Cusick v. Cusick

          Kent County Family Court (K 09-728) Associate Justice Stephen J. Capineri

          For Plaintiff: Maurice Cusick, Pro Se.

          For Defendant: Stephanie P. McConkey, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          MAUREEN MCKENNA GOLDBERG, ASSOCIATE JUSTICE

         This case came before the Supreme Court on May 9, 2019, on appeal by the plaintiff, Maurice J. Cusick (Maurice or plaintiff), ^[1] from a Family Court postjudgment order in favor of his former wife, Judith P. Cusick (Judith or defendant). This appeal stems from Judith's motion seeking an order requiring Maurice to submit to limited genetic testing pursuant to Rule 35 of the Family Court Rules of Domestic Relations Procedure. On appeal, the plaintiff argues that, by ordering him to submit to genetic testing, the hearing justice violated his right to privacy and to due process, and also committed an abuse of discretion by relying on factual findings that, according to plaintiff, overlooked and misconceived material evidence and otherwise were clearly wrong. For the reasons set forth in this opinion, we affirm the order of the Family Court.

         Facts and Travel

         In this appeal, we are presented with an acrimonious post-divorce battle in the Family Court concerning the welfare of the parties' children.^[2] In March 2017, plaintiff's former wife filed a Rule 35^[3] motion seeking an order from the Family Court compelling plaintiff to submit to genetic testing for the benefit of the parties' minor children.^[4] In March 2016, plaintiff was diagnosed with a genetic heart condition known as Brugada Syndrome, a genetic disorder, that poses significant risks including ventricular arrhythmias that can result in sudden death. It is undisputed that Brugada Syndrome is a hereditary disorder.

         The motion was heard by a Family Court justice on July 14 and 21, 2017. Medical geneticist Mari Mori, M.D. testified about the preferred reasons for genetic testing for Brugada Syndrome. She explained the precautions that someone at risk for Brugada Syndrome must take, which include avoidance of environmental stimuli leading to irregular heartbeat, such as fever, high temperature locales, and certain medication. Additionally, Dr. Mori explained that genetic testing of plaintiff to determine whether his children are at risk for Brugada Syndrome is the preferred diagnostic path because, if the genetic change that plaintiff carries can be identified, then the children can be tested for that specific variant. Alternatively, Dr. Mori also explained that, if genetic testing of plaintiff is not undertaken, then a sodium blocker EKG can be used to diagnose the children; however, there is a high risk that this could produce a false-negative because an EKG change could develop over time.

         The defendant was the next witness. When questioned why she wanted plaintiff to undergo genetic testing, defendant explained:

"I am trying to get as much information as possible for the treating physicians of our children so that they can either be ruled out for Brugada Syndrome or get the medical care that would be necessary and appropriate. I don't want them to have to undergo annual testing. I don't want them to have to continue to live with the uncertainty of whether or not they have the diagnosis. I want to optimize the information flow so that they can get the medical care that would be necessary."

         The defendant further testified about her concerns relating to their young son, who had been diagnosed with autism, and whether he could undergo a prolonged medical examination, as well as his ability to effectively communicate any internal symptoms he may experience, such as chest pains. She also explained that, since plaintiff was diagnosed with Brugada Syndrome, the children have become increasingly aware of their mortality and have expressed concerns about participating in sports and other activities.

         The plaintiff also testified and, when asked why he refused to undergo this testing, he offered the following:

"I have had many instances where things I have revealed to Judy have been used against me so I really don't want her involved in my medical condition. * * * I don't want to trouble the kids. If I had Brugada, I grew up in East Greenwich and I had no trouble all the way up into my 30's or 40's so I didn't think it was worth causing anxiety or trouble in the kids, and I also am not an advocate of giving up my genetic material for testing ...