June 21, 2018




                                                                       Supreme Court
                                                                       No. 2016-9-Appeal.
                                                                       (W 11-120)




                Lauren Daley Ainsworth            :

                          v.                      :

                   John Ainsworth.                :




                    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 222-
                    3258 of any typographical or other formal errors in order that
                    corrections may be made before the opinion is published.
                                                                    Supreme Court
                                                                    No. 2016-9-Appeal.
                                                                    (W 11-120)


         Lauren Daley Ainsworth                  :

                     v.                          :

             John Ainsworth.                     :



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

                                         OPINION

       Justice Robinson, for the Court. The plaintiff, Lauren Daley Ainsworth, appeals from

a July 22, 2015 order of the Family Court denying her motion to relocate with the parties’ four

minor children from Rhode Island to Australia. Her several appellate contentions are

summarized later in this opinion.

       This case came before the Supreme Court for oral argument pursuant to an order

directing the parties to appear and show cause why the issues raised in this appeal should not be

summarily decided. After reviewing the record and considering the written and oral submissions

of the parties, we are satisfied that cause has not been shown and that this appeal may be

resolved without further briefing or argument.

       For the reasons set forth in this opinion, we affirm the order of the Family Court.




                                                 -1-
                                                 I
                                        Facts and Travel

       The plaintiff, Lauren, and defendant, John,1 were married in Australia on October 2,

1999, and four children were born of that marriage: Hope, Sydney, Jenny, and Jack.2 Lauren is

a citizen of Australia with permanent residency status in the United States, while John is a citizen

of the United States; the children have dual citizenship. On March 23, 2011, Lauren filed for

divorce on the ground that irreconcilable differences between the parties had led to the

irremediable breakdown of the marriage. On October 31, 2012, while the divorce proceedings

were pending, Lauren filed a motion to relocate to Australia with the children. On December 7,

2012, a justice of the Family Court issued a decision pending entry of final judgment,3 which (in

pertinent part) awarded joint custody of the children to the parties, with “physical possession” of

the children being granted to Lauren and with John having “all reasonable rights of visitation.”4

More than a year later, a different justice of the Family Court conducted a hearing on Lauren’s

motion to relocate, which hearing took place over the course of five days in July and August of

2014. On August 27, 2014, said justice issued a bench decision denying the motion to relocate;

and, on July 22, 2015, a final order denying the motion to relocate was entered, from which

Lauren timely appealed. We summarize below the pertinent testimony adduced at the hearing on

Lauren’s motion to relocate.

1
       We refer to the parties by their first names for the purpose of clarity only; we intend no
disrespect by doing so.
2
       The record reflects that all four children were born in the United States—Hope in January
of 2001; Sydney in July of 2003; Jenny in November of 2007; and Jack in September of 2009.
3
       See Rule 1.8 of the Rhode Island Family Court Rules of Practice.
4
        A final judgment granting the divorce was not entered until July 22, 2015; the reason for
the delay is not clear from the record.



                                               -2-
                                                A

                                   The Testimony of Lauren

       Lauren testified that, at the beginning, her marriage to John was “really good,” but that it

began to deteriorate after the first six months—a deterioration that she attributed to John’s

alcohol abuse. Lauren recounted several instances of John’s behavior while he was intoxicated,

including several occasions when John allegedly threw various objects at her in the presence of

the children. She also testified about John’s purported abuse of the family dog and about a

recurring situation in which John would allegedly drive up and down the street in front of their

home in the presence of the children, “do[ing] burn outs” and “throw[ing] beer bottles.” She

further testified about an incident in November of 2011, after the divorce proceedings had

commenced and while the children were living primarily with her and occasionally visiting John.

