MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 155 Docket: C um - 19

- 131 Submitted

On	B riefs : October	24,	2019 Decided: October	31,	2019 Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD ,	JABAR , HJELM, and HUMPHREY , JJ.

CORY	M.	KELLEY

v. LAURA	E.	M C KEE

PER	CURIAM [¶1] Laura	 McKee	 appeals	 from	 a	 judgment	 of	 the	 District	 Court (Portland, Darvin	J. )	denying	her	motion	 to	modify a n	order determining her and	 Cory	 Kelley’s parental	 rights	 and	 responsibilities with	 respect	 to	 the parties’	daughter .		McKee	argues	that	the	court	erred	or	abused	its	discretion by	(1)	failing	to	find	that	a	substantial	change	in	circumstances	had	occurred since	the original determination	of Kell ey’s	visitation	rights	with the	child , and (2) determining	that	the	child’s	best	interest s would	not	be	served	by	granting her motion	to	modify. 1 We	affirm	the	judgment.

1 We find	the	other	arguments	raised	in	McKee’s	brief	unpersuasive,	and	we	do	not	address	them further.2 I. CASE	HISTORY [¶ 2 ]	 	 Viewed	 in	 the	 light	 most	 favorable	 to	 the	 court’s	 judgment,	 th e record	 supports	 the	 following	 facts. See Young	 v.	 Young ,	 2015	 ME	 89,	 ¶	 2,
120 A.3d	106

. [¶ 3 ]		McKee	and	Kelley	are	the	parents	of	a	three

- year - old child .		Shortly after	 the	child	was	born,	McKee	left Maine with	 the	child because Kelley had acted	 violently	 toward McKee .	 	 Kelley	 subsequently	 filed	 a	 petition	 to determine	parental	rights	and	responsibilities	in	September	2016.		In	August 2017,	 the	District	Court	 ( Montgomery,	J. )	issued	 a judgment determining	 the parties’	 parental	 rights	 an d	 responsibilities.	 	 McKee	 was	 awarded	 primary physical	 residence ,	 and Kelley was	 allowed weekly	 supervised	 visits	 at	 the Maine	 Supervised	 Visitation	 Center	 (MSVC). T he	 court’s	 judgment	 also established Kelley’s	child	support	obligations	and directed the return to	McKee of	certain	personal	property,	including her	dog,	Boomer

. [¶ 4 ] Following the entry	of	that	judgment,	Kelley	had weekly	visits with the	child	at	MSVC		until	McKee	suspended	them i n	October	2018 ,	at	which	time she	 filed	 the present	motion to	modify

. The	District	Court ( Darvin,	J. ) held	a hearing	on	the	motion	on	February	21,	2019.3 [¶ 5 ] Evidence	at	the	hearing	indicated	that McKee	stopped	bringing	the child	to	supervised	visits	as	a	result	of	several	incidents.		First, McKee	learned that ,	in	August	2018, Kelley	had	abused	his	son	from	a	different	relationshi p . Specifically,	 Kelley had struck	 or	 slapped	 his	 son	 on	 the	 back,	 resulting	 in “scarring.” Second, McKee	was	concerned	about	her	child’s	safety	after	hearing from the	owner	of	MS VC that	Kelley	had,	during	a	visit	on	September	27,	2018, picked	up the child and	insisted	on	receiving	a	hug	even	after	the	child	had	told Kelley , “ N o.”		The	incident	on	September	27	was	the	only	negative	interaction that the	owner of	MSVC had	witnessed	between	Kelley	and the child	in	roughly fifty visits

. Th ird, on	at	least	three	occasions, Kelley	had	violated a	no - contact order	in	place	between	the	parties. [¶ 6 ] The	District	Court	denied	McKee’s	motion,	finding	that	McKee	had not	 sho wn	 either	 (1)	 a	 substantial	 change	 in	 circumstances	 or	 (2)	 that	 a modification to	 the parties’	 parental	 rights	 and	 responsibilities was	 in	 the child’s	best	interest s .		McKee	filed	a	motion	for	further	findings	of	fact,	which the	court	denied.		McKee	 timely appealed	 the	District	Court’s	judgment. See M.R.	App.	P.	2B.4 II. LEGAL	ANALYSIS [¶ 7 ] We review a ruling	 on	 a	 motion	 to	 modify	 a parental	 rights	 and responsibilities order for findings	 unsupported	 by	 the	 record, an	 abuse	 of discretion ,	or	an error	of	law

. See Jackson	v.	MacLeod ,	2014	ME	110,	¶ ¶	10, 23,
100 A.3d	 484 .	 	 The	 movant	 “must	 demonstrate	 that	 a	 substantial	 change	 in circumstances	has	occurred	since	the	previous	decree	and	that	the	modification is	in	the	best	interest s of	the	child [] as	determined	through	an	analysis	of	the factors	in 19

- A	M.R.S.	§ 1653 (3) [ (2018) ].” Id. ¶	21.		When	the	District	Court finds that	there	has	been	a	substantial	change	in	circumstances ,	“the	court	must consider	the	factors	provided	in	19

