Lowell Harris v. Priscilla Evans

May 13, 2021

Supreme Court

No. 2019-249-Appeal.
No. 2020-79-Appeal.
(P 15-246M)

Lowell Harris :

v. :

Priscilla Evans. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
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Rhode Island 02903, at Telephone (401) 222-3258 or
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Supreme Court

No. 2019-249-Appeal.
No. 2020-79-Appeal.
(P 15-246M)

Lowell Harris :

v. :

Priscilla Evans. :

Present: Suttell, C.J., Goldberg, Robinson, and Long, JJ.

OPINION

Justice Goldberg, for the Court. These consolidated appeals came before

the Supreme Court pursuant to an order directing the parties to appear and show

cause why the issues raised should not be summarily decided. In appeal No. 19-

249-A., the defendant mother, Priscilla Evans, appeals from a decision and order of

the Family Court granting joint custody of the parties’ minor child1 to the

defendant and the plaintiff father, Lowell Harris, with physical placement awarded

to the defendant.2 In appeal No. 20-79-A., the defendant appeals from a decision

1
The minor child was born on July 25, 2014, and is six years old.
2
The plaintiff appeared pro se before this Court and throughout the Family Court
proceedings.
-1-
and order of the Family Court finding her in contempt of a prior visitation order.3

After considering the parties’ written and oral submissions, we conclude that cause

has not been shown and proceed to decide this case without further briefing or

argument. For the reasons set forth herein, we affirm the judgments of the Family

Court.

We are confronted with a years-long contentious conflict between these

parents regarding visitation and custody of their minor son that spans most of the

child’s life. We need not belabor this unfortunate saga that plaintiff was forced to

undertake in order to obtain joint custody and visitation with his son. We provide

a brief recitation of the facts relevant to each appeal.

No. 19-249-A.

On May 20, 2015, plaintiff filed a complaint against defendant in the Family

Court seeking to modify custody and to obtain visitation rights to his minor child.

The defendant filed an answer seeking sole custody of the child, with plaintiff

receiving reasonable rights of supervised visitation. On February 1, 2016, an

order entered awarding defendant temporary physical placement and directing that

3
Contrary to Rule 58(a) of the Family Court Rules of Domestic Relations
Procedure, which dictates that “[e]very judgment shall be set forth on a separate
document[,]” the decision and order in No. 19-249-A. is set forth on a single
document, as well as the decision and order for No. 20-79-A. Although this is
procedurally infirm, it warrants no further action. For ease of reference, we refer
to the two Family Court decisions and orders on appeal as “judgments” at times in
this opinion.
-2-
plaintiff have supervised visitation with the child at the Family Court and the

Providence Children’s Museum.4

A protracted trial eventually commenced in the Family Court and continued

over the course of twenty-one months, from February 2017 to November 2018.

There was voluminous testimony and an expansive record. A recurring issue was

defendant’s insistence that plaintiff was not emotionally and mentally fit to be

alone with the child and her assertion that plaintiff could not provide a safe

environment. According to defendant, she became afraid of plaintiff in 2015 after

an incident where he poked her in the eye while she was holding the child.5

During her testimony, defendant repeatedly alleged that plaintiff suffers from post-

traumatic stress disorder (PTSD), which, defendant asserted, created an unsafe

environment for the child. The defendant demanded that plaintiff undergo a

comprehensive psychological evaluation to ensure the safety of the child.

On May 30, 2019, the trial justice issued a written decision and order,

awarding the parents joint custody, with defendant having physical placement of

the child and plaintiff having unsupervised visitation every other weekend, one

4
The record discloses that plaintiff engaged in supervised visitation with the child
at the Family Court from January 2016 through November 2017.
5
In response to this incident, defendant called the police, and plaintiff was charged
with domestic assault and domestic disorderly conduct. As a result, the District
Court issued a no-contact order in favor of defendant and against plaintiff. The
defendant then sought a restraining order on behalf of herself and the minor child
in the Family Court, which was granted and remained in place for one year.
-3-
weekday evening per week, and one uninterrupted week of summer vacation (the

May 30, 2019 order).6

In her decision, the trial justice noted that plaintiff coached students in

basketball and track at a prestigious private school in Providence and had a

reputation as a good educator and leader of his students. She acknowledged that

defendant had been the child’s primary caretaker since birth but found that plaintiff

“was loving and appropriate with [the child,]” and that the child “was happy when

visiting with his father,” as set forth in visitation reports from the Family Court’s

supervised visitation program. The trial justice also found that, since plaintiff’s

supervised visits with the child outside of the courthouse began, “there was nothing

reported other than that [the child] and [plaintiff] had a loving and bonded

relationship.”

The trial justice noted that “[a] major sticking point” in this case was

defendant’s “insistence” that plaintiff undergo a neuropsychological evaluation

before having any unsupervised visits with the child. The trial justice noted that

plaintiff, a war veteran, went to the Veterans Affairs (VA) Hospital for testing and

presented the court and defendant with the results of the VA Hospital screening

6
The trial justice further provided for each parent to have full access to the child
via telephone at seven o’clock nightly, for the parties to alternate visitation with
the child during school vacations, holidays, and the child’s birthday each year, and
she also provided directives regarding transportation of the child, child support
obligations, and claiming the child on tax returns.
-4-
(the VA report), “which reported that a neuro-psych exam would not be [a] proper

screening for PTSD[.]” Nevertheless, the trial justice acknowledged that the

doctor at the VA Hospital screened plaintiff and determined that he did not have

PTSD. The defendant refused to accept these findings.

The trial justice categorized defendant’s behavior throughout this case to be

“unfortunate” and stemming solely from her animosity toward plaintiff. She

declared that there was “no doubt” that defendant had made anonymous telephone

calls to plaintiff’s employer “in an effort to slander” plaintiff. She also found that

defendant had “thwarted” plaintiff’s visits at the Family Court and resisted letting

the child have unfettered contact with his father, which, the trial justice

determined, was “counter-productive to fostering the healthy, emotional and social

growth of this young boy.” The trial justice noted that, because of defendant’s

“constant placement of obstacles,” plaintiff “had to fight for every minute of time

with [the child,]” so it was “not surprising that there now exists an incredible

amount of acrimony and mistrust” between these parents. The trial justice

concluded that plaintiff had “been denied a significant role in these first formative

years of [the child’s] life[,]” adding that he “needs a father just as much as he

needs a mother.”

The defendant filed a timely notice of appeal from the May 30, 2019 order

(No. 19-249-A.), and was later found in contempt for failure to comply with the

-5-
May 30, 2019 order for conduct occurring during a time that the Family Court had

jurisdiction over the matter.

Standard of Review

“When reviewing a decree of the Family Court, the trial justice’s findings

are afforded great weight, and shall not be disturbed unless they are clearly wrong

or unless the trial justice overlooked or misconceived material evidence.” Africano

v. Castelli, 740 A.2d 1251, 1252 (R.I. 1999) (Africano I). It is a well-settled

principle that “the paramount consideration in cases involving visitation rights or

custody disputes is the best interests of the child.” Africano v. Castelli, 837 A.2d

721, 728 (R.I. 2003) (Africano II) (brackets omitted) (quoting Pacheco v. Bedford,

787 A.2d 1210, 1213 (R.I. 2002)). “If the Family Court has properly considered

what custody arrangements are in the best interests of the child, this Court will not

disturb such a discretionary decision.” Africano II, 837 A.2d at 728 (brackets

omitted) (quoting Pacheco, 787 A.2d at 1213). The same precept applies to

decisions that modify visitation. Id.

Analysis

Before this Court, defendant argues that the trial justice committed

reversible error when she: (1) relied on the VA report in her decision even though

it was never admitted into evidence; (2) awarded plaintiff unsupervised visitation;

and (3) made several erroneous findings of fact.

-6-
When a justice of the Family Court is tasked with evaluating the best

interests of the child in a given situation, the trial justice should consider: (1) the

wishes of the child’s parents; (2) the reasonable preference of the child (if he or she

is of sufficient intelligence and understanding); (3) the interaction and relationship

of the child to the parents; (4) the child’s adjustment to his or her home, school,

and community; (5) the mental and physical health of the individuals involved; (6)

the stability of the child’s home life; (7) the moral fitness of the parents; and (8)

the willingness of each parent to facilitate a close relationship between the child

and the other parent. Pettinato v. Pettinato, 582 A.2d 909, 913-14 (R.I. 1990). “No

one factor is determinative; rather, the trial justice should consider a combination

of and an interaction among all the relevant factors.” Africano II, 837 A.2d at 728.

After careful review of the record, it is clear to us that the trial justice did not

err in her conclusions because there is ample evidentiary support for her careful

and detailed findings. In the May 30, 2019 order, the trial justice undertook a

comprehensive and thorough review of the testimony, which spans over 830

transcript pages, made seventy-seven findings of fact, issued twenty-five orders,

and correctly applied and evaluated each Pettinato factor with specificity before

concluding that the child’s interests would best be served by having both his

mother and his father in his life.

