Fenoff v. Fenoff

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. 89-334


Connie Ella Fenoff                           Supreme Court

     v.                                      On Appeal from
                                             Orange Superior Court
William Clyde Fenoff
                                             February Term, 1990


Shireen Avis Fisher, J.

John Morale, Wells River, for plaintiff-appellant


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


     ALLEN, C.J.   Plaintiff was awarded custody of the parties' son in a
1985 decree of the Orange Superior Court and appeals an order of that court
enforcing defendant's visitation rights.  We affirm.
     The 1985 decree provided as follows:
            11) The care, custody and control of the minor child
          of the parties, to wit, Roy Scott Fenoff, is decreed to
          the Plaintiff subject, however, to the rights of the
          Defendant to visit and have the child with him every
          other weekend from 6:00 P.M. Friday to 6:00 P.M. Sunday,
          and also the right to have the minor child with him at
          least two weeks during the summer vacation.  Both
          parties shall have the right to take the minor child
          with them to New Hampshire for shopping and visits with
          relatives.

Visitations never occurred as contemplated in the 1985 decree, and defendant
filed a motion to enforce his rights in October, 1988.
     At the hearing on the motion, the trial court found that the child, who
was nine when the 1985 decree was entered, refused to join his father for
the prescribed visitations, even though defendant attempted visitations six
times in that year.  Nevertheless, Roy still "held his father in positive
regard" as late as early 1985.  After the child's repeated refusal to visit
with his father, defendant stopped his attempts in order to give his son
time to change his mind.  Defendant attempted to see his son three times in
1988, but plaintiff did not allow him into her home, though there were
meetings on the front steps which the court found were not satisfactory.
     The court made specific findings about Roy Fenoff's state of mind in
refusing to visit with his father, noting that he "is suffering a great deal
of pain and anger over issues of the divorce, divided loyalties, and the
role of his father in his life."  The court found that Roy's reasons for not
visiting his father had to do with his "early recollection of treatment of
his mother and dog by his father during the marriage, and certain behaviors
and eccentricities of his father of which he disapproves."  The court also
found that the son's "animosity toward his father has steadily increased, to
the point that he professes hatred of Mr. Fenoff."  Roy, according to the
court, "seems to harbor the unrealistic notion that if he steadfastly
refuses to visit with his father, Mr. Fenoff will somehow disappear as a
factor in his life."
     The court ordered that visitation take place at a community mental
health facility in the presence of a counsellor "with whom Roy has
established a therapeutic relationship."  The court allowed the counsellor
to set the date when the child "is emotionally capable of dealing with this
visit."  The court directed plaintiff to arrange pre-visitation counseling
"to assist him in dealing with his anger and pain regarding his parents'
divorce, and to assist him in developing an adequate relationship with his
father."  Defendant was ordered to meet with his son's counsellor.  Plain-
tiff was ordered to require her son to comply with the provisions of the
order, to make the necessary appointments, and to arrange for transpor-
tation.  The court invited the parties to seek further judicial intervention
in the event either of the parties believed that the counseling was not
effectuating the purposes of its order.  Plaintiff appealed the order to
this Court.
     On appeal, plaintiff's first contention is that it is not in the best
interests of the parties' son for him to resume visitation with his father.
She cites cases from other jurisdictions holding that the welfare of the
child is a more important consideration than visitation with the non-
custodial parent.  Hagler v. Hagler, 460 So. 2d 187, 189 (Ala. App. 1984);
Foster v. Foster, 40 Ohio App. 2d 257, 266-67, 319 N.E.2d 395, 401 (1974).
While we have not had occasion to weigh visitation rights as an interest in
conflict with the best interests of the child, our cases are consistent with
the results in the cases cited by plaintiff.
     It is conceivable that a court could find visitation so inimical to the
interests of a child that visitation would be greatly circumscribed or even
denied.  Indeed, our own cases provide that visitation may be denied upon a
showing of good cause.  See, e.g., Cleverly v. Cleverly, 147 Vt. 154, 157-
58, 513 A.2d 612, 614 (1986).  But in the present case the trial court heard
