Pill v. Pill

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. 89-361


Kenneth A. Pill                              Supreme Court

     v.                                      On Appeal from
                                             Rutland Superior Court
Barbara J. Pill
                                             March Term, 1990


Arthur J. O'Dea, J.

Stephen L. Klein, Rutland, for plaintiff-appellee

Thaddeus Lorentz and Ron Williams of Lorentz & Lorentz, P.C., Rutland, for
    defendant-appellant



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


     GIBSON, J.     Defendant, Barbara Pill, appeals from a modification of
a divorce decree that transferred primary physical responsibility for the
parties' minor children to plaintiff, Kenneth Pill, and reduced plaintiff's
child support obligation.  We reverse and remand for further proceedings.
                                    I.
     Kenneth and Barbara were divorced on April 28, 1987 and awarded joint
custody of their two minor sons, Justin and Jared.  Pursuant to the divorce
decree, which encompassed the parties' stipulation, Barbara retained
primary physical responsibility for the children, and Kenneth received
"reasonable and liberal" visitation rights.  The order provided that since
both parties are capable of caring for the children, they may change the
primary residence and physical custody of the children without the court's
permission "if it appears to the parties in the future that it is in the
best interest of the children," and the children so desire.  Additionally,
the order stated that whichever parent gains custody of the children in the
future, the noncustodial parent "shall have the right to extensive and
liberal visitation."  Finally, the order required Kenneth to pay $110 per
week to Barbara for the children's support and maintenance.
     Almost two years after the divorce, Kenneth filed a motion to modify
the custody order, claiming that (1) Barbara was not properly supervising
the children; (2) she was failing to take the children to the doctor; (3)
she was six months' pregnant and living with a boyfriend ten years younger
than her; (4) she was giving child-care responsibilities to her boyfriend,
who was "partying" at the house past the children's bedtime; and (5) Justin
was having specific behavior problems.  One month later, Barbara filed a
motion for modification of the order with respect to the decision-making
arrangement, alleging that Kenneth had failed to cooperate with the
exchanges of the children during visitations and had refused to share in
decisions concerning the children's upbringing.
     A hearing was held on June 13, 1989, at the close of which the court
issued an oral notice of decision.  A written order was filed on July 19,
1989.  Relying on the language of the original custody order and the best
interest of the children pursuant to the guidelines set forth in 15 V.S.A. {
665, the court awarded Kenneth primary physical responsibility for the
children and granted Barbara visitation rights.  In addition to transferring
physical custody to Kenneth, the court reduced his child support obligation
from $110 per week to $35 per week.
     Barbara appeals the modification order, arguing that the trial court
erred by (1) misinterpreting the original custody order, (2) failing to find
a real, substantial and unanticipated change of circumstances pursuant to 15
V.S.A. { 668, and (3) modifying the child support award.  In response,
Kenneth argues that (1) the court's interpretation of the original court
order was correct; (2) the court, in essence, found a real, substantial and
unanticipated change in circumstances; and (3) such a change is apparent
from the record and acknowledged by Barbara.  Pending resolution of the
appeal, this Court stayed the order of the trial court.
                                    II.
     Barbara first asserts that the court erred in interpreting the
custody order.  We agree.  In relevant part, the order provided as follows:
          1.(a) . . . The children shall continue to make their
          primary residence with Barbara, except as hereinafter
          provided.

          (b) The parties acknowledge that the children have
          wishes and desires of their own, and that as the
          children mature their changing interests and preferences
          should be given weight and consideration.  The parties
          also confirm that each of the parties, respectively, is
          a fit parent, and is capable of providing the children
          with requisite primary care and supervision.  Therefore,
          the best interest of the children being the parties'
          primary concern, if it appears to the parties in the
          future that it is in the best interest of the children
          that there be a change of their primary residence and
          physical responsibility, and it is the desire of the
          children or either of them to do so, it shall be
          permitted.

          . . . .

          (h) In the event that in the future the parties deter-
          mine and agree that one or the other of the parties
          should have sole custody, or that the children or either
          of them should primarily reside with one or the other
          parent, or in the event one or the other parent seeks
          and gains sole custody, then the noncustodial parent
          shall have the right to extensive and liberal visitation
          with the children.

(Emphasis added.)  The court apparently determined that since the order gave
the parties the right to modify the custody arrangement without court
approval, and since the parties could not come to any agreement, it could
decide which party should be awarded physical custody, regardless of whether
there was a real, substantial and unanticipated change in circumstances.
     We conclude that the words "the parties" in the order clearly indicate
that court approval of a change in the custody arrangement is unnecessary
only if both parties agree that the change would be in the children's best
interest.  Here, however, the parties could not agree.  Consequently, in
order to modify the prior order, the court had to follow the dictates of 15
V.S.A. {668, which provides,
          On motion of either parent or any other person to whom
          custody or parental rights and responsibilities have
          previously been granted, and upon a showing of real,
          substantial and unanticipated change of circumstances,
          the court may annul, vary or modify an order made under
          this subchapter if it is in the best interests of the
          child, whether or not the order is based upon a
          stipulation or agreement.

Thus, the court may consider the best interests of the children only after
it has made the "critical threshold finding" that there has been a real,
substantial and unanticipated change of circumstances.  Kilduff v. Willey,
150 Vt. 552, 553, 554 A.2d 677, 678 (1988).  Despite the court's statement
that it was "not really changing custody," the modification order does
transfer physical custody from one parent to the other without the mutual
agreement of the parties and without the threshold finding of a substantial
change of circumstances.  This, we cannot allow.
     Kenneth contends that the court, in essence, found a real, substantial
and unanticipated change in circumstances.  In support of his argument, he
focuses on the court's findings regarding Barbara's boyfriend and the
parties' inability to agree as to the children's best interest.  Based on
the testimony of the boyfriend and a neighbor, the court found that the
boyfriend's behavior was not in the children's best interest.  The boyfriend
testified that during an argument with Barbara, he turned over a table with
an ashtray on it and then threw the ashtray into the sink.  In addition, a
neighbor testified that one evening, before Barbara came home from work,
Kenneth dropped the children off at the neighbor's home because Barbara's
boyfriend was having a party and "there might be something bad going on."
The neighbor said that when she took them home she found the boyfriend and
two other people watching television; nevertheless, Justin, the youngest
child, "looked scared."
     The court's findings are not the equivalent of a finding that there was
a real, substantial and unanticipated change of circumstances pursuant to {
668.  A change in physical custody is not permitted without the court having
first made this critical justification.  Kilduff, 150 Vt. at 553, 554 A.2d 
at 678.  The moving party has a heavy burden to prove changed circumstances,
and the court must consider the evidence carefully before making the
threshold finding that a real, substantial and unanticipated change of
circumstances exists.  Id.  Because of its misinterpretation of the
original order, the court erred in ordering a change of custody based solely
on the children's best interest.
     Kenneth also contends that it was not necessary for the court to find a
real, substantial and unanticipated change of circumstances because Barbara
conceded such a change.  We disagree.  In Barbara's motion for modification,
she stated that Kenneth's "behavior and attitude with respect to decision-
making arrangements encompassed within the order is a real, substantial and
unanticipated change in circumstances."  Thus, although Barbara conceded
that a change in circumstances existed with respect to the decision-making
arrangement, she did not concede that the change in circumstances warranted
a change in physical custody of the children.  As we stated in Kilduff, "the
threshold findings with respect to the issues of physical custody and the
decision-making arrangement are distinct," 150 Vt. at 557, 554 A.2d  at 680;
the party seeking to modify the decision-making arrangement does not have as
heavy as a burden to show substantial change because such a modification
"does not entail the violent dislocation realized by a change in physical
custody."  Id. at 555, 554 A.2d  at 679-80.
     Finally, Kenneth contends that it was not necessary for the court to
find a real, substantial and unanticipated change of circumstances because
the evidence presented at the hearing indicates that such a change existed.
We cannot agree.  Prior to modifying a custody order, the court must make
findings sufficient to satisfy the threshold requirement of a real,
substantial and unanticipated change of circumstances.  Id. at 554, 554 A.2d  at 679.  Absent an initial determination by the trial court, we decline
to make such findings on appeal nearly a year after the modification
hearing; in any event, it is questionable whether this record would support
a finding of a real, substantial, and unanticipated change of circumstances.
Instead, we vacate the modification order and remand the case to the
superior court to determine whether there has been a real, substantial and
unanticipated change in circumstances and, if so, whether a change in
physical custody would be in the children's best interest.
     The judgment is reversed and the case is remanded for further hearing.


                                        FOR THE COURT:


                                        ______________________
                                        Associate Justice