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James P. Valkoun :
Kimberly M. Frizzle. :
Present: Goldberg, Acting C.J., Suttell, Robinson, JJ., and Williams, C.J. (ret.).
O P I N I O N
Justice Robinson for the Court.
The plaintiff, James P. Valkoun, has appealed from a
Family Court order granting the motion of the defendant, Kimberly M. Frizzle, whereby she
sought leave to relocate from Rhode Island to North Carolina with the parties' two minor
children. The defendant for her part has appealed from the Family Court's denial of her motion
to dismiss the plaintiff's appeal.
This case came before the Supreme Court on March 31, 2009, pursuant to an order
directing the parties to appear and show cause why the issues raised in these appeals should not
be summarily decided. After considering the written and oral submissions of the parties, we are
of the opinion that the appeals may be resolved without further briefing or argument.
For the reasons set forth below, both appeals are denied and dismissed, and the order of
the Family Court is affirmed.
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Facts and Travel
The parties in the case at bar were never married, but they did live together intermittently
for several years and had two children, Sarah Rose Frizzle and Ethan Andrew Frizzle.1 In 2006
Ms. Frizzle commenced a paternity action against Mr. Valkoun; that case was resolved when an
agreement between the parties was reached, whereby Mr. Valkoun acknowledged that he was the
father of Sarah and Ethan and agreed to pay $150 per week in child support. The issue of
custody was not addressed in that proceeding.
In August of 2006, Mr. Valkoun filed a motion seeking to prevent Ms. Frizzle from
removing Sarah and Ethan from Rhode Island and taking them to North Carolina; he later filed a
motion seeking custody of the children. Ms. Frizzle responded by filing several motions: she
filed a motion to relocate; a motion to modify child support payments; a motion for sole custody
of the parties' children; and a motion to dismiss Mr. Valkoun's motion seeking to prevent Ms.
Frizzle's relocation of their children. While the above-mentioned motions were pending, the
Family Court ordered (1) that Ms. Frizzle be allowed to remain in the home that the parties had
shared while living together and (2) that Mr. Valkoun would be required to give twenty-four
hours notice to Ms. Frizzle before going to that home.2
On January 12, 2007, the Family Court entered an order establishing a visitation schedule
and ordering the parties to attend mediation. A subsequent order was entered on April 11, 2007,
1 In addition to the children who are the subject of the instant appeal, each of the parties
has an additional child from previous relationships.
2 We shall hereinafter usually refer to the house in Warwick where Mr. Valkoun and Ms.
Frizzle had once lived together as "the couple's home."
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barring Mr. Valkoun from entering upon the property where the couple's home was located and
where Ms. Frizzle was living, except when he was exercising his visitation rights.
The hearing on defendant's motion to relocate began on April 24, 2007 and continued
off-and-on through May 4, 2007. The trial justice issued a bench decision on May 23, 2007, in
which he awarded physical placement of the children to Ms. Frizzle and granted her motion to
relocate to North Carolina. An order to that effect was entered on June 14, 2007, and Mr.
Valkoun filed a notice of appeal on the same day.3 Shortly thereafter, Ms. Frizzle moved to
vacate the June 14 order, arguing that it did not accurately reflect the trial justice's decision. The
motion was granted, and a new order was entered on July 31, 2007. In the interim, on July 3,
2007, Ms. Frizzle had filed a notice of appeal from the June 14 order.
Motion for Custody and Motion to Relocate
Ms. Frizzle testified in support of her motion to relocate. She testified as to the details of
her relationship with Mr. Valkoun, noting that she had begun living with him during the Summer
of 1999 in an apartment in Coventry, Rhode Island. She further testified that two years later,
they moved to Mr. Valkoun's home in Warwick.
She further testified that the couple separated in 2001 for the first time due to Mr.
Valkoun's infidelity. She went on to testify with respect to the various details surrounding their
several separations, including the fact that they separated again in 2002 and 2003 because of
plaintiff's involvement with other women. Ms. Frizzle also testified that plaintiff's name was
3 The plaintiff also filed a motion with this Court seeking a stay of the Family Court's
order. That motion was denied.
