Cloutier (Fletcher) v. Blowers

Annotate this Case

Cloutier (Fletcher) v. Blowers (98-436); 172 Vt. 450; 783 A.2d 961

[Filed 31-Aug-2001]

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. 98-436

Suzanne Cloutier (Fletcher) Supreme Court

On Appeal from
v. Orleans Family Court

John Blowers March Term, 2000

Edward J. Cashman, J.

Matthew Colburn, Montpelier, for Plaintiff-Appellee.

John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for
Defendant-Appellant.

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

SKOGLUND, J. John Blowers (father) appeals from an Orleans Family
Court order that awarded sole legal and physical parental rights and
responsibilities to Suzanne Fletcher (mother) and visitation rights to
father. According to father, the court erred because it (1) based its
custody decision upon father's age, (2) applied a
best-interests-of-the-mother standard in reaching its custody
determination, (3) required the parties to file proposed findings of fact
and conclusions of law at the close of mother's evidence but prior to
father's presentation of evidence, and (4) met with the parties without
their attorneys present. We reverse and remand for a new trial.

The family court found the following facts. Father and mother met in
1992, their son, Tarik, was born in 1993, and they separated in 1996.
Father and mother were never married. Throughout

the parties' relationship, they maintained separate households, although
they often lived together. From Tarik's birth until the court's final
order awarding mother sole parental rights and responsibilities, the
parties shared equal responsibility for Tarik's care. During the parties'
relationship, mother lived in Newport, Vermont; however, in 1997, she moved
to Stowe. Father lives in West Glover, Vermont, where he has lived since
1971. Mother was previously married and had four children, one of whom
died in an automobile accident in 1990.

In July 1996, mother petitioned the court for an order allocating
parental rights and responsibilities. In August 1996, the court entered a
temporary order of shared legal and physical parental rights and
responsibilities pursuant to the parties' stipulation.

The hearing on the final order commenced in April 1998. On July 13,
at the close of mother's evidence, the court instructed the parties to
file proposed findings of fact and conclusions of law at the next hearing,
prior to father's presentation of evidence. Father objected to providing
mother with his proposed findings and conclusions, arguing that it would be
unfair and prejudicial for mother to have his findings and conclusions
prior to his presentation of the evidence. The court rejected father's
argument, and the parties filed their findings and conclusions with the
court and exchanged them with each other. Father presented evidence over
the course of four days, and the hearings were completed on July 29, 1998.

On July 31, the parties appeared before the court without their
attorneys and discussed the case and their respective positions.(FN1) At
that time, the court gave the parties a proposed joint custody order and
asked them to review it with their attorneys. The following week, both
attorneys filed an objection to the proposed order. The court issued its
final order on August 12, 1998, and

subsequently issued findings of fact and conclusions of law. This appeal
followed.

Where, as here, parents cannot agree to joint custody, the trial court
"must award primary (or sole) parental rights and responsibilities to one
parent." Cabot v. Cabot, 166 Vt. 485, 493, 697 A.2d 644, 649 (1997). The
award must be based on the best interests of the child. Gilbert v.
Gilbert, 163 Vt. 549, 553, 664 A.2d 239, 240-41 (1995). In determining
the best interests of the child, the court must take into account all
relevant evidence, including the factors set forth in 15 V.S.A. § 665(b).
See id., 664 A.2d at 241. Trial courts have broad discretion in
determining the best interests of the child. Myott v. Myott, 149 Vt. 573,
578, 547 A.2d 1336, 1339 (1988). "[W]hen reviewing the factual findings
of a trial court we view them in the light most favorable to the prevailing
party below, disregarding the effect of any modifying evidence, and we
will not set aside the findings unless they are clearly erroneous."
Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230 (1999) (mem.).
"We will uphold factual findings if supported by credible evidence, and the
court's conclusions will stand if the factual findings support them." In
re T.L., 169 Vt. 550, 551, 726 A.2d 496, 497 (1999) (mem.). We will,
however, reverse if the court's findings are not supported by the
evidence, Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995),
or if its conclusions are not supported by the findings, Begins v. Begins,
168 Vt. 298, 301, 721 A.2d 469, 471 (1998).

The court made findings with respect to each of the nine factors in 15
V.S.A. § 665(b), and concluded that factors one, two, four, six, seven,
and nine did not weigh in favor of either parent, and that factor eight
did not apply because the court was not going to order shared parental
rights and responsibilities. Thus, the court relied on factors three and
five.