According to Lauren, on November 18, 2011, John became intoxicated while caring for the

children during one of their visits with him. She stated that, on that date, she had received a

“hysterical” phone call from Sydney, who said that she “couldn’t wake up daddy.” Lauren

further testified that, upon receiving Sydney’s phone call and before driving to John’s residence,

she had called the police and asked them to check on the children. The police report concerning

that incident (a full exhibit at the hearing) stated that, when Lauren arrived to pick up the

children, John “became very irate” and lunged at Lauren while “screaming for her to leave.”

        Lauren next testified that, during the divorce proceedings, both prior to and subsequent

to the issuance of the December 7, 2012 decision pending entry of final judgment, she, John, and

the children began attending monthly counseling sessions with Dr. Brian C. Hayden. She stated

that the purpose of the counseling sessions was to conduct “reunification therapy for all of the

children with their father and then co-parenting for John and myself.” According to Lauren, these




                                               -3-
sessions were successful; she added that, as a result, the Family Court allowed the children to

“have unsupervised overnight visitation with their father.” However, Lauren further stated that,

in spite of the apparent improvement in the relations between the parties, John still used his

phone to record his interactions with her whenever she picked up or dropped off the children for

visitation.

        Lauren explained that she wished to relocate with the children to Australia because such a

relocation would offer her significantly better economic prospects and would provide a better

quality of life for her and the children and also because she was concerned about her father, who

lived in Australia and who had, shortly before the filing of her motion to relocate, been

diagnosed with a terminal illness. She testified that, despite the fact that she held a college degree

from a university in Australia, she had been unable to find a well-paying, stable job in Rhode

Island; she added that, as a result, she worked part-time cleaning houses, earning approximately

$250 a week. She stated that, in contrast, she had been offered a management position at a store

in Australia, at an approximate annual salary of $60,000. Lauren also testified that, while living

in Rhode Island, she and the children had been relying on “food stamps” and heating assistance

from the State of Rhode Island; she added that the house in which she resided with the children

was then enmeshed in foreclosure proceedings. Lauren went on to state that, if she were

permitted to relocate to Australia with the children, she and the children would be able to live in

her parents’ home, rent-free, which would alleviate many of her financial concerns. Lauren also

testified that she intended to seek further education in order to obtain a teaching degree as a way

of improving her economic prospects. She testified as to her understanding that it would take

“[s]even years part time; four years full time” to obtain a teaching degree in Rhode Island. She

further testified as to her understanding that the pursuit of such a degree in Rhode Island would




                                                -4-
cost her “[b]etween [$]80,000 and $100,000,” and she added that her lack of American

citizenship made her ineligible for financial aid in this country. She stated that, in contrast, she

could pursue a teaching degree at the University of Wollongong by paying an annual fee of

$131.50 for full-time study; and a document reflecting her “Conditional Offer of Admission” to

the graduate teaching program at that university was admitted as a full exhibit.

          Lauren further testified that she believed that it was “very important for the children to

have a strong relationship with both their mother and their father;” and, to that end, she proposed

a visitation schedule whereby the children, if they were relocated to Australia, would fly to

Rhode Island for visitation with John during their school breaks. She stated that, under her

proposed visitation schedule, the children would visit their father in Rhode Island for two weeks

in April, two weeks in July, and an additional six weeks in December and January; she clarified

that the six-week visit would occur during the Australian Summer, when the school year in that

country would be over. Lauren added that, in addition to the several proposed visits to Rhode

Island by the children, John would be welcome to visit the children in Australia “whenever he

liked.”

                                                  B

                                      The Testimony of John

          John testified that he had a “wonderful” relationship with his children. After

acknowledging that his work as an “offshore fisherman” required regular absences from Rhode

Island, John testified that he had been as actively involved in raising the children as he possibly

could. He explained that, when he was on shore, he frequently took the children on bicycle rides

and camping trips and participated in other outdoor activities with them. He further testified that

he opposed Lauren’s motion to relocate to Australia with the children because, in his estimation,




                                                 -5-
it would cause his relationship with the children to “suffer greatly,” and he said that he was

afraid that the children would grow to resent traveling from Australia to Rhode Island to visit

him during their school breaks. He further testified that relocation would negatively impact the

children’s relationships with his side of the family as well as their relationships with their school

and church friends in Rhode Island.

