Lauren Nagel v. Joshua Nagel

May 5, 2023
Supreme Court

No. 2023-66-Appeal.
(K 19-1687)

Lauren Nagel :

v. :

Joshua Nagel. :

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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Supreme Court

No. 2023-66-Appeal.
(K 19-1687)

Lauren Nagel :

v. :

Joshua Nagel. :

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

OPINION

Justice Long, for the Court. The defendant father, Joshua Nagel (father or

defendant), appeals on an expedited basis from a January 25, 2023 decree of the

Family Court in favor of the plaintiff mother, Lauren Nagel (mother or plaintiff).

The Family Court’s decree granted the plaintiff’s motion for relief after final

judgment and permitted the plaintiff to vaccinate the parties’ two minor children for

COVID-19 consistent with the recommendation of the children’s pediatrician.1 This

case came before the Supreme Court pursuant to an order directing the parties to

appear and show cause why the issues raised in this appeal should not be summarily

decided. After considering the parties’ written and oral submissions and reviewing

the record, we conclude that cause has not been shown and that we may decide this

1
Following the Family Court’s decree, on January 25, 2023, defendant filed an
emergency motion for a stay pending appeal, which this Court granted.
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case without further briefing or argument. For the reasons set forth in this opinion,

we affirm the decree of the Family Court.

Facts and Procedural History

This emergency appeal arises out of the parties’ divorce proceedings in

Family Court. On September 17, 2020, the Family Court entered a final judgment

of divorce between the parties that (1) provides for joint legal custody of their two

preadolescent daughters, requiring the parties to share in all major decisions

regarding their children’s health, including elective medication choices; and (2)

grants plaintiff primary physical placement of the children. Additionally, a marital

settlement agreement was incorporated but not merged into the final judgment of

divorce, “except for those provisions related to children custody, visitation and

support.”2 The final judgment sets forth several detailed provisions governing the

children’s custody and visitation, along with provisions specifying more granular

aspects of their parenting relationship. With respect to the children’s medical

treatment, the final judgment provides that “[n]either party shall unreasonably

withhold his or her consent to medical treatment for the children or the

administration of medication recommended by the pediatrician of the children.”

2
The provisions related to custody, visitation, and support of the minor children
contained in the final judgment of divorce are identical to those enumerated in the
parties’ marital settlement agreement.
-2-
On March 17, 2022, plaintiff filed a motion for relief after final judgment

seeking (1) the Family Court’s permission to vaccinate both children for COVID-

19, consistent with the recommendation of the children’s pediatrician; and (2) an

award of full custody of the minor children, specifically with respect to final

decision-making authority over their medical care.3 The defendant filed an

opposition to plaintiff’s motion and a cross-motion to prevent the children’s

vaccination; the Family Court thereafter ordered the parties to submit pretrial

memoranda outlining their respective positions. At trial, the parties submitted

deposition transcripts from Colleen Powers, M.D. (Dr. Powers), the children’s

pediatrician, and Andrew Bostom, M.D. (Dr. Bostom), a medical doctor and

epidemiologist whom defendant retained as an expert.

A justice of the Family Court held an expedited bench trial on December 6,

2022, during which she admitted twenty exhibits, including the deposition testimony

from Drs. Powers and Bostom, and heard testimony from both parties. Based on the

absence of any identified errors in the trial justice’s findings of fact, we confine our

factual recitation to the trial justice’s decision and include additional facts in our

discussion of the issues.

3
The plaintiff’s motion also included a prayer for relief that sought to enroll their
children in counseling, a matter that is not before this Court.
-3-
After the trial concluded, the trial justice issued a thorough written decision

finding that both parties chose Dr. Powers together and that neither party had

objected to any previous recommendations. Based on these findings, the trial justice

ultimately permitted plaintiff to follow Dr. Powers’s recommendation and vaccinate

the children for COVID-19. The trial justice determined that defendant’s refusal to

follow the advice of Dr. Powers and his opposition to his children’s receipt of the

COVID-19 vaccine was not objectively unreasonable behavior, and therefore

declined to hold him in contempt. In balancing the evidence before her, the trial

justice highlighted the lack of uniformity of expert opinion regarding whether

children should receive the COVID-19 vaccine and acknowledged the expertise of

the American Academy of Pediatrics (AAP), the Centers for Disease Control (CDC),

and the Association of American Physicians and Surgeons (AAPS).

