MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2014 ME 145
Docket:   And-14-7
Argued:   November 5, 2014
Decided:  December 18, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM,
             JJ.



                          CYNTHIA STACEY-SOTIRIOU

                                          v.

                                 EVE A. SOTIRIOU

ALEXANDER, J.

         [¶1] In this appeal we review the careful and thorough work of the District

Court, which fully considered the parties’ claims and fulfilled its duty to decide the

issues respecting the best interest of the child. The court kept its focus on the best

interest of the child despite ill-advised actions of one parent that could have invited

a more summary disposition and less contact between that parent and the child.

         [¶2] Eve A. Sotiriou appeals from a judgment entered in the District Court

(Lewiston, Lawrence, J.) finding a substantial change of circumstances and

amending an earlier order governing parental rights and responsibilities to award

primary residence of the child to Cynthia Stacey-Sotiriou while allowing Eve to

have unsupervised visits with the child.        Previously, the court had granted

Cynthia’s motion for relief from judgment, pursuant to M.R. Civ. P. 60(b), to
2

vacate a parental rights order that Cynthia had agreed to as a precondition for

Eve’s return to the country with the child.

      [¶3] On appeal, Eve contends that the court erred in granting Cynthia’s

motion for relief from judgment and Cynthia’s motion to modify the judgment, and

that the court erred in not finding that Cynthia had committed fraud upon the court

by seeking relief from an order that she had agreed to as a precondition for Eve

returning to the country with the child. Eve also contends that the court erred and

abused its discretion in its determinations of her child support obligation and rights

of contact with the child. We affirm.

                                I. CASE HISTORY

      [¶4] Cynthia Stacey-Sotiriou and Eve A. Sotiriou are the legal parents of a

child born in December 2006. In July 2007, the parties traveled to Vietnam, where

Eve adopted the child. The adoption was recognized in Maine in September 2007.

On March 4, 2008, after our opinion in Adoption of M.A., 2007 ME 123, ¶¶ 23-31,

930 A.2d 1088, Cynthia and Eve jointly adopted the child in Maine. Cynthia and

Eve’s relationship ended in late 2008 or early 2009.

      [¶5] In April 2009, Eve filed with the Androscoggin County Probate Court a

petition seeking annulment of Cynthia’s adoption of the child, as well as a motion

for relief from the adoption judgment. The Probate Court (Couturier, J.) denied

the petition and motion, finding that Eve had consented to the adoption. Eve
                                                                                                   3

appealed the Probate Court’s decision to us. We affirmed the Probate Court’s

decision. In re Adoption of J.S.S., 2010 ME 74, 2 A.3d 281.

       [¶6] Meanwhile, in May 2009, Eve filed a complaint for a protection from

abuse order against Cynthia. See 19-A M.R.S. §§ 4005-4007 (2013). The parties

agreed to an order without a finding of abuse, which established parental rights and

responsibilities and a visitation schedule.              After further litigation within the

protection from abuse matter, a guardian ad litem (GAL) was appointed. After

investigation, the GAL found no evidence of abuse or risk caused by Cynthia

except for Eve’s allegations.1           The GAL recommended that the parties have

substantially equal time with the child. The agreed-upon order for protection was

later dismissed.

       [¶7]    In August 2009, Cynthia filed a petition for the determination of

parental rights and responsibilities pursuant to 19-A M.R.S. § 1653 (2013). After a

contested hearing, the court (Oram, M.) issued an interim order in January 2010,

establishing shared parental rights and responsibilities, with Eve to have primary

residence and Cynthia to have the child overnight on alternate weekends and

alternate Tuesdays after daycare.




   1
       In its findings supporting the orders presently on appeal, the District Court found that Eve’s
allegations that supported the protection from abuse order were not credible.
4

        [¶8] One month after issuance of the interim order, Eve disappeared with

the then three-year-old child. A detective from the Androscoggin County Sheriff’s

Office who was investigating the matter discovered that Eve had quit her job of ten

years, sold her cars and horses, and put her house on the market. On Cynthia’s

motion, the court issued a new interim order in March 2010 granting Cynthia sole

parental rights and responsibilities and primary residence, with supervised visits

for Eve. At that time, the whereabouts of Eve and the child were unknown.

