Hoover v. Hoover
Annotate this Case
Hoover v. Hoover (99-084); 171 Vt. 256; 764 A.2d 1192
[Filed 20-Oct-2000]
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. 99-084
Karen Hoover (Letourneau) Supreme Court
On Appeal from
v. R Rutland Family Court
Wade Hoover January Term, 2000
Mary Miles Teachout, J.
Karen Ann Letourneau, Pro Se, South Windsor, Connecticut, Plaintiff-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
MORSE, J. In this custody dispute, mother appeals from the Rutland
Family Court's modification order awarding sole custody of two of the
parties' three children to father. The decision modified the parties'
shared legal and physical parental rights and responsibilities. (FN1)
Mother challenges the factual findings that served as the basis for the
court's modification. We affirm.
The court concluded that both parents were actively involved in their
children's daily lives following their divorce. Until August 1998, both
parties resided in Rutland. Their divorce in 1996 did not result in any
changes of schools or significant changes in routine for the children, with
the exception of their sleeping slightly more often at mother's townhouse.
After the divorce became final, mother entered into a relationship
with a man living in Connecticut. In April 1998, mother informed father
that she intended to move with the children to Connecticut to live with
him. Father objected to the move and, in July 1998, filed a motion to
modify custody so that the children could remain with him in Rutland.
Shortly after father filed his motion, mother moved to Connecticut. Soon
thereafter, without father's agreement, she moved the two youngest
children to Connecticut and enrolled them in school there.
In a decision dated December 18, 1998, after a hearing on the matter,
the court concluded under 15 V.S.A. § 668 that mother's move to
Connecticut constituted a real, substantial and unanticipated change of
circumstances necessitating reconsideration and modification of the
parties' legal and physical parental rights and responsibilities. (FN2)
The court then considered the best interests of the children by weighing
and balancing various factors under 15 V.S.A. § 665(b). It concluded that
it was in the best interests of the children to return to Rutland and live
primarily with father. Accordingly, the court ordered the children
returned to father, granting him sole legal and physical custody. This
appeal followed.
Mother challenges several of the court's conclusions as being clearly
erroneous. She offers her own interpretation of the court's findings of
fact and provides additional facts that were not in the trial court record
in support of her arguments that the court's findings were erroneous. Our
standard of review, however, is limited. A trial court's findings of fact
must stand unless, viewing the record in the light most favorable to the
prevailing party and excluding the effect of modifying evidence, there is
no credible evidence to support the findings. See Highgate Assocs., Ltd.
v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991).
Furthermore, our review is confined
to the record and evidence adduced at trial. On appeal, we cannot consider
facts not in the record. (FN3)
As an initial matter, the custodial underpinning of this case should
not be equated with that of Lane v. Schenck, 158 Vt. 489, 614 A.2d 786
(1992). Lane involved a judgment granting sole physical and legal
parental rights and responsibilities to one parent, and neither party in
that case disputed the fact that the mother had continued to be the sole
custodian following the divorce. We noted that when a non-custodial
parent seeks a change in custody based solely on the custodial parent's
decision to relocate, the moving party faces a high hurdle in justifying
the "violent dislocation" of a change in custody from one parent to the
other. See id. at 499, 614 A.2d at 792 (quoting Kilduff v. Willey, 150 Vt.
552, 555, 554 A.2d 677, 680 (1988)). We also observed "[t]he place of
residence for a family is central to childrearing, and thus that decision
is understandably entrusted to the parent awarded parental rights and
responsibilities." Id. at 495, 614 A.2d at 789. However, when
childrearing and its concomitant decision-making are shared, relocation to
a remote location by one parent requires at the very least a reassessment
of the custodial arrangement and, because of the practicalities involved in
shared parenting, will often necessitate a change in custody. This result
is further compelled when the parties are no longer able to engage in
shared decision-making because of a deterioration in their parenting
relationship.
This case involves a prior divorce judgment providing for shared legal
and physical parental rights
and responsibilities. (FN4) Furthermore, the court's factual determination
that the parties continued to share custody up to the time mother moved to
Connecticut is supported by the evidence presented at the modification
hearing. Cf. deBeaumont v. Goodrich, 162 Vt. 91, 105, 644 A.2d 843, 851
(1994) (Morse, J., concurring) (co-parenting relationship which made
neither party primary care giver most important factor that differentiated
case from Lane). Because mother and father were unable to resolve their
conflict and reach an agreeable arrangement that would enable them to
continue co-parenting, a disruption of the custodial arrangement in this
case was inevitable. The trial court was merely in the position of
deciding what was in the best interests of the children: sole custody with
mother or sole custody with father. Cf. Lane, 158 Vt. at 499, 614 A.2d at
792 (where one parent has sole custody, trial court is faced with decision
to continue the current custody arrangement or to order change in custody
based solely on custodial parent's decision to relocate).
The findings of fact upon which the court based its award of sole
custody to the father include the following: Father had a slightly more
active engagement in the children's lives, including helping them with
their homework, having dinner with them on a regular basis and involving
himself in their extra-curricular activities. He placed the interests of
the children first, whereas mother blended her perception of her own
interests with those of the children, describing the children's best
interests as coextensive with and dependent on her personal happiness.
Father was more committed to providing a long-term, stable home
environment, while the future of mother's new relationship was unsettled
and the new home she offered untested. Although the children seemed to
have made
a reasonable adjustment to their new school, one child's grades had
slipped. The children were familiar with the home, community and school
in Rutland. In addition, the children's older sister and maternal
grandparents resided in Vermont. (FN5) The court was also concerned about
the manner in which the children were moved to Connecticut and their
involvement in the process.
These findings all find support in the trial court record. Father
testified that he had dinner with the children every week night but
Tuesdays and would then help them with their homework before they returned
to their mother's house for bed. This testimony was corroborated by the
mother's testimony that when the children returned at night, their
homework would either be completely finished or at least partially
completed. Father testified that he attended all the children's sports
games, but that mother attended only occasionally and often would not stay
to the end of the game. He noted that mother failed to attend one of the
children's baseball banquets. With respect to the parents' consideration
of the children's best interests, father indicated that he had declined a
promotion at work because it would entail hours that would interfere with
the time he spent with the children. With regard to the manner in which
mother moved the children to Connecticut, the father gave uncontested
testimony that mother inaccurately led him to believe that she was merely
taking the children to Connecticut for their weekly time with her, but
that she would be returning them to Vermont at the usual transfer time.
Without listing further testimony at length, there is credible evidence in
the record to support the trial court's findings, most importantly the
findings on which the court relied in making its disposition.
The trial court determined that both parents in fact shared parenting
responsibilities. Because of mother's move, however, and the breakdown in
the parties' ability to co-parent the children, the court was forced into
the position of awarding sole custody to one parent or the other. After
appropriately and carefully weighing the factors used when determining the
best interests of the
children, the trial court found that living in Vermont with their father
was favored over living in Connecticut with their mother.
It is not what appellate judges would have done had they been the
trier of fact that governs in an appeal. See deBeaumont, 162 Vt. at 103,
644 A.2d at 850 (quoting Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336,
1339 (1988)) ("[W]e cannot set aside [a trial court's] decision 'because we
would have reached a different conclusion from the facts.'"). The trial
court's findings are supported by the record evidence. To the extent that
mother offers additional information, this information is not of record and
may not be considered on appeal. Therefore, we cannot say that the trial
court's findings of fact are clearly erroneous. While this is a close
case and, as the trial court recognized, "both parents are capable of
being the primary parent for the children," mother has not shown that the
court abused its discretion by granting father sole legal and physical
custody of the children based on its findings of fact. (FN6)
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. The parties reached a separate agreement with regard to their oldest
child that does not modify the shared parental rights and responsibilities
at the present time, but provides that she will continue to live in
Rutland with her father while mother and father attempt to resolve their
disagreement with regard to her custody.
FN2. Because she discussed her intentions with father on several occasions,
mother takes issue with the court's characterization of the means by which
she moved the children to Connecticut as "deceptive." The accuracy of
this characterization, however, does not control the determination that her
move amounted to a real, substantial and unanticipated change of
circumstances. Circumstances or arrangements are "unanticipated" if they
were not expected at the time of divorce, see Lane v.Schenck, 158 Vt. 489,
493-94, 614 A.2d 786, 788 (1992), which was the case with mother's move to
Connecticut.