With respect to factor five-the ability and disposition of each parent
to foster a positive relationship and frequent and continuing contact with
the other parent-the court found as follows. Mother and father agreed to
have a child in order to fill a void in mother's life that was created by

the death of her child in 1990. Mother expected that father would not be
involved in the child's life; thus, when father "became a solicitous and
caring father who attempted to provide for both the child and for her,"
mother became frustrated. As a result, at the hearing on parental rights
and responsibilities, mother alleged that father was verbally and
physically abusive, a drug dealer, and unable to meet Tarik's needs. The
court found no evidence to support these allegations; rather, according to
the court, mother's allegations were motivated by and "consistent with her
desire for [father] to play a small and secondary role in the child's
life."

Based upon these findings, the court concluded that factor five
weighed in favor of awarding custody to mother, stating:

With this level of poor communication between the
parents, the court thinks it unwise to place the father in
the role of primary caretaker. The [sic] faces too many
costs, too many risks and receives few [sic] little
benefits.

The costs include the further alienation the child would
encounter between the mother and the father. The mother's
substantial anguish with what she perceives as a loss of her
child will further sour her strained relationship with the
father. The negative emotional exchanges between the
parents would increase and the child will endure further
unnecessary and harmful emotional stress in relating to both
of the parents.

The court's findings that mother was frustrated by father's desire to
be involved in Tarik's life, and thus made unsubstantiated allegations
against father, do not support a conclusion that mother has the "ability
and disposition . . . to foster a positive relationship and frequent and
continuing contact" with father.(FN2) 15 V.S.A. § 665(b)(5). Further,
the court made no finding regarding father's ability and disposition to
foster a positive relationship and contact with mother.

Thus, the court's conclusion that factor five weighed in favor of awarding
custody to mother was unsupported by the findings, and must be reversed.

With respect to factor three-the ability and disposition of each
parent to meet the child's present and future development needs-the court
found that both mother and father were equally able to meet Tarik's
present and future development needs. According to the court, however:

The one negative factor against the father, arising from
the evidence is his age. The court considers the youth of
the child age 5 and the age of the father, 59 years as a
negative.

The father would need at least 13 more years of vital,
energetic life to successfully bring this child to maturity.

While, he may very well be able to do this, the mother,
at age 47 years, seems the better choice as primary
caretaker. This strikes the court as a narrow and somewhat
weak reason. Yet, the abilities of each parent are so close
on the other criteria litigated, that this seems the only
factor that decides the issue.

Based upon these findings, the court concluded that factor three
weighed in favor of awarding custody to mother, stating:

Thus the father's age and its companion an expected
diminishing in his vitality take on an importance that
ordinarily should concern the court as important [sic].

. . . .

While age may increase wisdom it diminishes physical
stamina. It seems probable that this father under these
circumstances will not maintain the long term physical and
emotional stamina to discharge the onerous and demanding
responsibilities of a single parent for a child of this
young age.

The court made no findings, however, to support its assertion that,
"under these circumstances," father will probably not maintain the
physical or emotional stamina necessary to raise Tarik. Indeed, the court
did not explain what "circumstances" it was referring to, beyond the

mere fact that father was fifty-nine years old at the time of the hearing.
Further, the parties presented no evidence that father's age may affect
his ability to meet Tarik's future developmental needs. Thus, the court's
finding that father's age was a negative factor was unsupported by the
evidence, and its conclusion that factor three weighed in favor of
awarding custody to mother was erroneous and must be reversed. See Payne
v. Rozendaal, 147 Vt. 488, 494, 520 A.2d 586, 589 (1986) ("the discharge of
an employee solely on the basis of age is a practice so contrary to our
society's concern for providing equity and justice that there is a clear
and compelling public policy against it"); Collins v. Collins, 497 N.Y.S.2d 544, 545 (N.Y. 1985) ("The age of plaintiff father in this case is
irrelevant insofar as it impacts on the care of his child. . . . The
court's speculation about plaintiff's possible illness or death in the
foreseeable future as a basis for changing the agreed upon physical
residence of the child is without any support in the law"); State ex rel.
Brode v. Hatcher, 97 So. 2d 422, 430 (La. 1957) ("while it is true that
[the father] is an elderly man, this is not a ground for depriving him of
the custody of his child").

Finally, in its conclusions, the court stated that mother

has endured and overcome one of life's most poignant
tragedies with the death of a child. She has focused her
life and her emotional resources to successfully raise this
child. This emotional investment to this child is so strong
that any attempt to deny her the primary role of caretaker
would destroy her.

