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Souza v. Souza

Supreme Court of Rhode Island

December 12, 2019

Jamie Souza
v.
Michael Souza.

          Newport County Family Court (N 08-154) Karen Lynch Bernard Associate Justice

          For Plaintiff: Thomas M. Dickinson, Esq.

          For Defendant: Russell Bramley, Esq.

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

          OPINION

          GILBERT V. INDEGLIA ASSOCIATE JUSTICE

         The 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 Court.

         I

         Facts and Travel

         The 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.[1]

         Thereafter, following the entry of final judgment of divorce, defendant moved to modify placement, seeking an order awarding him placement of the children.[2] 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.[3] 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.

         After 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."

         After 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.

         The 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 ...


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