Hubbell v. Hubbell

Hubbell v. Hubbell  (96-192); 167 Vt. 153; 702 A.2d 129

[Filed 19-Sep-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. 96-192


Deborah A. Hubbell (Gault)                   Supreme Court

                                             On Appeal from
    v.                                       Windsor Family Court

Steven R. Hubbell                            January Term, 1997


Walter M. Morris, Jr., J.

       Richard V. Aborjaily, Norwich, and Joanne M. Ertel of Black Black &
  Davis, White River Junction, for plaintiff-appellant

       William C. Dagger, Woodstock, for defendant-appellee

PRESENT:  Gibson, Dooley, Morse and Johnson, JJ. and Allen, C.J.
          (Ret.), Specially Assigned


       ALLEN, C.J. (Ret.), Specially Assigned.  Mother appeals an order of
  the Windsor Family Court awarding parental rights and responsibilities of
  the parties' minor child to father. Mother argues that (1) the court erred
  in awarding custody to father because mother demonstrated a greater
  capacity to promote a positive relationship between the child and the other
  parent than did father; (2) the record does not support the court's finding
  that mother was responsible for the child's lack of stimulation; (3) the
  court did not give adequate weight to mother's role as the child's primary
  caregiver; (4) mother was prejudiced by the delay between the final hearing
  and the custody decision; and (5) the court erroneously applied a
  preference for father over mother because of the sex of the child.  Father
  cross-appeals the award of attorney's fees.  We agree that the court erred
  by considering the sex of the child and remand for reconsideration of
  parental rights and responsibilities without regard to this factor.  In all
  other respects, the decision is affirmed.

       Mother filed for divorce in 1994 and sought custody of the parties'
  son, who was two-

 


       and-a-half years old.  About a month later father obtained an ex parte
  relief-from-abuse order, based on alleged acts of inappropriate discipline
  of the child.  The order granted father temporary possession of the
  parties' residence and temporary custody of the child.

       The parties agreed to a custodial evaluation by a child psychiatrist,
  who examined both the allegations of abuse and the respective parenting
  skills of the parties.  The psychiatrist stated that he could not find
  clinical evidence of physical abuse, but recommended that custody be
  awarded to father.  The court found that mother was the primary care
  provider prior to the separation and that father was the primary care
  provider thereafter.  Based on the court's evaluation of the parties'
  skills as parents and the record of the child's progress in father's
  custody, the court ruled that "[t]he credible evidence preponderates in
  favor of maintenance of [the child's] custodial placement with [father],
  with liberal visitation opportunities for [mother]." The court awarded the
  marital residence to father, subject to its indebtedness, and ordered
  father to pay $5000 of mother's attorney's fees.  Mother appeals, and
  father cross-appeals the award of attorney's fees.

       Mother first argues that the court erred in awarding custody of the
  parties' son to father because she demonstrated the greater "ability and
  disposition . . . to foster a positive relationship and frequent and
  continuing contact with the other parent."  See 15 V.S.A. § 665(b)(5).
  Regarding § 665(b)(5), the court concluded "that neither party has
  demonstrated much ability or willingness to foster a positive relationship
  between the child and the other parent."  In support of this conclusion the
  court found that the parties had maintained a "state of hypervigilance"
  that resulted in "a substantial negative influence upon the parties'
  abilities to even attempt to work together to address the child's needs"
  and that "the parties are unable to engage in even the most basic
  discussion, compromise, or agreement as to matters affecting the child." 
  The findings include specific instances of conduct by each party supporting
  the position that neither is able to foster a positive relationship and
  continuing contact with the other parent. The psychiatrist noted that the
  parties clearly demonstrated an inability to communicate and

 


       make joint decisions about the child and thus an inability to
  collaborate in raising their son.  The record supports the findings, and
  the findings support the conclusion that neither party appears able to
  foster a positive relationship between the child and the other parent.

       Mother next argues that the court erred by finding that she was
  responsible for the child's lack of stimulation and that awarding her
  custody would result in under-stimulation.  This contention
  mischaracterizes the court's findings.  The court found that the child was
  under-stimulated while the parties lived together, with mother as the
  primary caretaker and father largely detached from parenting.  It also
  found that awarding custody to mother might create "the possibility of a
  return to under-stimulation in the home."  (Emphasis added.)  Mother's
  contention also ignores the testimony of the psychiatrist.  In his
  evaluation, the psychiatrist stated that mother was the primary caretaker
  while the parties lived together, that the child did not receive sufficient
  stimulation to overcome his language delay and social immaturity, and that
  one disadvantage of awarding custody to mother was the possibility that the
  child would be under-stimulated in the home environment.  The court's
  findings are therefore amply supported.

       Mother contends that she should be awarded parental rights and
  responsibilities because she was the primary caretaker for most of the
  child's life.  We have held that this criterion should be given great
  weight unless the primary custodian is unfit, but it does not create a
  presumption that the primary caretaker should be awarded custody.  See
  Nickerson v. Nickerson, 158 Vt. 85, 89, 605 A.2d 1331, 1333 (1992); Harris
  v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988).  The court found
  that mother was the primary caregiver, but went on to examine the quality
  of care provided by each parent at all relevant periods of the child's
  life.  It weighed the factors in father's favor more heavily, including his
  successful completion of a parenting course; his provision of suitable and
  adequate nutrition, clothing, cleanliness, and other physical and emotional
  care for the child; and his dedication to his son's need for consistency,
  structure, intellectual stimulation, and continuity of environment.  The
  trial court has wide discretion in custody matters, and we must affirm the
  custody decision when it

 


       examines the attributes of each parent in light of the factors
  enumerated in 15 V.S.A. § 665(b). See Johnson v. Johnson, 163 Vt. 491, 496,
  659 A.2d 1149, 1152 (1995).

       Mother also claims that she was prejudiced by the delay between the
  final hearing and the rendering of the custody decision, suggesting that
  the court's extensive quotations from exhibits evidences a lack of memory
  of the testimony.  The findings and conclusions were lengthy, detailed, and
  comprehensive, and the claimed effect of the delay is purely speculative.

       Mother next argues that the court erred in finding that one advantage
  of awarding custody to father would be "primary caretaking by a parent of
  the same sex, with positive gender identification consequences."  Mother
  contends that this finding is inconsistent with 15 V.S.A. § 665(c), which
  states that "[t]he court shall not apply a preference for one parent over
  the other because of the sex of the child, the sex of a parent or the
  financial resources of a parent."  We agree that the court referred to the
  same-sex factor as an advantage to the child of remaining with his father
  and improperly weighed that factor in arriving at its decision. 
  Consequently, we must remand to the trial court to reconsider the custody
  issue without regard to the sex of the child or the parents.  See Harris v.
  Harris, 162 Vt. 174, 182, 647 A.2d 309, 314 (1994) (we would be compelled
  to reverse custody determination if trial court applied preference for
  father because child was a boy); see also Gilbert v. Gilbert, 163 Vt. 549,
  556-57, 664 A.2d 239, 242-43 (1995) (report of guardian ad litem admitted
  in violation of V.R.A.P 7(d) required reversal of custody determination
  because we could not be sure that report was not considered in custody
  decision).

       Finally, father argues in his cross-appeal that although mother's
  attorney's fees were reasonable in relation to the services rendered, they
  were excessive as to him.  He notes his $35,000 salary, his low net worth,
  and the burdens of maintaining the marital home and custody of the parties'
  child.  Father has not demonstrated that the fee award is clearly
  erroneous.  His distinction between the reasonableness of the fee in the
  abstract and the reasonableness of his paying it is not sustainable on this
  record, nor does the record support his argument that mother

 


       unduly prolonged the litigation.  The custodial evaluation, which
  necessarily, but properly, added to the length and complexity of the case,
  was agreed to by the parties, and father cannot be heard to complain. 
  Father's resources are ample to meet what is a modest attorney's fee
  obligation.

       Reversed and remanded for reconsideration of parental rights and
  responsibilities without regard to the sex of the child, an amended
  decision to be issued within thirty days of this opinion; affirmed in all
  other respects.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice (Ret.), Specially Assigned