Eric N. Fitzpatrick v. Arlene McCrary — 2018 ME 48

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2018 ME 48
Docket: 	Aro-17-330
Submitted
On Briefs: January 11, 2018
Decided: 	April 5, 2018
Panel: 	ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
ERIC N. FITZPATRICK
v.
ARLENE MCCRARY
JABAR, J.
[¶1] Eric N. Fitzpatrick appeals from a judgment entered by the District
Court (Houlton, O’Mara, J.) denying his M.R. Civ. P. 60(b) motion for relief from
judgment after the court granted Arlene McCrary’s motion to modify a
parental rights and responsibilities order regarding their son. 	We affirm the
judgment.
I. BACKGROUND
[¶2] 	Fitzpatrick and McCrary are the parents of a child, born June 15,
2013. 	In 	November 	2013, 	Fitzpatrick 	filed 	a 	complaint 	seeking 	a
determination of parental rights and responsibilities. 	The District Court
(Daigle, J.) entered a judgment and ordered shared parental rights with
primary residence awarded to McCrary. 	Several years later, on January 28,

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2016, the District Court (Soucy, J.) granted Fitzpatrick’s subsequent motion to
modify after the parties agreed to an order changing primary residence from
McCrary to Fitzpatrick.
[¶3] 	On April 14, 2016, McCrary filed a motion for contempt against
Fitzpatrick, 	alleging 	that 	Fitzpatrick failed 	to 	comply with 	the 	modified
parental rights and responsibilities order. 	Twelve days later, on April 26,
2016—while that motion was “out” for service—Fitzpatrick filed a complaint
in the Court of Common Pleas of Luzerne County, Pennsylvania, seeking an
order to confirm that he had legal custody of the child.1 Less than two months
later, 	on 	June 24, 	2016, 	before 	her 	contempt 	motion 	was 	served 	on
Fitzpatrick, 	McCrary 	filed 	a 	motion 	to 	modify 	the 	parental 	rights 	and
responsibilities order in the District Court in Houlton. On August 3, 2016, the
Pennsylvania 	Court 	of 	Common 	Pleas 	entered 	an 	“interim 	order” 	that
purported to “supersede[] all prior Orders in any jurisdiction” and provided
that “[j]urisdiction of this matter . . . and the child shall remain with [the
Pennsylvania Court] until further Order of Court.”
[¶4] 	After he was finally served with McCrary’s motions 	early in
August, Fitzpatrick filed a motion to dismiss McCrary’s motion to modify in
1 In his M.R. Civ. P. 60(b) motion for relief from the Houlton District Court judgment, Fitzpatrick
alleged that he had been living with the child in Pennsylvania since October 23, 2015.

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the 	District Court 	in 	Houlton, arguing that Maine lacked subject matter
jurisdiction over the matter because “the Pennsylvania court has assumed full
jurisdiction over the matter, [and] superseded the Order of the State of
Maine.” Fitzpatrick’s motion to dismiss contained factual assertions—without
any accompanying affidavits—and legal arguments. 	After a pretrial/status
conference on the issue of jurisdiction, the court (O’Mara, J.) denied that
motion, determining, in relevant part, that
once “Home State” jurisdiction is established, no other state may
simply “assume full jurisdiction” such that its orders “supersede”
orders of the “Home State,” unless the parties and the child have
all left the “Home State.” 	Here, while [Fitzpatrick] and the child
have moved to Pennsylvania, [there] is not even an allegation that
[McCrary] no longer lives in Maine, or has left this immediate
area.
Fitzpatrick filed 	a 	motion 	to 	reconsider, 	which 	included further 	factual
assertions—again, 	without 	any 	accompanying 	affidavits—and 	legal
arguments. 	The court denied that motion in an order dated February 21,
2017. 	On the same date, following a hearing where Fitzpatrick failed to
appear, the court granted McCrary’s motion to modify, awarding her primary
residence of the child.2
2 The court found that although McCrary had agreed to the January 28, 2016, order changing
primary residence from herself to Fitzpatrick “[d]ue to problems maintaining her sobriety,” she was
“now . . . sober in excess of nine months,” and had “maintained steady employment, maintained her
own home, and maintained her sobriety . . . despite challenges including the death of her father and

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[¶5] 	Several weeks later, on March 8, 2017, the court had a telephone
conference with the Pennsylvania Court of Common Pleas judge who had
issued the “interim order” in August 2016, regarding home state jurisdiction.
As a result of that conference, the Pennsylvania court 	entered an order
“relinquish[ing] jurisdiction of this case and find[ing] that jurisdiction lies
with the Maine District Court.”
[¶6] 	On April 3, 2017, Fitzpatrick filed in the Maine District Court a
motion for relief from judgment and requested a hearing regarding that
motion. 	See M.R. Civ. P. 60(b)(4). 	The court denied that motion on June 7,
2017. 	Fitzpatrick then filed a motion for findings of fact, which the court
denied. 	See M.R. Civ. P. 52(b). 	This appeal followed. 	See 14 M.R.S. § 1901(1)
(2017); M.R. App. P. 2(b)(3) (Tower 2016.))3
II. DISCUSSION
[¶7] 	On appeal, Fitzpatrick argues that the court erred in denying his
M.R. Civ. P. 60(b)(4) motion because, after Pennsylvania assumed jurisdiction
over the child custody matter, Maine necessarily lost jurisdiction over that
lack of meaningful contact with [the child].” 	Furthermore, the court found that McCrary had
“encountered great difficulty seeing [the child], or even learning about [the child], due to
[Fitzpatrick’s] actions,” and that “[d]espite traveling to Pennsylvania, [McCrary] has seen [the child]
only twice in 18 months.”
3 The restyled Maine Rules of Appellate Procedure do not apply because this appeal was filed
before September 1, 2017. See M.R. App. P. 1 (restyled Rules).

