 835	 (1965)	 (quotation	 marks	 omitted).		

Accordingly,	 because	 the	 word	 “may”	 in	 sections	 1740(1)	 and	 (2)	 is	

permissive	 rather	 than	 mandatory,	 we	 conclude	 that	 it	 is	 left	 to	 the	 trial	

court’s	 sound	 discretion	 both	 whether	 to	 communicate	 with	 a	 court	 from	

another	 state	 and	 whether	 to	 allow	 parties	 to	 participate	 in	 that	

communication.			

	      [¶17]		Our	construction	of	section	1740	is	bolstered	by	the	Legislature’s	

language	 in	 the	 second	 sentence	 of	 section	 1740(2),	 which	 provides,	 “If	 the	
10	

parties	 are	 not	 able	 to	 participate	 in	 the	 communication,	 they	 must	 be	 given	

the	 opportunity	 to	 present	 facts	 and	 legal	 arguments	 before	 a	 decision	 on	

jurisdiction	is	made.”		19-A	M.R.S.	§	1740(2)	(emphasis	added).		In	contrast	to	

the	permissive	language	contained	in	section	1740(1)	and	in	the	first	sentence	

of	section	1740(2),	the	Legislature’s	use	of	the	mandatory	verb	“must”	plainly	

provides	 that	 if	 the	 court	 allows	 the	 parties	 to	 participate	 in	 its	

communication	 with	 an	 out-of-state	 court—but	 the	 parties	 are	 not	 able	 to	

participate	 in	 that	 conversation—the	 court	 is	 then	 required	 to	 provide	 those	

parties	an	opportunity	to	present	facts	and	legal	arguments	before	a	decision	

on	jurisdiction	is	made.			

        [¶18]	 	 Here,	 consistent	 with	 the	 plain	 language	 of	 section	 1740(2),	 the	

court	exercised	its	discretion	and	 declined	to	allow	the	parties	to	participate	

in	its	communication	with	the	Pennsylvania	court.		Having	done	so,	the	court	

was	not	then	required	to	give	Fitzpatrick	an	opportunity	to	present	facts	and	

legal	 arguments	 regarding	 jurisdiction	 before	 a	 decision	 on	 that	 issue	 was	

made.5	 	 Accordingly,	 because	 the	 court	 acted	 within	 the	 confines	 of	 section	

1740(2),	 and	 because	 Fitzpatrick	 had	 already	 presented	 facts	 and	 legal	


   5	 	 The	 better	 practice	 may	 have	 been,	 before	 making	 a	 decision	 regarding	 jurisdiction,	 to	
communicate	with	the	out-of-state	court	and	allow	the	parties	to	present	facts	and	arguments	on	
that	issue.		However,	19-A	M.R.S.	§	1740	(2017)	does	not	require	the	court	to	do	so.	
                                                                                   11	

arguments	 regarding	 jurisdiction	 on	 two	 occasions—first	 in	 his	 motion	 to	

dismiss	 and	 then	 in	 his	 motion	 to	 reconsider—we	 cannot	 say	 that	 the	 court	

abused	its	discretion	in	denying	Fitzpatrick	a	third	opportunity	to	address	the	

matter.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	     	   	     	     	
	
James	M.	Dunleavy,	Esq.,	Currier	&	Trask,	P.A.,	Presque	Isle,	for	appellant	Eric	
N.	Fitzpatrick	
	
Arlene	McCrary,	appellee	pro	se	
	
	
Houlton	District	Court	docket	number	FM-2013-121	
FOR	CLERK	REFERENCE	ONLY	
