Bancroft v. Bancroft

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. 89-162


Linda J. Bancroft                                 Supreme Court

     v.                                           On Appeal from
                                                  Chittenden Superior Court
Robert L. Bancroft
                                                  April Term, 1990


David A. Jenkins, J.

Linda R. LeRoy of McNeil & Murray, Burlington, for plaintiff-appellee

S. Crocker Bennett, II, of Paul, Frank & Collins, Inc., Burlington, for
   defendant-appellant


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


     GIBSON, J.   Defendant Robert Bancroft appeals from a divorce decree
of the Chittenden Superior Court awarding plaintiff Linda Bancroft
maintenance and child support, as well as physical and legal responsibility
for the parties' two children.  We affirm.
                                    I.
     Linda and Robert Bancroft separated in November of 1986 after eleven
and one-half years of marriage.  The parties have two children -- Nathan,
born in 1982, and Ira, born in 1983.  Upon separation, the parties attempted
a joint-custody arrangement with the children, but it was unsuccessful
because of animosity between the parties.  Linda, a consultant and place-
ment specialist for the Burlington School Department with an approximate
annual income of $30,000, was the children's primary nurturing parent during
their infancy.  Robert, a consultant and an assistant professor in the
College of Agriculture at the University of Vermont with an approximate
annual income of $40,000, has assisted in the care of the children since
their birth.  The parties have resided in Vermont since their marriage,
except from 1976 to 1981, when they moved to Indiana and then Washington,
D.C. so that Robert could obtain his doctorate.  As a result of the move
from Vermont, Linda had to close a pension account and did not have another
plan available to her until she accepted her current job.
     Linda filed for divorce in November of 1986, and was awarded temporary
custody of the children.  Following three days of hearings on the merits,
the superior court granted the parties a divorce, assigned Linda physical
and legal responsibility for the children, and required that Robert pay $772
per month in child support and $200 per month as rehabilitative maintenance
for a period of five years or until remarriage.  The court also granted
Robert visitation rights, enabling him to be with his children every other
weekend, one weekday evening each week, and one-half of any school vacation
time.  Robert filed a motion to amend the findings and judgment or, in the
alternative, for a new trial.  Following a hearing, the court denied the
motion.
     On appeal, Robert contends that (1) the court erred in awarding Linda
separate maintenance; (2) the court's award of parental rights and
responsibilities solely to Linda violated Robert's state and federal
constitutional right to parent; and (3) the court's award of visitation was
contrary to the evidence and state public policy.


                                    II.
     Robert argues that the maintenance award was improper because (1) the
court's reasons for making the award were contrary to the law and to the
evidence presented in the case; (2) the court made no finding regarding
Linda's "reasonable needs," as required by 15 V.S.A. { 752; and (3) the
court failed to determine that Robert had the ability to pay maintenance.
We disagree.
     Under 15 V.S.A. { 752(a), the court may order maintenance if it finds
that the spouse seeking maintenance (1) lacks sufficient income or property
to provide for his or her reasonable needs, and (2) is the custodial parent
or is unable to support himself or herself at the standard of living
established during the marriage.  A maintenance award must fall within the
flexible confines of this statute, Downs v. Downs, No. 88-283, slip op. at 4
(Vt. Apr. 6, 1990); a party challenging the award must show that there is no
reasonable basis to support it.  Quesnel v. Quesnel, 150 Vt. 149, 151, 549 A.2d 644, 646 (1988).
     Here, the court concluded that the property settlement would have to be
supplemented by some maintenance because defendant had a greater capability
of acquiring future capital assets and income.  Further, in determining that
Robert should pay Linda $200 per month for five years or until remarriage,
whichever came first, the court stated,
          The provisions of 15 V.S.A. { 752 were considered and
          weighed to the facts.  The reality that it is more
          expensive to live separately is not reflected in the
          parties' lifestyles.  Both parties are living above
          their means presently.

               Plaintiff should have some spousal maintenance to
          reflect the interruption of her career goals caused by
          the relocation necessary for defendant's further edu-
          cation.  She gave up a teaching position and it appears
          she has not made up the financial status she would have
          achieved but for the relocation.  In a few years that
          discrepancy should be largely alleviated.
The court further explained its denial of Robert's motion for amended
findings or a new trial:
          As the court previously concluded, this interruption [in
          career goals occasioned by her relocation] has resulted
          in the plaintiff having a lesser financial status than
          would have probably existed if no interruption had
          occurred.  The court has weighed the evidence on this
          question and believes that the plaintiff should receive
          temporary rehabilitative maintenance until she achieves
          an appropriate level of income, which along with child
          support, will enable her to support her children and
          herself.  The court is persuaded that an award of
          rehabilitative maintenance, which is designed to aid the
          plaintiff in regaining a level of income she would have
          otherwise achieved but for the interruptions in her
          career, is consistent with the substance and purpose of
          15 V.S.A. { 752.
     From these findings, it is clear that the court awarded Linda
rehabilitative maintenance to help equalize the parties' financial status in
the next few years and to provide for Linda's reasonable needs in light of
her standard of living during the marriage.  A maintenance award based on
these considerations is perfectly proper.  See Downs, slip op. at 7
(maintenance is more than just a means of providing bare necessities -- it
is a flexible tool that can equalize the parties' standard of living for an
appropriate period of time); Klein v. Klein, 150 Vt. 466, 474, 555 A.2d 382,
387 (1988) (same); McCrea v. McCrea, 150 Vt. 204, 207, 552 A.2d 392, 394
(1988) ("reasonable needs" may be determined within the context of the
parties' standard of living during the marriage).  Upon review of the
record, and particularly considering the disparity in the parties' current
income, earning potential, and accrued pension benefits, we conclude that
there was a reasonable basis for the trial court's limited maintenance
award.
     We decline to consider Robert's contention that the court did not
explicitly find that he was capable of making the maintenance payments, as
that issue was not raised in his lengthy post-judgment motion.  See Lewis v.
Lewis, 149 Vt. 19, 23, 538 A.2d 170, 173 (1987) (claim of error not raised
at trial or in post-judgment motion is waived for purposes of appeal); see
also Viskup v. Viskup, 149 Vt. 89, 92, 539 A.2d 554, 557 (1987) (court not
required to make written findings when none are requested).
                                   III.
     With respect to custody, 15 V.S.A. { 665(a) provides that "[w]hen the
parents cannot agree to divide or share parental rights and
responsibilities, the court shall award parental rights and responsibilities
primarily or solely to one parent."  Further, in making a custody
determination, the court must be guided by the "best interests of the child"
and must consider the factors enumerated in { 665(b).  See Poulin v. Upham,
149 Vt. 24, 26, 538 A.2d 181, 182 (1987).  Robert maintains that in
following { 665(a) the court violated his federal and state constitutional
rights to parent. (FN1)  Further, Robert argues that the "best interests of the
child," absent any showing of potential harm to the child, is an inadequate
standard by which to terminate a parent's fundamental right to rear his or
her child.  Again, we disagree.
     As Robert points out, we have held that a parent has a fundamental
right to custody, and that the presumption that the best interests of the
child are served by granting custody to a natural parent may be overcome
only in extraordinary circumstances.  Paquette v. Paquette, 146 Vt. 83, 92,
499 A.2d 23, 30 (1985).  Paquette, however, does not support Robert's
contention here.  In considering whether a court could award a child to his
stepparent rather than his natural parent, we emphasized that the best
interests of the child must guide such a determination.  Id. at 90, 499 A.2d  at 28.  Although we took note of a parent's right to custody of his or
her own child, we stated that this right is not absolute, but rather is
bestowed by the state as parens patriae for the welfare of the child.  Id.,
499 A.2d  at 29.  Where both a stepparent and a natural parent seek custody,
we presume that the best interests of the child are served when the natural
parent retains custody; accordingly, custody is awarded to the stepparent