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matter. Fitzpatrick also contends that the court erred, pursuant to 19-A M.R.S.
§ 1740, by not allowing him to “present facts and legal arguments [to the
court] before a decision on jurisdiction was made.” We address each of these
arguments in turn.
A. 	Jurisdiction
[¶8] 	“A Maine trial court’s ruling on a Rule 60(b) motion is ordinarily
subject to the deferential abuse of discretion standard on appeal.” 	Reliable
Copy Serv., Inc. v. Liberty, 2011 ME 127, ¶ 8, 32 A.3d 1041. 	However, that
standard differs when “a party seeking relief from a judgment alleges a
jurisdictional defect . . . pursuant to M.R. Civ. P. 60(b)(4) that would render the
judgment void.” 	Id. 	Thus, “[i]f the judgment is void, there is no room for the
court to exercise discretion—the judgment must be set aside.” 	Id. (alteration
omitted) (quotation marks omitted).
[¶9] 	Jurisdictional 	questions regarding determinations of parental
custody are governed by both the Uniform Child Custody Jurisdiction and
Enforcement 	Act 	(UCCJEA), 	19-A 	M.R.S. 	§§ 	1731-1783 	(2017), 	and 	the
Parental Kidnapping Prevention Act (PKPA), 	28 U.S.C.S. § 1738A 	(LEXIS
through Pub. L. No. 115-137). 	Barclay v. Eckert, 2000 ME 10, ¶ 8, 743 A.2d
1259. 	In the event of a conflict, the PKPA preempts the UCCJEA. 	Id.

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“Otherwise, the statutes are considered in conjunction with one another.”
Cole v. Cushman, 2008 ME 72, ¶ 6, 946 A.2d 430.
[¶10] 	The PKPA provides for the continuing jurisdiction of the state
that initially enters a child custody order:
The jurisdiction of a court of a State which has made a child
custody 	or 	visitation 	determination 	consistently 	with 	the
provisions of this section continues as long as the requirement of
subsection (c)(1) of this section [requiring that the State have
jurisdiction under its own laws] continues to be met and such
State remains the residence of the child or of any contestant.
28 U.S.C.S. § 1738A(d). 	Pursuant to the UCCJEA, Maine has initial child
custody jurisdiction if it is
the home state of the child on the date of the commencement of
the proceeding or was the home state of the child within 6 months
before the commencement of the proceeding and the child is
absent from [Maine] but a parent or person acting as a parent
continues to live in [Maine].
19-A M.R.S. § 1745(1)(A). Maine has “exclusive, continuing jurisdiction” over
a child custody order pursuant to 19-A M.R.S. § 1746(1)(A), (B), which states,
in relevant,
1. 	Exclusive, 	continuing 	jurisdiction. Except 	as
otherwise provided in section 1748, a court of this State that has
made a child custody determination consistent with section 1745
or 	1747 	has 	exclusive, 	continuing 	jurisdiction 	over 	the
determination until:

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A. A court of this State determines that neither the child,
nor the child and one parent, nor the child and a person
acting as a parent have a significant connection with this
State and that substantial evidence is no longer available in
this State concerning the child’s care, protection, training
and personal relationships; or
B. A 	court 	of 	this 	State 	or 	a 	court 	of 	another 	state
determines 	that 	the 	child, 	the 	child’s 	parents 	and 	any
person acting as a parent do not presently reside in this
State.
[¶11] 	Pursuant 	to 	the 	above-cited 	statutes, 	Maine 	maintains
jurisdiction over a custody matter as long as (1) it had initial child custody
jurisdiction; (2) it remains the residence of the child or any contestant; and
(3) a court has not made any of the determinations provided in 19-A M.R.S.
§ 1746(1)(A) or (B). 28 U.S.C.S. § 1738A(d); 19-A M.R.S. §§ 1745, 1746.
[¶12] 	Here, Fitzpatrick does not dispute that Maine had initial child
custody 	jurisdiction. 	However, 	he 	argues 	that 	the 	Pennsylvania 	court
“implicit[ly]” determined, pursuant to 19-A M.R.S. § 1746(1)(B), that McCrary
no longer lived in Maine.
[¶13] 	This argument is without merit. 	In its interim order, the
Pennsylvania Court of Common Pleas did not acknowledge McCrary’s state of
residence, let alone make a finding that she no longer resided in Maine.
Moreover, in his complaint to confirm custody, Fitzpatrick twice averred that

