Neill Ewing-Wegmann v. Katharine Allerding

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 47
Docket: Cum-23-25
Submitted
On Briefs: June 21, 2023
Decided: August 10, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, LAWRENCE, and DOUGLAS, JJ.

NEILL EWING-WEGMANN

v.

KATHARINE ALLERDING

HORTON, J.

[¶1] Katharine Allerding appeals from a judgment of divorce from Neill

Ewing-Wegmann entered by the District Court (Portland, Darvin, J.) awarding

her and Ewing-Wegmann shared parental rights, allocating Father’s Day with

the child to Ewing-Wegmann, and ordering Allerding to contribute to the fees

of the appointed guardian ad litem (GAL). We affirm the judgment.

I. BACKGROUND

[¶2] The parties were married in 2008 and have one child together. In

December 2020, Ewing-Wegmann filed a complaint for divorce against

Allerding due to irreconcilable marital differences. On May 10, 2021, at

Ewing-Wegmann’s request, a Family Law Magistrate (Najarian, J.) appointed a

GAL for the child and ordered that Ewing-Wegmann pay all of the GAL’s fees
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and that the GAL was to spend no more than ten hours on the matter. The GAL

appointment order was amended twice. The first amended order, dated

March 18, 2022, authorized additional hours for the GAL’s work. The second

amended order, dated May 25, 2022, authorized additional hours for the GAL

and stated that the fees for the additional hours could be subject to reallocation

at the final hearing in the matter.

[¶3] After a final hearing on September 6, 9, and 13, 2022, the court

(Darvin, J.) issued a divorce judgment on December 29, 2022. “The court found

the following facts, which are supported by competent evidence admitted

during the hearing.” Whitmore v. Whitmore, 2023 ME 3, ¶ 3, 288 A.3d 799;

see Littell v. Bridges, 2023 ME 29, ¶ 3, 293 A.3d 445.

[¶4] The child was born in 2009 and was twelve years old at the time of

the hearing. For much of the child’s life, “[Ewing-Wegmann] was an active and

engaged parent, and provided substantial [care], if not the primary care[,] of

the child.” After Ewing-Wegmann left the parties’ home in 2020, the child

resided with Allerding, and over time the child became estranged from

Ewing-Wegmann. During the year before the hearing, Ewing-Wegmann and the

child had in-person contact only three times, two of which were in the course
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of counseling sessions aimed at promoting reunification between the child and

Ewing-Wegmann.

[¶5] What caused “the rapid and severe deterioration of the relationship

between [Ewing-Wegmann] and [the] child” is unclear. Ewing-Wegmann

contends that Allerding caused the estrangement by encouraging the child not

to see him. According to Allerding and the child’s therapist, it is the child who

has chosen not to speak or visit with Ewing-Wegmann.

[¶6] After the parties separated, the child disclosed to Allerding that

Ewing-Wegmann had engaged in what Allerding told the child was

inappropriate touching,1 and the child’s therapist later made a referral to the

Department of Health and Human Services regarding inappropriate sexual

behavior by Ewing-Wegmann. The court found that Ewing-Wegmann had on

occasion patted the child and pinched the child’s “bottom” but that “there [was]

no objective or confirming evidence of [other] claimed abuse[.]”

[¶7] The child is “described as extremely articulate, . . . highly intelligent

and very perceptive.” The child has had longstanding anxiety issues, has been

in counseling for years, and more recently has been hospitalized for

1 The GAL testified that that the child “did [not] come to the realization or the belief that
[Ewing-Wegmann]’s behavior was inappropriate” until Allerding told the child that
Ewing-Wegmann’s behavior was inappropriate.
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experiencing suicidal ideation. The child, upon learning of impending contact

with Ewing-Wegmann, becomes severely “emotionally dysregulated”—upset

and unable to manage emotions.

[¶8] The parents share responsibility for both causing and repairing the

estrangement between the child and Ewing-Wegmann. “[Allerding] has

marginalized [Ewing-Wegmann] in his role as father” and “lack[s] . . .

self-awareness as to how her own feelings of antipathy towards

[Ewing-Wegmann] have been communicated to the child [] and adversely

impacted the child.” On the other hand, Ewing-Wegmann needs “to develop his

ability to understand and respond [empathetically] [] to the child’s needs and

‘validate’ [the child’s] feelings . . . .”

[¶9] The court ordered parental rights and responsibilities to be shared

between both parties and awarded primary residence of the child to Allerding.

The court awarded Ewing-Wegmann contact with the child for up to ninety

minutes on alternating Saturdays each month in a public location without

Allerding present.2 The court ordered video contact between Ewing-Wegmann

2Prior to each visit, Ewing-Wegmann “shall consult with the child’s therapist about the selection
of a public location that will address any comfort or safety concerns expressed by the child.
[Ewing-Wegmann] shall designate in writing at least 7 days in advance the date and time of the
parental contact, with the expectation that the initial contacts should take place during a lunch or
meal time in a restaurant like setting.”
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and the child at least twice a month. The court also encouraged

Ewing-Wegmann to keep telephone or internet contact “to a time designated

on the weekends in response to specific request[s] by the child.” The court also

awarded Ewing-Wegmann contact with the child from 9 a.m. to 5 p.m. on

Father’s Day every year. As part of its determination of child support, the court

found that Allerding’s annual gross income was $51,525 and Ewing-Wegmann’s

annual gross income was $56,056. Those findings were incorporated into a

child support order requiring Ewing-Wegmann to pay Allerding $139 per week

in child support. The court also ordered that Allerding reimburse

Ewing-Wegmann $1,825 of the amount he paid toward GAL fees.

[¶10] Allerding timely filed a notice of appeal. See 14 M.R.S.

§ 1901(1)(2023); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶11] “We review the factual findings underlying a divorce judgment for

clear error and an award of parental rights and responsibilities for an abuse of

discretion.” Whitmore, 2023 ME 3, ¶ 7, 288 A.3d 799. Contrary to Allerding’s

contentions, the court did not clearly err or abuse its discretion in ordering

shared parental rights. See 19-A M.R.S. § 1653(2)-(3) (2023); see, e.g., Pyle v.

Pyle, 2017 ME 101, ¶¶ 7-9, 162 A.3d 814. The court’s judgment included
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“extensive factual findings” regarding the parties and the child as well as

additional findings related to the best interest factors enumerated in 19-A

M.R.S. § 1653(3). Bergin v. Bergin, 2019 ME 133, ¶ 5, 214 A.3d 1071;

see Whitmore, 2023 ME 3, ¶ 8, 288 A.3d 799.

[¶12] “We review determinations of rights of contact for abuse of

discretion.” Dube v. Dube, 2016 ME 15, ¶ 5, 131 A.3d 381. The court did not

abuse its discretion in awarding to Ewing-Wegmann rights of contact with the

child on Father’s Day. See id. ¶¶ 5-8. The court noted that “there is a risk of

emotional harm (and physical distress) to the child as a result of contact that

may be ‘forced’ by the court . . . [therefore,] it is the best interests of the child

that the court must address in fashioning relief.” The court laid out specific

requirements for other in-person contact—that the father can visit with the

child only twice a month, for ninety minutes, in a public place chosen in

consultation with the child’s therapist so that the child feels comfortable and

safe. When the court issued its judgment, Father’s Day was about six months

away. We conclude that the court issued its award in the hope that the parties

would by then find a way to cooperate on facilitating Father’s Day contact and

limit contact by agreement if necessary so as not to force contact contrary to

the child’s best interest. Cf. Dube, 2016 ME 15, ¶¶ 7-8, 131 A.3d 381.
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[¶13] We review for an abuse of discretion the court’s decision on

allocating GAL fees, and we see no abuse of discretion here. Akers v. Akers,

2012 ME 75, ¶ 8, 44 A.3d 311. The first two GAL appointment orders requiring

Ewing-Wegmann to pay all of the fees attributable to the GAL’s work authorized

by those orders did not prevent the court from ordering Allerding to contribute

to the fees attributable to the court’s third order. The parties agreed that

Ewing-Wegmann would pay all of the fees associated with the first GAL

appointment order, but the agreement did not bar an allocation of fees incurred

as a result of subsequently authorized work, much of which was necessitated

by the parties’ shared difficulty in co-parenting effectively. The parties are in a

similar financial position to contribute to GAL fees. Moreover, the court’s

second amended GAL appointment order stated that the fee for that work could

be subject to reallocation. 19-A M.R.S. § 1507(1), (7) (2023); cf. McMahon v.

McMahon, 2019 ME 11, ¶¶ 13-18, 200 A.3d 789.

The entry is:

Judgment affirmed.
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Jeanne C. Sund, Esq., Robinson, Kriger & McCallum, Portland, for appellant
Katharine Allerding

Elizabeth J. Scheffee, Esq., Scheffee Law, Gorham, for appellee Neill Ewing-
Wegmann

Portland District Court docket number FM-2020-832
FOR CLERK REFERENCE ONLY