Sundstrom v. Sundstrom
Sundstrom v. Sundstrom (2003-423); 177 Vt. 577; 865 A.2d 358
2004 VT 106
[Filed 21-Oct-2004]
ENTRY ORDER
2004 VT 106
SUPREME COURT DOCKET NO. 2003-423
MARCH TERM, 2004
Richard Sundstrom } APPEALED FROM:
}
}
v. } Addison Family Court
}
Bobbi Jo Sundstrom }
} DOCKET NO. 180-9-97 Andm
Trial Judge: Helen M. Toor
In the above-entitled cause, the Clerk will enter:
¶ 1. Mother appeals from the family court's order modifying
parental rights and responsibilities, and awarding custody of the parties'
two minor children to father. The court found that mother's "ongoing,
intentional, mean-spirited violations" of court orders concerning
parent-child contact constituted a material and substantial change of
circumstances, and the harm caused by mother's obstruction of visitation
outweighed the harm that could be caused by a change in custody. The court
thus concluded that the children's best interests required that they be
removed from mother's home and placed with father. On appeal, mother
argues that the court abused its discretion in awarding custody to father,
and committed various procedural mistakes that constitute reversible error.
We affirm in part, and reverse in part.
¶ 2. To place the court's June 2003 order in its proper context,
we first review the procedural history of this case. Father and mother
divorced in September 1998. At the time of their divorce, they agreed that
mother would have sole parental rights and responsibilities over the
parties' two children, JoAnn, born in May 1992, and Cameron, born in April
1994. They also agreed that father would have contact with the children
every other weekend, two weeks in the summer, and shared holidays.
Pursuant to the final divorce order, father was also awarded "reasonable
telephone contact" with the children, which "[u]nder normal circumstances .
. . should be one telephone call per day."
¶ 3. Mother and father's relationship deteriorated significantly
after the divorce, and in 1999, father filed a motion to modify parental
rights and responsibilities. Although the court denied the motion, it
found that mother had been engaging in "a pattern of behavior" that had
frustrated father's ability to have parent-child contact. The court found
the record replete with examples of mother's negative behaviors, including
her repeated interference with father's attempts to contact the children by
telephone. The court explained that, on those occasions when father was
able to reach the children, mother would typically be in the background
telling the children what to say and often making snide remarks about
father or his girlfriend. The court also found that mother had involved
the children in adult issues, and she had sabotaged the children's
relationship with father's new girlfriend. Mother acknowledged that she
needed to get better control of her anger.
¶ 4. The court found that, "remarkably," mother's negative
behavior had not yet poisoned the children's relationship with father,
although it found that her behavior had begun to have an adverse impact on
the children, particularly JoAnn. The court agreed with expert testimony
"that a continuation of these unacceptable behaviors by mother could bring
about significant erosion of father's relationship with the children and
have negative long-term effects on the children."
¶ 5. Based on its findings, the court concluded that mother had
substantially interfered with father's relationship with the children. The
court concluded, however, that it was not in the children's best interests
to transfer custody to father. The court explained that the children had
not yet been alienated from father, although the potential existed.
Additionally, the court found that mother had always been the children's
primary caretaker, and in all other respects was a fit parent. The court
indicated its belief that mother was capable of changing her behavior. The
court also found it significant that father's job required him to be away
from home during virtually all of the children's waking hours, and thus, if
it transferred custody to father, father's girlfriend would effectively
become the children's primary care giver. Therefore, on balance, the court
concluded that it was not in the children's best interest to transfer
custody to father.
¶ 6. The court warned mother, however, that it viewed the
situation as extremely serious, and that if mother persisted in her
negative behavior, "the court will have no choice but to change custody in
the children's best interests." The court ordered mother to stop
denigrating father and his girlfriend in the children's presence, and stop
interfering with the children's relationship with father and his
girlfriend. The court also ordered mother to participate in counseling to
address her anger and bitterness resulting from the divorce, and her
refusal to accept that father's girlfriend was now part of the children's
lives.
¶ 7. Problems between mother and father continued, and both parties
filed numerous motions with the court. At father's request, the court
entered several orders setting forth a more specific telephone contact
schedule. (FN1) In 2001, father again moved to modify parental rights and
responsibilities, complaining that mother continued to interfere with his
relationship with the children. In July 2001, after a hearing, the court
denied father's motion. The court concluded that all of father's
complaints of interference arose from mother's refusal to acquiesce to his
demand for a larger role in the care of the children than was permitted by
the final divorce order. The court found no change in circumstances that
would warrant a change in custody. We affirmed the family court's order in
October 2002, although the appeal did not reach the merits. (FN2)
¶ 8. After this Court's entry order, and in light of the over
one-hundred post-judgment motions that the parties had filed, the family
court asked the parties to indicate which issues remained to be addressed.
In letters to the court, both father and the attorney for the children
indicated that father's motion to modify parental rights and
responsibilities, which had been filed on March 6, 2002, remained
outstanding. Both parties also indicated that a motion for contempt that
had been filed by guardian ad litem Sandy Hutchins on February 14, 2002,
remained to be heard as well. On December 13, 2002, the court issued an
entry order stating that these motions would be considered at the motions
hearing. In a pro se filing dated December 18, 2002, mother asked the
court to dismiss father's motion to modify. The court denied mother's
request on January 13, 2003. On the same date, the court issued an entry
order indicating that four new motions that mother had filed on December
30, 2002 would be heard with the motions that had already been scheduled.
In January 2003, mother filed another pro se document asking the court if a
revision of a family court order required an unanticipated and substantial
change of circumstances, and if so, what the court believed these changes
were so that she could prepare for the court hearing. The court denied
mother's request, explaining that it did not provide legal advice to the
parties.
¶ 9. A hearing on the pending motions was held in April 2003, and
both parties appeared pro se. The court divided the time allotted for the
hearing between the parties. Father went first, and after his direct
testimony, mother sought to cross-examine him. The court informed mother
that it would allow father to present all of his evidence, and then mother
and the attorney for the children could cross-examine him. Mother
cross-examined father after he had presented his case. Guardian ad litem
Sandy Hutchins, who had worked extensively with mother and father, but who
had not met with the children, was present at the hearing. At the
hearing's close, the court asked her if she had any comments. The guardian
replied that her recommendation "then and now is that [father] have full
custody of his children." Mother did not object to the guardian's
testimony.
¶ 10. In a June 2003 order, the court granted father's motion to
modify parental rights and responsibilities. The court found that since
father's last motion to modify, mother had continued to interfere with
father's telephone contact with the children. The court explained that
when father tried to call the children every day, as permitted by the
divorce decree, one of several things happened: there was a busy signal;
the phone would go unanswered; mother would answer and say the children
were unavailable; the call would be automatically forwarded to a business;
or mother would answer and tell father that until he paid her all the money
she felt she was due, he would never get to talk to the children. The
court found that when father had spoken to the children, he heard mother on
many occasions in the background telling the children what to say. Mother
also stated to father, when he asked her when a good time to call would be,
"There is no good time to call. Stop calling us and move on with your
life."
¶ 11. The court found that in the weeks before the hearing, a new
development had occurred: mother would place the children on the phone and
tell father that he needed to get a job and pay mother. Father presented
two tapes of the children making the following statements to him. "Hi Dad,
leave us alone. Pay your child support. Get a job, OK?" In March 2003,
JoAnn stated "Pay your support, Dad." The court found it beyond doubt that
mother told the children to make these statements to father, and explained
that it was "entirely inappropriate for a parent to place a child in the
middle of the parental dispute over child support or maintenance." The
court also found that mother had attempted to keep father from attending
First Communion for one of the children several months prior to the hearing
by refusing to tell father when the ceremony was scheduled. Additionally,
the court found that mother had filed a form with the children's school
that listed her boyfriend as the children's stepfather, which meant that
father was not permitted to obtain information about the children.