       While John admitted that he had suffered from an alcohol problem during his marriage to

Lauren, he denied most of the alcohol-related misconduct about which Lauren testified, and he

stated that he had never been convicted of the domestic assault charges which Lauren had lodged

against him and which had served as the basis for the restraining orders that she had successfully

sought. He did acknowledge, however, that, on November 18, 2011, police officers had removed

the children from his care because he had, in his own words, “got[ten] drunk and passed out on

the floor.” He testified that that incident had caused him to become temporarily estranged from

his two oldest daughters, but he added that he had remained sober since that date and agreed that

he was very proud that he had attended Alcoholics Anonymous.

       John testified that, in April of 2012, during one of his visits with the children, he

discovered a recording device which had been sewn into the clothing of one of the children; and

he said that he believed Lauren was responsible for that device being there. (In an emergency

motion filed with the Family Court on April 27, 2012, John had stated that he believed Lauren

“ha[d] been serupticiously [sic] taping Dr. Hayden[’]s sessions as well,” and he asked the Family

Court to prohibit Lauren from “alienat[ing] the minor children of the parties from their father.”

Thereafter, the Family Court granted a “conditional [o]rder of removal” providing that the

children would be removed from Lauren’s care if she continued to “record either audio or video

of the minor children of the parties with their father, the counselors, father’s extended family or




                                                -6-
any service providers during any visitations or otherwise.”) John further testified, however, that,

despite what he characterized as Lauren’s attempts to alienate the children from him, the

counseling sessions with Dr. Hayden were able to open the lines of communication between him

and his two oldest daughters and that, as a result of the success of those sessions, he now enjoys

regular, unsupervised visitation with all four children.

       John stated that, when effectuating visitation, the parties would meet in public places to

exchange the children, on which occasions he and Lauren did not speak to each other. He further

admitted that he regularly used his iPhone to record the pick-up and drop-off interactions with

Lauren in order “to protect [himself]” and “to keep [Lauren] honest.”5

                                                   C

                           The Testimony of the Guardian Ad Litem

       The guardian ad litem, an attorney, testified that she became involved with the Ainsworth

family in October of 2011 and that she thereafter submitted two reports to the Family Court: an

interim report dated February 24, 2012 and a final report dated July 31, 2014. Both reports were

admitted into evidence as full exhibits. In her interim report, the guardian ad litem stated that

“relocation should only take place [at] a time when the relationship between Mr. Ainsworth and

his youngest children has been firmly re-established and all avenues to re-establish the

relationship between Mr. Ainsworth and his two older children have been exhausted.” In her

final report, the guardian ad litem noted the practical difficulties that an international relocation

would occasion for the parties, in view of the expensive and complex nature of international

travel and the parties’ limited financial means.



5
        Both John and Lauren testified in considerable detail about the poor quality of their
relationship in the past and as of the time of the hearing. However, we see no necessity for
narrating each and every detail of their testimonies in that regard.


                                                   -7-
       The guardian ad litem testified that, when she first became involved with the Ainsworth

family, the relationship between John and Lauren was “very acrimonious;” and she recounted

that, in 2012, Lauren had sewn a recording device into the clothing of one of the children. She

added, however, that, since that incident, Lauren had become “very, very cooperative” with

respect to arranging visitation and that, as a result, the children had “cemented and enriched”

their relationships with John.

       When asked about the children’s preferences with respect to the proposed relocation, the

guardian ad litem admitted that, although she believed at least two of the children were old

enough to express an opinion on the subject, she had not spoken directly to any of the children in

“a long time,” estimating that approximately one year had elapsed since she had most recently

had a conversation with any of the children. She testified in an internally inconsistent and

noticeably halting manner as to the ages of the four children, and she admitted that she was “not

sure” what grades the children were in.

       The guardian ad litem’s final report recommended that Lauren “retain primary

placement” of the children and that John continue to enjoy “frequent and liberal visitation” with

the children. The final report of the guardian ad litem further stated that “relocation to Australia

would certainly benefit [Lauren],” but she also noted that relocation would result in the children

having only “minimal contact” with John. Additionally, her report stated that “the ability of the

children to travel the distance from one continent to another at this point in their lives is very

questionable, both from a feasibility and financial standpoint.” Although her final written report

neither endorsed nor rejected the proposed relocation to Australia, the guardian ad litem testified

unequivocally at the hearing that, in her opinion, relocation would not be in the best interests of

the children.




                                               -8-
                                                D

                             The Testimony of Christine McGrane

       Christine McGrane testified that she was a registered nurse and that she had previously

worked as a school nurse at the elementary school which Hope had formerly attended. She stated

that she first encountered the Ainsworth family when Hope was in fourth grade, at which time

she had provided Lauren with vouchers to purchase new shoes for the children. She testified that

she thereafter kept the Ainsworth family “on [her] radar” with respect to their receiving various

forms of assistance from the community, such as food for Thanksgiving, gifts at Christmastime,

and heating assistance over the course of several winters.

                                                E

                                The Hearing Justice’s Decision

       On August 27, 2014, the hearing justice delivered a bench decision spanning twenty

transcript pages denying Lauren’s motion to relocate.6 After summarizing the testimony of the

witnesses and reviewing the exhibits introduced by both parties, the hearing justice stated that

the “seminal question” in this case was “the feasibility of preserving the relationship between the

non-relocating parent and [the] children through suitable visiting arrangements considering th[e]

logistics and financial circumstances of the parties.”7 He questioned the practicability of

Lauren’s proposed visitation schedule, which would require that the children make round-trip

flights between Australia and Rhode Island several times each year; and he observed that such

travel would impose “a very heavy financial burden” on the parties, neither of whom had “an

abundance of money.” The hearing justice also found that “the testimony as well as the exhibits

6
       A final order denying plaintiff’s motion to relocate was entered on July 22, 2015.
7
       The phrase quoted by the hearing justice is from this Court’s opinion in Dupré v. Dupré,
857 A.2d 242, 258 (R.I. 2004).


                                               -9-
presented in this case [indicated] that [Lauren] would not endeavor to actively foster a close and

continuous relationship between the children and their father * * *.” The just-referenced finding

was an important factor in the hearing justice’s ultimate conclusion that relocation would not be

in the children’s best interests.

                                                 II
                                       Standard of Review

        “It is a firmly established principle in family law that the paramount consideration in

relocation cases is the best interests of the child or children.” DePrete v. DePrete, 44 A.3d 1260,

1271 (R.I. 2012) (emphasis in original) (internal quotation marks omitted). The determination of

what is in the best interests of the children is “appropriately placed in the sound discretion of the

trial justice.” Dupré v. Dupré, 857 A.2d 242, 256 (R.I. 2004); see also Pettinato v. Pettinato, 582

A.2d 909, 913 (R.I. 1990). “On review, this Court will not disturb the findings of fact made by a

justice of the Family Court with respect to the issue of custody and the best interests of the

child[ren] unless the hearing justice abused his or her discretion in making such findings.”

DePrete, 44 A.3d at 1270. Accordingly, we will affirm the Family Court’s ruling “unless the trial

justice’s factual findings overlooked or misconceived material evidence or were clearly wrong.”

McDonough v. McDonough, 962 A.2d 47, 52 (R.I. 2009); see also In re Estate of Ross, 131 A.3d

158, 166 (R.I. 2016).

                                                III

                                             Analysis

                                                 A

                                      The Pertinent Factors

        This Court has set forth several factors that the hearing justice must consider in

determining the best interests of the children when he or she is confronted with a motion to



                                               - 10 -
relocate. First, the hearing justice must address the eight factors articulated in this Court’s

opinion in Dupré. Second, the hearing justice must address such of the eight factors articulated in

Pettinato as are relevant to the relocation issue. See Dupré, 857 A.2d at 257-59; Pettinato, 582

A.2d at 913-14.

        In our opinion in Dupré, we identified the following factors that are to be considered

“whenever a parent seeks to move with his or her children:”

               “(1) The nature, quality, extent of involvement, and duration of the
               child’s relationship with the parent proposing to relocate and with
               the non-relocating parent. * * *

               “* * *

               “(2) The reasonable likelihood that the relocation will enhance the
               general quality of life for both the child and the parent seeking the
               relocation, including, but not limited to, economic and emotional
               benefits, and educational opportunities. * * *

               “(3) The probable impact that the relocation will have on the
               child’s physical, educational, and emotional development. Any
               special needs of the child should also be taken into account in
               considering this factor. * * *

               “(4) The feasibility of preserving the relationship between the non-
               relocating parent and child through suitable visitation
               arrangements, considering the logistics and financial circumstances
               of the parties. * * *

               “***

               “(5) The existence of extended family or other support systems
               available to the child in both locations. * * *

               “(6) Each parent’s reasons for seeking or opposing the relocation.

               “***
               “***
               “***

               “(7) In cases of international relocation, the question of whether
               the country to which the child is to be relocated is a signatory to



                                              - 11 -
               the Hague Convention on the Civil Aspects of International Child
               Abduction will be an important consideration.

               “(8) To the extent that they may be relevant to a relocation inquiry,
               the Pettinato factors also will be significant * * *.” Dupré, 857
               A.2d at 257-59.

It should also be noted that we have indicated that “[n]o single [Dupré] factor is dispositive” and

that “[e]ach case will present its own unique circumstances that a trial justice must balance and

weigh as he or she deems appropriate.” Valkoun v. Frizzle, 973 A.2d 566, 577 (R.I. 2009).

       Our earlier decision in Pettinato had set forth the following factors that are to be

“weighed in the best interests of the child analysis when relevant[:]”

               “1. The wishes of the child’s parent or parents regarding the child’s
               custody.

               “2. The reasonable preference of the child, if the court deems the
               child to be of sufficient intelligence, understanding, and experience
               to express a preference.

               “3. The interaction and interrelationship of the child with the
               child’s parent or parents, the child’s siblings, and any other person
               who may significantly affect the child’s best interest.

               “4. The child’s adjustment to the child’s home, school, and
               community.

               “5. The mental and physical health of all individuals involved.

               “6. The stability of the child’s home environment.

               “7. The moral fitness of the child’s parents.

               “8. The willingness and ability of each parent to facilitate a close
               and continuous parent-child relationship between the child and the
               other parent.” Pettinato, 582 A.2d at 913-14 (footnotes omitted).

Just as we have said with respect to the Dupré factors, we have previously stated that, in

assessing the Pettinato factors, “[t]he best interests of the child should not be determined by




                                               - 12 -
assessing any one factor;” rather, “[t]he trial justice must consider a combination of and an

interaction among all the relevant factors that affect the child’s best interests.” Id. at 914.

        Additionally, we accord deference to the sound discretion of the hearing justice in

assessing and weighing both sets of factors because “[i]t is the trial justice who is in the best

position to determine what factors may be relevant on a case-by-case basis * * *.” Dupré, 857

A.2d at 257.

