MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 ME	155

Docket: Cum-19-131

Submitted

On	Briefs: 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.	MCKEE

PER	CURIAM

[¶1]	 Laura	 McKee	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Portland,	Darvin, J.)	denying	her	motion	to	modify an	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	Kelley’s	visitation	rights	with	the	child, and	

(2) determining	that	the	child’s	best	interests 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,	 the	

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	 and	 responsibilities.	 	 McKee	 was	 awarded	 primary	

physical	 residence,	 and	 Kelley was	 allowed weekly	 supervised	 visits	 at	 the	

Maine	 Supervised	 Visitation	 Center	 (MSVC).	 	 The	 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	in	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	relationship.		

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	MSVC 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, “No.”		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.		Third,	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	 shown	 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	interests.		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.		
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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	interests 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	 finds	 “that	

domestic	 or	 family	 violence	 has	 occurred	 since	 the	 last	 determination	 of	

primary	residence.”		19-A	M.R.S.	§ 1657(2)(B)	(2018);	see	Sargent,	2006 ME 96,	
5

¶	8, 902	A.2d	839.		The	court	 found	 that	Kelley	abused	his	son from	another	

relationship in	 August	 2018, which	 was	 after	 the	 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]		Even	when 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 interests of	the	child.		See Jackson,	2014	ME	110,	¶¶ 21-23, 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.		The	court	determined	that,	

even	 if	 a	 substantial	 change	 in	 circumstances	 had	 occurred,	 the	 child’s	 best	

interests 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.3d	 913 (describing	 the	 harmless	 error	

standard).
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[¶10]		In	support	of	its decision,	the	court	made	factual	findings relevant	

to	 the	 best	interest	 factors	 stated 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.	

See	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	modifications	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.	

[¶11]	 	 Because	 McKee	 had	 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	 the	 child’s	 best	

interests.		See Jackson,	2014	ME	110,	¶ 21,	100	A.3d	484.		The	record	did	not	

compel	 the	 court	 to	 make	 the latter	 finding.	 	Accordingly, the	 District	 Court	

acted	within	its	discretion	in	denying	McKee’s	motion	to	modify.
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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

FOR	CLERK	REFERENCE	ONLY