Jennie E. Aranovitch v. David E. Versel

In December 2009, Aranovitch and Versel were divorced pursuant to a

stipulated judgment that awarded Aranovitch primary residence of, and Versel

specific rights of contact with, the parties’ minor son and daughter. The judgment

2 recited the parties’ agreement that neither would “cohabit with and, thereby,

expose the minor children to anyone who abuses . . . alcohol,” nor “allow the

children to be passengers in a vehicle driven by someone whose reflexes and/or

judgment is compromised due to . . . alcohol consumption.”

[¶3] In December 2010, Versel moved to modify the divorce judgment,

alleging that Aranovitch was cohabiting with Jacques Blais and thereby exposing

the children to a person who abused alcohol. The court (Foster, J.) held a hearing

on the motion in August 2011, and took the matter under advisement. The court’s

order on that motion contains the following findings of historical fact.

[¶4] Aranovitch was in a relationship with Blais before the divorce was

finalized, and Versel insisted on the judgment’s language regarding the children’s

exposure to alcohol because he was concerned about Blais’s drinking. In 2010,

Versel remarried and moved to Georgia. Aranovitch and Blais began cohabiting

and devised strategies to minimize the impact of Blais’s drinking on the family.

Despite these strategies, Blais was charged with operating under the influence

(OUI) in February 2010, and again in August 2010. With regard to both charges,

Aranovitch was convinced that Blais had not been intoxicated, and that his blood

and breath tests were inaccurate. In August 2010, Blais pleaded guilty to the

February OUI charge and his license was suspended for a period of ninety days.

3 [¶5] In the fall of 2010, Aranovitch arranged for the parties’ daughter to

attend daycare for part of the day. She allowed the daughter to spend the

remainder of the day at home with Blais, who had lost his job due to his OUI

conviction. On October 27, 2010, while his license suspension was in effect, Blais

picked the daughter up from daycare and drove her home without Aranovitch’s

knowledge. The daycare provider smelled alcohol on Blais’s breath and the police

were notified, resulting in a third OUI charge. Blais pleaded guilty to that charge

and served twenty-three days in jail. When he learned about the daycare incident,

Versel asked Aranovitch not to allow Blais to resume living with her and the

children. Aranovitch refused this request and permitted Blais to return to her home

upon his release, explaining to Versel that Blais had been sober in jail and had

enrolled in an outpatient program to maintain sobriety in her home.

[¶6] The court also noted that, during the August 2011 hearing, Aranovitch

insisted that she had not violated the terms of the judgment, explaining that Blais

used but did not abuse alcohol, and that he did not drink around the children

because he only drank outside.

[¶7] In the resulting order entered in September 2011, the court stated that it

was disturbed by Aranovitch’s “focus on explaining away the problem,” and

concluded that it was “naiveté at best, and self-deception at worst, to believe that

[Blais’s] long-term, serious substance abuse ha[d] been resolved through a

4 short-term program.” The court found that Aranovitch had not complied with the

divorce judgment, and that she would not comply in the future without “tighter

strictures.” The court consequently amended the divorce judgment to specifically

prohibit Blais from consuming alcohol, or being under the influence of alcohol in the residence or in the presence of the children,1 and to prohibit Aranovitch from

allowing unsupervised contact between the children and Blais. The court also

increased Versel’s summer visitation with the children.

[¶8] In the fall of 2013, Versel moved to modify the children’s primary

residence, requested a prohibition on the children’s contact with Blais, and filed a

motion for “an emergency interim hearing.” Versel claimed that Blais drank

regularly in Aranovitch’s home, and suggested that Blais’s intoxication had caused

an injury to the parties’ son. On October 31, 2013, a family law magistrate

(Cadwallader, M.) began an interim hearing and, after the first day, entered an

order prohibiting Aranovitch from allowing Blais to be at her residence.

[¶9] After the interim hearing was completed in December 2013, the

magistrate entered an interim order, finding that although “[b]oth parents are

capable of providing primary residential care for the children,” she “continue[d] to

have concerns about Mr. Blais.” The magistrate found that the children had likely

1 The record establishes no authority for the court to order Blais, who has never been a party to this action, to refrain from any particular activity.

5 been exposed to Blais’s intoxication since the September 2011 order, and

prohibited Aranovitch from allowing contact between the children and Blais.

[¶10] The court (Janelle, J.) held a final hearing on Versel’s motion to

modify in August 2014, and in an order dated September 8, 2014, granted Versel

the right to provide the children’s primary residence, and prohibited Aranovitch

from allowing any unsupervised contact between the children and Blais. In

response to a timely motion for findings by Aranovitch, the court issued the

following findings, each of which is supported by evidence in the record.

2. Plaintiff’s husband and the children’s step-father, Jacques Blais, is a lifelong profound alcoholic.

3. [Aranovitch] admits that she’s unable to detect when Mr. Blais is drinking.

4. The evidence reveals that there have been multiple occasions when [Aranovitch] was out of the home when Mr. Blais, while intoxicated, was the sole adult on the scene responsible for the care of the parties’ two children . . . .

5. On September 2, 2011, the Court . . . issued an order prohibiting Mr. Blais from having unsupervised contact with [the children] and from drinking while with the children. Mr. Blais frequently ignored the Court’s order.

6. The evidence reveals that Mr. Blais, while intoxicated, drove the children. The evidence, while not fully conclusive, strongly suggests that on September 5, 2013 Mr. Blais, while intoxicated, caused an accident resulting in a serious injury to [the son’s] leg that required medical assistance.

6

7. Mr. Blais presents a danger to the children due to his longstanding alcoholism and his pattern of violating Court orders.

8. [Aranovitch], generally a very good and loving parent, has demonstrated a lack of insight with respect to [Blais’s] alcoholism and the risk that he poses to the children.

9. These facts, taken together, represent a substantial change of circumstances since the issuance of the prior order and form the basis for a change of primary residence.

10. Based on these and other facts, the Court ordered a change of primary residence finding that the transition, however difficult in the short term for the children, would serve their long-term best interest.

[¶11] Aranovitch timely appealed. See 14 M.R.S. § 1901 (2014).

II. DISCUSSION

A. Standard of Review

[¶12] In determining whether to modify a prior parental rights decree, a trial

court engages in a two-step inquiry, first considering “whether there has occurred a

change in circumstances that has a sufficiently substantial effect on the children’s

best interests to justify a modification of the prior order.” Jackson v. Macleod,

2014 ME 110, ¶ 22, 100 A.3d 484. If the court determines that such a change has

occurred, the court then considers how it should modify the parental rights

arrangement in furtherance of the children’s best interests. Id.

[¶13] We review an order on a post-divorce motion to modify parental

rights “for clear error in the court’s finding of the historical facts of change,” and

7 for an abuse of discretion in the court’s evaluation of whether any change has so

substantially affected the children’s best interests to warrant a modification of

parental rights. Philbrick v. Cummings, 534 A.2d 1307, 1308 (Me. 1987). “[A]

trial court has exceeded the bounds of its discretion when, in discretionary

decision-making, the court . . . considers a factor prohibited by law,” or otherwise

acts “based on a mistaken view of the law.” Smith v. Rideout, 2010 ME 69, ¶ 13,

1 A.3d 441. When a party moves for further findings pursuant to M.R. Civ. P. 52,

we review the trial court’s findings to determine whether “they are sufficient, as a

matter of law, to support the result.” Sargent v. Braun, 2006 ME 96, ¶ 5,

902 A.2d 839 (quotation marks omitted).

[¶14] Aranovitch argues that the court erred by considering events that

preceded the order of September 2011 in finding the facts that constituted a

substantial change of circumstances. She contends that the court’s remaining

findings are insufficient to support a determination that a substantial change in

circumstances had occurred, and that the children’s primary residence with Versel

would further their best interests. She also argues that the court failed to consider the statutory best interest factors.2

2 Aranovitch additionally argues that the court clearly erred in finding that the evidence suggests that Blais’s intoxication played a role in the son’s injury. Contrary to her contention, the court heard evidence that Blais drank every day before he entered treatment in December 2013, and it could reasonably have inferred from that evidence that Blais was drinking on the date of the son’s injury.