FN3. It appears that some of the "uncontested evidence" referred to by the
dissent is partially comprised of facts that mother brought forth in her
brief but do not appear in the record with specificity, including, for
example, the fact that prior to her move, mother saw the children after
school before they went to their father's house; or that the mother
discussed her move to Connecticut with the children and father
contemporaneously. While these facts would have been mitigating evidence
with respect to the evidence presented by the father at trial, they appear
in an unsworn statement and were never before the trial court. Therefore,
we cannot consider them. To the extent that the dissent cites to the
record for support, the testimony cited is equivocal, especially considered
in light of contrary testimony by father. It is not this Court's role to
second-guess inferences drawn by the trial court from equivocal evidence.
FN4. To the extent that the dissent argues it, our decision in deBeaumont
v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994), does not stand for the
proposition that a trial court or this Court should disregard a valid
divorce order when making a determination regarding modification of
parental rights and responsibilities, especially when it appears that the
parties have adhered to the parenting arrangement reflected in that order.
In deBeaumont, we noted that although the divorce order granted sole legal
and physical custody to the mother, the time allocation found within the
divorce order more closely reflected a co-parenting relationship that was
borne out by the facts in that case. Id. at 94, 96 & n.3, 644 A.2d at
845, 846 & n.3.
FN5. The dissent mischaracterizes the trial court's finding on this point
as a determination that father was in a better position to foster a
relationship with mother's extended family. In fact, the trial court
merely found that, because both maternal grandparents live in Vermont,
living with their father in Vermont would allow the children more
opportunities to see their grandparents.
FN6. We do not take issue with the dissent's observation that "[t]he
standards proposed by the American Law Institute in its Principles of the
Law of Family Dissolution thoughtfully consider the risks and rights at
issue in relocation cases." Post, at ___. The adoption of these proposed
standards simply is not before us. The ALI's proposed standards were not
argued below, considered by the trial court or mentioned in the briefs.
Additionally, applying the ALI analysis for joint custody would arguably
yield the same result in this case. If anything, the trial court might not
have reached the best interests inquiry because of a failure to meet the
first requirement, good faith, based on the manner in which mother moved
the children to Connecticut. According to father's uncontroverted
testimony, the weekend she moved the children permanently to Connecticut,
mother led him to believe through communications via the children that she
would be returning with them to Vermont for their usual Tuesday-night
transfer. In fact she failed to do so and instead enrolled the children in
school in Connecticut. Cf. deBeaumont, 162 Vt. at 98, 644 A.2d at 847
("[T]he mother unilaterally terminated the parties' co-parenting
arrangement by removing the children to Pennsylvania. In so doing, she
deprived the children of day-to-day contact with their father . . .
subverting, as the trial court found, '[t]he financial, education,
housing, and co-parenting plans agreed upon by the parties . . . .'")
(second alteration in original).
------------------------------------------------------------------------------
Dissenting
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. 99-084
Karen Hoover (Letourneau) Supreme Court
On Appeal from
v. Rutland Family Court
Wade Hoover January Term, 2000
Mary Miles Teachout, J.
Karen Ann Letourneau, Pro Se, South Windsor, Connecticut, Plaintiff-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
JOHNSON, J., dissenting. I am unable to join the majority's decision
affirming this award of custody because of substantial errors in the trial
court's findings of fact. All of the major findings that affected the
trial court's interpretation of the evidence and that supported its
ultimate decision are either without support in the record or contrary to
undisputed evidence. The errors are so serious that no deferential
standard of review can save them, and the opinion should be reversed. With
this degree of error, it is impossible to view the contested custody
hearing as having been fair to both parties. This reason alone is enough
to compel my dissent.
But the majority's decision also ignores, under the cloak of our
deferential standard of review in family cases, that the role of an
appellate court is to provide broad guidance to the trial courts on
the direction of the law. This particular modification of custody occurred
because one of the parents moved from Vermont to Connecticut. This is a
controversial area of family law that has commanded thoughtful
consideration by commentators, the American Law Institute, and state
appellate courts. We, too, have struggled with these issues, as shown by
our decisions in Lane v. Schenck, 158 Vt. 489, 614 A.2d 786 (1992), and
deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994), and as those
decisions demonstrate, the issues are not easily resolved. But it is wholly
untenable, in my view, to resolve the issues solely by deference to the
trial courts. That is a strategy that results in greater variability than
we should countenance among trial courts when divorced parents relocate.