the evidence on the impact of lack of visitation, including detailed testi-
mony about the possible reasons why the parties' son is so averse to meeting
with his father.  It found that Roy's feelings were damaging and destruc-
tive.  That testimony undoubtedly was the basis for the court's careful and
gradual approach to facilitating visitation.  In the end, the court found
that visitation would be in Roy's best long-term interest despite his
present animosity toward his father.
     Plaintiff offers a different view of the evidence presented but does
not indicate why the trial judge's contrary findings were in error.
Findings of fact can be overturned only if they are clearly erroneous.
McCormick v. McCormick, 150 Vt. 431, 434, 553 A.2d 1098, 1101 (1988); Sutton
v. Sutton, 147 Vt. 639, 640, 523 A.2d 1249, 1250 (1987).  In the present
case the essential facts were not contested.  The court clearly set forth in
its findings the shortcomings of the parties and the vulnerability of their
child.  The court's decision was not based upon one party's version of
reality over the other's.  A trial court is granted a large degree of dis-
cretion in drawing conclusions from its findings in matrimonial matters,
and that discretion will be questioned only if it is abused.  Costello v.
Costello, 142 Vt. 124, 126, 453 A.2d 1107, 1108 (1982); Ohland v. Ohland,
141 Vt. 34, 39, 442 A.2d 1306, 1309 (1982).  There is no sign of abuse in
the present case; on the contrary, the decree reflects much care and
sensitivity to the parties' positions and the needs of their son.  The
tragedy of a child and a parent separated by bitterness and hate is a sad
and difficult backdrop for any judicial determination.  It is hard to
conceive of any single outcome that would be accepted by all as ideal or
perfect, but we do not demand the ideal or perfect.  In this case, the
judge showed great sensitivity to Roy's feelings and was careful not to
label them right or wrong.  She acknowledged the history of alienation
between father and son and made the reasonable surmise that in time the
importance of the father might reemerge in the son's life.  Her order
preserves that possibility, and comes with no other requirement than that
it be followed in good faith. (FN1)
     Plaintiff also argues that the trial court was powerless to condition
visitation on a parent's agreement to seek psychotherapy, citing numerous
precedents from other jurisdictions, including Schneider v. Schneider, 127 A.D.2d 491, 495, 511 N.Y.S.2d 847, 850-51, aff'd 70 N.Y.2d 739, 514 N.E.2d 382, 519 N.Y.S.2d 962 (1987).  Whatever the wisdom of these holdings, they
do not apply to the present case.  The direction to meet with Roy Fenoff's
counsellor was aimed at defendant, not plaintiff, and she may not assert his
right.  See Helm v. Helm, 139 Vt. 225, 226-27, 424 A.2d 1081, 1082 (198l)
(former husband lacked sufficient interest to intervene in annulment action
between former wife and second husband);  Dailey v. Dailey, 11 Ohio App. 3d
121, 123, 463 N.E.2d 427, 430 (1983) (husband in divorce action did not have
standing to object to failure of trial court to appoint guardian ad litem
for wife).  Further, the order directs defendant only to meet with Roy's
counsellor "to examine his own behaviors in the past as they affected Roy,
and develop guidelines for behavior for future contacts with Roy."  To
equate such direction with a requirement for psychological therapy or
psychiatric treatment, as plaintiff argues, overstates the case.
     Finally, plaintiff complains that the court erred in allowing her son's
counsellor to set the date for the first visitation.  This court is wary of
decrees that assign responsibilities in a manner inconsistent with governing
law.  See Cameron v. Cameron, 137 Vt. 12, 16, 398 A.2d 294, 296 (1979)
(court not authorized to require the Department of Social and Rehabilitation
Services to supervise custody award in divorce case, since that power is
limited to juvenile proceedings in district court).  However, the duty
assigned to Roy Fenoff's counsellor is limited to indicating the date when
visitation is to begin, not to deciding if visitation should occur.  In the
event the counsellor cannot, or does not, perform this function in accord-
ance with the decree, defendant may file an appropriate motion to give the
trial court the opportunity to reconsider the order in light of the most
current evidence.
     Affirmed.



                                   FOR THE COURT:



                                   ______________________________________
                                   Chief Justice




FN1.   In asserting her own good faith, plaintiff argues that she cannot be
held in contempt for failing to compel visitation in the past.  Plaintiff
was not held in contempt or threatened with contempt by the trial court;
consequently, the issue is not now before us.