8 B. Change of Circumstances Findings

[¶15] The focus of the substantial change in circumstances inquiry is on the

extent to which there are changed circumstances that affect the children’s best

interests. Levy, Maine Family Law § 6.6[2] at 6-64 (8th ed. 2013). Generally, the

substantial change inquiry is temporally limited to events following the most recent

order governing the children’s residential care. Id. However, if the court

determines that a substantial change in circumstances has occurred since the most

recent order, it may consider events before that order to provide context for

evaluating subsequent events, if the pre-order events are relevant to the issue of

what parental rights arrangement will further the children’s best interests. See

Fraser v. Boyer, 1998 ME 253, ¶¶ 10-12, 722 A.2d 354.

[¶16] Here, there were multiple parental rights decrees in place before the

final hearing on Versel’s motion to modify primary residence: (1) the stipulated

divorce judgment awarding Aranovitch primary residence; (2) the September 2011

order prohibiting Aranovitch from allowing unsupervised contact between Blais

and the children, and prohibiting Blais from consuming or being under the

influence of alcohol in the residence or in the presence of the children; (3) the

interim order of October 2013, prohibiting Aranovitch from allowing Blais to be at

her residence; and (4) the interim order of December 2013, prohibiting Aranovitch

from allowing contact between the children and Blais.

9 [¶17] Because the interim orders of 2013 were entered as temporary

placeholders in advance of the final hearing in 2014, the court’s final analysis of

any change should have concerned the events that occurred after the parental rights

order of September 2011. Consistent with this limitation, the court allowed only

brief testimony about the events preceding September 2011, and repeatedly

emphasized that it was “only looking at whether there’s been a substantial change

in circumstances since the entry of the last order and, if so, whether a change in

custody is in the children’s best interest.”

[¶18] To the extent that the court made findings about events that occurred before September 2011,3 it did not err in doing so, as these findings provided

context for the court’s evaluation of events that occurred after September 2011.

See Fraser, 1998 ME 253, ¶¶ 11-12, 722 A.2d 354. Moreover, the court’s findings

are sufficient, as a matter of law, to support a determination that the circumstances

of the children’s residence with Aranovitch had changed significantly since the

prior parental rights order. The record demonstrates that Blais violated the order of

September 2011 by continuing to drink in the garage, and that his condition

worsened significantly in December 2013, when his drinking resulted in a medical

crisis. The record also supports the court’s finding that Aranovitch failed to gain

3 The court’s findings do not specify any dates for the events in question. Instead, they refer generally to Blais’s long-standing addiction and Aranovitch’s entrenched refusal to protect the children from the effects of that addiction.

10 insight into Blais’s drinking and its effect on the children’s safety, despite the

court’s admonitions regarding Aranovitch’s “naiveté” and “self-deception” in its

order of September 2011. The court committed no error in determining that

Aranovitch’s demonstrated inability to objectively evaluate and respond to Blais’s

drinking after the September 2011 order constituted a change in circumstances that

jeopardized the children’s best interests.

C. Best Interest Findings

[¶19] In conducting the best interest analysis, the court must consider the

statutory best interest factors, 19-A M.R.S. § 1653(3) (2014), and “must consider

as primary the safety and well-being of the child,” Jackson, 2014 ME 110, ¶ 21,

100 A.3d 484 (quotation marks omitted). The court is not required to make

detailed findings regarding every best interest factor, even when a party moves for

further findings pursuant to M.R. Civ. P. 52, “so long as it is otherwise evident that

the court has evaluated the evidence with the best interest factors in mind.”

Nadeau v. Nadeau, 2008 ME 147, ¶ 35, 957 A.2d 108.

[¶20] Here, the court found that Blais’s alcoholism “presents a danger to the

children” and that Aranovitch, “generally a very good and loving parent, has

demonstrated a lack of insight with respect to [Blais’s] alcoholism and the risk that

he poses to the children.” The court further found that the children’s transition to

Versel’s residence, “however difficult in the short term . . . would serve their

11 long-term best interest.

The foregoing findings reflect an application of the relevant best interest factors and demonstrate that the court considered the desirability of maintaining the continuity of the children’s current residence, but

also considered the undesirability of the children’s continued exposure to

Blais. These findings are supported by the record, and are sufficient to support the court’s determination that the children’s best interests would be served by changing their primary residence from Aranovitch’s home to Versel’s.

The entry is:

Judgment affirmed.