Because there are better standards for deciding these cases that I believe
we should adopt, I respectfully dissent.
I.
The scope and significance of the trial court's errors require
reversal. I address only those errors most material to the court's
ultimate decision to award custody to father. (FN1) Even limited to the
three types of error outlined below, the lower court's decision cannot
stand.
Our review of the trial court's findings of fact is deferential. The
court's findings of fact are reviewed for clear error and will be upheld
if supported by credible evidence. See Brown v. Whitcomb, 150 Vt. 106,
109, 550 A.2d 1, 3 (1988). As an appellate court, however, we are not
required to accept findings that are wholly without support in the record.
See deBeaumont v. Goodrich, 162 Vt. at 98, 644 A.2d at 847 (this Court
need not affirm trial court decision that is "clearly unreasonable in
light of the evidence") (quoting Jensen v. Jensen, 141 Vt. 580, 581-82, 450 A.2d 1155, 1156 (1982)). Nor are we required to accept findings that are
directly contrary to uncontested evidence. See Kopelman v. Schwag, 145
Vt. 212, 214, 485 A.2d 1254, 1255 (1984).
Given the majority's cursory review of the facts in this case, it is
necessary to spend some time laying out what the evidence at trial showed.
Karen Letourneau and Wade Hoover married and had three children: Angela,
now age 14, and Cory and Alisha, twins age 12. In 1994, mother and father
separated. They ultimately divorced in April 1996. The final order of
divorce incorporated their agreement for joint physical and legal
responsibility for their three children. It also provided that if either
parent moved out of Vermont, the remaining parent had the right to petition
the court to modify its order. In April 1998, mother told father that she
intended to move to Connecticut with her fiancé and wanted to move with
the children. She tried repeatedly to talk to father about the move but
he refused. In July, father filed a motion requesting the court to prevent
mother from moving. Mother moved in July or August and took all three
children with her. The children visited their father in Vermont on
weekends for the rest of the summer. At the end of August, after fighting
bitterly with father about where the children would start school, mother
picked up the twins in Vermont, leaving Angela in Vermont to attend a
party. No return transfer took place; the twins started school in
Connecticut and Angela started school in Vermont.
The court held an evidentiary hearing on November 25, 1998. At the
hearing, both parents agreed that they wanted Angela to be able to finish
the school year in Vermont. It issued its decision on the custody of the
twins on December 18, 1998. The court's decision seems to turn on its
findings that father had spent more waking hours with the children and had
been "slightly" more actively involved in their lives. The court made a
number of findings about father using the statutory factors but failed to
make corollary findings about mother, effectively presuming that father was
the primary parent and finding that there was no reason he could not
continue to be the primary parent. Thus, the court awarded sole legal and
physical custody of the twins to father.
A. Amount of Time Spent in Caregiving
First and foremost, the court erred in its findings related to how
much time the children spent with each parent. The court believed that
little had changed in the years since the divorce and that the schedule
outlined in the divorce order was still essentially being followed. Under
that order, father, who worked a night shift, cared for the children
during the day and mother cared for them at night. Uncontested evidence
established that in the year before the hearing the children lived with
mother, saw her before and after school, took the school bus to and from
her house, (FN2) and slept there every night. They saw father for dinner
three nights a week and spent alternate weekends with him. While this was
not the schedule specified in the divorce order, both parents testified
that this was the schedule they had been following for at least a year.
The schedule had changed, both parents testified, because father got a day
job and no longer was available to take care of the children before or
after school.
Although father claims that he objected to the changes and the court
credited his testimony that he "was not happy" about the changes, it is
undisputed that he went along with them. In the court's words, he "lived
with it." Whatever his private feelings may have been, as a matter of law,
father acquiesced in the changes and cannot now object. See Brown v.
Brown, 134 Vt. 412, 414, 365 A.2d 248, 249 (1976) (acquiesced-in change in
custody cannot form basis to modify court's order because it was not
outside plaintiff-parent's control). He cannot rely on his unhappiness to
preserve his rights under the original order. See also deBeaumont, 162
Vt. at 94, 644 A.2d at 845 (where court found that neither parent was
primary, de facto custody arrangement controlled, rather than court order
of sole custody to mother).
The court's mistaken understanding of the schedule led to its
erroneous finding that the children "spent more of their waking time, the
time between the end of the school day and bedtime, with their father."