only if he or she shows, by clear and convincing evidence, that "the natural
parent is unfit or that extraordinary circumstances justify an award of
custody to a nonparent."  Id. at 92, 499 A.2d  at 30.
     The instant situation is quite different.  Here, both parents want
custody of the children, and one of them, Linda, is unwilling to share
custody.  Since both Robert and Linda are the natural parents of the
children, there is no presumption that the best interests of the children
are served by granting custody to either one of them.  On the other hand, in
enacting { 665(a) in 1986, the Legislature has concluded that court-imposed
joint custody, without the mutual agreement of the parties, is not in a
child's best interest.  This Court had independently come to the same
conclusion.  See, e.g., Barbour v. Barbour, 146 Vt. 506, 508, 505 A.2d 1217,
1218-19 (1986); Lumbra v. Lumbra, 136 Vt. 529, 532, 394 A.2d 1139, 1142
(1978) (joint custody should be decreed only in "extraordinary
circumstances").  As this Court recognized in Berlin v. Berlin, 139 Vt. 339,
340, 428 A.2d 1113, 1114 (1981), "the same lack of agreement that requires
that the courts be asked to settle domestic difficulty also indicates that
the possibility of a cooperative custody solution is usually remote."  Thus,
by granting custody to one parent, the trial court acted in accordance with
long-standing precedent, recently incorporated into the statutory scheme,
that when the parties are unable to agree on sharing parental
responsibilities, it is in the children's best interest for one parent to
have ultimate responsibility for directing their lives.  Therefore, unlike
the stepparent in Paquette, Linda need not show by clear and convincing
evidence that Robert is an unfit parent.
     Robert, however, argues that, by creating an irrebuttable statutory
presumption against joint custody when the parents cannot agree on a custody
arrangement, { 665(a) unconstitutionally deprives him of his fundamental
right to parent absent a particularized finding of the harm that joint
custody would cause.  We need not address the constitutionality of { 665
because the trial court made a finding that joint custody was inappropriate.
As noted, in making its custody determination, the court found that Linda
had been the primary nurturing parent in the past and concluded that the
children's best interests would be served by continuing the nurturing
relationship between their mother and them.  Further, the court found that
animosity between Robert and Linda had led to the failure of the parties'
informal joint-custody arrangement and that continued animosity "strongly
dictated against a sharing of parental responsibility."  These findings,
which we conclude were supported by the record, were sufficient for the
court to award custody of the children to Linda, even assuming it could have
granted joint custody over the objection of one of the parties.  We will not
disturb the court's custody order.  See Bissonette v. Gambrel, ___ Vt. ___,
___, 564 A.2d 600, 601 (1989) (trial court has broad discretion within
statutory guidelines to determine child's best interest, and its judgment
stands unless clearly erroneous).
                                    IV.
     Finally, Robert contends that the court's visitation order was not
supported by adequate findings and is contrary to 15 V.S.A. { 650, which
declares, in part, that upon the parents' divorce, "it is in the best
interests of their minor child to have the opportunity for maximum
continuing physical and emotional contact with both parents, unless direct
physical harm or significant emotional harm to the child or a parent is
likely to result from such contact."  The court's order gave Robert
visitation rights that amounted to fifty percent of the children's time on
weekends and school vacations, and approximately twenty-five percent of
their time overall.  In light of the fact that Linda was granted primary
responsibility for the children, this visitation schedule did not offend {
650.  Moreover, the court's findings regarding its custody determination
were sufficient to support its visitation order.
     Affirmed.

                              FOR THE COURT:

                              ___________________________________________
                              Associate Justice



FN1.   According to Robert, the court's custody order violates his federal
"right to privacy," as articulated in Griswold v. Connecticut, 381 U.S. 479
(1965) and other United States Supreme Court decisions, and Chapter 1,
Article 1, of the Vermont Constitution, which provides, in part,
          That all men are born equally free and independent,
          and have certain natural, inherent, and unalienable
          rights, amongst which are the enjoying and defending
          life and liberty, acquiring, possessing and protecting
          property, and pursuing and obtaining happiness and
          safety.