Kent
County Superior Court K13-191M Sandra A. Lanni Associate
Justice
For
Plaintiff: Gary E. Blais, Esq. Donald R. Lembo, Esq.
For
Defendant: Lauren E. Jones, Esq.
Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia,
JJ. Justices.
ORDER
Thomas
Giddings (plaintiff or Giddings) appeals a Family Court order
that modified custody in response to an emergency motion for
custody brought by the child's mother, Nicole Arpin
(defendant or Arpin). This case came before the Supreme Court
on May 2, 2017, 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 hearing counsels'
arguments and reviewing the parties' memoranda, we are
satisfied that cause has not been shown. Accordingly, we
shall decide this appeal at this time without further
briefing or argument. For the reasons set forth herein, we
affirm the order of the Family Court.
On May
4, 2015, defendant called the Warwick Police Department to
request a well-being check on her son because she was
concerned that plaintiff was driving while intoxicated with
their son in his vehicle. Officer John Curley of the Warwick
Police Department arrived at the scene and found plaintiff
sitting in a parked vehicle with the motor running, while the
child played basketball in the parking lot. After plaintiff
failed a field sobriety test, he was removed from the vehicle
and the child was taken to a family friend's house.
Eileen Cook, a Child Protective Investigator at the
Department of Children, Youth, and Families (DCYF), was
assigned to the case and placed the child with his mother,
defendant.
On May
5, 2015, defendant filed a pro se emergency motion
for custody.[1] That same day, a justice of
the Family Court entered an ex parte order that
awarded defendant temporary custody and placement of the
child. On May 6, 2015, plaintiff moved to vacate the order,
which the justice denied. In her order denying the motion to
vacate, the justice scheduled the matter for a full hearing
to address the issue of child placement and "all issues
presenting." On May 15, 2015, prior to the hearing, the
Family Court justice entered a consent order that addressed
visitation and ordered five-day alcohol screens for both
parties.
On June
8, 2015, another justice of the Family Court conducted a
hearing on defendant's motion for custody. At the
hearing, defendant testified and presented three witnesses:
Officer Curley, Eileen Cook, and Charlene Vincent, a friend
of both plaintiff and defendant. At the conclusion of
defendant's case, plaintiff moved to dismiss the motion
and argued that defendant failed to prove that plaintiff, as
the parent with "custody and physical possession of the
minor child, " was unfit. The hearing justice reserved
decision on this motion.
On June
15, 2015, the hearing justice issued a bench decision on
defendant's custody motion. She noted that
defendant's burden was "to prove a substantial
change of circumstances in order to change custody on a
permanent basis." The hearing justice made multiple
factual findings, including that, at the time plaintiff was
granted sole custody of the child, defendant "was in
active addiction." She noted, however, that defendant
had been sober since November 10, 2013, and has had her two
other children returned to her. The hearing justice pointed
out that she conducted an in-camera interview with the child;
and, based on that interview, she believed that the child had
missed plaintiff and had a close bond with him. She found
that the child also had a good relationship with defendant.
Based
on the close bond between plaintiff and the child and the
length of time that the child had lived with him, the hearing
justice returned placement to plaintiff, with the following
conditions imposed: five-day alcohol screens for the next
three months; continued Family Care Community Partnership
(FCCP) services for the child; and a requirement that neither
party say anything derogatory about the other party to the
child or discuss the court proceedings with him.
Additionally, if plaintiff was subsequently arrested for
driving while impaired with the child in the car, he could
lose placement of the child. The hearing justice then stated
that she thought that there should be joint custody and a
fixed visitation schedule. When asked whether plaintiff
objected to joint custody, his counsel responded, "My
client, prior to the hearing today, indicated that he wanted
to have the court order of 2013 maintained and that he would
provide her visitation." In reply, the hearing justice
noted that "the [c]ourt can certainly give any relief
that it wants that was less than was asked for, the [c]ourt
is going to change the order [to] joint custody." She
then referred the parties to mediation to work out a
visitation schedule.
On
December 27, 2015, the hearing justice entered an order that
restated much of her bench decision. In pertinent part, the
order: returned placement of the child to plaintiff under the
above-mentioned conditions, granted joint legal custody of
the child to the parties, and ordered that defendant be
advised of and given access to all medical, educational,
social, religious, and extracurricular activity information.
That same day, another order was entered that set forth the
visitation schedule.
On
January 12, 2016, plaintiff appealed to this
Court.[2] On appeal, plaintiff maintains
that a hearing was held on December 15, 2015, regarding his
objection to the proposed order, wherein he argued "that
he was being deprived of procedural due process of law"
and that the hearing justice "awarded [defendant] more
relief than she prayed for or was deserving of." The
plaintiff also argues that "he was denied notice of the
pendency of any other relief prayed for and was likewise
denied the opportunity to prepare and defend[.]" He asks
this Court to vacate the order as to the relief granted to
defendant, which she did not request in her motion for
custody.
On July
5, 2016, defendant moved to dismiss plaintiff's appeal on
the grounds that his prebriefing statement did not comply
with Article I, Rule 12A of the Supreme Court Rules of
Appellate Procedure.[3] Specifically,
defendant argued that plaintiff's unnumbered, three-page
prebriefing statement failed to: identify any specific
provision of the hearing justice's order that he is
challenging, note where in the record he raised the issue
below, set forth an argument supported by specific facts and
law, and develop a "meaningful discussion" of the
issues alleged. The defendant also argued that plaintiff, in
addition to erroneously citing to a hearing date that never
occurred (December 15, 2015), failed to provide this Court
with a transcript of the December 7, 2015 hearing where
plaintiff allegedly raised the issues below. On October 14,
2016, this Court denied defendant's motion to dismiss
this appeal.
In her
statement to this Court, defendant again challenges
plaintiff's inadequate and unsupported prebriefing
statement, as it required defendant's counsel to guess
what plaintiff is arguing on appeal. Nonetheless, defendant
maintains that the hearing justice correctly recognized that
a substantial change of circumstances justified a
modification of the ...