- A	M.R.S.	§	1653(3) .	.	.	to	determine	what,	if any,	modification	of	the	existing	order	is	in	the	child's	best	interest.” Sargent	v.
Braun ,	 2006	 ME	 96,	 ¶	 8,	 902	 A.2d	 839

. We leave	 to	 the	 trial	 court’s	 sound discretion	 the	determination	 of	 the	weight	given	 to	each	 factor. See	Jackson , 2014	ME	110,	¶ 23,	100	A.3d	484. [¶ 8 ] We	first	address	McKee’s	argument	that	the	court	erred	in finding that	 there	 had	 been no substantial	 change	 in	 circumstances. By	 law,	 a substantial	 change	 in	 circumstances	 has	 occurred	 if	 the	 court	 fi nds	 “that domestic	 or	 family	 violence	 has	 occurred	 since	 the	 last	 determination	 of primary	residence.” 19

- A	M.R.S.	§ 1657(2)(B)	(2018) ; s ee	Sargent ,	2006 ME 96,5 ¶	8 , 902	A.2d	839. T he	court	 found	 that	Kelley	abused	his	son from	another relationship in	 Au gust	 2018 , which	 was after t he	 last	 determination	 of	 the child’s	primary	residence	in	August	2017

. Kelley’s	conduct

— striking	his	minor child	with	sufficient	 force	 to leave scarring

— qualifies	as “ domestic	 or	 family violence ”	within	the	meaning	of	section 1657(2)(B) .		The	court’s determination that	 this	 incident	 of	 abuse	 occurred required	 the	 court	 to	 find a substantial change in circumstances. [¶ 9 ] E ven	whe n a	substantial	change	of	circumstances	has been	found, however, the court may grant	 a	 motion	 to	 modify an	 order	 determining parental	rights	and	responsibilities only	if	it concludes that	doing	so is	in	the best interest s of	the	child

. See Jackson ,	2014	ME	110, ¶ ¶ 21

- 2 3 , 100	A.3d	484 (determination	of	weight	 to	be	given	 to	each	 factor	left	 to	 trial	court’s	sound discretion) ; Sargent ,	2006 ME 96,	¶	8,	902	A.2d	839. T he	court	determined	that, even	 if	 a	 substantial	 change	 in	 circumstances	 had	 occurred,	 the	 child’s	 best
interest s did	not require	 any	modification	 to	 the	parties’	 parental	 rights	and responsibilities .		Therefore, any error in	failing	to	find	a	substantial	change	of
circumstances based	on	Kelley’s	abuse	of	his	son was	harmless. See Greaton	v.
Greaton ,	 2012	 ME	 17,	 ¶	 7,	 36	 A.3 d	 913 ( describing	 the	 harmless	 error standard ).6 [¶1 0 ] In	support	of its decision ,	the	court made	factual	findings relevant to	 the	 best	interest	 factors	 s tated in	 section 1653(3)

. Most	importantly,	 the court	found	that Kelley	had	completed roughly	fifty	visits	with the child with only	one	negative	report and	had	completed,	without	incident,	two visits after September	27,	2018 ,	 the	date	of	 the visit	 that	resulted	in	 the	adverse	report

. S ee 19

- A	M.R.S. § 1653(3)(F),	(N) .		Also	significant	is	the	court’s	determination that Kelley’s “ contact [with	the	child] is	already	highly	restricted	and	limited	in a	manner	that	ensures	the	safety	of	the	child.” See	id. § 1653(3)(N),	(S). Finally, the	court	found	that	“the	modificatio ns	sought [by	McKee] appear	designed	to impose	 a	 prolonged	 and	 profound	 interruption	 of	 parental	 contact	 between father	 and	 child. ” See	id. § 1653(3)(B),	 (F),	 (H)

- (J). The court’s findings are supported	by evidence	in	the	record

. [¶1 1 ]	 	 Because	 McKee	 h ad	 the	 burden	 of	 proof	 on	 her	 motion,	 she	 is required	here	to	demonstrate	that	the	record	compelled	the	court	to	make	the findings	and	determinations	 necessary	 for	her	motion	 to	have	been	granted, including	 that	 a	 modification	 of	 the	 prior	 judgment	 is	 in	 t he	 child’s	 best
interes t s . See Jackson ,	2014	ME	110, ¶ 2 1 ,	100	A.3d	484

. The	record	did	not compel	 the	 court	 to	 make	 th e latter	 finding. Accordingly , the	 District	 Court acted	within	its	discretion in	denying	McKee’s	motion	to	modify.7 The	entry	is: Judgment affirmed.

Peggy	 L.	 McGehee,	 Esq.,	 Perkins	 Thompson,	 Portland,	 for	 appellant	 Laura	 E. McKee Cory	M.	Kelley did	not	file	a	brief

Portland	District	Court	docket	number	FM

- 2016

- 811 F OR C LERK R EFERENCE O NLY