MAINE SUPREME JUDICIAL COURT                                                Reporter of Decisions
Decision:    2019 ME 155
Docket:      Cum-19-131
Submitted
  On Briefs: October 24, 2019
Decided:     October 31, 2019

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



                                       CORY M. KELLEY

                                               v.

                                      LAURA E. MCKEE


PER CURIAM

         [¶1]     Laura McKee appeals from a judgment of the District Court

(Portland, Darvin, J.) denying her motion to modify an order determining her

and Cory Kelley’s parental rights and responsibilities with respect to the

parties’ daughter. McKee argues that the court erred or abused its discretion

by (1) failing to find that a substantial change in circumstances had occurred

since the original determination of Kelley’s visitation rights with the child, and

(2) determining that the child’s best interests would not be served by granting

her motion to modify.1 We affirm the judgment.



  1  We find the other arguments raised in McKee’s brief unpersuasive, and we do not address them
further.
2

                              I. CASE HISTORY

      [¶2] Viewed in the light most favorable to the court’s judgment, the

record supports the following facts. See Young v. Young, 2015 ME 89, ¶ 2,

120 A.3d 106.

      [¶3] McKee and Kelley are the parents of a three-year-old child. Shortly

after the child was born, McKee left Maine with the child because Kelley had

acted violently toward McKee.       Kelley subsequently filed a petition to

determine parental rights and responsibilities in September 2016. In August

2017, the District Court (Montgomery, J.) issued a judgment determining the

parties’ parental rights and responsibilities. McKee was awarded primary

physical residence, and Kelley was allowed weekly supervised visits at the

Maine Supervised Visitation Center (MSVC).        The court’s judgment also

established Kelley’s child support obligations and directed the return to McKee

of certain personal property, including her dog, Boomer.

      [¶4] Following the entry of that judgment, Kelley had weekly visits with

the child at MSVC until McKee suspended them in October 2018, at which time

she filed the present motion to modify. The District Court (Darvin, J.) held a

hearing on the motion on February 21, 2019.
                                                                                3

      [¶5] Evidence at the hearing indicated that McKee stopped bringing the

child to supervised visits as a result of several incidents. First, McKee learned

that, in August 2018, Kelley had abused his son from a different relationship.

Specifically, Kelley had struck or slapped his son on the back, resulting in

“scarring.” Second, McKee was concerned about her child’s safety after hearing

from the owner of MSVC that Kelley had, during a visit on September 27, 2018,

picked up the child and insisted on receiving a hug even after the child had told

Kelley, “No.” The incident on September 27 was the only negative interaction

that the owner of MSVC had witnessed between Kelley and the child in roughly

fifty visits. Third, on at least three occasions, Kelley had violated a no-contact

order in place between the parties.

      [¶6] The District Court denied McKee’s motion, finding that McKee had

not shown either (1) a substantial change in circumstances or (2) that a

modification to the parties’ parental rights and responsibilities was in the

child’s best interests. McKee filed a motion for further findings of fact, which

the court denied. McKee timely appealed the District Court’s judgment. See

M.R. App. P. 2B.
4

                               II. LEGAL ANALYSIS

      [¶7] We review a ruling on a motion to modify a parental rights and

responsibilities order for findings unsupported by the record, an abuse of

discretion, or an error of law. See Jackson v. MacLeod, 2014 ME 110, ¶¶ 10, 23,

100 A.3d 484. The movant “must demonstrate that a substantial change in

circumstances has occurred since the previous decree and that the modification

is in the best interests of the child[] as determined through an analysis of the

factors in 19-A M.R.S. § 1653(3) [(2018)].” Id. ¶ 21. When the District Court

finds that there has been a substantial change in circumstances, “the court must

consider the factors provided in 19-A M.R.S. § 1653(3) . . . to determine what, if

any, modification of the existing order is in the child's best interest.” Sargent v.

Braun, 2006 ME 96, ¶ 8, 902 A.2d 839. We leave to the trial court’s sound

discretion the determination of the weight given to each factor. See Jackson,

2014 ME 110, ¶ 23, 100 A.3d 484.

      [¶8] We first address McKee’s argument that the court erred in finding

that there had been no substantial change in circumstances.             By law, a

substantial change in circumstances has occurred if the court finds “that

domestic or family violence has occurred since the last determination of

primary residence.” 19-A M.R.S. § 1657(2)(B) (2018); see Sargent, 2006 ME 96,
                                                                               5

¶ 8, 902 A.2d 839. The court found that Kelley abused his son from another

relationship in August 2018, which was after the last determination of the

child’s primary residence in August 2017. Kelley’s conduct—striking his minor

child with sufficient force to leave scarring—qualifies as “domestic or family

violence” within the meaning of section 1657(2)(B). The court’s determination

that this incident of abuse occurred required the court to find a substantial

change in circumstances.

      [¶9] Even when a substantial change of circumstances has been found,

however, the court may grant a motion to modify an order determining

parental rights and responsibilities only if it concludes that doing so is in the

best interests of the child. See Jackson, 2014 ME 110, ¶¶ 21-23, 100 A.3d 484

(determination of weight to be given to each factor left to trial court’s sound

discretion); Sargent, 2006 ME 96, ¶ 8, 902 A.2d 839. The court determined that,

even if a substantial change in circumstances had occurred, the child’s best

interests did not require any modification to the parties’ parental rights and

responsibilities. Therefore, any error in failing to find a substantial change of

circumstances based on Kelley’s abuse of his son was harmless. See Greaton v.

Greaton, 2012 ME 17, ¶ 7, 36 A.3d 913 (describing the harmless error

standard).
6

      [¶10] In support of its decision, the court made factual findings relevant

to the best interest factors stated in section 1653(3). Most importantly, the

court found that Kelley had completed roughly fifty visits with the child with

only one negative report and had completed, without incident, two visits after

September 27, 2018, the date of the visit that resulted in the adverse report.

See 19-A M.R.S. § 1653(3)(F), (N). Also significant is the court’s determination

that Kelley’s “contact [with the child] is already highly restricted and limited in

a manner that ensures the safety of the child.” See id. § 1653(3)(N), (S). Finally,

the court found that “the modifications sought [by McKee] appear designed to

impose a prolonged and profound interruption of parental contact between

father and child.” See id. § 1653(3)(B), (F), (H)-(J). The court’s findings are

supported by evidence in the record.

      [¶11] Because McKee had the burden of proof on her motion, she is

required here to demonstrate that the record compelled the court to make the

findings and determinations necessary for her motion to have been granted,

including that a modification of the prior judgment is in the child’s best

interests. See Jackson, 2014 ME 110, ¶ 21, 100 A.3d 484. The record did not

compel the court to make the latter finding. Accordingly, the District Court

acted within its discretion in denying McKee’s motion to modify.
                                                                        7

        The entry is:

                           Judgment affirmed.



Peggy L. McGehee, Esq., Perkins Thompson, Portland, for appellant Laura E.
McKee

Cory M. Kelley did not file a brief


Portland District Court docket number FM-2016-811
FOR CLERK REFERENCE ONLY