"In Vermont, the legislature has clearly stated that, in considering
issues of child custody, the courts are to be guided by the best interests
of the child." Paquette v. Paquette, 146 Vt. 83, 90, 499 A.2d 23, 28
(1985) (citing 15 V.S.A.§ 652(a), (d), 1032(a)(2). However, in applying
the best-interests test, the court should focus on the best interest of
the child, not the best interest of the parent." See Horutz v. Horutz,
560 P.2d 397, 401 (Alaska 1977) ("the focal point of any custody dispute
is to reach a custody disposition that is in the child's, not the parent's
best interest"); Garner

v. Garner, 193 So. 2d 673, 676-77 (Fla. Dist. Ct. App. 1967) ("the best or
worst interest of the mother is not the consideration for a change in
custody. The welfare of the children is a pole-star towards which ALL
findings must direct themselves. While it is completely natural . . . and
humane to feel compassion for a mother who is separated from her children
. . . this compassion must not be allowed to work to the detriment of the
children") (emphasis in original); Sutterfield v. Sutterfield, 354 So. 2d 707, 710 (La. Ct. App. 1978) ("the paramount issue in the custody
proceeding is not the mother's best interest, nor the father's, but the
children's") (Duplantier, J., dissenting). Thus, to the extent that the
court considered mother's best interests in making its custody
determination, the court was in error.

Because the court relied primarily on factors three and five in making
its custody determination, and because we hold that the court's findings
regarding factors three and five were not supported by the evidence, and
its conclusion regarding factor five was not supported by the findings, we
reverse and remand for a new trial. Consequently, we need not reach
father's remaining arguments.(FN3)

Reversed and remanded for a new trial. The temporary order of August
22, 1996 shall be reinstated pending further order of the family court.

FOR THE COURT:

Associate Justice

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Footnotes

FN1. It is not clear how the parties were notified to appear before
the court. Apparently, the court never notified the parties' attorneys
that it had requested the parties to appear in court.

FN2. The court apparently concluded that, were it to award custody to
father, mother's frustration and difficulty communicating with father
would be exacerbated.

FN3. The dissent contends that, by applying a standard of review
which recognizes the broad, but not unbounded, nature of the factfinding
and decisionmaking power of the trial courts, which in this case and in
Spaulding v. Butler results in the reversal of the family court's
decisions, we are in fact transitioning away from deferential and toward
de novo review of child custody determinations. In doing so, the dissent
mischaracterizes the standard of review applied in these cases, both in
theory and effect. Appeals in our judicial system may be founded upon
errors of law or findings of fact not supported by the evidence. In
family law cases, if the law is applied correctly, the trial judge is
accorded a great deal of deference in making a custody decision. That is
true for all the reasons cited by the dissent, but it is appropriate to
afford that discretion only if the trial judge follows the rules of law
that apply to the case. In these cases, errors of law were made. In
Cloutier v. Blowers, the court made legal conclusions based on findings
not supported by the evidence and others not supported by its own
findings. Further, it elevated the best interests of the mother over those
of the child. In Spaulding v. Butler, the court made legal conclusions
not supported by its own findings. Such errors are for correction by the
appellate court. What the dissent is really arguing is that we abandon
appeals in cases based on errors of law, and, with that, abandon the role
of the appellate court to provide guidance on general principles of law
within which discretion may be exercised, in favor of a system that sweeps
all questions in family cases under the abuse of discretion standard. If
we adopted the dissent's approach, we could affirm every case, given the
trial court's broad discretion and the deference afforded its decisions.
The result of such an approach would be no meaningful appeal in family
cases. Further, we would thereby increase, not decrease, the decisional
disparities that can result in family cases. As acknowledged in each of
these decisions, the discretion enjoyed by the family court is not
absolute-the court may not overstep the legal boundaries which provide the
authority for the decisions it renders. At the very least, the role of the
appellate court is to ensure that the same rules and protections of law,
including the right to a fair hearing under the due process clause, is
available to litigants in family cases. It is just as important in a
family case to review the findings and the record as it is in a criminal
or tort case. Necessarily, this will result in reversals that may cause
upheavals in the lives of children and families, but that is not a reason,
in and of itself, to abandon our role as a meaningful appellate court.

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Dissenting

Nos. 98-436 & 99-164

Suzanne Cloutier (Fletcher) Supreme Court

v.
On Appeal from
John Blowers Orleans Family Court

Jon K. Spaulding On Appeal from
Rutland Family Court
v.