-7-
The defendant’s primary challenge before this Court is evidentiary. The

defendant contends that the trial justice erroneously relied on the VA report that

stated that plaintiff did not suffer from PTSD because the report was not properly

admitted into evidence. This contention is without merit. The plaintiff concedes

that, as a pro se litigant, he may have made procedural errors in attempting to

introduce the VA report into evidence, but he argues that any such errors were

corrected when VA Hospital doctors sent certified letters to the courthouse.7

The VA report concluded that plaintiff did not suffer from PTSD. The VA

report was produced in response to a preliminary diagnosis by Cindy Coite, a

psychotherapist with a focus on psychodynamic therapy. Coite opined that

plaintiff was quick to anger and suffered to some extent from PTSD associated, in

part, with his time in the military. The trial justice rejected this opinion and found

that Coite’s testimony lacked probative value on that point. She noted that Coite

was in fact defendant’s counselor and that Coite did not have sufficient access to

plaintiff nor his background information to make a diagnosis of PTSD.

Notwithstanding defendant’s unwavering contention that plaintiff suffered from

PTSD, the trial justice determined that there was no credible evidence to show

anything but that plaintiff maintained “a stable household and could adequately

provide a safe environment for [the child].” We agree.

7
The certified letters to which plaintiff refers are not contained in the record before
us; thus, they will not be considered on appeal.
-8-
There simply is no evidentiary support in the record establishing that

plaintiff suffered from PTSD or any other ailment that would make him a threat to

the child’s safety. There is no evidence that plaintiff is not a fit and proper parent.

The trial justice devoted but one fleeting paragraph of a thirty-three-page decision

acknowledging that plaintiff went to the VA Hospital for psychological screening

and “[t]he VA reported that [plaintiff] did not suffer from PTSD.” Accordingly,

the trial justice’s reference to the VA report, however slight, is, at best, harmless

error and is of no moment to this appeal given the abundant testimony and

evidence that she relied upon in reaching her conclusions.

Next, defendant asserts that the trial justice made several erroneous findings

of fact. In light of the overwhelming evidence in favor of granting plaintiff

additional visitation with his son, none of defendant’s claims of erroneous factual

findings are of moment. Particularly, the trial justice noted the testimony of

Stephanie Costa, the mother of plaintiff’s second child, who testified regarding

plaintiff’s ability to communicate and co-parent effectively; the trial justice found

Ms. Costa’s testimony credible. The trial justice also emphasized that “all” reports

from various visitation supervisors stated that plaintiff is a loving, caring, and

appropriate parent.

It is well-settled that

“this Court affords a great deal of respect to the factual
determinations and credibility assessments made by the
-9-
judicial officer who has actually observed the human
drama that is part and parcel of every trial and who has
had an opportunity to appraise witness demeanor and to
take into account other realities that cannot be grasped
from a reading of a cold record.” State v. Paola, 59 A.3d
99, 106 (R.I. 2013) (brackets omitted) (quoting State v.
DiCarlo, 987 A.2d 867, 872 (R.I. 2010)).

The trial justice was entitled to weigh the evidence as she deemed fit and was

justified in accepting or rejecting the evidence before her. Accordingly, we hold

that the trial justice did not overlook or misconceive material evidence.

Based on the totality of the circumstances and a complete review of the

comprehensive evidence before us, we conclude that there is ample support for the

trial justice’s decision, and we decline to find it erroneous. See Dupré v. Dupré,

857 A.2d 242, 257 (R.I. 2004) (“It is the trial justice who is in the best position to

determine what factors may be relevant on a case-by-case basis, and his or her

discretion in this regard should not be unduly constrained.”).

No. 20-79-A.

After the docketing of defendant’s appeal in No. 19-249-A., plaintiff moved

to remand the case to Family Court for a hearing on his motions to adjudge

defendant in contempt of the May 30, 2019 order.8 This Court remanded the case

8
Since the entry of the May 30, 2019 order, plaintiff has filed motions in the
Family Court to adjudge defendant in contempt of that order on June 17, 2019,
July 9, 2019, September 23, 2019, October 15, 2019, November 5, 2019,
December 2, 2019, January 17, 2020, January 31, 2020, August 12, 2020, and
October 15, 2020.
- 10 -
“for the sole purpose of the Family Court considering whether the [defendant] is in

contempt of the Family Court’s decision with respect to visitation[,]” specifically

directing that “[t]he Family Court may not exceed the scope of this remand order.”

The plaintiff then sought to expand the scope of the remand order, which this Court

granted, “for the sole purpose of the Family Court considering whether to modify

the holiday visitation schedule set forth in its May 30, 2019 [order].”

On December 3, 2019, the Family Court held a hearing to consider the two

issues presented on remand. On December 24, 2019, after extensive testimony and

careful review of the evidence,9 the trial justice issued a nineteen-page written

decision and order, finding defendant in contempt of the previously entered

visitation order (the December 24, 2019 order). Specifically, she found that

defendant was in contempt for refusing to allow plaintiff to visit with the child on

June 7 through 9, June 21 through 23, July 5 through 7, October 11, and

October 25, 2019, and for failing to allow plaintiff to speak to the child on the

phone each night, as set forth in the May 30, 2019 order.

The trial justice ordered defendant to pay the costs associated with

prosecuting this contempt. The trial justice further directed that, to make up for the

visitation that plaintiff lost due to defendant’s contemptuous conduct, plaintiff was

9
After plaintiff rested his case, defendant moved to dismiss plaintiff’s motions to
adjudge her in contempt, alleging that plaintiff had failed to present clear and
convincing evidence to support the motions. The trial justice denied that motion.
- 11 -
awarded an additional week of visitation with the child in each of the months of

June, July, and August 2020, “in addition to summer visitation ordered in [the]

May 30, 2019 [order].” The trial justice also prohibited each party from recording

the other when that parent is interacting with the child. The defendant filed a

timely notice of appeal from the December 24, 2019 order (No. 20-79-A.).

Standard of Review

“The authority to find a party in civil contempt is among the inherent powers

of our courts.” Town of Coventry v. Baird Properties, LLC., 13 A.3d 614, 621 (R.I.

2011) (quoting Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 434 (R.I.

2009)). A contempt finding requires a party to demonstrate, “by clear and

convincing evidence, that a sufficiently specific order of the court has been

violated.” Id. This Court accords “great deference to a trial justice’s finding of

contempt[,]” and we will not disturb those findings unless they are clearly wrong

or the trial justice abused his or her discretion. Id. Nor will this Court “substitute

our reading of the evidence for that of the trial justice if the record supports the

[trial] justice’s findings.” Now Courier, LLC, 965 A.2d at 434.

Analysis

In this appeal, defendant makes several claims of error. She avers that the

trial justice erred in (1) finding defendant in contempt of the May 30, 2019 order

on various dates prior to September 5, 2019, and in misconceiving evidence

- 12 -
concerning visitation in July 2019; (2) accepting statements and questions posed by

plaintiff in his examination of defendant as evidence; (3) considering defendant’s

unresponsive testimony consisting of denials and lack of recollection as evidence;

(4) denying defendant’s motion to dismiss the contempt proceeding; and (5)

exceeding the scope of this Court’s limited remand order by prohibiting the parties

from recording each other when interacting with the child.

We begin by noting that on July 9, 2019, this Court issued a partial stay of

the May 30, 2019 order as to the child’s overnight visitation with plaintiff; this

partial stay was vacated by this Court on September 5, 2019. The defendant argues

that the trial justice erred when she found defendant in contempt regarding

overnight visitation before the stay was lifted on September 5, 2019. The

defendant is mistaken. The trial justice clearly and carefully considered the period

during which the partial stay was in place and did not declare defendant in

contempt at any time during that period. Certainly, before this Court granted a stay

of the order on July 9, 2019, there was no stay in effect, nor had the appeal been

docketed, and defendant was obliged to comply with the Family Court’s directives.

She defied those orders. Accordingly, the trial justice’s finding of contempt based

on defendant’s refusal to allow plaintiff to visit with the child on June 7 through 9,

June 21 through 23, and July 5 through 7, 2019, was not in contravention of the

partial stay.

- 13 -
We now turn to the merits of the trial justice’s contempt findings in the

December 24, 2019 order. The defendant asserts that her inability on the witness

stand to recall whether she provided the child overnight visitation with plaintiff

cannot be utilized as evidence against her to support contempt findings. Although

defendant’s purported failure of memory and her nonresponsive answers cannot

serve as evidence of a fact, they can serve as the predicate for a finding of lack of

candor.10 As previously noted, this Court’s review of credibility findings is well-

settled; we afford the trial justice great deference in this respect. See Paola, 59

A.3d at 106.