                                                   B

                                    The Arguments on Appeal

        Lauren makes three arguments on appeal. First, she contends that the hearing justice

clearly erred in assessing the evidence because he gave “too much weight to [John’s] present

appearance before the Court” and accorded too little weight to his past misdeeds, while also

failing to give “adequate consideration” to the economic benefits that relocation would bring

about for Lauren and the children. Further expounding on this argument, Lauren also contends

that the hearing justice overlooked material evidence by failing to properly take into account the

fact that the parties’ “utter loathing” for each other resulted in a “significant detriment” to the

children. Second, Lauren argues that the hearing justice overlooked or misconceived material

evidence when he “failed to acknowledge or address” the testimony of the school nurse

(Christine McGrane), who, according to Lauren, had observed “the children at school and

socially.” Third, Lauren contends that, in determining whether relocation would serve the best

interests of the children, the hearing justice failed to properly apply the criteria set forth in the

Dupré and Pettinato cases because there was no testimony about the children’s reasonable

preferences with respect to the proposed relocation. We shall address each of these arguments in

turn.




                                                 - 13 -
                                                C

                       The Argument as to the Weight of the Evidence

       Lauren’s first argument on appeal is unavailing. In our view, the hearing justice

appropriately weighed the Dupré factors (and the relevant Pettinato factors) and then proceeded

to render a well-reasoned decision, which properly took into account all of the material evidence

presented at the hearing.

       In determining whether, as Lauren contends, the hearing justice accorded “too much

weight to [John’s] present appearance before the Court” during the hearing while according too

little weight to his previous misdeeds, we look to the hearing justice’s consideration of the first

Dupré factor—viz., “[t]he nature, quality, extent of involvement, and duration of the child’s

relationship with the parent proposing to relocate and with the non-relocating parent.” Dupré,

857 A.2d at 257. In assessing that factor, the hearing justice explicitly addressed John’s former

alcohol abuse, finding that “[t]he breakup of [the] marriage was caused by [John’s] excessive

drinking.” However, the hearing justice also acknowledged that, at the time of the hearing, both

parents were engaged in meaningful relationships with the children; he found that “these children

have a strong bond with their mother” and that John had regular contact and visitation with the

children. He further found that John was “a member of [Alcoholics Anonymous]” and that he

had been sober “since November, 2011.” He further observed that John “ha[d] done everything

that the [Family Court had] required to re-establish his relationship with the children after the

separation.”

       Similarly, in assessing Lauren’s contention that the hearing justice failed to give adequate

consideration to the positive economic benefits of relocation, we note the hearing justice’s

analysis of the second and third Dupré factors. Id. at 258. In addressing the second Dupré factor




                                              - 14 -
(viz., “[t]he reasonable likelihood that the relocation will enhance the general quality of life for

both the child and the parent seeking the relocation, including, but not limited to, economic and

emotional benefits, and educational opportunities”), the hearing justice specifically took into

account the fact that “there [was] no doubt that * * * relocation would, in fact, serve to enhance

the economic standing and well-being of the mother” and that, as a result, “the children’s

economic standings would also be increased and favorably impacted.” Id. Likewise, in

addressing the third Dupré factor (viz.,“[t]he probable impact that the relocation will have on the

child’s physical, educational, and emotional development”), the hearing justice noted that, in

view of the fact that the children had lived their entire lives in Rhode Island, where they attended

school and were involved in their community, they had been “bonded to Rhode Island.” Upon

reviewing the hearing justice’s findings and keeping in mind the applicable standard of review,

we are unpersuaded by Lauren’s contention that the hearing justice improperly weighed the

evidence with respect to John’s “present appearance before the Court” as compared with his past

misdeeds or with respect to the potential economic benefits of relocation.

       We would add that Lauren’s further contention that the hearing justice improperly

weighed the impact that the parties’ “utter loathing” for each other had on the children is

unpersuasive. The hearing justice expressly noted that the relationship between the parties was

“horrible to put it mildly,” and he found that Lauren and John “d[id] not speak” except by email

to arrange visitation, and that “[Lauren] doesn’t want to have anything to do with [John].” He

cited as an example of the mistrust between the parties the fact that “on more than one occasion,

the mother secretly placed electronic recording devices in the clothing of one or more of the

children during visitation with their father * * *.” He further found that arranging visitation

sometimes required between seventeen and twenty-four emails between the parties; and, he




                                               - 15 -
accordingly questioned whether the parties would be capable of arranging international visitation

on a regular basis, given the greater complexity inherent in such visitation. Then, after taking

into account these considerations and the others previously mentioned, the hearing justice found

that the petition for relocation to Australia should be denied.

       It should go without saying that the “best interests” criterion requires a considered

judgment to be made as to what will best serve the children. That is not to say, however, that the

non-prevailing party in this case has failed to articulate legitimate arguments; nevertheless, in the

end, a reasoned conclusion had to be made by the finder of fact. Conceivably, another judicial

officer might have assessed the evidence in this case differently; but we perceive no reversible

error in the conclusions reached by the hearing justice, and we are ever mindful of the principle

that “we shall not substitute our view of the evidence for [that of the trial justice] even though a

contrary conclusion could have been reached.” Wellington Condominium Association v.

Wellington Cove Condominium Association, 68 A.3d 594, 599 (R.I. 2013) (internal quotation

marks omitted); see also Process Engineers & Constructors, Inc. v. DiGregorio, Inc., 93 A.3d

1047, 1052 (R.I. 2014); Grady v. Narragansett Electric Co., 962 A.2d 34, 41 (R.I. 2009); see

generally Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216 (1947) (Black, J.) (stating,

albeit in the context of a slightly different procedural issue, that there should be deference at the

appellate level to the discretionary determination of “the judge who saw and heard the witnesses

and has the feel of the case which no appellate printed transcript can impart”). After carefully

scrutinizing the record, it is our view that the hearing justice pointed to sufficient evidence in the

record to support his conclusion that the nature of the parties’ relationship militated against

allowing Lauren to relocate to a distant country with the minor children. As such, we perceive no

error in the weight he accorded to the negative relationship between the parties.




                                                - 16 -
                                                 D

                  The Argument as to the Testimony of Christine McGrane

       Lauren’s second argument on appeal (viz., that the hearing justice overlooked or

misconceived material evidence by failing to reference Christine McGrane’s testimony in his

decision) is also unpersuasive. It is well established that a hearing justice “need not engage in an

exhaustive review and analysis of all of the evidence and testimony presented at trial” so long as

he or she “make[s] reference to such facts disclosed by the testimony as have motivated his or

her conclusion.” Bitgood v. Greene, 108 A.3d 1023, 1028 (R.I. 2015) (internal quotation marks

omitted); see also H.J. Baker & Bro., Inc. v. Orgonics, Inc., 554 A.2d 196, 202 (R.I. 1989)

(concluding that the hearing justice need not refer to “every piece of evidence” so long as he

refers to “the specific evidence that prompted his decision”). In the instant case, although the

hearing justice did not mention Ms. McGrane by name, his decision did refer to the only truly

salient aspect of her brief testimony—namely, that Lauren has historically suffered from

financial hardships. Specifically, he found that, at the time of the relocation hearing, Lauren was

unemployed, “surviving on food stamps and the generosity of friends and church members,” and

that she was “in the process of having her home foreclosed * * *.” The record reflects that the

hearing justice properly considered Lauren’s financial situation insofar as it was relevant to

determining whether relocation would be in the children’s best interests. Accordingly, we

perceive no reversible error in the hearing justice’s not mentioning Ms. McGrane by name in his

decision and not delving into the details of her testimony.




