Davis v. Hunt

Davis v. Hunt  (96-099); 167 Vt. 263; 704 A.2d 1166

[Filed 21-Nov-1997]

       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. 96-099


Fred W. Davis                                Supreme Court

                                             On Appeal from
    v.                                       Lamoille Family Court

Roxanne Hunt                                 October Term, 1997


John P. Meaker, J.

       Leslie Black and Douglas L. Molde of Molde and Black, P.C., Johnson,
  for plaintiff-appellee

       Robert M. Fairbanks of Gaston, Durrance & Fairbanks, Montpelier, for
  defendant-appellant


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.   Defendant Roxanne Hunt (mother) appeals from a family
  court judgment in a consolidated parentage and relief-from-abuse
  proceeding.  The court awarded plaintiff Fred Davis (father) sole legal and
  physical rights and responsibilities for the minor child and dismissed the
  relief-from-abuse petition.  Mother contends the court erred by: (1)
  allowing the minor's guardian ad litem to testify concerning custody of the
  minor child; (2) excluding the testimony of her thirteen year old daughter
  regarding allegations of abuse; (3) consolidating the relief from abuse and
  parentage proceedings; and (4) denying her request for an award of
  attorney's fees.  We reverse.

       The parties lived together for approximately six years but never
  married.  A child, Samuel, was born of the relationship in December 1990. 
  In 1994, the parties separated.  Both parties acknowledge that they are
  Samuel's biological parents.

       Following the separation, father filed a complaint for establishment
  of parentage and award of legal and physical rights and responsibilities. 
  Thereafter, mother petitioned the court on behalf of the child for relief
  from abuse.  The court issued a temporary relief-from-abuse

 

  order and consolidated the two actions for final hearing.  At the
  conclusion of the hearing, the court awarded sole legal and physical rights
  and responsibilities to father, provided for extensive visitation by
  mother, and dismissed the relief-from-abuse petition, finding that the
  evidence did not support the claim. This appeal followed.

                                     I.

       Mother first contends that the court erred in allowing the co-guardian
  ad litem, Robert Meyer, to testify as a witness and to state his
  recommendation regarding custody of the child based upon evidence not in
  the record.  Mother asserts that the guardian's testimony was incompetent
  under the criteria set forth in V.R.F.P. 7.

       Rule 7(d) allows a court-assigned guardian ad litem (GAL) to state "a
  position" but requires that the reasons for the position be "based upon
  evidence in the record."  A GAL may be called as a witness only when the
  testimony "would be directly probative of the child's best interest" and no
  other person could testify on the same subject.  Id.; see Johnson v.
  Johnson, 163 Vt. 491, 496-97, 659 A.2d 1149, 1152 (1995); Gilbert v.
  Gilbert, 163 Vt. 549, 554, 664 A.2d 239, 241 (1995).

       Here, the trial court called the GAL as a witness, inquired about his
  investigation, and asked whether he had a recommendation for the court. 
  Mother thereupon objected on the ground that the GAL's investigation was
  not sufficiently thorough to justify his stating an opinion.  The objection
  was overruled, and the GAL recommended that father be awarded legal rights
  and responsibilities and that the parties share physical custody.

       By allowing the GAL to testify based on evidence outside the record,
  the trial court clearly erred under our decision in Gilbert.   Because we
  conclude in the section which follows that the judgment must be reversed on
  other grounds, however, we need not determine whether the error requires a
  new hearing.  Cf. Johnson, 163 Vt. at 497, 659 A.2d  at 1152-53 (Court's
  inability to determine impact of GAL's recommendation required remand for
  new hearing); Gilbert, 163 Vt. at 556-59, 664 A.2d  at 242-44 (because GAL's
  report "significantly influenced

 

  the presentation of evidence" remand for new hearing was required).

                                     II.

       Mother next contends the trial court erred in excluding the testimony
  of her thirteen year old daughter, Lacy.

