Begins v. Begins
Annotate this Case
Begins v. Begins (97-334); 168 Vt. 298; 721 A.2d 469
[Filed 11-Sep-1998]
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,
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No. 97-334
Karen Begins Supreme Court
On Appeal from
v. Addison Family Court
David Begins May Term, 1998
Matthew I. Katz, J.
Janet P. Shaw of Marsh & Associates, P.C., Middlebury, and Jeremy
Dworkin, South Londonderry, for Plaintiff-Appellant
David Begins, Pro Se, Vergennes, Defendant-Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J. Mother appeals from a divorce judgment of the Addison
Family Court. She contends the court abused its discretion by: (1) awarding
father primary parental rights and responsibilities; (2) limiting her
visitation with the children to twice a week; (3) failing to award adequate
spousal maintenance; and (4) awarding substantially less in attorney's fees
than she had requested. Father cross-appeals, contending the court erred
by: (1) awarding mother limited legal rights and responsibilities to manage
the children's mental health counseling; and (2) valuing mother's business
property and annual business earnings. We affirm the court's findings
concerning mother's business property and annual earnings, and its award of
spousal maintenance; reverse the award of parental rights and
responsibilities and the award of attorney's fees; and remand for further
proceedings on the issues of parental rights and responsibilities,
visitation, and attorney's fees.
The material facts are largely undisputed. The parties were married
in 1974. Mother was eighteen and father was nineteen years old at the
time. They had two sons, B.B. and J.B.,
who were fifteen and thirteen years old, respectively, at the time of
trial. The parties' interests grew apart over the course of their
twenty-year marriage. They attended marital counseling, but without
success. Mother began an intimate relationship with another man in
December 1995, and the parties separated the following year. The court
found that mother's affair was not the cause of the marital breakdown,
observing that the marriage "had already failed."
The court further found that mother had been the primary care provider
for the children all their lives prior to the separation. Thereafter, the
boys began to spend more time with father, and their relationship with
mother deteriorated. Although the marital breakdown and mother's
extramarital relationship had contributed to B.B.'s animosity toward
mother, the court found that father had encouraged the son's animosity by
unfairly blaming her for the parties' marital problems, and making
disparaging remarks about her lifestyle. Concerning a letter the court had
received from the younger boy expressing a preference to live with father,
the court observed that it was not the product of an eighth grader. The
boy's recriminations against mother, the court concluded, "clearly
reflected discussions" with father, and further persuaded the court of
father's nonconstructive role in corroding the boys' relationship with
mother.
The court concluded that while several factors had contributed to the
estrangement between mother and sons, "the single most significant factor
has been a constant poisoning of the relationship by the father."
In reaching its custody determination, the court noted that "on [the]
two most important criteria for custody -- continuation by the primary
custodian and favoring the parent who is most likely to foster a healthy
relationship between the boys and the noncustodial parent -- the mother
would seem to be the custodian of choice." Indeed, as to the younger boy,
the court expressly found that mother was "more likely to provide suitable
custodial guidance." Nevertheless, the court concluded that the boys'
hostility toward mother, encouraged and fueled by father, precluded an
award of custody to mother. The court explained: "The father may not
deserve to win custody of the boys, but he has effectively done so."
Accordingly, the court awarded father
sole physical and legal rights for the children, and granted mother limited
visitation. In response to mother's subsequent motion to amend, the court
modified the decree by awarding mother "limited legal custody for the
purpose of managing all family and mental health counseling of the two
boys."
On the subject of spousal maintenance, the court noted that father was
employed fulltime and that his earnings for 1996 were $53,170. Mother had
worked primarily as a homemaker, and had been developing a small clothing
design and manufacturing business. The business had been growing, but had
never shown significant profits; mother's earnings in 1996 were between
$7000 and $8000. Accordingly, the court awarded mother rehabilitative
maintenance of $1600 per month for two years, and $1333 per month
thereafter for an additional six years, based upon the expectation that her
income would increase. Noting, however, that mother was forty-one years
old, was not burdened by custody of the children or ill health, and could
eventually obtain employment sufficient to maintain her previous lifestyle,
the court expressly declined to award permanent maintenance. In addition,
the court ordered father to pay $5000 toward mother's attorney's fees,
substantially less than the $33,000 in fees she had incurred. This appeal
followed.
I.
Mother first contends the court abused its discretion by awarding
custody of the children to father based upon their estrangement from
mother, notwithstanding the court's express finding that the most
significant cause of the estrangement had been a constant poisoning of the
relationship by father.
The family court is ordinarily accorded broad discretion in custody
matters. Nickerson v, Nickerson, 158 Vt. 85, 88, 605 A.2d 1331, 1333
(1992). Given its unique position to assess the credibility of witnesses
and weigh the evidence, we will not set aside the court's findings if
supported by the evidence, nor its conclusions if supported by the
findings. See Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152
(1995). Conclusions that are not supported by
the court's findings, however, cannot be sustained. See Bisson v. Ward,
160 Vt. 343, 350, 628 A.2d 1256, 1261 (1993).
The court's paramount consideration in awarding parental rights and
responsibilities is the best interests of the child. See Bissonette v.
Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 602 (1989); 15 V.S.A. § 665(b). A
critical statutory factor guiding the court's determination is "the ability
and disposition of each parent to foster a positive relationship and
frequent and continuing contact with the other parent, including physical
contact, except where contact will result in harm to the child or to a
parent." 15 V.S.A. § 665(b)(5). Other statutory factors, including of
course the child's relationship with the primary care provider, must be
weighed in the balance, and may in certain cases be decisive. See
Bissonette, 152 Vt. at 70, 564 A.2d at 601-602 (evidence that mother had
rebuffed father's childcare efforts did not outweigh her primary-care
provider relationship with child). "The focus of the court's decision must
be the best interest of the child, not equity between the parties." Id.
As we observe in Renaud v. Renaud, No. 97-334, slip op. at 4 (Vt.
September 11, 1998), "a child's best interests are plainly furthered by
nurturing the child's relationship with both parents, and a sustained
course of conduct by one parent designed to interfere in the child's
relationship with the other casts serious doubt upon the fitness of the
offending party to be the custodial parent." Such conduct represents, in
one court's view, an act so inconsistent with the best interests of the
child that is raises a strong possibility that the offending party is unfit
to act as a custodial parent. See Young v. Young, 628 N.Y.S.2d 957, 958
(N.Y. App. Div. 1995); see also Lewin v. Lewin, 231 Cal. Rptr 433, 437 (Ca.
Ct. App. 1986) (change of custody compelled where mother had "engaged in
ongoing conduct intended and designed to impede, obstruct, and interfere
with the development of a healthy father-daughter relationship"); In re
Leyda, 355 N.W.2d 862, 866 (Iowa 1984) (holding that court abused
discretion in awarding custody to mother where evidence disclosed that she
had sought to denigrate and deny emotional relationship between child and
father); see generally Annotation, Alienation of Child's Affections
as Affecting Custody Award, 32 A.L.R.2d 1005 (1953) (collecting cases).
The court here expressly found that father had "encouraged" the boys'
hostility toward, and "corrod[ed]" their relationship with, mother. While
other factors had contributed to the children's estrangement from mother,
the court found that "the single most significant factor has been a
constant poisoning of the relationship by father." Moreover, based upon
other important criteria such as continuing custody in the primary
caregiver, and fostering a positive relationsip with the noncustodial
parent, the court found unequivocally that mother was the "custodian of
choice."
These findings, which father has not challenged, raise serious doubts
about his fitness to serve as the custodial parent. His conduct and
attitude demonstrated virtually no capacity to place the interests of the
children above his own in fostering a positive relationship with mother.
See Janecka v. Franklin, 542 N.Y.S.2d 206, 208 (N.Y. 1989) (affirming
custody award to father where evidence showed mother unable to place
children's needs above her own "unbridled" anger against father). Indeed,
the court found that father did not "deserve to win custody," yet reasoned
that he had "effectively done so" as a result of his own misconduct, and
thus concluded that it had no other choice but to award custody to father.
We categorically reject such reasoning. "[A] parent who willfully
alienates a child from the other parent may not be awarded custody based on
that alienation." McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D. 1995)
(emphasis added). Although obviously well intended, the court's decision
effectively condoned a parent's willful alienation of a child from the
other parent. Its ruling sends the unacceptable message that others might,
with impunity, engage in similar misconduct. Left undisturbed, the court's
decision would nullify the principle that the best interests of the child
are furthered through a healthy and loving relationship with both parents.
We fully recognize the practical considerations that impelled the
family court to its conclusion, and do not contend that an award to mother
will magically negate father's baleful
influence, or effect an immediate reconciliation with the children. While
certainly an important consideration, however, a child's immediate
preference for a particular parent may not necessarily serve the child's
long-term best interests where that preference was fostered by the
preferred parent's hostility toward the other. See Young, 628 N.Y.S.2d at
963 (holding that, in view of mother's consistent preaching that father was
evil, trial court incorrectly placed emphasis on children's desire to
remain with mother). This is particularly true where, as here, the target
of the hostility had been the children's primary care provider.
In light of the court's express findings that mother had been the
primary caretaker before the separation, that father had been the principal
cause of the boys' estrangement from mother, and that every other
consideration rendered mother the more suitable custodian, we conclude that
the court's decision to award parental rights and responsibilities to
father was untenable. An award so flagrantly at odds with the findings
simply cannot be allowed to stand. See Bisson, 160 Vt. at 350, 628 A.2d at
1261 (conclusions not supported by court's findings cannot be sustained).
Accordingly, we conclude that the award of parental rights and
responsibilities must be reversed, and the case remanded for
reconsideration of that issue in light of the views expressed herein, as
well as any change in circumstances that may have occurred while this
appeal was pending. Because custody and visitation are closely
interrelated, we decline to address mother's claim that the court abused
its discretion in ordering limited visitation before the court has had the
opportunity to reconsider its award of parental rights and
responsibilities.
II.
Mother further claims the court abused its discretion by: (1) failing
to award her permanent maintenance; (2) miscalculating the amount of
rehabilitative maintenance; (3) failing to impute a $10,000 raise to
husband's income for purposes of determining the amount of maintenance; and
(4) improperly determining the amount of retroactive maintenance. Upon
review of the record, we conclude that the court acted within its broad
discretion in denying mother permanent maintenance, and in calculating the
award of rehabilitative maintenance. See
Johnson v. Johnson, 155 Vt. 36, 40, 580 A.2d 503, 506 (1990) (court has
substantial discretion in ruling on maintenance).
In expressly declining to award permanent maintenance, the court
correctly noted that the most important factors in determining whether
maintenance should be permanent or time-limited are the length of the
marriage, the role played by the recipient spouse during the marriage, and
the income that the recipient spouse is likely to achieve in relation to
the standard of living during the marriage, which in turn is closely
related to the recipient spouse's age, health, child-care duties, and
access to income-producing assets. See Delozier v. Delozier, 161 Vt. 377,
383, 640 A.2d 55, 58 (1994); 15 V.S.A. §752. Examining these factors, the
court noted that the parties had been married for many years and that
mother had run a business in the home so that she could raise the children.
The court also observed that mother was an intelligent and sophisticated
person who had been able to develop business skills outside of the home,
that she was still relatively young (forty-one years old at the time of the
hearing) and was not burdened by ill-health, and that the standard of
living during the marriage had been modest. Thus, the court concluded that
mother would eventually succeed on her own, either in her own business or
other employment, to achieve an independent middle class lifestyle.
Accordingly, the court awarded mother maintenance of $1600 per month
for two years, resulting in somewhat unequal income ($34,800 for father,
$27,200 for mother) while father had custody of the teen-age boys.
Thereafter, based upon the court's assumption that mother's background and
skills would allow her to earn $20,000 per year, the court awarded her
$1333 per month for an additional six years, resulting in roughly equal
income with father.
These findings and conclusions provide a reasonable basis for the
court's decision that father was not required to provide a permanent, fixed
income for mother. Although the court observed that it could not predict
precisely when mother would reach her earnings potential, this was not
fatal to its conclusion that rehabilitative maintenance for a period of
eight years was reasonable. See Tracey v. Gaboriault, 166 Vt. 269, 279,
691 A.2d 1056, 1062 (1997) (holding
that court's award of rehabilitative maintenance for seven years was
reasonable although no hard facts demonstrated "unequivocally" that wife
would achieve marital standard of living in that time). Accordingly, we
find no abuse of discretion in the court's denial of permanent maintenance.
The amount of the rehabilitative maintenance award was also reasonably
supported by the evidence, and therefore may not be disturbed. See
Johnson, 155 Vt. at 40, 580 A.2d at 506. Should the court decide on remand
to modify the award of parental rights and responsibilities, it may
reconsider the maintenance award upon a showing of real, substantial, and
unanticipated change of circumstances caused by any change in custody. See
15 V.S.A. § 758.
Mother also claims that, in setting the maintenance award, the court
erred in failing to impute to father's income a $10,000 raise that he had
apparently declined. Although a court may properly take into account
income or assets voluntarily reduced by a spouse "in derogation of the
rights" of his or her spouse and child, Clayton v. Clayton, 153 Vt. 138,
144, 569 A.2d 1077, 1081 (1989), the court here made no finding, and mother
cites no evidence, that this was the purpose of father's decision.
Accordingly, we cannot find that the court abused its discretion in failing
to impute this additional amount to father's income.
Lastly, mother contends that the court abused its discretion in
awarding retroactive maintenance of $11,000 for the eleven month period
between her petition for temporary maintenance in January 1996, and the
temporary award of $1,000 per month in December 1996. She contends the
court should have awarded $1600 per month for the period in question. The
$1000-per-month award of temporary maintenance was based upon the pleadings
and the evidence concerning the parties' respective financial positions for
the period in question. Mother has not shown that the award was clearly
erroneous in light of this evidence. See Johnson, 155 Vt. at 40, 580 A.2d
at 506.
III.
Mother next contends the court abused its discretion in ordering
husband to pay $5000 towards her attorney's fees, substantially less than
the fees of approximately $16,000 that she had
incurred to her primary counsel. The court found that, "[g]iven [mother's]
meager income, it was not to be expected that [she] would be able to secure
counsel solely on her own." Nevertheless, the only consideration cited by
the court in determining the amount of the award was the fact that mother
had hired two additional attorneys to try the case, who had incurred
additional fees of approximately $17,000. The court explained that father
should not "be required to pay the bill for a greater level of
representation than he could afford for himself." Father testified that
his attorney had charged him between $17,000 and $19,000. Thus, the fees
incurred by the parties' primary counsel were roughly equivalent.
An award of attorney's fees in a divorce action is a matter of
judicial discretion. See Kohut v. Kohut, 164 Vt. 40, 45, 663 A.2d 942, 945
(1995). Unlike contract provisions for attorney's fees, the "financial
circumstances of the parties . . . have an important bearing on the
award." Ely v. Ely, 139 Vt. 238, 241, 427 A.2d 361, 363 (1981). The needs
of one spouse and the ability of the other to meet them are the primary
consideration. Id.; see also Downs v. Downs, 159 Vt. 467, 471, 621 A.2d 229, 231 (1993). Here, apart from implying that mother's fees were
excessive because of the use of multiple counsel, the court completely
failed to address the parties' respective financial needs and ability to
pay. Accordingly, we reverse the attorney's fee award and order the family
court to reconsider the issue on remand.
IV.
In his cross-appeal, father contends the court erroneously found that
mother's business had no value other than the physical assets, which it
valued at approximately $15,000. He also asserts the court erroneously
found mother's annual earnings from the business to be approximately $7000
to $8000. Father's point concerning the value of the business is unclear,
since he makes no claim of error concerning the court's overall property
division. In any event, we find that the record amply supports the court's
valuation of the business, as well its findings concerning mother's annual
earnings. Accordingly, these findings may not be disturbed on appeal. See
Bassler v. Bassler, 156 Vt. 353, 362-63, 593 A.2d 82, 88 (1991) (court's
property
division will not be disturbed where evidence supports findings, and
findings reasonably support judgment).
In view of our earlier holding reversing the parental rights and
responsibilities award to father, and remanding for reconsideration of the
custody and visitation issues, we need not address father's remaining claim
that the court lacked authority to award partial legal rights and
responsibilities to mother. But see Shea v. Metcalf, ___ Vt. ___, ___, 712 A.2d 887, 891 (1998) (holding that court may divide legal rights and
responsibilities between spouses).
The findings of the family court valuing mother's business property
and annual earnings and the award of spousal maintenance are affirmed; the
award of parental rights and responsibilities and the award of attorney's
fees are reversed; the case is remanded to the family court for
reconsideration of the issues of parental rights and responsibilities,
visitation, and attorney's fees consistent with the views expressed herein.
FOR THE COURT:
_______________________________________
Associate Justice
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