Rapp v. Dimino

RAPP_V_DIMINO.93-084; 162 Vt. 1; 643 A.2d 835

[Opinion Filed July 2, 1993]

[Motion for Reargument Denied April 29, 1994]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-084


 Mary Rapp                                    Supreme Court

                                              On Appeal from
      v.                                      Lamoille Family Court

 Thomas Dimino                                May Term, 1993



 Alan W. Cheever, J.

 Ronald A. Fox of Biggam, Fox & Skinner, Montpelier, for plaintiff-appellant

 Rebecca G. Olson of Stevens Law Office, Stowe, for defendant-appellee



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




      ALLEN, C.J.   Plaintiff Mary Rapp appeals from a final abuse-prevention
 order that granted her relief from abuse but awarded custody of the two
 minor children to defendant Thomas Dimino, her husband.  We vacate the
 custody component of the order.
      The parties were married in the Rochester, New York area in September
 1985 and remained there until January 1991, when they moved to Florida with
 their two sons, who were born in March 1986 and June 1987.  The parties
 separated in early 1992, but resided close to each other and shared custody
 of the boys.  Although they remained separated, the parties decided to
 return to Rochester, New York and then relocate to a place where they could
 continue to live separate lives while sharing custody of the children.
 Shortly after returning to Rochester, plaintiff brought the children to
 Stowe, where a friend had agreed to provide her with an apartment and a
 vehicle to help her get started.  She found work and enrolled the children
 in school.  Defendant objected to plaintiff's decision to move to Vermont
 with the children because he did not believe he would be able to set up his
 marketing business there.
      Based on defendant's prior abusive behavior and on her belief that he
 intended to take the children back to New York, plaintiff filed a relief-
 from-abuse complaint pursuant to 15 V.S.A. { 1103.  On October 1, the family
 court issued a temporary order prohibiting defendant from abusing her or the
 children and awarding temporary custody to plaintiff.  Shortly thereafter,
 the court appointed guardians ad litem for the children.  On November 10,
 plaintiff sought custody of the children in a separate complaint for support
 pursuant to 15 V.S.A. { 293.  On January 8, 1993, the parties agreed by
 stipulation that physical responsibility for the children would be solely
 with plaintiff and that defendant would pay child support to plaintiff in
 the amount of $657 per month.
      On January 22, 1993, the family court held a final relief-from-abuse
 hearing.  At the outset of the hearing, the presiding judge noted that the
 parties had "not established residence in Vermont to have a divorce action"
 and emphasized that the matter before the court was strictly a relief-from-
 abuse hearing.  Notwithstanding the court's comments, several of the dozen
 or so witnesses testified as to the needs of the children and whether those
 needs might be better served by the boys residing with one parent rather
 than the other.
      At the conclusion of the hearing, following a recess, the presiding
 judge stated that "the decision of the Court is split into two different
 parts, and there is a dissent."  The court was unanimous in finding that
 plaintiff had been abused by defendant on at least one occasion and that
 there was risk of further abuse.  The presiding judge believed that
 defendant's violent temper put both plaintiff and the children at risk of
 further abuse.  The court therefore ordered defendant to refrain from
 abusing or threatening plaintiff.
      The court also made a ruling on the custody of the children.  The
 presiding judge stated that "[b]ecause there is a split and the assistant
 judges are the fact finders in this case, the decision of the Court, then,
 is that the defendant will have custody of the minor children."  The
 temporary custody order was made effective until June 1, 1993, and defendant
 was ordered to reside in his mother's house.  The presiding judge reiterated
 that he was the dissenter and that, in his view, "the defendant was
 dangerous and should not have custody."
      At a February 4th hearing on plaintiff's motions for a stay pending
 appeal and for findings, the assistant judges found that the maternal and
 paternal families, who lived in Rochester, were willing to provide
 additional support for the children; no family relatives lived in Stowe;
 male guests had stayed overnight at plaintiff's apartment; plaintiff had
 left the children with a babysitter "of questionable age"; plaintiff had
 not always made the children available for 7 p.m. phone calls with
 defendant; the guardians ad litem had been unable to reach plaintiff on
 numerous occasions; the guardians agreed that the children would be better
 off in Rochester; and the children's best interests would be served by
 placing them near the maternal and paternal families in Rochester.  The
 assistant judges also found that defendant had abused plaintiff both
 physically and verbally while they lived together and that there was a risk
 of continued abuse.
      The presiding judge then noted that he believed that defendant's
 violent temper had led not only to abuse toward plaintiff but also to
 inappropriate corporal punishment of the children.  The presiding judge
 reiterated his conclusion that awarding custody to defendant jeopardized the
 children's safety.  Plaintiff's motion for a stay was denied.
      On appeal, plaintiff argues that (1) when the family court exercises
 its jurisdiction in an abuse-prevention matter, it cannot award custody to a
 defendant found to be abusive; (2) the abuse-prevention statute does not
 permit a custody award absent a finding of abuse or potential abuse toward
 the children; (3) assuming it was proper for the court to consider the
 children's best interests without a finding of abuse, the court failed to
 consider all of the statutory factors related to the children's best
 interests; (4) the assistant judges are without authority to make a custody
 determination; and (5) reversal is required because one of the guardians ad
 litem failed to disclose potential prejudice toward plaintiff's counsel.  We
 reverse based on our conclusion that the family court exceeded its authority
 under the relief-from-abuse statute by making a custody determination in the
 absence of a finding that the children had been abused or were in danger of
 being abused.
      Vermont's Abuse Prevention Statute, 15 V.S.A. {{ 1101-1109, is designed
 to provide immediate relief to victims of domestic violence.  The statute
 focuses on fast, temporary relief to family members in immediate danger,
 rather than on resolution of the parties' claims regarding custody, support
 or marital property.  This goal is accomplished in part by providing
 inexpensive and uncomplicated proceedings that allow an abused family member
 to obtain immediate relief without the need for counsel, advance pleadings,
 or a full-blown evidentiary hearing.
      The statute's references to custody are consistent with the overall
 purpose of the statute.  Family members may seek relief from abuse for
 themselves or their children.  15 V.S.A. { 1103.  A family member may
 request temporary custody of minor children.  Id. { 1103(a)(3).  Relief may
 be granted for up to a year and extended as long as it is necessary to
 protect the plaintiff or the children from abuse.  Id. { 1103(b).  If the
 court awards custody, it may allow visitation to the noncustodial parent
 under conditions that will prevent further abuse.  Id. { 1103(d).  In
 determining whether visitation is appropriate between the defendant and a
 minor child, the court must consider the best interests of the child and
 conditions that will minimize the likelihood of further abuse.  V.R.F.P.
 9(f)(3).  The court may award temporary custody of the minor children "to
 the plaintiff or to other persons" in an ex parte emergency order upon a
 finding that the minor children are in immediate danger of physical or
 emotional harm.  15 V.S.A. { 1104(a)(3).  The defendant must have an
 opportunity to contest an emergency order at a hearing to be scheduled
 within ten days of the order.  Id. { 1104(b).
      Taken together, these provisions leave little doubt that the
 Legislature intended to authorize the courts to award custody in the context
 of a relief-from-abuse hearing only upon a showing that the children had
 been abused or were in danger of being abused.  The fact that the family
 court has unlimited authority to award custody in other types of proceedings
 does not suggest otherwise.  See Buxton v. Buxton, 148 Vt. 22, 24, 527 A.2d 660, 662 (1987) ("there is no necessary relationship between the abuse
 prevention provisions of chapter 21 and the statutes and rules governing
 divorce proceedings"); cf. In re M.C.P., 153 Vt. 275, 302, 571 A.2d 627, 642
 (1989) (unless statutory authority exists for a particular procedure,
 district court acting as juvenile court does not have power to employ
 procedure); In re T.L.S., 139 Vt. 197, 199, 425 A.2d 96, 97 (1980)
 (psychiatric examination should have been excluded because there was no
 statutory authorization for district court acting as juvenile court to order
 such an examination).
      As noted, the abuse prevention statute is aimed at providing immediate
 relief for abuse victims, not at determining the parties' rights with
 respect to custody, support or property.  The expedited nature of the
 hearings and the limited procedural safeguards provided by the statute are
 ill-suited for custody determinations not involving abuse of the children.
 Temporary custody decisions based on limited evidence are more susceptible
 to later reversal, which would adversely affect the children's interest in
 the stability and continuity of their relationships and surroundings.
 Accordingly, custody determinations are better resolved in proceedings
 concerning divorce, legal separation, parentage, or desertion and support.
 See 15 V.S.A. { 665 (divorce or legal separation); 15 V.S.A. { 306
 (parentage); 15 V.S.A. { 293 (desertion and support); see also 15 V.S.A. 594
 (court may appoint attorney to represent interest of children and may
 examine child in chambers); V.R.C.P. 80(h) (except under extraordinary
 circumstances, divorce action involving custody of minor children shall not
 be heard for at least six months from date of service).
      Nonabusive family members should not have to risk losing custody of
 their children to seek relief under the statute.  The proceedings are not
 designed to provide an opportunity to explore fully the issues surrounding
 custody.  Allowing custody awards in an abuse-prevention proceeding absent a
 showing of abuse or potential abuse toward the children might deter abused
 family members from seeking relief under the statute.
      Plaintiff urges us to construe the abuse prevention statute to
 foreclose the family court from ever awarding custody in an abuse-prevention
 proceeding to a defendant found to have been abusive to any other family
 member.  In support of this proposition, plaintiff points to a recent
 congressional resolution stating that "for purposes of determining child
 custody, credible evidence of physical abuse of a spouse should create a
 statutory presumption that it is detrimental to the child to be placed in
 the custody of the abusive spouse."  H.R. Con. Res. 172, 101st Cong., 2d
 Sess. { 1 (1990).  We agree that abuse toward a spouse may serve as a basis
 for a finding of abuse to the children, thereby permitting a custody award
 within the context of an abuse-prevention proceeding.  We are reluctant,
 however, to construe the abuse prevention statute to preclude the court,
 under any circumstances, from awarding custody to a defendant found to be
 abusive toward another family member.  Such a construction might create a
 tactical advantage to the person filing the abuse complaint when both
 parties have abused each other.  Cf. Bessenyey, Visitation in the Domestic
 Violence Context; Problems and Recommendations, 14 Vt. L. Rev. 57, 70 (1989)
 (noting case where court issued ex parte order awarding custody of seven-
 month-old nursing infant to previously abusive father based on finding that
 mother had struck father during fight).  Although it will rarely be proper
 for a court to award custody to a defendant found to be abusive, we decline
 to rule out such a possibility, given unusual circumstances.
      In this case, the court exceeded its authority in awarding custody to
 defendant.  There was no evidence that plaintiff had abused or was likely to
 abuse the children.  The finding that plaintiff had left the children with a
 babysitter "of questionable age" on certain evenings does not constitute a
 finding of abuse.
      In light of this determination and the fact that plaintiff asks only
 that we strike the custody order, we need not address plaintiff's remaining
 arguments.
      The custody component of the family court's January 22, 1993 entry
 order is vacated.  The relief-from-abuse order remains in effect in every
 other respect.




                               FOR THE COURT:

                               ___________________________________________
                               Chief Justice