¶ 12. Based on the evidence presented, the court found it "crystal
clear" that mother had intentionally and repeatedly sabotaged father's
ability to have telephone contact with the children. She had also
intentionally attempted to interfere with father's ability to obtain school
information and to participate in their religious upbringing. The court
found mother's demeanor in court to be snide and disrespectful to both
father and the court, and stated that mother clearly had a deep level of
hostility that had not receded over the five years since the parties'
divorce. The court found that mother was unable to place the children's
needs ahead of her own anger and vindictiveness.
¶ 13. Based on its findings, the court concluded that father had
demonstrated a material and substantial change in circumstances. It
explained that mother had repeatedly, continuously, and intentionally
violated prior orders of the court. Mother had been warned on prior
occasions that her behavior could lead to a change in custody, yet she
continued to engage in this behavior. As the court explained, mother's
"ongoing, intentional, mean-spirited violations of prior court orders
concerning parent-child contact" constituted both a contempt of court and a
material and substantial change in circumstances.
¶ 14. The court next addressed whether the harm caused by mother's
obstruction of visitation outweighed the harm that could be caused by a
change of custody. The overriding issue, the court explained, was the best
interests of the children. The court concluded that not only had mother
repeatedly and continuously interfered with father's contact with the
children, she had also intentionally worked to alienate the children from
father by telling them that he had not been paying all of his child
support. She further alienated them by placing them in the middle of that
dispute by having them say mean things to father over the phone. The court
found that these attempts at parental alienation weighed against mother
being the children's sole custodian. The court concluded that the damage
to the children from mother's involvement of them in her disputes with
father was extremely harmful to the children, and to the children's
relationship with father.
¶ 15. The court recognized that the children had resided with
mother since the divorce, and that the stability this provided was valuable
to them. However, the court concluded that the harm caused by mother's
manipulation and alienation of the children, in pursuit of her desire to
punish father, outweighed any benefit that would exist from the children
remaining in her home. The court found that mother's behavior demonstrated
that she placed her own emotional needs ahead of the children's needs to
their significant detriment, and thus, her home could not be considered a
positive or supportive environment for the children.
¶ 16. In contrast to mother, the court found that father had
maintained a calm and reasonable demeanor in court and with the children,
in spite of mother's mistreatment of him and his frustration with being
unable to contact the children. The court concluded that father showed an
understanding of the damage that this situation was inflicting on the
children, and an appropriate concern for their well-being. He did not
involve the children in disputes as mother had done. The court thus
concluded that father was more capable than mother of providing the
children with the guidance they needed, meeting their developmental needs,
and fostering a positive relationship with mother. The court explained
that mother had been warned that her ongoing negative behavior was likely
to lead to a loss of custody, and the court found that, despite these
warnings, her improper behavior continued, and in fact, had escalated. The
court therefore concluded that the best interests of the children required
that they be removed from such an environment.
¶ 17. In its order, the court also addressed mother's motions to
enforce prior child support and maintenance orders. The court found that
father's financial situation had changed significantly since the prior
orders were issued. It explained that father had lost his long-term
employment in January 2003, and he was currently working part-time in
anticipation of a full-time position becoming available in his field. The
court found that father's income averaged $316.65 per week, and that
mother's live-in partner now contributed between $500 to $1000 or more per
month to mother's household. The court found that these facts constituted
a substantial and unanticipated change of circumstances justifying
modification of maintenance and child support. The court explained that
father had paid his child support regularly until he lost his job. Since
that time, he had made partial payments. The court found that these
payments were reasonable, and concluded that father did not owe past child
support to mother. For the same reasons, the court found that father could
not afford to pay mother $141.62 in maintenance, and it reduced his
payments to $50.00 per week. The court noted that when father obtained
full-time employment, he would need to inform mother and the court.