The trial justice in this case made clear credibility determinations—she

found that defendant’s testimony, in all respects, was not credible. Specifically,

she found that defendant’s testimony that plaintiff agreed to give up Friday night

visitation was “not credible”; that defendant’s professed belief that she was in

compliance with the court’s order was “disingenuous and not credible”; and that

defendant’s testimony that she did not recall receiving an e-mail from plaintiff

about picking up the child for plaintiff’s court-ordered weekend visit was “not

credible[.]” The trial justice further found that defendant “took justice into her

own hands, willfully ignored the * * * May 30, 2019 [order] when she advised

[p]laintiff that she disagreed with the [c]ourt’s order and planned on filing an

10
Inconsistent statements, of course, are admissible as substantive evidence in
accordance with Rule 801(d)(1)(A) of the Rhode Island Rules of Evidence.
- 14 -
appeal, therefore refusing to allow [p]laintiff his [c]ourt [o]rdered weekend

visitation[.]” The trial justice determined that defendant “refus[ed] to let the minor

child” visit with his father on June 7 through 9 and June 21 through 23, 2019;

“willfully withheld” plaintiff’s weekend visitation for July 5 through 7, 2019;

“willfully refused” overnight visitation on October 11 and October 25, 2019; and

did not allow plaintiff to speak to the child by telephone each night as was

required, which the trial justice deemed “evidence of [d]efendant’s intent of non-

compliance with the [c]ourt [o]rder.”

This conduct falls squarely within the realm of contempt and clearly reflects

defendant’s lack of credibility and willful disregard of the Family Court’s orders.

Standing alone, defendant’s evasive testimony and lack of credibility were

sufficient to support the trial justice’s finding that defendant was in contempt of the

May 30, 2019 order. Accordingly, we are satisfied that the trial justice did not err

in her finding of contempt.

We next turn to defendant’s suggestion that the trial justice exceeded the

scope and duration of the remand order. After a case is docketed on appeal,

jurisdiction rests solely with the Supreme Court. Absent a remand, the trial court

has no authority to act. See Thompson v. Thompson, 973 A.2d 499, 513 (R.I. 2009)

(“It is well established that once an appeal has been docketed in this Court, the

lower court no longer has jurisdiction.”). On occasion, we have been called upon

- 15 -
to remind the trial bench “that the lower courts * * * that receive our remand

orders may not exceed the scope of the remand or open up the proceeding to legal

issues beyond the remand.” Willis v. Wall, 941 A.2d 163, 166 (R.I. 2008). In some

cases, courts have gone well beyond the limited purpose of the remand. See, e.g.,

Sansone v. Morton Machine Works, Inc., 957 A.2d 386, 398 (R.I. 2008) (vacating

an order that “transgressed the extent of our remand” by entertaining more than the

“precise instruction” expressed in the remand order); Pleasant Management, LLC

v. Carrasco, 960 A.2d 216, 223 (R.I. 2008) (concluding clear error where the trial

justice “strayed from the mandate” and considered multiple issues that “were

simply not before [him]” on remand). This is not such a case.

The trial justice was confronted with flagrant contemptuous behavior by a

party who consistently and defiantly attempted to frustrate or outright disregard the

Family Court’s order. The trial justice’s additional directive, prohibiting the

parties from recording one another during the pickup and drop off of the child for

visitation, was nothing more than a wise attempt to remedy the contempt and to

mitigate the seemingly endless disputes between the parents. This Family Court

order was entered while the matter was on remand in that court and did not plow

new legal ground or tackle issues that were not squarely in the trial justice’s

wheelhouse.

- 16 -
We conclude by noting that, despite the defendant’s relentless efforts to oust

the plaintiff from his son’s life, the plaintiff has soldiered on: He has not sought

sole custody, nor physical placement; he only seeks to be involved in his son’s life.

We perceive no barrier to the decision allowing him to do so. We note that joint

custody was awarded in this case, and, at the moment, the defendant has physical

placement of the child. The defendant should not place that in jeopardy. The

defendant cannot place her own interests before her son’s, nor may she disregard

the directives of the Family Court.

Conclusion

For the reasons set forth in this opinion, we affirm both judgments of the

Family Court in their entirety. The papers in this case may be remanded to the

Family Court.

Justice Lynch Prata did not participate.

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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case Lowell Harris v. Priscilla Evans.

No. 2019-249-Appeal.
Case Number No. 2020-79-Appeal.
(P 15-246M)

Date Opinion Filed May 13, 2021

Justices Suttell, C.J. Goldberg, Robinson, and Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Family Court

Judicial Officer from Lower Court Associate Justice Patricia K. Asquith

For Plaintiff:

Lowell Harris, Pro Se
Attorney(s) on Appeal
For Defendant:

Jason Dixon Acosta, Esq.

SU‐CMS‐02A (revised June 2020)