Villa v. Smith

SCOLNIK, Justice,

with whom NICHOLS and WATHEN, Justices, join, concurring.

I concur in the result but write separately to express my disagreement with the court’s treatment of the custody issue in Part I.

In Stevens v. Stevens, 448 A.2d 1366, 1369 (Me.1982), this court set forth a two prong analysis for modifications of child custody. The first prong is a threshold determination whether a sufficient change in circumstances has occurred since the prior judgment to warrant a full consideration under the second prong whether the best interests of the children require a change of custody. The court’s opinion seeks to distill the two prongs of the Stevens analysis into a single question: “Has there occurred since the prior custody order a sufficiently substantial change in the circumstances affecting the best interests of the children to justify a modification of the custody arrangement?” Op. at 1312.

I believe the shift to a “single prong review” unwisely ignores the sound purpose underlying the two part Stevens analysis. As explained more fully in my dissent in Philbrick v. Cummings, 534 A.2d 1307 (Me.1987), decided this day, the two tiered review is grounded in the principles of res judicata and is designed to prevent repeated full-blown post-judgment custody hearings in cases where there is no new relevant information to be considered. See Stevens, 448 A.2d at 1370. Under the single question posed by the court, there is no initial threshold requirement to be met by the moving party and the trial court must conduct, in each case, a full hearing for the simultaneous consideration of both Stevens prongs. The court’s departure from the Stevens threshold question is unnecessary, and is not in the interest of the parties, the children, or judicial economy. Indeed, in those cases in which a relevant change in circumstances is not shown, judicial economy is best served by not requiring an expanded hearing that includes a repetition of evidence of circumstances that existed at the time of the previous hearing and which remain unchanged.

Although I disagree with the court's method of analysis, I concur in its result. The trial court stated in its order that the *1314defendant’s impending move to California was an insufficient change in circumstances to warrant modification of custody arrangements. Under the first prong independent review required by Stevens, I conclude that a move from Maine to California is indeed a substantial change in circumstances that warranted reconsideration of the best interests of the children under the second prong of Stevens, and the court’s contrary finding on the substantial change in circumstances issue was a clear abuse of discretion. Accordingly, the trial court would have erred in deciding the motion solely on the first prong, as was the case in Philbrick. However, this case is distinguishable from Philbrick since the trial court clearly went on to consider the merits of the case under the second prong of Stevens and those issues were correctly decided.