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not on Sarah's birth certificate at the time of her birth because Mr. Valkoun refused to sign an
affidavit acknowledging paternity.4
She further testified that, in 2003, Mr. Valkoun and she attended counseling and again
reunited until their final separation in May of 2006. Ms. Frizzle testified that at that time Mr.
Valkoun left their home without saying goodbye to the children.
Ms. Frizzle also testified regarding her involvement with the children and their daily
activities. She testified that she brings them to medical appointments, cooks for them, and tends
to their day-to-day routine. She testified that she is actively involved in Sarah's day-care center
and school, attends her sporting events, helps her with her homework, and reads with her.
Ms. Frizzle also testified about Mr. Valkoun's weekend visitation with the children. She
testified that she allows Sarah to talk to him every night, that she sends pictures of the children to
his cell phone, and that she allows him to pick them up early for weekend visits if he chooses.
Ms. Frizzle also testified regarding several conflicts that she and plaintiff have had about
the children or about the couple's home. In August of 2006, an order was entered requiring Mr.
Valkoun to give twenty-four hours notice before coming to the couple's home. She testified that,
when they first separated in 2006, Mr. Valkoun would come to the house only once in a while
but, by February or March, he was coming over three or four times a week and staying for
several hours. She stated that she often left the home when he arrived so as to avoid arguing
with him in front of the children. Ms. Frizzle described a specific incident which occurred just
before Easter in 2007, when plaintiff told her that he planned on sleeping at the house and that no
one could prevent him from doing so. The defendant also testified that Mr. Valkoun used
profane language in front of the children, screamed at her, and called her names. On April 11,
4 It will be recalled that in 2006 Ms. Frizzle filed a paternity action; thereafter, by written
agreement between the parties, Mr. Valkoun acknowledged paternity as to both Sarah and Ethan.
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2007, an order was entered preventing plaintiff from entering the couple's home except for the
purpose of picking up the children for visitation.
Ms. Frizzle also testified regarding her employment history. She stated that, to support
herself and her son, she had worked as an exotic dancer for two and one-half years.5 She
testified that she has a high school equivalency diploma and would like to take college courses.
She testified that, in the past, she had worked as a certified nursing assistant but that her hours
were uncertain and that she eventually lost her certification.
Ms. Frizzle stated that she would like to relocate with her children to North Carolina in
order to live with her parents. She testified that her parents have offered to allow her to live with
them rent-free so that she could attend college, and she added that her mother has offered to
provide free child care. She stated that she has looked into a program that would allow her to
become a nurse's aide and has also considered entering a paralegal program. She testified that in
the past she had spoken with Mr. Valkoun about her desire to continue her education, but she
said that he dismissed these ideas and told her that her lack of education was her own problem.
Ms. Frizzle also introduced evidence to show that the type of home she could afford to provide
for her children in Rhode Island would be inferior to her parent's home in North Carolina.
Ms. Frizzle testified as to certain incidents which reflected unfavorably upon Mr.
Valkoun. She stated that he shut off her cable television and phone between August and
November of 2006 and that he shut off the air conditioner in August of that year through the
breaker box in the basement. She also testified that, in October of 2006, he installed a lock box
on the thermostat so that she could not control it. Ms. Frizzle further testified that in November
of 2005 he took away the minivan she had been driving and eventually sold it. Ms. Frizzle also
5 Ms. Frizzle also stated that she returned to dancing for two or three days in 2003 after she
and Mr. Valkoun had separated.
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described an incident that occurred during the Christmas season in 2004 while she was pregnant
with Ethan. She stated that she fell on the stairs at home; and, as she grabbed the handrail, she
put a quarter-sized dent in the wall. She testified that Mr. Valkoun "was screaming and
swearing" at her because of the damage to the wall. Ms. Frizzle also testified that plaintiff would
not provide food, clothing, or diapers for the children and that she eventually applied for
Ms. Frizzle's mother, Cathy Frizzle, also testified at trial. Cathy Frizzle testified that she
lives in a quiet rural neighborhood in Wilton, North Carolina with her husband Fred Frizzle,
defendant's father. She stated that she volunteers at the Wilton Elementary School two or three
times a week. She also testified about Wilton Elementary School, stating that there is end-ofgrade
testing in the third and fifth grade and that students must pass these tests in order to be
promoted to the next grade. She also stated that there are many activities for children in her
area-such as sports, arcades, miniature golf, and movie theatres. Cathy Frizzle testified that she
often returns to Rhode Island to visit family and that she would be willing to bring the children
with her in an effort to facilitate visitation by Mr. Valkoun. She further testified that she has a
close relationship with her grandchildren; and, because she does not work, she would be able to
care for her grandchildren while her daughter attends school. She also stated that she and her
husband would allow Kimberly and the children to live with them rent-free as long as necessary.