       Although Lacy was not related to father, she had resided with him for
  several years during the parties' relationship.  Mother adduced evidence
  that father had struck Samuel on the face, causing a red bruise.  Father
  denied that he had struck or abused either of the children. Mother
  thereupon sought to call Lacy to rebut father's testimony.  In her offer of
  proof, mother's counsel stated that Lacy would testify that she had been
  abused by father on a number of occasions in the past.  Counsel argued that
  the testimony was relevant both to the relief-from-abuse complaint and the
  custody proceeding, indeed that it went to "the core of the Court's
  decision on which parent is better suited to have custody."  Counsel noted
  that there was no other person who could offer the same testimony, since
  she was the only witness.  And counsel further argued that the probative
  value of the testimony outweighed any detriment to the child, observing
  that Lacy was an articulate and poised thirteen year old, that the child
  was present in court, was comfortable with the procedure, and was eager to
  testify.  Counsel urged the court to speak with the child in chambers to
  assess her demeanor and, if necessary, to appoint an attorney to protect
  her interests.  The trial court did neither, and ultimately excluded the
  testimony.  Although the basis of the court's decision is unclear from the
  record, in denying mother's subsequent motion for reconsideration the court
  implied that allegations of abuse of Lacy were not relevant to the
  complaint involving Samuel, and in any event were not admissible under
  V.R.E. 404(b) (evidence of other bad acts not admissible to prove that
  person acted in conformity therewith).

       A threshold issue is whether the trial court's apparent belief that
  the requirements of 15 V.S.A. § 594(b) applied was error. The statute
  establishes certain conditions for calling a child as a witness in a family
  proceeding.  It provides that "[t]he court shall appoint an attorney for

 

  a minor child before the minor child is called as a witness in a proceeding
  under this chapter." 15 V.S.A. § 594(b).  Furthermore, the child may be
  called as a witness only if the court finds after hearing that the
  testimony is necessary to assist the court in determining the issue before
  it, the probative value of the testimony outweighs the potential detriment
  to the child, and the evidence is not reasonably available through other
  means.  Id.

       Read in context, § 594(b)'s reference to "minor child" appears to
  apply only to witnesses who are also the subject of the custody and
  visitation proceeding, and thus did not apply to Lacy.  This is apparent
  from the previous section, § 594(a), which provides that the court may
  appoint an attorney for the "minor or dependent child with respect to child
  support and the allocation of parental rights and responsibilities."  In
  construing a statute, we look to its entirety and attempt to harmonize its
  constitutent parts.  Lemieux v. Tri-State Lotto Comm'n, 164 Vt. 110, 113,
  666 A.2d 1170, 1173 (1995).  There is nothing to indicate that the
  Legislature intended a broader definition of "minor" in § 594(b) than in §
  594(a), which plainly refers only to minors who are the subject of the
  support and custody proceeding.  The purpose of the provision, moreover, is
  to protect children faced with the dilemma of testifying simultaneously for
  one parent and against the other.  See V.R.F.P. 7, Reporter's Notes (15
  V.S.A. § 594(b) "recognizes that the act of testifying for or against one
  parent, and requests by a parent for such testimony, are often harmful to
  children").  We thus hold that the statute does not apply broadly to any
  child witness, but only to those minors who are the subject of the custody
  dispute.

       This is not to say that the court lacked the discretion to exclude the
  testimony if it was irrelevant, cumulative, unduly prejudicial, or
  inadmissible on other grounds.  None of these objections, however, was
  applicable in the case at hand.  We have expressly held that evidence of
  abuse of siblings in child custody and visitation proceedings does not run
  afoul of V.R.E. 404(b) because the issue is not whether the parent acted in
  conformity with a particular character trait, but rather whether the child
  will have proper care and protection.  Brown v. Brown, 154 Vt. 625, 632,
  580 A.2d 975, 979-80 (1990).  Such evidence is highly relevant "to show the

 

  overall home environment and the interaction of the parents and children
  within it, now or in the past.  .  .  . [W]e must allow a broad inquiry as
  long as the focus is clearly on the best interests of the child."  Id. 
  Here, as mother's counsel noted, the allegation of abuse went to the "core"
  of the custody and visitation issue.  See 15 V.S.A. § 665(b)(9) (in making
  a custody determination, "the court shall consider evidence of abuse .  . 
  . and the impact of the abuse on the child and on the relationship between
  the child and the abusing parent.").  The thirteen year old witness was
  competent to testify, the evidence was not cumulative, and there was no
  other apparent means of eliciting the same evidence.  We thus perceive no
  sound basis for its exclusion in these circumstances.

       Accordingly, we conclude that the court's ruling must be reversed, and
  the matter remanded for a new hearing for the limited purpose of admitting
  the testimony of Lacy, and rendering a new decision in the light thereof.

                                    III.

       Mother next contends the trial court violated her right to due process
  by consolidating the relief from abuse and the final parentage actions
  without adequate notice, and by denying her motion for a continuance of the
  parentage proceeding.

       As noted, this action commenced with father's filing of a complaint
  for establishment of parentage.  Thereafter, mother petitioned the court on
  behalf of the child for relief from abuse. The court issued a temporary
  order for relief from abuse and, following an unreported chambers
  conference, scheduled the matter for final hearing on March 23, 1995.  The
  parties disagree as to whether they also agreed at the time to consolidate
  the final relief from abuse and parentage proceedings.  At the commencement
  of the March 23 hearing, mother's counsel opposed going forward with the
  final hearing on the parentage action, claiming that she was not on notice
  of the consolidation.  She requested a three-month continuance so that a
  therapist recently appointed for the child would have time to form an
  opinion and present expert testimony.  Father's counsel disputed her
  counterpart's recollection of events, recalling that the parties had
  expressly agreed

 

  in chambers to merge the two actions.  The trial court agreed with father's
  reconstruction of events and denied mother's request for a continuance of
  the parentage action.

       V.R.F.P. 4(n)(2) provides that when an abuse complaint is filed
  subsequent to a parentage action, "[o]n motion of either party or the
  court's own motion the court shall consolidate" the two proceedings.  
  Thus, there was no error in consolidating the proceedings. Although mother
  claims a lack of notice, and the record on this point is unclear, she has
  made virtually no showing that she was prejudiced by the consolidation, or
  by the court's denial of her request for a continuance.  Accordingly, there
  was no denial of due process.

                                     IV.

       Finally, mother contends the court erred in denying her motion for
  attorney's fees totalling almost $5,000.

       A parentage action is analogous to a custody/support hearing with
  respect to the award of attorney's fees.  Bissonette v.Gambrel, 152 Vt. 67,
  71, 564 A.2d 600, 602 (1989).  In such cases, "the assessment of attorney's
  fees is proper `where justice and equity so indicate.'" Nevitt v. Nevitt,
  155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990) (quoting Peatman v. Peatman,
  140 Vt. 532, 534, 442 A.2d 1290, 1291 (1982)).  "The primary consideration
  in awarding attorney's fees is the ability of the supporting party to pay
  and the financial needs of the party receiving the award."  Id.  The trial
  court enjoys broad discretion in awarding attorney's fees, and its judgment
  will not be disturbed on appeal absent clear evidence of an abuse of
  discretion. Parker, Lamb & Ankuda v. Krupinsky, 146 Vt. 304, 307, 503 A.2d 531, 533 (1985).

       In support of her motion, mother adduced evidence of both parties'
  financial condition and the amount of attorney's fees that each had
  incurred.  In denying the motion, however, the court stated only that "the
  attorney's fees generated by both sides in this litigation are more than
  they should be."  The court failed to consider or make findings concerning
  the parties' ability to pay attorney's fees in the light of their
  respective financial resources and expenses.  As we have previously held,
  this was an abuse of discretion.  Dunning v, Meaney, 161 Vt. 287, 291,

 

  640 A.2d 3, 6 (1993); Cleverly v. Cleverly, 151 Vt. 351, 358, 561 A.2d 99,
  103 (1989). Accordingly, on remand the court will conduct a further hearing
  on this issue.

       Reversed and remanded for further proceedings consistent with this
  opinion.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice