Newport County Family Court (N 08-154) Karen Lynch Bernard
Plaintiff: Thomas M. Dickinson, Esq.
Defendant: Russell Bramley, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
GILBERT V. INDEGLIA ASSOCIATE JUSTICE
defendant father, Michael Souza (defendant), appeals from a
Family Court order denying his motion for a new trial
following a decision and order that denied his motion to
change custody and awarded sole custody to the plaintiff
mother, Jamie Souza (plaintiff). On appeal, the defendant
claims that the trial justice erred by overlooking and
misconceiving evidence. He argues that the trial justice was
clearly wrong when she determined that the defendant failed
to carry his burden of demonstrating a substantial change in
circumstances warranting the change of custody of his two
children. For the reasons set forth below, we affirm in part
and vacate in part the September 17, 2015 order of the Family
defendant and the plaintiff were married on June 30, 1995.
They are the parents of two minor children. The parties
divorced in 2009. As part of their divorce, they entered into
a marriage settlement agreement (the MSA). In the MSA, the
parties agreed to joint custody of the children with
placement with plaintiff and with defendant having all
reasonable rights of visitation.
following the entry of final judgment of divorce, defendant
moved to modify placement, seeking an order awarding him
placement of the children. A guardian ad litem (GAL) was
appointed for the two children on August 18, 2010. The Family
Court heard testimony on defendant's motion over a
four-year period. Both parties filed various motions to
modify placement and custody during the trial. Additionally,
during that time, there were periods when defendant had his
visits modified, supervised, and, at some points, suspended.
Specifically, his visits were suspended when the Department
of Children, Youth, and Families became involved in two
incidents that were "indicated" against defendant
based on calls to the DCYF hotline. With regard to
defendant's motion to modify custody, the trial justice
heard from "no less than fifteen (15) witnesses
presented by [d]efendant[, ]" including the GAL. The
plaintiff and the defendant also testified. Additionally,
hundreds of exhibits were introduced at trial, including
reports from DCYF regarding the two allegations of abuse
against defendant and a report by the GAL.
defendant rested his case, plaintiff moved to dismiss the
motion to change custody, pursuant to Rule 41(b)(2) of the
Family Court Rules of Domestic Relations Procedure, arguing
that defendant had failed to meet the required burden of
proof. On August 14, 2015, the trial justice issued a
twenty-six-page written decision granting the motion to
dismiss. In that decision, the trial justice noted that
"it would be [defendant] as the moving party's
burden to show by a preponderance of the evidence that the
circumstances existing at the time the decree was entered has
so changed that custody should be modified in the interest of
the child's welfare" and "[a]s always, the best
interest of the child must be considered."
reviewing the testimony of many of the witnesses at trial,
the trial justice found that defendant had not met his burden
of showing a substantial change in circumstances and that
there was not any evidence to support the motion to modify in
order to award custody of the children to him. She found that
none of the testimony substantiated defendant's
assertions that plaintiff had mistreated or failed to provide
for the children. The trial justice further found "by a
preponderance of the evidence that these two (2) people
cannot co-parent these children to the extent necessary to
support the continued order of joint custody." Based on
that finding, the trial justice ultimately granted sole
custody to plaintiff, and an order to that effect followed.
defendant subsequently filed one motion both to reopen the
case and for a new trial, pursuant to Rules 52 and 59 of the
Family Court Rules of Domestic Relations Procedure, which was