This finding also uses the wrong measure of waking hours by looking only at
the after-school hours rather than at all the children's waking hours.
Based on the undisputed evidence, it is apparent that father spent about
nine hours per week with the children (excluding his weekends, which time
was equal to mother's weekends). Mother spent more than twenty waking
hours with the children every week. Even assuming they saw mother only
for one hour before school, one hour after school, and an hour before
bedtime (conservative estimates of the time needed to ready children for
school and for bed), those hours total fifteen. Those fifteen hours must
be added to dinners on Sundays and Tuesdays, for a total of at least
twenty waking hours per week (excluding mother's weekends). No possible
construction of the evidence can support a finding that father had more
waking-hours time with the children than mother. This critical finding is
therefore clearly erroneous.
As dictated by our decision in deBeaumont, the family court must look
at the "actual contact situation" in its determination. See deBeaumont,
162 Vt. at 96 n.3, 644 A.2d at 846 n.3. Instead, the court decided,
erroneously and under an inappropriate standard for deciding the case,
which parent had a slim majority of custodial time. The court's findings
focus on which parent was "slightly more involved in routine daily
parental responsibilities" and which parent had a "slightly more active
engagement in the children's lives." Then, it used this fictional primacy
of the father to find a quasi-custodial parent and create a presumption
that the "custodial parent" should retain custody. (FN3)
In reality, the reduction of contact with father down to nine hours
per week has fundamentally altered the joint custody that existed at the
time of divorce. Mother appears to have become the primary parent, with
the children having significant visitation with father. Title 15, section
665(a) refers to the court's duty to award parental rights and
responsibilities "primarily or solely to one parent" where the parents
cannot agree on joint custody. The statute thereby explicitly recognizes
what we have further acknowledged in our cases, that "some sharing of
responsibilities, short of joint custody" may exist. See Gazo v. Gazo,
166 Vt. 434, 443, 697 A.2d 342, 347 (1997).
That is the situation evident here; the children lived with mother, saw her
before and after school and were put to bed by her. She arranged for
medical care, communicated with their schools, helped them with homework,
and for nine hours a week they visited with father. This arrangement of
"actual contact" ought to have been granted deference by the family court
under deBeaumont and its failure to do so was error. The schedule
testified to by both parents at the hearing suggests that mother may
indeed, as she claims, have become the primary care giver during the years
after the divorce.
B. Involvement in the Children's Lives
The court next found that father had "a slightly more active
engagement in the children's lives." The court cited as support for this
finding that fact that father cared for the children before and after
school, was involved in their activities, fed them dinner and helped with
their homework. The above analysis reveals that father cannot be credited
with spending a greater quantity of time with the children, therefore the
first basis for this finding is without support in the evidence.
Further, it was uncontested that both parents helped the children with
homework. The court, however, only made a finding that father helped
them, thereby privileging his assistance and failing to fairly consider
mother's involvement. The evidence does not support a finding that father
was more involved with the children than mother when both he and mother
helped them equally with homework.
The court also cited as support for its conclusion about father's
involvement a finding that father made medical appointments. This
finding is clearly erroneous; there is no evidence
whatsoever that father had anything to do with the children's medical care.
(FN4) The only evidence regarding father's involvement in medical care
was that he had failed to provide insurance coverage for the children
since the divorce, despite being required to do so. The undisputed
evidence demonstrated that mother provided medical coverage and secured
medical care for the children with little or no involvement on father's
part.
Similarly, the court found that both parents had "maintained
constructive communication with the children's teachers" but there is no
evidence to support finding that father did so. The evidence showed that
mother attended parent-teacher conferences and guidance counseling sessions
but that father had refused to attend these conferences. There was no
evidence, therefore, that father maintained any communication with the
children's teachers.
A separate finding faults mother because, the court says, she "did not
have very much information about plans for the children's daily lives or
activities in Connecticut." This finding is wholly unsupported. Mother
testified at length about the children's schools in Connecticut, about
their successful adjustment to it, their choices about extracurricular
activities there, the family's hobbies and their plans. This finding is
clearly erroneous and cannot stand.
These multiple errors taken together eviscerate the court's ultimate
finding that father was more involved with the children. The flaws in the
underlying findings greatly compromise the conclusion that father's
custody is in the best interests of the children. He did not spend more
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