However, the trial justice rejected defendant’s argument that his vaccination

preference should prevail based on the language of the final judgment. Further, the

trial justice noted that the final judgment does not contain language directing a

particular outcome in this matter or divesting the Family Court of the decision-

making authority to resolve this dispute. Additionally, after consulting the factors

outlined in Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990), the trial justice rejected

plaintiff’s request for full legal custody and final decision-making authority with

respect to the children’s medical care.

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After reviewing the evidence presented by the parties, the trial justice

concluded that, under the totality of circumstances, it was in the children’s best

interests to give plaintiff the decision-making authority over their COVID-19

vaccination status and any future boosters. The trial justice further determined that

plaintiff must continue to follow the recommendations of Dr. Powers and to provide

updates to defendant on the development of their vaccination status. In reaching this

decision, the trial justice relied on several factors such as the children’s primary

physical placement with plaintiff; the fact that Dr. Powers serves as their first and

only pediatrician; the fact that the parties have never disputed a previous

recommendation made by Dr. Powers; and that one of the children suffers from

allergies and, to a certain extent, defendant has downplayed their severity.

The trial justice also credited the fact that Dr. Powers has personal experience

with both children, along with her knowledge of their medical history in addition to

her general experience and expertise surrounding vaccinations. She further noted

that Dr. Powers’s recommendations are consistent with guidance provided by the

AAP and the CDC. Finally, the trial justice noted that neither child has an underlying

health condition that would contradict the vaccination, one child has an increased

risk of respiratory compromise due to her asthma, and neither child has had an

adverse reaction to any prior vaccine.

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With respect to Dr. Bostom, the trial justice noted that he identified two

serious but rare adverse effects that could result from the COVID-19 vaccination

and highlighted the fact that the AAPS recommended that the CDC refrain from

adding this vaccine to the childhood immunization schedule. The trial justice also

noted that Dr. Bostom possesses a limited knowledge of the children in this case;

that he has never met or treated either child, or reviewed their medical records; and

that he provided general expert testimony related to COVID-19. She further noted

that he too acknowledges the authority of the CDC and the AAP and that he concedes

that defendant’s specified concerns regarding serious side effects are extremely rare

and unlikely to affect the children because of their age and sex. Finally, the trial

justice noted that, in the event Dr. Powers changes her recommendation when they

are eligible for a booster shot, plaintiff cannot unilaterally allow the children to

receive the booster without defendant’s consent or court approval.

On January 25, 2023, the Family Court entered a decision and judgment. The

defendant filed a timely notice of appeal and this Court ordered an expedited briefing

and hearing schedule.

Standard of Review

This Court will affirm the Family Court justice’s award concerning custody

and the best interests of the child unless the trial justice’s factual findings overlooked

or misconceived material evidence or were otherwise clearly wrong. Leon v.

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Krikorian, 271 A.3d 985, 989 (R.I. 2022). “Consequently, unless it is shown that

the trial justice either improperly exercised his or her discretion or that there was an

abuse thereof, this Court will not disturb the trial justice’s findings.” Vieira v.

Hussein-Vieira, 150 A.3d 611, 615 (R.I. 2016) (quoting Palin v. Palin, 41 A.3d 248,

253 (R.I. 2012)). When reviewing questions of law in Family Court appeals, this

Court employs a de novo standard of review. Tsonos v. Tsonos, 222 A.3d 927, 932

(R.I. 2019).

Discussion

The defendant specifies two errors contained in the Family Court’s decision

and requests that this Court continue to stay the decision pending full briefing. 4 First,

defendant argues that the trial justice erred in conducting a best-interests-of-the-child

analysis after finding that he acted reasonably in accordance with the final decree.

Second, defendant asserts that the trial justice failed to articulate and apply the

Pettinato factors in reaching her decision, which amounted to a change in custody.

We disagree with both assertions of error on the part of the trial justice.

General Laws 1956 § 8-10-3 establishes the Rhode Island Family Court and

serves as its original grant of jurisdiction. Section 8-10-3(a) grants the judicial

4
Based on our resolution of this matter without additional briefing, defendant’s
request for a further stay is moot and we decline to reach defendant’s arguments
related to this request.
-7-
officers of the Family Court the authority to hear and determine all motions

concerning equitable matters arising out of the family relationship. See § 8-10-3(a).

The defendant first argues before this Court that, because the trial justice

determined that his opposition to the vaccine was reasonable, 5 she should have

instantaneously ruled in his favor and that her failure to do so effectively “rewrote”

the final judgment. The defendant is mistaken.