                                               - 17 -
                                                  E

               The Argument as to the Reasonable Preferences of the Children

       With respect to Lauren’s third argument (viz., that the hearing justice abused his

discretion by failing to hear testimony about the children’s reasonable preferences regarding the

proposed relocation), we again perceive no error. Lauren bases this argument on the second

Pettinato factor, which provides that, when passing on a motion to relocate, the hearing justice

must consider “[t]he reasonable preference of the child, if the court deems the child to be of

sufficient intelligence, understanding, and experience to express a preference.” Pettinato, 582

A.2d at 913. Although Lauren correctly notes that the hearing justice did not hear any testimony

about the reasonable preferences of the “two oldest of the parties’ minor children,” it is

nonetheless our view that the hearing justice properly assessed all of the Dupré factors and the

relevant Pettinato factors and that he had no duty to act sua sponte to seek additional evidence,

such as testimony by the children. While we recognize that judicial officers have the authority to

call and interrogate witnesses, we are of the opinion that they are not usually obliged to call such

witnesses when the parties have opted not to do so. See R.I. R. Evid. 614.8

       In the instant case, after reviewing the evidence presented by the parties and summarizing

the controlling law, the hearing justice began his analysis by acknowledging that he had received

“no input in this matter from the children,” and he attributed the lack of such evidence to the

guardian ad litem’s inadequate testimony on the subject. He stated that “[t]he Family Court relies

on guardians ad litem * * * to advocate for the best interest of the child * * * [and] to bring to the

Court’s attention the wishes and desires of the children.” He found that it had been more than a

year since the guardian ad litem had spoken with the children, and he expressed that he was less

8
       It is noteworthy that Lauren was represented by counsel (as was John) at the hearing on
the motion to relocate.


                                                - 18 -
than thrilled with her inability to adequately represent their interests. The hearing justice then

explained that it was his duty to decide Lauren’s motion to relocate even in the absence of

evidence of the children’s preferences, and he proceeded to do just that.

       We are of the view that, insofar as Lauren believed that the children’s reasonable

preferences should have been made known during the hearing, it was her attorney’s

responsibility to submit evidence of those preferences; counsel’s failure to do so did not impose

upon the hearing justice an obligation to call the children as witnesses. See, e.g., Bajakian v.

Erinakes, 880 A.2d 843, 848 n.7 (R.I. 2005) (“It should go without saying that, as between the

proponent of evidence and the trial justice, the responsibility for suggesting and advocating for

[the admission of particular evidence] falls upon the proponent.”). Accordingly, we perceive no

error in the hearing justice’s assessment of the evidence (or the lack thereof) as to the children

with respect to the proposed relocation.

                                                IV

                                           Conclusion

       Having carefully reviewed the evidence and the arguments of the parties as well as the

clearly articulated reasoning of the hearing justice in denying Lauren’s motion to relocate with

the minor children to Australia, it is our view that the hearing justice did not overlook or

misconceive material evidence in reaching his decision, nor were his factual findings clearly

wrong. The hearing justice reviewed each Dupré factor in light of the evidence presented, and he

also considered the relevant Pettinato factors; he then proceeded to render a logical and well-




                                              - 19 -
reasoned decision. Accordingly, we decline to disturb his ruling that relocation of the minor

children to Australia would not be in their best interests. See Dupré, 857 A.2d at 257.9

       For the reasons set forth in this opinion, we affirm the order of the Family Court. The

record may be returned to that tribunal.



Justice Indeglia did not participate.




9
       We are impressed by the conscientious manner in which the hearing justice in the Family
Court wrestled with the competing considerations at issue in the instant case—a case that he
candidly described as having been “extremely difficult for the Court.”


                                               - 20 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Lauren Daley Ainsworth v. John Ainsworth.
                                     No. 2016-9-Appeal.
Case Number
                                     (W 11-120)
Date Opinion Filed                   June 21, 2018

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

Written By                           Associate Justice William P. Robinson III

Source of Appeal                     Washington County Superior Court

Judicial Officer From Lower Court    Associate Justice Raymond E. Shawcross
                                     For Plaintiff:

                                     Michael P. Lynch, Esq.
Attorney(s) on Appeal                For Defendant:

                                     Steven A. Robinson, Esq.
                                     Daniel Chaika, Esq.




SU-CMS-02A (revised June 2016)
