Chick v. Chick

Chick v. Chick (2003-180); 176 Vt. 580; 844 A.2d 747

2004 VT 7

[Filed 14-Jan-2004]

                                 ENTRY ORDER

                                  2004 VT 7

                      SUPREME COURT DOCKET NO. 2003-180

                             OCTOBER TERM, 2003

  Randy Chick	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Windsor Family Court
                                       }	
  Melinda Chick	                       }
                                       }	DOCKET NO. 239-7-02Wrdm

                                                Trial Judge: Amy Marie Davenport

             In the above-entitled cause, the Clerk will enter:


       ¶ 1.  Defendant mother, Melinda Chick, appeals the decisions of the
  Windsor Family Court assuming jurisdiction over the parties' custody
  dispute and awarding plaintiff father, Randy Chick, primary parental rights
  and responsibilities with respect to the parties' two children.  We
  conclude that the family court properly assumed jurisdiction of the custody
  dispute, and that mother has failed to demonstrate that the court abused
  its discretion in awarding father primary parental rights and
  responsibilities.  Accordingly, we affirm the court's decisions.

       ¶ 2.  Father, a lifelong Vermont resident, met mother, a lifelong
  North Carolina resident, in the spring of 1999 while he was stationed with
  the Marines in North Carolina.  The parties married in September of that
  year.  Father was twenty-one years old, and mother was nineteen years old. 
  The parties' two children were born in North Carolina - a son on April 13,
  2000 and a daughter on May 26, 2001.  In August 2001, mother and the two
  children moved to Vermont to reside with father's parents to address the
  parties' worsening financial circumstances.  For the time, father remained
  in North Carolina to perform his military duties.  He returned to Vermont
  on leave in late 2001and persuaded mother to return to North Carolina to
  work on their marriage.  The parties decided that the children would remain
  in Vermont with father's grandparents for a couple of months until father's
  discharge from the Marines.  After returning to North Carolina, the parties
  vacillated about whether to stay in North Carolina or return to Vermont. 
  At one point, they thought they might try to make a go of it in North
  Carolina, and in January 2002, the children were sent there to join them. 
  In the end, father concluded that the parties would not be able to afford
  to stay in North Carolina after his upcoming discharge from the Marines. 
  Consequently, mother returned to Vermont with the children on February 18,
  2002.  Father joined them about a week later after he was discharged.
          
       ¶ 3.  On July 1, 2002, mother took the parties' children to North
  Carolina without  informing father.  The following day, both father and
  mother filed complaints for custody in Vermont and North Carolina,
  respectively.  On July 3, the Windsor Family Court issued an order
  asserting jurisdiction, granting father temporary custody of the children,
  and ordering mother to return the children to Vermont.  On September 16, a
  North Carolina judge issued a temporary order preventing the removal of the
  children from North Carolina until October 7, when a hearing was scheduled
  to determine whether North Carolina should assume jurisdiction over the
  matter.  On September 18, the Windsor Family Court held a hearing to
  address mother's motion to dismiss the Vermont divorce action and father's
  motion to enforce prior orders giving him temporary custody of the
  children.  Mother failed to appear, and the court denied mother's motion to
  dismiss based on her default.  The day after the hearing, the presiding
  Vermont judge held a telephonic conference with the North Carolina judge
  who had signed the September 16 order.  The two judges concurred that
  Vermont appeared to be the more appropriate forum to resolve the custody
  dispute; however, the Vermont judge agreed not to issue an order regarding
  removal of the children from North Carolina until after the October 7
  hearing in North Carolina.  On September 24, the Windsor Family Court
  issued an order assuming jurisdiction over the parties' custody dispute
  based on its conclusions that (1) there was no grounds for North Carolina
  to assert emergency jurisdiction over the children; (2) Vermont is the
  children's home state; and (3) there is no reason for Vermont to decline
  jurisdiction.  On October 11, the North Carolina court declined to assert
  jurisdiction over the matter.  Shortly thereafter, the children were
  returned to Vermont.