Ms. Frizzle's sister (Dawn Cabral) and her aunt (Pamela Calderone) also testified on her
behalf. Ms. Cabral testified regarding events that she had observed involving plaintiff's
behavior. She testified that she would sometimes visit the couple's home in Warwick during the
day and Mr. Valkoun would return home for lunch; she stated that on those occasions she did not
observe much interaction between Mr. Valkoun and his children. She also described an incident
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that occurred during Sarah's birthday party on December 2, 2006. She testified that Mr. Valkoun
came to the couple's home and began taking pictures of the vehicles parked near the home. Ms.
Cabral stated that she was offended by this because Mr. Valkoun was a police officer and she
believed that he was conducting a check on her vehicle's license plates. She testified that Sarah
was very upset while this was happening and was screaming for her father to go away.
Ms. Caldarone testified that she baby-sat for Sarah for about three months during 2001 at
the couple's home. She stated that, when Mr. Valkoun would come home for lunch, he usually
did not acknowledge Sarah or her. Ms. Caldarone testified regarding an incident which occurred
in October of 2005. She stated that she had picked up Ms. Frizzle's son Joseph from the library
and, when she arrived at the couple's home, she asked Mr. Valkoun why he had removed the
license plates from Ms. Frizzle's van. She testified that Mr. Valkoun responded that it was his
van and that he could remove the plates if he pleased. She further testified that plaintiff swore at
her, called her names, and told her to get off his property.
Mr. Valkoun presented evidence in opposition to defendant's motion to relocate and in
support of his motion for custody and his motion to be allowed to move back into his home in
Warwick. Mr. Valkoun testified that he has been employed by the Warwick Police Department
since December of 1996 and that, at the time of trial, he held the rank of sergeant. He stated that
he works the third shift with a rotating schedule of four days on, two days off. He testified that,
if given custody of his children, his mother would take care of them while he worked.
Mr. Valkoun testified that he purchased the couple's home in April of 1993, while he was
married to his first wife. He testified that, after their divorce, he remarried and lived there with
his second wife, with whom he has one child. He testified that the relationship among his three
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children is "very close" and that he takes them swimming, and also takes them for bike rides, to
the library, and to special events such as the circus.
Mr. Valkoun also testified with respect to the home environment with Ms. Frizzle. He
testified that both he and defendant shared responsibility for the care of the children and that they
both bought food for the house. He testified that he occasionally accompanied Ms. Frizzle on
visits to the pediatrician and took the children to the dentist. He further testified that, since
moving out of the couple's home, he has engaged in many activities with his children and
attended a teacher conference at Sarah's school. Mr. Valkoun stated that, if given custody of the
children, he would be very flexible with respect to a visitation schedule.
Mr. Valkoun presented a different version of some of the events to which defendant's
witnesses testified. He testified that he removed the license plates from the minivan Ms. Frizzle
drove because it was not running properly, and he wanted a mechanic to look at the van before
defendant continued to drive it. He stated that defendant wanted to drive the vehicle anyway and
he took the license plate off the vehicle to prevent her from doing so. He also presented invoices
from a repair facility detailing repairs to the van in March of 2006.
The plaintiff also testified regarding the incident in which Ms. Frizzle fell down the
stairs. He stated that she had gone upstairs several times during the evening because Sarah was
refusing to go to bed, that she was "acting like a raging lunatic," and that he tried to calm her
down after she fell. He did admit that he was upset by the hole Ms. Frizzle made in the wall.