Cynthia and law enforcement authorities later learned that Eve and the child lived

in Greece for ten months while Cynthia and law enforcement searched for them. 2

        [¶9] On August 10, 2010, as noted above, we affirmed the Probate Court’s

decision regarding Eve’s attempts to annul Cynthia’s adoption of the child.3

In re Adoption of J.S.S., 2010 ME 74, 2 A.3d 281. Sometime after we published

that opinion, while Eve and the child remained in Greece, an attorney representing

Eve contacted Cynthia’s attorney to negotiate a final judgment in the parental




    2
     As a result of her actions in taking the child to Greece and violating the court’s temporary order, Eve
was charged with criminal restraint by a parent (Class C), 17-A M.R.S. § 303(1)(A) (2013). When she
returned to Maine, the matter was resolved through a deferred disposition that reduced the charge to a
Class D offense.
    3
     Eve later attempted to attack this Court’s decision by filing a lawsuit against the State of Maine in
the United States District Court (District of Maine) in September 2012, through which she requested that
the United States District Court vacate the orders of this Court and the Probate Court. The matter was
dismissed with prejudice. See Sotiriou v. Maine, No. 1:12–cv–00270–JAW, 2012 WL 6679479, at *1
(D. Me. Dec. 21, 2012).
                                                                                 5

rights matter. At the time, the March 2010 interim order awarding Cynthia sole

parental rights governed the parties’ parental rights.

         [¶10] Eve, through counsel, indicated that she would not return with the

child unless Cynthia agreed to an order allowing Eve to have primary residence,

with Cynthia to have no more time with the child than stated in the January 2010

interim order. On November 18, 2010, the court (Carlson, M.) entered a judgment

of parental rights and responsibilities, by agreement of the parties, in which the

parties’ parental rights and rights of contact were the same as in the January 2010

interim order. On December 18, 2010, Eve returned to the United States with the

child.

         [¶11] In March 2011, Cynthia filed a motion to modify the November 2010

judgment, alleging a substantial change in circumstances upon the child’s return.

Later, in August 2011, Cynthia moved for relief from judgment pursuant to M.R.

Civ. P. 60(b)(3), alleging that she had agreed to the November 2010 judgment

under duress due to Eve’s misconduct in absconding with the child and requiring

Cynthia to accept the terms of the January 2010 interim order as a precondition for

the child returning to the United States.

         [¶12] On a motion by Eve, Cynthia’s motion to modify was stayed until the

court ruled on the Rule 60(b) motion. After a hearing, in an order supported by

extensive findings, the court (Lawrence, J.) granted Cynthia’s motion for relief
6

from the November 2010 judgment but kept the motion to modify on the docket in

the interest of finality for the child, anticipating that Eve might appeal from the

order granting Rule 60(b) relief.      Specifically, the court indicated that the

Rule 60(b) relief order would govern parental rights only “until its modification by

further interim court order or the entry of a final judgment in this action.” The

court’s order arranged for appointment of a guardian ad litem and initiated other

steps to prepare for a full hearing on the motion to modify.

      [¶13] Eve filed an appeal from the court’s order granting Rule 60(b) relief.

On Cynthia’s motion, we dismissed Eve’s appeal as interlocutory, noting that in

the interest of reducing delay and achieving finality for the child the court should

“proceed simultaneously” to address the original parental rights action and the

motion to modify.

      [¶14] After another hearing, the court entered an omnibus order in October

2013. This order made final the judgment on Cynthia’s complaint for parental

rights and responsibilities and granted Cynthia’s motion to modify, finding that

there had been a substantial change in circumstances sufficient to warrant

modification of the November 2010 judgment. Like the order on the motion for

relief from the November 2010 judgment, the omnibus order was supported by

extensive findings. The omnibus order also incorporated by reference the findings
                                                                                    7

from the order on the motion for relief. The omnibus order granted Cynthia

primary residence.