       ¶ 4.  On February 6, 2003, following a January 29 evidentiary hearing,
  the Windsor Family Court issued an order granting father primary parental
  rights and responsibilities, with mother to have significant parent-child
  contact.  Later, the court denied mother's motion to amend the judgment, as
  well as her motion to modify parental rights and responsibilities based on
  changed circumstances.  Mother appeals the family court's assumption of
  jurisdiction and its custody decision, arguing that the court (1) erred in
  assuming jurisdiction over the parties' dispute; (2) abused its discretion
  in granting father primary parental rights and responsibilities; and (3)
  erred in denying mother's motion to amend its custody decision.

       ¶ 5.  We first address mother's challenge to the family court's
  assumption of jurisdiction over the parties' dispute.  According to mother,
  the court violated 15 V.S.A. § 1035(a) of the Uniform Child Custody
  Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051, by assuming jurisdiction
  in its September 24, 2002 order even though there was a pending custody
  proceeding in North Carolina.  We disagree.  Subsection 1035(a) provides
  that a Vermont court may not exercise jurisdiction under the UCCJA

    if at the time of filing the petition a proceeding concerning the
    custody of the child was pending in a court of another state
    exercising jurisdiction substantially in conformity with this
    chapter, unless the proceeding is stayed by the court of the other
    state because this state is a more appropriate forum or for other
    reasons.
   
  Subsections 1035(b) and (c) further provide that if the Vermont court has
  reason to believe, or is informed, that a custody proceeding is pending in
  another state, the Vermont court shall communicate with the appropriate
  court official or judge in the other state "to the end that the issue may
  be litigated in the more appropriate forum."  Id. § 1035(c).

       ¶ 6.  We find no violation of § 1035 of the UCCJA.  Simultaneous
  proceedings were filed in Vermont and North Carolina, and the Vermont court
  asserted jurisdiction the following day.  Upon learning of a potential
  jurisdictional conflict and inconsistent orders, the Vermont judge
  initiated a conference with the North Carolina judge, after which Vermont
  retained jurisdiction and North Carolina declined jurisdiction.  In short,
  the courts proceeded properly under the statute.

       ¶ 7.  Mother argues, however, that Vermont was not the home state of
  the children, notwithstanding the contrary conclusions of both the Vermont
  and North Carolina courts, because the children had not been living with a
  parent or person acting as a parent for six consecutive months before she
  took the children to North Carolina on July 2, 2002.  See 15 V.S.A. §
  1032(a)(1) (court in children's "home state" has jurisdiction to make
  custody determination); id. § 1031(5) ("Home state" means state in which
  child lived with parent or person acting as parent for six consecutive
  months); id. § 1031(9)("Person acting as parent" means person other than
  parent who has physical custody of child and who has either been awarded
  custody by court order or claims right to custody).  Mother acknowledges
  that the children had been in Vermont for most of the eleven months
  immediately prior to her taking the children to Vermont, but she argues
  that there never was a consecutive six-month period in which the children
  were in Vermont with a parent or a person acting as a parent.

       ¶ 8.  Mother's hypertechnical argument cannot defeat Vermont's
  assumption of jurisdiction in this case.  There is support in the record
  for the family court's conclusion that the children's relatively brief stay
  in North Carolina in the beginning of 2001 was merely a temporary absence
  from what had become their home state.  In any event, without explicitly
  citing the relevant subsection in the UCCJA, both the Vermont and North
  Carolina judges essentially agreed that it was in the best interests of the
  children for Vermont to assume jurisdiction in this case because of the
  considerable amount of time that they had spent there during the previous
  year and the substantial evidence available in Vermont relevant to issues
  of custody.  See 15 V.S.A. § 1032(a)(2) (court has jurisdiction over
  custody determination if it is in children's best interest that court
  assume jurisdiction because children and at least one contestant have
  significant connection with state and substantial evidence concerning
  children's care and personal relationships is available in state); see also
  id. § 1032(a)(4) (court has jurisdiction if another state has declined to
  exercise jurisdiction on the ground that this state is more appropriate
  forum to determine custody, and it is in children's best interest for this
  court to assume jurisdiction).  Accordingly, mother's jurisdictional
  arguments are unavailing.
   
