Brown v. Brown

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-367


Francis E. Brown                             Supreme Court

                                             On Appeal From
     v.                                      Addison Superior Court

Beatrice B. Brown                            May Term, 1989


Linda Levitt, J.

Law Offices of Matt Harnett, P.C., Rutland, for plaintiff-appellant

Pamela A. Marsh and Cynthia L. Rodgers, Law Clerk (On the Brief), of
  Nuovo & Marsh, Middlebury, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ.


     DOOLEY, J.   This action began as a petition to enforce a child
visitation provision of a divorce order and for contempt.  The petition
alleged that defendant Beatrice Brown had refused to allow plaintiff Francis
Brown to visit their seven-year-old daughter, Julie Brown [the child].
Following a two-day hearing, the trial court denied the petition, refused to
hold defendant in contempt and modified the underlying order to require that
visitation by plaintiff be supervised by a third party.  Plaintiff appeals,
alleging that: (1) the court improperly modified the underlying visitation
order without a request from defendant; (2) the court's conclusions are
based on inadmissible testimony related to plaintiff's alleged sexual abuse
of another daughter of defendant (plaintiff's stepdaughter); and (3) certain
of the findings of fact are clearly erroneous and the conclusions are not
supported by the findings.  We affirm.
     Plaintiff and defendant were divorced in 1983 when the child was three
years of age.  The final order awarded custody of the child to defendant and
gave plaintiff "the right to visit said minor child at reasonable times and
places upon twenty-four hours notification to defendant."  Visitation
occurred under the order until the summer of 1986 when defendant refused
visitation because of a concern that plaintiff might be sexually abusing the
child.  The refusal of visitation led to this action and a temporary
stipulation which allowed plaintiff supervised visitation in the presence of
one of defendant's sons.  This proved unsatisfactory to plaintiff because he
did not get along with the son.
     Defendant's refusal to permit visitation was based on her suspicion
that plaintiff was engaging in inappropriate touching, supported in part by
the fact that defendant was taking the child to the doctor for a "sore
vagina" and she was having nightmares.  There was, however, no direct
evidence of sexual abuse, and, in fact, the child denied that such abuse had
occurred.
     The evidence at the hearing centered on plaintiff's alleged sexual
abuse of an older daughter of defendant, along with testimony that he tried
to teach his daughter from an earlier marriage to masturbate and was aroused
by female masturbation.  Defendant submitted the expert testimony of a
psychologist who interviewed plaintiff, defendant, the child, other family
members, and a woman who had lived with plaintiff.  The psychologist
testified that visitation should be supervised based in large part on
plaintiff's inappropriate sexual behavior with his older daughter and his
stepdaughter, his belief that it was proper to teach girls to masturbate and
his arousal by female masturbation.
     Plaintiff denied the main allegations against him.  Specifically, he
denied that he had sexually abused any of his daughters or his stepdaughter.
He admitted that he had suggested masturbation to one of his daughters and
to his stepdaughter, but he now believed that suggestion was improper.
Plaintiff denied any inappropriate sexual conduct with the child.
     In general, the trial court accepted the evidence offered by defendant
and found that the child was "at risk to become part of the pattern of
sexual abuse."  The court concluded that unsupervised visitation would not
be in the child's best interest and that modification of the divorce order
was necessary based on a change of circumstances -- that is, awareness of
the past sexual abuse and the risk to the child.  The court modified the
divorce order to allow visitation only in the presence of a supervisor
chosen by defendant with plaintiff's approval.
     The first issue we consider is whether the court acted on a proper
request to modify and whether the grounds for modification were present.  As
stated above, this proceeding began with a petition to enforce a visitation
order and to hold defendant in contempt for failing to comply with the
order.  The petition, along with a notice of hearing, was served on
defendant on August 13, 1987.  On August 20, 1987, defendant responded with
a memorandum in opposition to the petition and a request for appointment of
counsel for the child and for a psychological evaluation of the child.  The
memorandum requested that pursuant to 15 V.S.A. { 665 visitation be denied
or, if allowed, be supervised by an adult acceptable to defendant.  The
memorandum and requests were accompanied by an affidavit of defendant
alleging that the child had a sore clitoris and nightmares after each visit
and that plaintiff had sexually abused his stepdaughter in the past.
     Plaintiff appears to be making three interrelated claims here.  First,
he argues that defendant did not make a proper motion for modification.
Second, he claims that he did not have sufficient notice that modification
was in issue to comply with due process requirements.  Finally, he claims
that plaintiff failed to allege a proper change of circumstances to comply
with the law.
     The controlling statute for modification of custody and visitation
orders is 15 V.S.A. { 668.  It allows for modification of an order
concerning the parental rights and responsibilities of a minor child "[o]n
motion of either parent . . . and upon a showing of real, substantial and
unanticipated change of circumstances" if the court finds that it is in the
best interest of the child to do so.  We accept, as plaintiff argues, that
the statute, as well as V.R.C.P. 80(j), requires that the court act on a
motion in modifying a visitation order.  We find nothing in the statute or
our rules that describes a motion so narrowly that the court could not
consider defendant's memorandum, accompanied by a clear affidavit showing
what was in issue, to be a motion.  Further, we think if there had been any
error, it would have been harmless.  From the beginning of the proceeding,
plaintiff was aware what was in issue.  At the initial hearing in August of
1987, he agreed both to a temporary visitation order requiring supervision
and to an evaluation by a specified psychologist "in relation to any child
abuse allegations."
     Our disposition of plaintiff's claim that there was not a proper motion
also addresses his due process complaint.  Plaintiff was entitled to
reasonable notice of what was in issue and an opportunity to be heard on
defendant's request.  See In re H.A., ___ Vt. ___, ___, 572 A.2d 884, 887-88
(1990) (termination of parental rights proceeding).  He received proper
notice from defendant's memorandum in opposition to his petition and had the
opportunity to put on evidence on whether modification was proper.
     Finally, while we find no requirement in our law that a modification
petition specifically allege a change of circumstances, there was no
question that defendant did make such an allegation. (FN1) The affidavit
accompanying her memorandum and request for a psychological evaluation of
the child alleged that visitation was having direct, negative consequences
on the child and that plaintiff had abused his stepdaughter.  No further
allegations were required.
     Plaintiff's second issue deals with the admission of the testimony of
the stepdaughter to the effect that plaintiff had sexually abused her some
ten years earlier.  Plaintiff argues that the court should have excluded
the evidence under V.R.E. 404(b) because it was used to show that he had a
character trait to sexually abuse young girls and therefore was not fit to
visit his daughter.  We note at the outset that plaintiff failed at the
evidentiary hearing in this matter to object to the evidence of the
stepdaughter as is required by V.R.E. 103(a)(1).  Thus, even if the
admission of the evidence was error, it is grounds for reversal only if we
find it to be an error "affecting substantial rights." (FN2) V.R.E. 103(d).  See
Deyo v. Kinley, 152 Vt. 196, 201, 565 A.2d 1286, 1289 (1989).  The impact of
the admission of this testimony was not such that we would reverse in the
absence of an objection; indeed, we believe the court committed no error in
admitting it.
     As plaintiff argues, we have set some limits on the use of this kind of
evidence in criminal cases because of its potential prejudicial effect.  The
considerations were discussed in State v. Hurley, 150 Vt. 165, 168, 552 A.2d 382, 384 (1988) as follows:
         [W]e are confronted with competing interests.  On the
         one hand, however strongly we may caution jurors,
         charges of sexual misbehavior with minors are of a
         nature that almost inevitably disposes jurors unfavor-
         ably toward the accused and burdens the fairness of the
         trial.  On the other hand, the crime being usually of so
         secretive a nature, involving possibly frightened,
         inarticulate and infant witnesses, there is pressure to
         enlarge the usual parameters of relevant evidence in
         order to be able to enforce laws against such behavior
         at all.