The relevant terms of the final judgment mandate that both parties will share

in all major decisions affecting the health of their children, including the decisions

concerning elective medical choices. With respect to disagreements over their

children’s medical care, the final judgment provides that “[n]either party shall

unreasonably withhold his or her consent to medical treatment for the children or the

administration of medication recommended by the pediatrician of the children.”

Contrary to defendant’s argument that an objecting parent may “veto” a decision

regarding their children’s medical treatment, we conclude that neither the marital

settlement agreement nor the final judgment requires the Family Court to defer to,

and automatically rule in favor of, an objecting party.

Rather, both parties agreed, and the Family Court ordered, that they would

share joint legal custody of their children, which implies that the parties and the court

5
We briefly wish to highlight the inaccuracy of defendant’s statement. At no point
in the decision did the trial justice find that defendant acted reasonably. Instead, she
characterized defendant’s behavior as not unreasonable.
-8-
acknowledged “the value of both parents in the physical, emotional, educational, and

spiritual development of [the] children * * * [and] presumes that both parents will

act and make decisions in the best interests of [the] children’s welfare.” Dupré v.

Dupré, 857 A.2d 242, 262 (R.I. 2004). However, when both parents are at an

impasse, including times when neither acts unreasonably, their recourse is to return

to the Family Court, which has an obligation to decide and resolve the stalemate by

considering the best interests of the children. See Pacheco v. Bedford, 787 A.2d

1210, 1213 (R.I. 2002) (“[T]he paramount consideration in cases involving visitation

rights or custody disputes is the best interests of the child * * *.”) (quoting Burrows

v. Brady, 605 A.2d 1312, 1315 (R.I. 1992)).

Our careful examination of the record indicates that the trial justice properly

and thoroughly considered the parties’ cross-motions in support of their respective

positions. Most notably, the trial justice permitted each party to submit expert

testimony that provided a deep insight into Dr. Powers’s decision to recommend that

the children receive the COVID-19 vaccination, as well as a more empirical

perspective from Dr. Bostom related to certain risks associated with the vaccination

and its efficacy in children. The trial justice found, at the outset, that this is the first

medical decision causing a disagreement between the parties and that they have

agreed on, and followed, Dr. Powers’s recommendations regarding all other medical

decisions until now. Additionally, the trial justice found that the parties chose Dr.

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Powers as their children’s pediatrician together and that she has served in this role

since their births. The trial justice further found that both children have received all

prior recommended vaccinations and that neither child possesses an underlying

health concern warranting abstention from the COVID-19 vaccine. Moreover, the

trial justice found that one of the children has asthma and that this health condition

increases her risk of respiratory illness.

We cannot conclude that the trial justice was clearly wrong to accept that Dr.

Powers’s recommendation is well grounded in her professional experience as well

as the guidance provided by the AAP and the CDC. Furthermore, our review of the

record satisfies this Court that the trial justice did not improperly exercise her

discretion in determining that it is in the best interests of these children to give

plaintiff the decision-making authority to follow the advice of Dr. Powers and to

receive the COVID-19 vaccine.

After reviewing the testimony, exhibits, and arguments presented by the

parties, the trial justice thoroughly outlined her analysis in a well-reasoned decision.

Specifically, she declined to find that defendant had violated the final judgment

based on her determination that his conduct was not unreasonable. Further, she

correctly noted that the final judgment fails to mandate an outcome for this dispute

and properly analyzed the best interests of the children in her resolution. In her

assessment of the children’s best interests, she noted her reliance on Dr. Powers’s

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expertise and prior knowledge of the children while declining to rely on the

conclusions reached by Dr. Bostom’s more general knowledge regarding

vaccinations. Further, she acknowledged Dr. Bostom’s lack of experience treating

the children involved in this proceeding.

Nevertheless, defendant asserts that the Family Court’s decision erroneously

modified the parties’ existing custody order. Specifically, defendant asserts that the

trial justice failed to find the existence of changed circumstances, and that it is only

after making such a finding that she could have considered the best interests of the

children. However, it is clear that after reviewing the totality of the evidence, the

trial justice determined that the evidence did not support a change in custody for all

major decisions affecting the children’s health, education, and welfare. As a result,

the trial justice limited her decision to allowing plaintiff to comply with the medical

recommendations of the children’s pediatrician relative to the COVID-19

vaccination. There was no change in custody or modification of the final decree. In

fact, the trial justice denied plaintiff’s request for a modification and explicitly

retained the preexisting custody arrangement. Therefore, we reject defendant’s

argument that the trial justice changed the parties’ custody arrangement or modified

the final decree. The parents could not agree on a medical decision for their minor

children; therefore, the decision was made for them by the Family Court pursuant to

the authority vested therein by § 8-10-3.

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Regarding defendant’s assertion that the trial justice failed to articulate and

apply the factors contained in our best-interests-of-the-child standard, this Court

concludes that the Family Court engaged in a proper application of the eight-factor

test outlined in Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990). 6 See Pettinato, 582

A.2d at 913-14. At a minimum, the trial justice fairly considered the wishes of both

parents, the interaction and interrelationship of the children and their parents with

respect to this dispute, the children’s health, and the fitness of each parent regarding

this medical decision.

Specifically, the record reveals that the trial justice heavily weighed evidence

regarding the children’s health. The trial justice thoroughly considered the

testimony and recommendations from both Dr. Powers and Dr. Bostom as well as

the guidance from the AAP and the CDC recommending that the children receive

the COVID-19 vaccination in deciding to allow plaintiff to follow Dr. Powers’s

recommendation. The trial justice’s reliance on this factor is especially appropriate

6
The defendant’s statement filed pursuant to Article I, Rule 12A of the Supreme
Court Rules of Appellate Procedure asserts that the trial justice failed to articulate
how the “8 factors in the best interest of the child standard” warrant a change in
custody providing plaintiff with sole decision-making authority. However,
defendant fails to develop this argument beyond this initial statement. This Court
will not disturb a trial justice’s factual findings absent an improper exercise of that
justice’s discretion. Vieira v. Hussein-Vieira, 150 A.3d 611, 615 (R.I. 2016). Given
defendant’s lack of meaningful attention to this issue, it is extremely difficult, if not
impossible, for this Court to conclude that defendant met his burden in
demonstrating that an abuse occurred here. See Jensen v. Phillips Screw Company,
546 F.3d 59, 64 (1st Cir. 2008).
- 12 -
because the dispute before her concerned the parents’ decision-making regarding

their children’s health and a decision to receive elective medication. Moreover, the

record reveals that the trial justice clearly balanced the medical evidence in favor of

and against vaccination. We note, for example, the fact that the trial justice was

unable to conclude that defendant acted unreasonably. This clearly demonstrates

that the trial justice afforded great weight to, and considered, the wishes and fitness

of each parent regarding this decision. Therefore, this Court finds ample evidence

supporting the trial justice’s consideration of the relevant factors. This is true even

though the trial justice did not explicitly address each factor in her decision. See

Andreozzi v. Andreozzi, 813 A.2d 78, 83 (R.I. 2003) (explaining that this Court does

not require a trial justice to refer to the Pettinato factors when making a custody

determination).

Finally, the trial justice appropriately considered, yet denied, plaintiff’s

request for full custody and final decision-making authority over the children’s

medical care and treatment. The trial justice noted that this dispute between the

parties is the first of its kind for these parties and also acknowledged the absence of

evidence needed for the court to upset the existing joint legal custody arrangement.

Based on the trial justice’s measured and comprehensive resolution of this issue, we

conclude that the trial justice did not abuse her discretion in evaluating the evidence

before her relative to the parties’ respective requests for relief after final judgment.

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While this Court recognizes the personalized and often sensitive nature

inherent in making medical decisions for an individual’s child, we conclude that the

trial justice’s factual findings did not overlook or misconceive any aspect of this

matter, nor were they otherwise clearly wrong. See Leon, 271 A.3d at 989.

Accordingly, we affirm the Family Court justice’s decision permitting plaintiff to

follow the advice of Dr. Powers and vaccinate the parties’ children for COVID-19.

Conclusion

Based on the foregoing, we affirm the decree appealed from, vacate our stay

of the Family Court judgment, and remand the record in this matter to the Family

Court.

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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 Lauren Nagel v. Joshua Nagel.

No. 2023-66-Appeal.
Case Number
(K 19-1687)

Date Opinion Filed May 5, 2023

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

Written By Associate Justice Melissa A. Long

Source of Appeal Kent County Family Court

Judicial Officer from Lower Court Associate Justice Sandra Lanni

For Plaintiff:

Jesse Nason, Esq.
Attorney(s) on Appeal
For Defendant:

Gregory Piccirilli, Esq.

SU-CMS-02A (revised November 2022)