       ¶ 9.   We now turn to the merits of the family court's custody
  decision.  In making its custody determination, the court carefully
  examined each of the statutory factors set forth in 15 V.S.A. § 665(b). 
  The court found that three of the factors favored awarding custody to
  father, while both parents fared equally with respect to the remaining
  applicable factors.  According to the court, the most important of the
  factors favoring father was factor five - "the ability and disposition of
  each parent to foster a positive relationship and frequent and continuing
  contact with the other parent."  15 V.S.A. § 665(b)(5).  In the court's
  view, father demonstrated a greater recognition and acceptance than mother
  of the children's need to have a significant relationship with each parent. 
  The court noted that father and his parents fully supported the children's
  relationship with mother, and that father was even willing to move back to
  North Carolina in the event mother was awarded primary custody of the
  children.  On the other hand, the court stated that mother had demonstrated
  a lack of understanding and respect for the importance of father's role in
  the children's development by (1) taking the children to North Carolina
  without father's knowledge to enhance her chances of obtaining custody
  there; (2) proposing a limited visitation schedule for father in the event
  she obtained custody; and (3) suggesting that the children would be better
  off in daycare than with their father.  The court also concluded that
  factor one favored father because, although mother plainly loved her
  children and they loved her, father had a greater disposition to provide
  the children with love and affection by spending more time with them.  See
  id. § 665(b)(1) (ability and disposition of each parent to provide children
  with love, affection, and guidance).  The court was careful to recognize
  mother's right to work, and her need to place the children in daycare, but
  felt that father was more disposed to provide the children the love and
  affection they needed.  Finally, the court concluded that factor seven
  favored father because of the significant relationship that had developed
  between the children and the paternal grandparents, and because of the
  paternal grandparents' ongoing efforts to help the parties and support the
  children's relationship with both parties.  See id. § 665(b)(7) (children's
  relationship with any other person who might significantly affect
  children).

       ¶ 10.  Mother contends that, rather than considering the children's
  best interests, the family court punished her for taking the children to
  North Carolina without informing father.  See Price v. Price, 149 Vt. 118,
  121, 541 A.2d 79, 81 (1987) (custody determinations must be made on basis
  of children's best interest and not fault of parties).  In her view, the
  court failed to appreciate her efforts to keep the family together and the
  dilemma she faced at the time she took the children to North Carolina.  She
  points out that she was the sole primary care giver early in the children's
  lives, and, at the time of the hearing, she had a far more stable work and
  home situation than father.  She believes that an objective assessment of
  the statutory factors, without giving undue emphasis to her decision to
  remove the children to North Carolina, plainly supports awarding her
  primary parental rights and responsibilities.  We disagree.  "The family
  court has broad discretion in awarding custody, and its findings will not
  be overturned unless clearly erroneous."  Payrits v. Payrits, 171 Vt. 50,
  52-53, 757 A.2d 469, 472 (2000).  We afford the trial court wide discretion
  in custody matters because only that court is in the "unique position to
  assess the credibility of witnesses and weigh the evidence."  Id. at 53,
  757 A.2d  at 472.  In assessing the credibility of witnesses and weighing
  the evidence, the court "may draw upon its own common sense and experience
  in reaching a reasoned judgment."  Id.  Here, mother essentially asks us to
  reweigh the evidence and exercise our own judgment to reverse the trial
  court.  This we will not do.  The issue is not whether we would have
  reached the same judgment as the trial court, but rather whether the
  evidence supports the court's findings and conclusions.  Here, the court
  found that, considering all time periods of the marriage, the parties
  shared primary care of the children, and that, while many of the factors
  favored neither party, three of them favored awarding father primary rights
  and responsibilities.  There is evidence in the record to support the
  family court's carefully explained and difficult decision.
   
       ¶ 11.  Finally, mother argues that the family court erred by denying
  her motion to amend as untimely filed.  We find no error.  Although the
  court concluded that the motion was untimely filed, it also stated that,
  even assuming the motion was timely, the grounds raised by mother were
  insufficient to reopen the case or alter the court's judgment.  In her
  motion to amend, mother submitted an affidavit from her North Carolina
  attorney suggesting that mother's move to North Carolina had not been
  planned for some time, as the court presumed.  She also provided the court
  with information indicating that father was relocating to Connecticut along
  with his parents and was having problems disciplining the children.  The
  court acted well within its discretion in determining that none of the
  information provided by mother undermined the basis of its decision or
  would cause the court to reconsider its decision.

       Affirmed.
         

                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice