Superior Court Washington County No. W 11-120 Raymond E.
Shawcross Associate Justice
For
Plaintiff: Michael P. Lynch, Esq.
For
Defendant: Steven A. Robinson, Esq. Daniel Chaika, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
William P. Robinson, Associate Justice
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.
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.
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 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 $60,
000. Lauren also testified that, while living in Rhode
Island, she and the children had been relying on "food
stamps" and heating assistance from the State of Rhode
Island; she added that the house in which she resided with
the children was then enmeshed in foreclosure proceedings.
Lauren went on to state that, if she were permitted to
relocate to Australia with the children, she and the children
would be able to live in her parents' home, rent-free,
which would alleviate many of her financial concerns. Lauren
also testified that she intended to seek further education in
order to obtain a teaching degree as a way of improving her
economic prospects. She testified as to her understanding
that it would take "[s]even years part time; four years
full time" to obtain a teaching degree in Rhode Island.
She further testified as to her understanding that the
pursuit of such a degree in Rhode Island would cost her
"[b]etween [$]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, 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 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.
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 ...