Mr. Valkoun also testified regarding the incident which took place during Sarah's
birthday party in December of 2006. He stated that he went to the home because it was his
regular visitation day, but that, upon arriving, he was informed by defendant that he would not be
allowed to see Sarah that day because she was having a birthday party for her. He stated that he
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took pictures of the cars at the party because he wanted to document that he was there for his
visitation. He explained that Ms. Frizzle had been denying him visitation and that he had taken
her to court on contempt charges. On cross-examination, Mr. Valkoun admitted that Ms. Frizzle
had spoken to him before the day of the party and informed him that she was planning Sarah's
party for the day in question.
Mr. Valkoun also presented evidence tending to discredit Ms. Frizzle. He testified that
Ms. Frizzle followed him one day as he was driving on Interstate 95 and that she had Sarah in the
car seat in the backseat of the car. He stated that, after exiting the highway, he was stopped in
traffic and Ms. Frizzle got out of her car and jumped into the back portion of his pickup truck.
He stated that she opened the window on the back of the truck, threw a picture of herself and a
note into the cab. Mr. Valkoun testified that he was with a female friend at the time but that he
was not romantically involved with that person.
In addition, plaintiff called Ms. Frizzle as an adverse witness. Counsel introduced into
evidence a letter that Ms. Frizzle wrote to her son Joseph when he was fifteen-years-old. In the
letter, which was never actually delivered to the boy, Ms. Frizzle decried her teenage son's
behavior and accused him of swearing at her, carrying weapons, fighting, failing in school, and
doing drugs. Ms. Frizzle testified that she had just caught Joseph skipping school and that she
wrote the letter because she was angry. She further testified that, after she wrote the letter, she
placed it under some papers in a cabinet and did not give it to Joseph.
The trial justice delivered a bench decision on May 23, 2007. He summarized the
testimony and exhibits presented by both parties and applied the factors set forth in Pettinato v.
Pettinato, 582 A.2d 909 (R.I. 1990), in order to determine which party should have custody of
the children. At several points in his decision, he found that plaintiff acted unwisely,
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unreasonably, or immaturely. He also found parts of plaintiff's testimony to be lacking in
credibility. After considering the Pettinato factors, the trial justice awarded plaintiff and
defendant joint custody of Sarah and Ethan and concluded that it would be in the best interests of
the children to be placed with the mother.
The trial justice next turned to defendant's motion to relocate to North Carolina with the
children, indicated that he would be guided by the factors set forth in Dupre v. Dupre, 857 A.2d
242 (R.I. 2004). After considering those factors, the trial justice granted defendant's motion for
relocation. The judge granted reasonable visitation rights to plaintiff and awarded him
possession of the couple's home in Warwick.
The plaintiff raises several issues in his appeal from the order awarding custody of the
children to defendant and granting her request to relocate to North Carolina with the children.
He first contends that the trial justice erred in failing to evaluate defendant's relocation motion in
light of the Pettinato factors, as required by Dupre. The plaintiff also contends that the trial
justice erred in finding that defendant's reasons for relocating were valid, asserting that Ms.
Frizzle failed to present competent evidence that she was pursuing a real career in North
Carolina and that there was no evidence that the children's quality of life would be improved by
the move to North Carolina. The last issue raised by plaintiff is that the trial justice overlooked
evidence with respect to Ms. Frizzle's relationship with her son, Joseph, in determining her
fitness as a parent and her ability to provide a stable home for the children.
Motion to Dismiss Appeal and Motion to Extend Time to Transmit Record
The plaintiff's June 14, 2007 notice of appeal indicates that a transcript would be
ordered; however, the record indicates that plaintiff did not actually order the transcript until
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August 6, 2007-i.e., approximately one month after the expiration of the twenty-day period
mandated by Article I, Rule 10(b)(1) of the Supreme Court Rules of Appellate Procedure. On
the same day, plaintiff also filed a motion for an extension of time within which to transmit the
record. The defendant filed an objection to this motion. It is undisputed that the just-mentioned
motion was filed within sixty days of the filing of the notice of appeal, as is required by Article I,
Rule 11(c) of the Supreme Court Rules of Appellate Procedure.
At the August 14, 2007 hearing on defendant's motion for an extension of time within
which to transmit the record, counsel for plaintiff explained that M