Michele Butler March Term, 2000

Edward J. Cashman, J. (98-436)
Mary Miles Teachout, J. (99-164)

Matthew Colburn, Montpelier, for Plaintiff-Appellee. (98-436)
Norman R. Blais, Burlington, for Plaintiff-Appellee. (99-164)

John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for
Defendant-Appellant. (98-436)

Gregg Meyer, Rutland, and Karen L. Richards, Vermont Legal Aid, Inc.,
Montpelier, for Defendant-Appellant. (99-164)

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

DOOLEY, J., dissenting. I believe that any fair observer of our
child custody opinions, both majority and dissent, would conclude that
there is a significant gap between the standard of review we say we
employ, and our actions in resolving the cases before us. I fear that gap
is growing, and we are moving much closer to de novo review than we are
willing to admit. The two cases in which this dissent is filed are, in my
judgment, examples of this trend. Although the cases are different, and
the issues are different, they share one common element - that is, the
family court

decisions would be affirmed if we actually employed the standard of
review set out in the beginning of the majority opinions and in our
precedents. Thus, I am filing this common dissent to say that I believe
the direction in which we are going in appellate review of custody
decisions is wrong.

I acknowledge that the pressures that exist to abandon or "fudge"
deferential standards of review in custody decisions are real. Custody
decisions are critically important to the child or children who will grow
up, good or bad, in the new custodial situation. The interests of children
in their family and home environment may be the most important interests
we seek to protect in our judicial system. Unlike in many areas of the
law, most of us have life experiences we draw on in facing custody
questions. We are, accordingly, more likely to abandon a deferential
posture to rely upon our own knowledge and experience. Finally, the
consequences of excessive discretion in custody determinations are
troubling, a subject of much scholarly interest in recent years. See
generally C. Schneider, Discretion, Rules and Law: Child Custody and the
UMDA's Best-Interest Standard, 89 Mich. L. Rev. 2215 (1991).

The effect of these pressures is to elevate the desire to produce the
"right" answer for the child in the case before us over our normal
appellate co-goal of producing fair and predictable rules of law to guide
future cases. If the result were to achieve a balance between predictable
and fair rules, on the one hand, and judicial discretion on the other
hand, I would be less concerned. I think, however, the real result is to
substitute our discretion and individual judgment for that of the family
court in pursuit of the "right" outcome for the case before us. By this
process we are squaring discretion, not containing it.

I can think of no area where the need to contain the exercise of
appellate discretion is greater. I won't rehash the general reasons for
deferential standards of review based largely on the fact that

the family court, often aided by a guardian ad litem and professional
evaluators, saw and heard the parties, particularly the parents, and we
are dealing solely with transcripts. Those reasons should give us pause,
but there are additional reasons almost unique to child custody litigation.
We know from numerous studies that custody litigation has a tremendous
adverse impact on the children who are the subject of that litigation.
See A. Schepard, Parental Conflict Prevention Programs and the Unified
Family Court: A Public Health Perspective, 32 Fam. L.Q. 95, 102-06 (1998);
E. Brandt, The Challenge to Rural States of Procedural Reform in High
Conflict Custody Cases, 22 U. Ark. Little Rock L. Rev. 357, 359-60 (2000).
Whatever order the court issues as a result of that litigation, the
destructive impact of the litigation itself, and the accompanying adversary
contentiousness of the parents, may leave the greatest mark on the growth
and development of the child. In the cases before us, unless the parties
settle after our decision, that litigation will occur at least three times
- twice in the family court and once in this Court. I seriously doubt
that there is any longer a "right" answer, even if we can discover it.
The real need is to stop the contentious litigation as soon as possible,
not to discover a better custody order.

Unfortunately, our decisions breed further appeals. See G. Crippen,
The Abundance of Family Law Appeals: Too Much of a Good Thing?, 26 Fam.
L.Q. 85, 100-01 (1992). There is no predictable rule of law in either of
the majority decisions in the cases before us, except with respect to
considering the age of a prospective custodial parent and, even there, it
is unclear what is the holding of the Court. What there is, instead, is a
clear indication that the Supreme Court will substitute its judgment for
that of the family court. Thus, the message to any parent who has lost a
custody case is to try an appeal to this Court, which may weigh the
relevant factors differently.