The controlling question on admissibility is whether the evidence is
relevant to an issue other than the defendant's propensity to commit a
crime.
     We need not consider whether the evidence in this case would meet the
Rule 404(b) standard for criminal cases because the evidence is used for a
different purpose here.  In criminal cases, the state must prove that the
defendant committed a sexual assault or similar crime, and the danger is
that the jury would find that a person who committed a sexual assault on one
occasion is more likely to do it again.  Here, the issue is whether good
cause exists to deny or restrict visitation and whether there was a change
of circumstances to warrant modification.  While we have never directly
considered the admissibility of evidence of sexual abuse of siblings on the
availability of custody or visitation in divorce proceedings, our
consideration of the issue in juvenile CHINS proceedings is instructive.
     We recently reviewed the question of whether "abuse as to one sibling
is probative of abuse of another" in termination of parental rights
proceedings in In re L.A., III, ___ Vt. ___, ___, 574 A.2d 782 (1990).  In
L.A., III, we reiterated that whether such evidence is probative must be
determined on the facts of each case.  The decision allows such evidence
where it is "'indicative of a broad pattern of abuse and neglect generally
pervasive in this household and clearly relevant to [the juvenile].'"  Id.
at ___, 574 A.2d  at 786 (quoting In re R.M., 150 Vt. 59, 69, 549 A.2d 1050,
1056 (1988)).  We also reviewed the evidence admissibility question in In re
S.G., ___ Vt. ___, 571 A.2d 677 (1990).  We emphasized the special nature of
the juvenile proceeding as related to the evidence: "the issue in juvenile
proceedings is not whether the parent did a particular act or acted in
conformity with a particular character trait but instead whether the child
has proper care and his or her well-being is protected."  Id. at ___, 571 A.2d  at 681.  We held that evidence of abuse of siblings was admissible
without running afoul of V.R.E. 404(b) as relevant to the totality of the
home environment directly impacting on the well-being of the juvenile.  Id.
at ___, 571 A.2d  at 681.
     For reasons similar to those given in S.G., we conclude that evidence
of abuse of siblings, including here a stepdaughter, is relevant in child
custody and visitation proceedings to show the overall home environment and
the interaction of the parents and children within it, now or in the past.
As in juvenile proceedings, we must allow a broad inquiry as long as the
focus is clearly on the best interests of the child.  Also, we note, as we
did in S.G., that the trial judge must carefully weigh the probative value
of the evidence against its prejudicial effect in deciding whether to admit
it.
     The evidence offered here was relevant to the interaction of plaintiff
with his children and stepchildren and, therefore, was relevant to the
visitation issue before the court.  It was only a part of the testimony
about plaintiff's sexual conduct with his daughter, stepdaughter, girlfriend
and defendant.  Moreover, the testimony in question was part of the basis of
the opinion of the psychologist that visitation should be supervised.  It
could be offered for that purpose.  See State v. Valley, 152 Vt. ___, ___,
571 A.2d 579, 588 (1989); State v. Recor, 150 Vt. 40, 48, 549 A.2d 1382,
1388 (1988); see also V.R.E. 703.  There was no error in admitting this
testimony.
     Plaintiff's third claim is that certain findings of fact are clearly
erroneous, and once these findings are deleted, the conclusions are not
supported by the findings.  Three of the findings or groups of findings
challenged by plaintiff relate to: (1) plaintiff's encouragement of
masturbation by his wife, girlfriend, daughter and stepdaughter, and his
arousal by female masturbation; (2) plaintiff's sexual abuse of his
stepdaughter; and (3) plaintiff's statements to the psychologist and the
opinion of the psychologist based in part on plaintiff's statement.  In each
case, the facts are hotly contested; but in each case we find evidence to
support the findings.  Thus, since the findings are not clearly erroneous,
they must be upheld.  See, e.g., Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989).  With respect to the opinion of the psychologist,
plaintiff's argument goes solely to the weight to be accorded the opinion.
     Plaintiff also challenges the findings that the child was prone to have
vaginal infections after visitations with plaintiff, that the infections
stopped after visitation supervision began, and that plaintiff is very
affectionate to the child, including fondling and caressing.  We agree with
plaintiff that there is no evidence to support the finding that vaginal
infections ceased after supervised visitation started.  That finding is not
mentioned in the court's conclusions; in fact, the court stated that it
found no direct evidence that plaintiff had sexually abused the child and
was modifying the visitation order because of the "risk."  Since the
erroneous finding was not essential to the court's conclusion, the error is
not grounds for reversal.  See Peckham v. Peckham, 149 Vt. 388, 390, 543 A.2d 267, 269 (1988).
     The court's conclusions are supported by its findings and the essential
findings are supported by the evidence.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice



FN1.    Defendant did have the burden to prove a change of circumstances,
and plaintiff suggests in passing that defendant never proved it.  The trial
court found a "substantial change of material circumstances, that is, the
awareness of plaintiff's past sexual abuse of others and the risk posed to"
the child.  Although plaintiff has generally challenged the court's
conclusions as unsupported by the findings and the evidence, he has not
argued that this conclusion, if supported, is insufficient to meet the
requirements of the statute.  Thus, we consider this argument to be a
restatement of plaintiff's argument that the conclusions are unsupported and
do not consider it separately.

FN2.    Plaintiff's brief is not clear on whether he is claiming that the
evidence should not have been admitted or, alternatively, that the court
should not have considered the evidence in reaching its findings of fact.
Once the evidence was admitted, however, the court could assign to it
whatever weight it found appropriate in reaching its findings of fact and
conclusions of law.  Plaintiff can not get around his failure to preserve an
objection by recasting the issue as one of use of the evidence, rather than
admission of the evidence.  For this reason, we have treated plaintiff's
appeal issue as relating to the admission of the evidence.