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McCrary 	lived 	in 	Houlton, 	Maine. 	Accordingly, 	even 	assuming 	the
Pennsylvania 	court 	could 	make 	such 	an 	“implicit 	finding,”4 	there 	is 	no
competent record evidence to support that finding. 	For this reason, Maine
maintained exclusive, continuing jurisdiction over the child custody matter
pursuant to 19-A M.R.S. § 1746(1), and the court therefore did not err in
denying Fitzpatrick’s Rule 60(b) motion.
B. 	Communication Between Courts
[¶14] 	Fitzpatrick next argues that, pursuant to 19-A M.R.S. § 1740, the
court erred by not permitting him to “present facts and legal arguments
before a decision on jurisdiction was made.” 	Because Fitzpatrick’s argument
here is not jurisdictional, the court’s handling of its communication with the
Pennsylvania court is reviewed for an abuse of discretion. 	See Town of
Wiscasset v. Mason Station, LLC, 2015 ME 59, ¶ 6, 116 A.3d 458. However, we
review the interpretation of the UCCJEA de novo. 	Cole, 2008 ME 72, ¶ 8,
946 A.2d 430.
[¶15] 	Section 	1740(1) 	provides, 	“A 	court 	of 	this 	State 	may
communicate with a court in another state concerning a proceeding arising
4 	Because one of the UCCJEA’s purposes was to “enunciate[] a standard of continuing
jurisdiction and clarif[y] modification jurisdiction,” L.D. 432, Prefatory Note (119th Legis. 1999), we
express deep apprehension at the notion that a court, pursuant to the UCCJEA, could assume
jurisdiction by making an implicit finding on such an important issue as a parent’s state of
residence.

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under this chapter.” 	19-A M.R.S. § 1740(1) 	(emphasis added). 	Section
1740(2) then provides that “[t]he [Maine] court may allow the parties to
participate in the communication. If the parties are not able to participate in
the communication, they must be given the opportunity to present facts and
legal arguments before a decision on jurisdiction is made.” 	19-A M.R.S.
§ 1740(2) (emphasis added).
[¶16] 	The Legislature’s use of “may” rather than “shall” in sections
1740(1) and (2) is significant. 	See Lopez v. Davis, 531 U.S. 230, 240 (2001).
“In general, the word ‘may,’ used in statutes, will be given ordinary meaning,
unless it would manifestly defeat the object of the statute, and when used in a
statute is permissive, discretionary, and not mandatory.” 	Collins v. State,
161 Me. 	445, 	449, 	213 	A.2d 	835 	(1965) 	(quotation 	marks 	omitted).
Accordingly, 	because 	the 	word 	“may” 	in 	sections 	1740(1) 	and 	(2) 	is
permissive rather than mandatory, we conclude that it is left to the trial
court’s sound discretion both whether to communicate with a court from
another 	state 	and 	whether 	to 	allow 	parties 	to 	participate 	in 	that
communication.
[¶17] Our construction of section 1740 is bolstered by the Legislature’s
language in the second sentence of section 1740(2), which provides, “If the

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parties are not able to participate in the communication, they must be given
the opportunity to present facts and legal arguments before a decision on
jurisdiction is made.” 19-A M.R.S. § 1740(2) (emphasis added). In contrast to
the permissive language contained in section 1740(1) and in the first sentence
of section 1740(2), the Legislature’s use of the mandatory verb “must” plainly
provides 	that 	if 	the 	court 	allows 	the 	parties 	to 	participate 	in 	its
communication with an out-of-state court—but the parties are not able to
participate in that conversation—the court is then required to provide those
parties an opportunity to present facts and legal arguments before a decision
on jurisdiction is made.
[¶18] 	Here, consistent with the plain language of section 1740(2), the
court exercised its discretion and declined to allow the parties to participate
in its communication with the Pennsylvania court. 	Having done so, the court
was not then required to give Fitzpatrick an opportunity to present facts and
legal arguments regarding jurisdiction before a decision on that issue was
made.5 	Accordingly, because the court acted within the confines of section
1740(2), 	and because Fitzpatrick 	had 	already 	presented facts 	and legal
5 	The better practice may have been, before making a decision regarding jurisdiction, to
communicate with the out-of-state court and allow the parties to present facts and arguments on
that issue. However, 19-A M.R.S. § 1740 (2017) does not require the court to do so.

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arguments regarding jurisdiction on two occasions—first in his motion to
dismiss and then in his motion to reconsider—we cannot say that the court
abused its discretion in denying Fitzpatrick a third opportunity to address the
matter.
The entry is:
Judgment affirmed.
James M. Dunleavy, Esq., Currier & Trask, P.A., Presque Isle, for appellant Eric
N. Fitzpatrick
Arlene McCrary, appellee pro se
Houlton District Court docket number FM-2013-121
FOR CLERK REFERENCE ONLY