There are, I believe, three main ways in which the decisions in
Cloutier v. Blowers and

Spaulding v. Butler are inconsistent with our proper limited role in
custody appeals. I discuss my reasons for dissenting from the majority
decisions under the headings below.

I. Adoption of Inappropriate Rules

Custody determinations are now governed by statute, 15 V.S.A. § 665.
That statute requires that the family court be guided by the best interest
of the child, id. at § 665(b), and sets out non-exclusive factors in
determining the best interest of the child. Because the list is
non-exclusive, the court may consider other factors bearing on the best
interest of the child. Hansen v. Hansen, 151 Vt. 506, 508, 562 A.2d 1051,
1053 (1989). While requiring that the family court consider all the
statutory factors, if relevant, the Legislature has prohibited the court
from establishing a preference based on the sex of the child, the sex of
the parent or the financial resources of a parent. 15 V.S.A. § 665(c).
The statute, however, contains no authorization for this Court to add
categorical rules that restrict the trial court from determining the best
interest of the child. In Cloutier v. Blowers, the majority has done
exactly that, interfering with the proper and necessary discretion of the
family court.

In Cloutier, the family court held that because all other factors were
in balance, it had to give critical weight to the age of the parents who
sought custody. The majority rejects this approach although its ground is
unclear. It holds either that (1) the relationship between the age of the
proposed custodian and the best interest of the child can be considered
only if there is evidence, presumably expert evidence, to support such
consideration; or (2) the age of the custodian may not be considered
because it results on discrimination based on age.

The first alternative is contrary to our precedents, intended to
support the discretion of family court judges. In Harris v. Harris, 149
Vt. 410, 546 A.2d 208 (1988), the mother, who did not prevail

in the custody dispute in the trial court, argued that the trial judge
could not consider that she was living out of wedlock with a man, without
expert testimony to show the effect on the best interest of the child. We
rejected that argument as follows:

While the expert testimony would have been helpful in
this case, we agree with the trial court that the evidence
fell in an area where the court could evaluate it without
expert testimony. Such evaluation was expected under the
language of § 665(b)(7). We concur with the Supreme Court of
Kentucky which, facing a similar statute and similar
evidence, said:

A trial judge has a broad discretion
in determining what is in the best
interests of children when he makes a
determination as to custody. In many
instances he will be able to draw
upon his own common sense, his
experience in life, and the common
experience of mankind and be able to
reach a reasoned judgment concerning the
likelihood that certain conduct or
environment will adversely affect
children. It does not take a child
psychologist or a social worker to
recognize that exposure of children to
neglect or abuse in many forms is likely
to affect them adversely. Many kinds of
neglect or abuse or exposure to
unwholesome environment speak for
themselves, and the proof of the neglect
or abuse or exposure is in itself
sufficient to permit a conclusion that
its continuation would adversely affect
children.

We also think the trial court is not
precluded from consideration of
circumstances where the neglect, abuse,
or environment has not yet adversely
affected the children but which, in his
discretion, will adversely

affect them if permitted to
continue. In other words, a judge is not
required to wait until the children have
already been harmed before he can give
consideration to the conduct causing the
harm.

Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). Accordingly,
we hold that the trial court did not err in accepting the
evidence and relying on it in the custody determination.

Id. at 416-17, 546 A.2d at 212-13. We have reiterated the right of the
family court judge to use common sense and common and life experience in
making custody determinations. See Payrits v. Payrits, ___ Vt. ___, ___,
757 A.2d 469, 472 (2000); Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 601 (1989).

Ironically, we applied exactly this principle to the issue of whether
the court could consider the age of the proposed custodian in making a
child custody decision. In Miles v. Farnsworth, 121 Vt. 491, 494-95, 160 A.2d 759, 761 (1960), we held that the trial court could consider the
"infirmatives of advanced years" of the custodian as a factor in
determining the custody of the child.

This is an exceptional case. We can take judicial notice that the
average life expectancy of an American male is 74 years.(FN1) Centers for
Disease Control and Prevention, United States Life Tables, 1998, National
Vital Statistics Reports, Feb. 7, 2001, at 2. Thus, in this case, there is
a substantial chance that father will be unable to provide guidance to the
child up until he reaches the age of majority of 18 years. As the
majority of courts, including this Court, have held, see Phelps v. Phelps,
446 S.E.2d 17, 22 (N.C. 1994) ("We conclude that a trial court should . . .
be allowed to

consider a parent's age and its potential effect on the welfare of the
child as a factor in its determination of what is in the best interest of
the child"); Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)
(court may consider numerous factors including the "physical and mental
health and age of the parents"); Ex parte Devine, 398 So. 2d 686, 696
(Ala. 1981) (court should consider numerous factors including "the
characteristics of those seeking custody, including age, character,
stability, mental and physical health"), the family court should be able to
consider the age of a prospective custodian as it bears on the best
interests of the child.

