Valkoun v Frizzle: Relocation

Supreme Court

No. 2007-202-Appeal.

No. 2008-207-Appeal.

(K06-456M)

James P. Valkoun :

v. :

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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I

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.

A

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

government assistance.

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.

B

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