      [¶15]    The omnibus order demonstrated that the court had carefully

considered the evidence and arguments of both parties, and in doing so had

appropriately kept its focus, not on the past acts of the parents, but on what, going

forward, would be in the best interest of the child. The court found “that too much

of this litigation has been about the contentiousness of the parties’ relationship and

that not enough attention has been focused on what would be best for [the child].”

Noting that it had responsibility to function as parens patriae and act “as a wise,

affectionate and careful parent seeking to discern a custody arrangement which

furthers the child’s best interests, irrespective of the parents’ needs or desires”

(citing Ziehm v. Ziehm, 433 A.2d 727, 728 (Me. 1981)), the court recognized that it

had to “make a close examination of the present circumstances and future needs of

a minor child, and not just a limited examination of which parent is better suited to

accept physical custody.”

      [¶16] Despite Eve’s conduct in violating the January 2010 interim order and

absconding with the child, the court awarded Eve unsupervised contact with the

child, including overnights with the child on alternate weekends, various holidays,

one consecutive week of summer vacation, alternating school vacations, and any

other contact “mutually agreed upon by the parties.”         In doing so, the court
8

recognized the child’s need for significant time with Eve. The court also ordered

Eve to pay Cynthia $180 per week in child support, basing its calculation of Eve’s

earning capacity on a finding that Eve was “voluntarily underemployed and

[imputing to her] an earning capacity of $62,061.00 per year.” Eve then brought

this appeal pursuant to 14 M.R.S. § 1901 (2013) and M.R. App. P. 2.

                                     II. LEGAL ANALYSIS

        [¶17] As a preliminary matter, we do not reach the issue of whether the

District Court properly granted the M.R. Civ. P. 60(b) motion for relief from

judgment.       The final judgment in this case, the omnibus order, resolved the

underlying parental rights action and addressed Cynthia’s motion to modify based

on the court’s findings, well supported by the record, that there had been a

substantial change in circumstances sufficient to warrant modification of the

November 2010 order.             As the court’s decision was a final resolution of the

original parental rights action, plus a decision on the motion to modify, any

decision regarding the Rule 60(b) motion could afford Eve no effective relief, as

the order on the motion for relief was displaced by the ruling finalizing the original

parental rights action and resolving the motion to modify. Thus, the Rule 60(b)

issue is moot.4 See In re Janna Lynn M., 2002 ME 45, ¶¶ 11-12, 793 A.2d 506.


    4
      In addition, if we were to address the court’s earlier order, we would find no abuse of discretion or
error of law in the court’s determination that Cynthia’s agreement to the November 2010 order had been
                                                                                                              9

         [¶18] Eve also argues that the trial court erred and abused its discretion in

determining child support and rights of contact for her in the omnibus order.

A.       Child Support

         [¶19] Eve asserts that the trial court erred when it imputed to her an earning

capacity of $62,061, based on her earnings in the previous ten years. Instead, Eve

argues, the court should have looked to her current sources of actual income. She

argues that the child support award must be vacated and remanded because the trial

court’s finding that Eve was voluntarily underemployed was clear error.5

         [¶20] “Gross income may include the difference between the amount a party

is earning and that party’s earning capacity when the party voluntarily becomes or

remains unemployed or underemployed, if sufficient evidence is introduced

concerning a party’s current earning capacity.” 19-A M.R.S. § 2001(5)(D) (2013).

“The determination of whether a party is voluntarily underemployed is a question

of fact that we review for clear error.” Carolan v. Bell, 2007 ME 39, ¶ 19,

916 A.2d 945. If a parent is voluntarily underemployed, the court’s decision to

impute income or apply the parent’s earning capacity, rather than use his or her

made under duress and that Cynthia had not committed fraud upon the court by agreeing to the November
2010 judgment and later requesting relief from it.
     5
       Eve also argues that the trial court failed to consider her rental income in its calculation of her gross
income. See Coppola v. Coppola, 2007 ME 147, ¶¶ 10-11, 938 A.2d 786. However, unlike in Coppola,
it is the child support obligor who challenges the award, not the obligee. See id. ¶¶ 5, 7. Here, any error
by the trial court in failing to include Eve’s rental income in her gross income would result in a higher
obligation, meaning the error would be harmless to Eve. See M.R. Civ. P. 61.
10

current income, is discretionary. Id. “Findings are clearly erroneous if there is no

competent evidence in the record to support [them].”                     Id. ¶ 12 (alteration in

original).

         [¶21]   The court heard evidence of the following facts at the omnibus

hearing: (1) Eve has a B.A. in sociology and/or anthropology; (2) she worked as an

insurance adjuster for about twenty years; (3) she made approximately $62,0616

per year at the job that she held for about ten years before she abruptly quit that job

in February 2010 when she took the child to Greece; (4) when she returned to

Maine, Eve sought no employment in the insurance industry after approaching her

former employer about reemployment; and (5) Eve started a cleaning business and

estimated that she would earn $15,000 in 2013. Thus, there is competent evidence

to support the court’s finding that Eve was voluntarily underemployed, and Eve

has not demonstrated that the trial court abused its discretion by imputing her

earning capacity for her gross income.

B.       Rights of Contact

         [¶22]    “The [trial] court, in making an award of parental rights and

responsibilities with respect to a child, shall apply the standard of the best interest

of the child,” with a primary focus on “the safety and well-being of the child”

     6
     This figure was based on Eve’s earnings in 2008, as reported on her 2008 federal tax return, which
was offered as an exhibit at the omnibus hearing. Eve’s 2009 tax return showed that she earned even
more money—$68,485—in 2009.
                                                                                   11

when deciding rights of contact. 19-A M.R.S. § 1653(3). In applying the best

interest of the child standard, the trial court considers the factors enumerated in

19-A M.R.S. § 1653(3). We review “child custody decisions for a clear abuse of

discretion or error of law.” Grenier v. Grenier, 2006 ME 99, ¶ 20, 904 A.2d 403.

“The ultimate determination of the weight to be given each [best interest] factor

requires careful consideration by the court and is left to the sound discretion of the

court.” Akers v. Akers, 2012 ME 75, ¶ 3, 44 A.3d 311. “The court’s decision

regarding the best interests of the child is entitled to substantial deference and its

findings will stand unless clearly erroneous.”       Grenier, 2006 ME 99, ¶ 20,

904 A.2d 403.

      [¶23]     The trial court’s parental rights and responsibilities award is

supported by its findings that (1) the animosity between the parties has been

detrimental to the child’s health; (2) Eve has continually attempted to “influence

[the child] to dislike and/or distrust [Cynthia]”; (3) while the child has resided

primarily with her, Cynthia has rebuilt their relationship; (4) the child has a bond

with each parent, and each parent is capable of caring for him; (5) the child is more

relaxed, behaviorally appropriate, and social now that he has been residing

primarily with Cynthia during the week; and (6) primary residence with Cynthia

will allow both parties to have a healthy relationship with the child, and primary

residence with Eve would not allow that.         These findings are supported by
12

competent evidence in the omnibus hearing record, and each finding is directed

toward examining the child’s best interest. See 19-A M.R.S. § 1653(3)(B), (D),

(F), (G), (H), (N), (S). Therefore, the court did not err or abuse its discretion in its

award of rights of contact, including unsupervised contact, to Eve.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Amy L. Fairfield, Esq., Fairfield & Associates, Lyman, for
        appellant Eve Sotiriou

        Teresa M. Cloutier, Esq., Lambert Coffin, Portland, for
        appellee Cynthia Stacey-Sotiriou


At oral argument:

        Jeanette M. Durham, Esq., Fairfield & Associates, Lyman, for
        appellant Eve Sotiriou

        Teresa M. Cloutier, Esq., for appellee Cynthia Stacey-Sotiriou



Lewiston District Court docket number FM-2009-575
FOR CLERK REFERENCE ONLY