If the majority is intending to compromise on the consideration of age
by requiring expert testimony, I think the compromise is unwise. Custody
litigation is already extraordinarily expensive for all but the most
wealthy parents. Adding more complexity and cost to such litigation is a
step in the wrong direction.

The second alternative - that it is always unfair and discriminatory
to consider the age of a parent in determining custody - is inconsistent
with the fundamental policy of custody adjudication as emphasized in the
majority opinion. On another issue, the majority points out that the
family court must act based on the best interests of the child, not the
interest of the parent. On this issue, however, the majority is violating
that principle, acting on the interest of the father even though it is
inconsistent with the best interest of the child. Although a few isolated
precedents support this approach, the vast majority of decisions hold that
the court can consider the age of a prospective custodian in making a
custody award where it is in the best interest of the child to do so, as I
have set out above. That is the holding of Miles v. Farnsworth. We
should reject the categorical rule the majority apparently espouses.

I reiterate my point that categorical rules that restrict family court
discretion in determining

the best interest of the child are not good policy. Whatever the reasons
espoused for them, fundamentally they involve substituting our judgment
for that of the family court. In this unusual case where consideration of
the remainder of the statutory factors produced no clear choice of
custodian, consideration of the age of a parent should be in the court's
discretion.

II. Placing the Family Court Decision in a Bad Light

The Cloutier decision has another aspect that is an indication that we
are not seriously applying the limited standard of review that binds us.
In reviewing findings of fact, we must "view them in the light most
favorable to the prevailing party." Stickney v. Stickney, 170 Vt. 547,
548, 742 A.2d 1228, 1230 (1999) (mem.). A party challenging conclusions
of law must overcome the "great deference" we give to the court's
conclusions, and we must "make all reasonable inferences in support of the
court's judgment." Bevins v. King, 147 Vt. 203, 206, 514 A.2d 1044, 1046
(1986). Put another way, this Court must "construe [findings] so as to
support the judgment, if possible." Armstrong v. Hanover Ins. Co., 130
Vt. 182, 185, 289 A.2d 669, 671 (1972).

I find no indication in the majority opinion that it gave deference to
the family court's conclusions or that it construed the findings to
support the judgment. Rather than fairly interpreting the family court
findings and rationale in support of its decision, the majority
recharacterizes the decision in a way that makes it virtually
indefensible. In doing so, it raises a new issue not considered by the
family court or argued by the parties. We now know how the majority would
have decided the case had it been the family court. We have, however,
done a disservice to the parties, the child and the trial court by
introducing our issue on appeal.

Although the family court decided the case primarily on the relative
age of the parents, it found that at least one additional factor favored
the mother as custodian, as follows:

While either could discharge the role of parent
adequately, the mother shows more promise for long term
stability and consistency of caretaking. The mother has
shown she can capably provide for the child's broad breadth
of needs. She has successfully raised a family. She has
endured and overcome one of life's most poignant tragedies
with the death of a child. She has focused her life and
emotional resources to successfully raise this child.

This emotional investment to this child is so strong
that any attempt to deny her the primary role of caretaker
would destroy her. Her emotional attachment is not
unreasonable. Her need to raise this child should be
encouraged for both her good and the child's good.

Should she lose the primary role of caretaker, this
would adversely impact on the child. There is no need of
the child's met by that drastic result. The child can have
the best of both parents as the situation permits. Perhaps,
they will become more comfortable with each other as
parents, now that fear of removal of the child from the
mother is gone.

In one page of his brief, the father attacked this additional consideration
as focusing on the mother's needs and not the best interest of the child.
I discuss that below; for now, the point is that the father made no
additional claims about the court's rationale.

The majority found this rationale to be inadequate and unsupported by
the findings, at least as to the factor contained in § 665(b)(5). The
Court describes the family court's rationale as follows: (1) mother and
father, who were not married, decided to have a child to fill a void in
mother's life created by the tragic death of one of her children; (2)
mother expected that the father would want little role in the child's
life; (3) to mother's frustration, father took a very active role with the
child and attempted to provide for both the child and the mother; (4) as a
result, mother accused father of all sorts of misconduct during the
custody case, but the family court failed to find that the misconduct had
occurred; and (5) mother made the accusations to minimize the role of
father in the child's life. Once it has described the family court's
rationale in this way, it is no surprise that the

majority concluded it did not support a finding that mother as a custodian
would better foster for the child a positive relationship and frequent
contact with the father than father as custodian would foster with the
mother. Indeed, it has recast the family court's rationale so it supports
custody in the father, not the mother. Consistent with its description of
the family court's rationale, the majority has added that the family court
should have pursued whether mother intended to alienate father from the
child through her allegations.

One can find pieces of the majority's rationale in the family court
decision, but not in the way the majority has put them together. For
example, the family court rejected mother's allegations that father abused
her and misused drugs and speculated that she might have made such
accusations to minimize his role in the child's life. It never suggested
that the mother was trying to alienate the child from the father. Indeed,
it found that the parents had successfully co-parented in the past and
tried hard to induce them to develop a new co-parenting arrangement. This
case is a far cry from Renaud v. Renaud, 168 Vt. 306, 309, 721 A.2d 463,
465 (1998), in which the family court expressly found that "mother had
undermined the child's relationship with father by filing excessive and
baseless abuse allegations." We are not faithful to the limited standard
of review if we construe the family court decision in a way to make it
least defensible.

If the family court made any mistake here to induce the majority's
response, it was a labeling mistake. The family court's rationale better
fits factor three, 15 V.S.A. § 665(b)(3), or an independent factor, than
factor five, id. § 665(b)(5). Under the proper standard of review, a
labeling mistake does not justify the majority's response of creating a
new and indefensible analysis.

We do, I believe, have to address directly the argument that father
did make on appeal - that the family court rendered its decision based on
the interests of the mother, rather than the interests

of the child. I again stress that this is an exceptional case. The
parties, who never expected to marry, planned this child to fill a void in
mother's life caused by the death of another child. Thus, in explaining
its rationale, the family court stressed the effect an adverse custody
decision would have on the mother. If the court had gone no further, I
would agree with appellant father that we could not affirm the court's
conclusion.

But the family court did go further and relate the mother's loss to
the effect on the child. Essentially, the court concluded that making
the father the primary custodian would have such an effect on the mother
that it would destroy her ability to be an effective parent, adversely
affecting the child. It concluded that the reverse custody situation
would not have this effect. Its reasoning is focused primarily on the
effect of its decision on the best interests of the child. In these
circumstances, I would affirm the family court's conclusion as consistent
with the statutory mandate of § 665(b) under our deferential standard of
review.

III. Reevaluation of the Relevant Factors

It is impossible to read the trial court and majority decisions in
Spaulding v. Butler without concluding that these decisions simply give
different weight to the various factors bearing on custody and, as a
result, reach different conclusions. This would be entirely understandable
and healthy if the decisions came from two different trial judges. It is
not appropriate if one of the decisions comes from an appellate court
purportedly issued under a limited standard of review.

In two respects, the circumstances of Spaulding, and the family court
decision, make it more likely that this Court will abandon its limited
role and decide the case de novo. First, the family court faced a choice
between two flawed parents. For either, it is easy to state why that
parent should not be a primary custodian; it is far harder to find and
weigh positive skills and conduct

which warrant confidence that a child in that parent's custody will have
positive and nurturing parenting in a safe and secure environment.
Unfortunately, there is no third option; the trial judge was forced to
make a disquieting and unpleasant choice, almost on the basis of the least
damage to the child.

Second, the trial judge, to her credit, did not sugar coat the
negative history, skills, characteristics or motives of either parent. I
say "to her credit" because the decision reinforces that the court had no
illusions that it could assure the child a good home and that the court
struggled to find the best result. But that result has become harder to
affirm because the flaws of the custodial parent, as explicitly contained
in the findings, are so difficult to accept. Indeed, on the surface, it
appears much easier to accept the majority analysis because it details the
father's flaws and largely ignores, or explains, the mother's flaws. In a
truncated fashion, the majority quotes the family court's analysis of the
mother's flaws in its decision on whether there were changed circumstances
and then largely ignores that analysis in looking at the best interest of
the child. Let me repeat, in full version, what the family court found
about the negative factors bearing on the mother as a custodian:

Specifically, during [the] time [between September 1994
and April 1997] there was a pattern of poor care of a severe
and painful diaper rash, the severity of which was
unnecessary as shown by the improvement in the rash during
the weekend visitations with Mr. Spaulding; a pattern of
Nathan appearing for visits with Mr. Spaulding with a number
of bruises and marks on his body; a lead test indicating
lead poisoning of Nathan with no information that the
problem had been taken care of; a pattern of biting behavior
between Michael and Nathan that had not improved despite the
work of Ms. Butler with Meredith McCartney in therapy;
delays in Nathan's developmental milestones as indicated by
testing through Triple E and Stepping Stones; and severe
bite marks on Nathan from Michael on April 11, 1997. . . .
[The evidence] shows a child living in an

environment with a pattern of neglect sufficient to result in
measurable developmental delays and physical injuries. The
change is substantial in that it resulted in Nathan lagging
behind in his development and suffering painful personal
injury despite remedial efforts. It is unanticipated in
that one would never expect parental care to result in such
an impact on a child.

Thus, the family court was forced to chose between a parent who exhibited
"a pattern of neglect sufficient to result in measurable developmental
delays and physical injuries" and a parent who had a history of abuse and
attempts to alienate the child from the other parent, at best an unenviable
choice.

Where the trial court decision is candid and balanced about the nature
and difficulty of this choice, I cannot say the same about the majority
decision here. It builds to its ultimate conclusion that the family court
could not find within its discretion that it was in the child's best
interest to award custody to a father who "was a batterer, a liar, and . .
. [who] consciously and deliberately alienated Nathan from mother." Ante,
at 16. The equivalent criticism of the majority is that it cannot find as
a matter of law that custody must be awarded to a mother who, when she had
custody, engaged in "a pattern of neglect sufficient to result in
measurable development delays and physical injuries." I think we
trivialize the difficulty and complexity of child custody adjudication with
this kind of analysis.

The essence of this dissent is that the kind of difficult choice
presented by Spaulding must be made by the judge who heard the evidence
and viewed the parents as they testified and otherwise participated in the
merits hearing. To the extent we have an appellate role, we should
exercise it sparingly, and not as we are doing here, to second-guess the
considered choice of the family court judge and substitute our own
judgment. Because that is the fundamental point of the dissent and

captures what I believe is wrong in the majority decision in Spaulding, I
will not belabor my specific disagreements with that decision beyond three
additional points.

I do not understand the remand in this case, other than for the
evaluation of changed circumstances. The Court has said that the family
court could not reach the decision it did based on its findings and that
the findings are supported by the evidence. Under that analysis, the
family court has no choice but to award custody to the mother. To the
extent the majority is trying to suggest that it did anything other than
substituting its judgment for the trial judge, that suggestion is illusory.
Indeed, the worst outcome we could have for the child is further extensive
litigation to reopen the findings and conclusions of the family court.

A good deal of the majority's analysis is based on its conclusion that
any risk that the child would be unsafe if placed with the mother "is
speculative at best." Ante, at 16. I can describe that conclusion only
as incredible. The family court detailed the past harm to the child while
in mother's custody and concluded that there had been "a pattern of
neglect sufficient to result in . . . physical injuries." How is it
speculative that the identical pattern will reoccur when custody is again
transferred to the mother?

Third, we need to be careful in how we define parental alienation and
in administering a rule that a parent cannot benefit from alienating a
child from the other parent. No parent who believes that the other parent
is the cause of physical, sexual or extreme emotional abuse of the child is
promoting contact between the child and that parent. The family court
justifiably criticized the father for being too quick to go to the police,
SRS or the courts, but some of father's allegations of abuse were
confirmed in earlier court proceedings and formed the basis of the abuse
prevention order transferring custody to father and limiting mother to
supervised visitation. Unless the majority is

prepared to say that father somehow defrauded the family court, a
conclusion with no support in the findings, it is inappropriate to call a
court-ordered custody situation a "successful attempt[] at alienation."
Ante, at 14-15.

In conclusion, I believe that in both Spaulding and Cloutier the
majority has embarked on the pursuit of a more just and correct custody
determination that will injure the exact children it is attempting to
protect. If we actually accorded the family court "broad discretion in
determining the best interests of the child," as both decisions state we
do, the only consistent conclusion would be to affirm the custody
decisions in both cases. Reluctantly, I must dissent from the reversals in
both cases.

I am authorized to state that Justice Morse joins in this dissent.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. Having reached 59 years of age, father's remaining life
expectancy is approximately twenty more years. Centers for Disease
Control and Prevention, United States Life Tables, 1998, National Vital
Statistics Reports, Feb. 7, 2001, at 2.

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