¶ 18. Mother filed a motion for a new hearing, arguing that the
court erred in evaluating the children's best interests without the input
of a guardian ad litem who had met with the children. She asserted that a
guardian's input was necessary to determine whether her conduct had
actually been harmful to the children, whether it had actually undermined
their relationship with father, and whether uprooting the children would be
harmful to them. The court denied the motion. This appeal followed.
¶ 19. We start with mother's arguments that the family court
committed procedural errors that require us to set aside all or part of its
decision. Specifically, mother asserts that the court committed reversible
error by failing to notify her of the matters to be considered at the
hearing, failing to afford her a fair opportunity to cross-examine father,
improperly allowing the guardian ad litem to express an opinion regarding
the best interests of the children, and retroactively modifying child
support and maintenance in the absence of a motion to modify. As discussed
below, we find all but one of these arguments without merit.
¶ 20. First, we reject mother's assertion that the family court's
decision should be reversed because she was not provided notice that
father's motion to modify would be considered at the hearing. Mother's
argument is based on two notices of the hearing. Following the rotation of
a new judge into the county and this Court's last decision on appeal, the
family court asked the parties to specify which motions required a
hearing. (FN3) Father and the children's lawyer specified the pending
motions, including a motion to modify custody based on mother's continuing
interference with telephone visitation, and the court ordered that these
motions, and one filed by mother, be set for a hearing. (FN4) Thereafter,
mother filed additional motions, and the court issued a further notice of
the motion hearing, stating that the new motions, which were itemized,
would "be heard with the currently scheduled hearing." The hearing had to
be rescheduled, and a new notice was sent to show the rescheduling of the
hearing, but it listed only the additional motions filed by mother. (FN5)
On that basis, mother argues that she did not receive notice that the
motion to modify custody would be considered at the hearing.
¶ 21. It was apparent from the beginning of the hearing that the
family court was considering the motion to modify. Indeed, it was apparent
that the motion to modify was the central subject of the hearing. For
example, in her opening statement, the attorney for the children indicated
that she would address the motion to modify custody first. Mother did not
claim that she was not provided notice that the motion would be considered,
nor did she object to the court's consideration of the motion to modify.
Mother did not raise this claim of error in her motion for a new hearing.
We have consistently held that to preserve an issue for appeal, a party
must "present the issue with specificity and clarity in a manner which
gives the trial court a fair opportunity to rule on it." In re White, 172
Vt. 335, 343, 779 A.2d 1264, 1270 (2001) (internal quotation marks and
citation omitted). Mother waived this claim of error by failing to raise
it below.
¶ 22. Mother also waived her argument that the family court
committed reversible error by allowing the former guardian ad litem to
express an opinion regarding the children's best interests. It appears
from the record that the former guardian attended the hearing because the
court was considering a motion for contempt that she had filed. (FN6)
Although she was not sworn as a witness and had no recent involvement in
the case, she was asked by the court for her position; the guardian
supported modification of custody because of mother's continuous violation
of the parent-child contact order. In response to a question from the
court, the guardian stated that she had never met personally with the
children. Following the family court's decision, mother moved for a new
hearing in part because the "GAL in this case . . . HAS NEVER met the
children." Mother asked that the court hear from a guardian ad litem "on
how harmful it will be to the children to be uprooted."
¶ 23. Because mother did not object to the guardian's statement at
the hearing, she cannot raise its propriety on appeal. Damone v. Damone,
172 Vt. 504, 514-15, 782 A.2d 1208, 1216-17 (2001) (father's failure to
object to admission of guardian ad litem's testimony at hearing precluded
review of claimed error on appeal). In any event, the court did not err in
allowing this statement. Rule 7(d) of the Rules for Family Proceedings
provides that "[t]he guardian ad litem shall state to the court a position
and the reasons therefor, which reasons shall be based upon the evidence in
the record, but shall not testify as a witness." The guardian's statement
was entirely consistent with the rule because she did not testify and her
position was based on evidence in the record. Indeed, mother's complaint
that the guardian violated the rule by not meeting with the children, see
id. ("In fulfilling this function, each guardian ad litem shall meet with
the child . . . ."), undercuts her argument that the statement was
improper. Although the guardian's appointment had been terminated, she was
properly in court to support a contempt motion that she had filed with
respect to parent-child contact, and the court properly requested her
position on it. We also find the statement harmless. Although the family
court refers to the guardian's statement in its order, its findings
demonstrate that it did not base its decision on that statement. Instead,
the record reflects that the court reviewed all of the evidence in arriving
at its conclusion that a transfer of custody was in the children's best
interests.
¶ 24. Mother next argues that the court erred by failing to afford
her a fair opportunity to cross-examine father. The record does not
support this argument. The trial court is authorized to exercise
reasonable control over the mode and order of interrogating witnesses so as
to make the interrogation and presentation orderly and effective for the
ascertainment of truth and avoid needless consumption of time. V.R.E.
611(a). Faced with two pro se litigants, the court divided the time
scheduled for the hearing between the two parties. The court informed
mother that she could cross-examine father at the close of his evidence,
which she did. Indeed, we note that other than alleging that the family
court's action was "manifestly unfair," mother does not identify any
specific harm that resulted from the court's decision to delay the
cross-examination. On the contrary, the record shows that mother had a
fair opportunity to cross-examine father at the close of his case, and we
find no error.
¶ 25. Finally, mother argues that the court erred by retroactively
modifying father's child support and maintenance obligations in the absence
of a motion to modify. (FN7) The family court may modify a child support
order on either party's motion, and upon a showing of real, substantial and
unanticipated change of circumstances. 15 V.S.A. § 660(a). A child
support order may be modified only as to installments that accrued after a
motion to modify has been filed. 15 V.S.A. § 660(e); Towne v. Towne, 150
Vt. 286, 288, 552 A.2d 404, 406 (1988). Based on evidence presented at the
hearing, the court found that father's loss of employment and the financial
assistance that mother was receiving from her live-in boyfriend constituted
a real, substantial and unanticipated change in circumstances. Based on
this finding, the court retroactively modified father's child support
obligation as of January 1, 2003, the date that father became unemployed.
It appears from the record, however, that father did not file a request for
a new child support calculation until February 12, 2003. Pursuant to 15
V.S.A. § 660(e), the court's modification is effective only as to father's
obligations after that date. We therefore reverse that portion of the
court's order that modified father's obligation between January 1, 2003 and
February 12, 2003.
¶ 26. Although we agree that the court went too far back in
retroactively modifying husband's child support obligation, we reach a
different conclusion with respect to the retroactive modification of
father's spousal maintenance obligation. Pursuant to 15 V.S.A. § 758, the
court may modify a maintenance award on motion of either party and upon due
notice, where there has been a real, substantial and unanticipated change
in circumstances. The record indicates that in November 2002, father filed
a pro se letter with the court requesting that the court deny mother's
motion to enforce, and change permanent spousal maintenance to temporary
spousal maintenance, and end these payments. Father stated that he could
no longer afford to pay maintenance due to his loss of full-time
employment. Based on evidence presented at the hearing, the court found
that a real, substantial and unanticipated change of circumstances had
occurred as of January 2003, and it retroactively modified father's spousal
maintenance obligation as of this date. In light of the request made by
father, and the court's finding of changed circumstances, we find no abuse
of discretion in the court's retroactive modification of father's spousal
maintenance obligation.
¶ 27. We next consider mother's arguments that the family court
decision is erroneous on the merits. Mother first asserts that the court
abused its discretion in finding that there had been a real, substantial
and unanticipated change in circumstances. According to mother, the
court's findings that she interfered with father's telephone contact with
the children, with his ability to attend one of the children's First
Communion ceremony, and with his ability to receive information from the
children's school, are not supported by the record or are otherwise
erroneous. Mother also asserts that these factual findings are
insufficient to satisfy the threshold requirement of changed circumstances,
particularly in light of the court's failure to acknowledge that father
bore a heavy burden of establishing such a change.
¶ 28. The court may modify a parental rights and responsibilities
order upon a showing of real, substantial and unanticipated change of
circumstances where the modification is in the children's best interests.
15 V.S.A. § 668. The court must make a threshold finding of "a real,
substantial and unanticipated change of circumstances" before it can
"examine the merits of the parties' claims and reconsider the best
interests of the child." Wells v. Wells, 150 Vt. 1, 4, 549 A.2d 1039, 1041
(1988). We have recognized that there are no "fixed standards to determine
what constitutes a substantial change in circumstances"; instead, the court
should be "guided by a rule of very general application that the welfare
and best interests of the children are the primary concern in determining
whether the order should be changed." Id., 549 A.2d at 1041-42 (block
quote format and citation omitted).
¶ 29. The family court has discretion in determining if the moving
party has established a change of circumstances. Id., 549 A.2d at 1042;
Meyer v. Meyer, 173 Vt. 195, 197, 789 A.2d 921, 923 (2001). The moving
party bears "a heavy burden to prove changed circumstances, and the court
must consider the evidence carefully before making the threshold finding
that a real, substantial and unanticipated change of circumstances exists."
Spaulding v. Butler, 172 Vt. 467, 476, 782 A.2d 1167, 1174 (2001) (internal
quotation marks and citation omitted). "[W]illful, repeated interference
with visitation rights may constitute a legally significant change of
circumstances." Wells, 150 Vt. at 4, 549 A.2d at 1042; see also Bell v.
Squires, 2003 VT 109, ¶ 17, 845 A.2d 1019 (repeated acts of mother and
her family to prevent father from forming positive relationship with
children was grounds for modification of custody); Meyer, 173 Vt. at 200,
789 A.2d at 925 (father's attempt to alienate children from mother was
proper factor to show change of circumstances to modify joint custody
award); Renaud v. Renaud, 168 Vt. 306, 310, 721 A.2d 463, 466 (1998)
("[W]here the evidence discloses a continual and unmitigated course of
conduct by a parent designed to poison a child's relationship with the
other parent, a change of custody from the offending parent may well be in
the child's long-term best interests."); Kilduff v. Willey, 150 Vt. 552,
556, 554 A.2d 677, 680 (1988) ("[U]njustifiable denial of visitation may
warrant a finding that there has been a substantial change of
circumstances.").
¶ 30. In this case, the family court found that mother's "ongoing,
intentional, mean-spirited violations" of court orders concerning
parent-child contact constituted a material and substantial change of
circumstances. The court found that since the last motion to modify,
mother had continued to interfere with father's telephone contact with the
children; she had attempted to keep father from attending one of the
children's First Communion by refusing to tell him when the ceremony was
scheduled; and she had filed a form with the children's school claiming
that her boyfriend was the children's stepfather, which meant that father
was not permitted to get information about the children. These findings
support the court's conclusion that mother has engaged in "willful,
repeated interference" with father's visitation rights. See Wells, 150 Vt.
at 4, 549 A.2d at 1042. We therefore find no abuse of discretion in the
court's conclusion that there had been material and substantial change in
circumstances since the final divorce order.
¶ 31. In reaching this conclusion, we reject mother's assertion
that the family court's findings as to mother's interference with father's
telephone contact are not supported by the evidence or are otherwise
erroneous. The record provides support for each of the court's findings.
Father testified extensively about mother's interference with his ability
to contact the children on the telephone. As part of his case, father
played a tape recording of a telephone conversation that he had with one of
the children. The court did not abuse its discretion in overruling
mother's hearsay objection and admitting this tape-recorded statement into
evidence. As the attorney for the children pointed out, the tape-recorded
statement was not offered for the truth of the child's statement, but
instead to show the inappropriateness of the child's behavior, and to
demonstrate mother's manipulation of the child. See V.R.E. 801(c) (an
out-of-court statement can be considered hearsay if it is offered as proof
of the matter asserted therein); State v. Bernier, 157 Vt. 265, 269, 597
A.2d 789, 791-92 (1991) (questions on tape recording not hearsay because
not offered for proof of the matters asserted in them). Mother did not
raise any other objection to the introduction of this evidence at the
hearing, and she therefore waived her argument that the court erred in
admitting the tape because it was difficult to ascertain what the child was
saying.
¶ 32. We also reject mother's assertion that there was no evidence
that she directed the children to make derogatory statements to father, or
that the children specifically said "pay your child support or stop
calling." While mother correctly notes that the children did not make the
exact statement quoted above, the evidence in the record amply supports the
court's finding that it was "beyond doubt" that mother prompted the
children to make derogatory statements to father involving child support
issues. Any error in the wording of the court's finding is harmless.
¶ 33. The family court's finding that mother refused to tell father
when one of the children's First Communion ceremony was being held is also
supported by credible evidence in the record. Mother argues that this
finding cannot support a conclusion of changed circumstances because she
has full authority in religious matters involving the children. This
argument is without merit. No one disputes that mother had sole authority
to make decisions for the children concerning religious issues. Instead,
the court found that mother's behavior evidenced her continued interference
with father's ability to participate in the children's lives. We therefore
reject this argument.
¶ 34. Finally, the record supports the family court's finding that
mother filed a form with the children's school that listed her boyfriend as
the children's stepfather, which impeded father's ability to obtain
information about the children. Father testified to this effect, and he
introduced the school form into evidence. Father stated that mother's
reference to "court orders on file" next to his name on the form implied
that he was not allowed to have any contact with the children. The court
overruled mother's objection that the document had been "doctored" based on
the testimony of mother's boyfriend, who stated that he recognized mother's
signature on the form. The court did not abuse its discretion in admitting
this document into evidence. Whether father was actually denied access to
the children at school is immaterial to the court's finding that mother's
behavior demonstrated her continued attempts to interfere with father's
role in the children's lives.
¶ 35. The family court's findings support its conclusion that there
has been a real, substantial and unanticipated change of circumstances
since the final divorce order was issued. See Hoover v. Hoover, 171 Vt.
256, 258 n.2, 764 A.2d 1192, 1193 n.2 (2000) (for purposes of modifying
child custody, circumstances are "unanticipated" if they were not expected
at the time of the divorce). We therefore affirm its conclusion.
¶ 36. Mother next argues that the court abused its discretion in
finding that a change of custody was in the children's best interests. She
maintains that because there was no allegation that she was interfering
with father's physical contact with the children, and because the court had
not yet taken the lesser step of finding her in contempt, a modification of
custody was inappropriate. Mother also argues that the court improperly
relied on dicta from a 1999 order as justification for its ruling that a
transfer of custody was in the children's best interests. Finally, mother
asserts that the court failed to address the factors set forth in 15 V.S.A.
§ 665, and Wells, 150 Vt. at 4, 549 A.2d at 1041-42, in reaching its
conclusion.
¶ 37. When the family court finds that there has been a real,
substantial and unanticipated change of circumstances, it must consider if
a change in parental responsibilities is in the children's best interests.
15 V.S.A. § 668. In conducting its analysis, the court must consider the
statutory factors set forth in 15 V.S.A. § 665(b). The moving party bears
the burden of showing that a transfer of custody is in a child's best
interest, and "due to the value of stability in a child's life, it is a
heavy one." Habecker v. Giard, 2003 VT 18, ¶ 5, 175 Vt. 489, 820 A.2d
215 (mem.). The family court has broad discretion in determining a child's
best interests. Spaulding, 172 Vt. at 475, 782 A.2d at 1174.
¶ 38. As previously discussed, we recognize that obstruction of
visitation and attempts at parental alienation are not in a child's best
interests, and they may form the basis for a change in custody. Bell, 2003
VT 109, at ¶¶ 15-18; Renaud, 168 Vt. at 309, 721 A.2d at 465-66 ("[T]he
great weight of authority holds that conduct by one parent that tends to
alienate the child's affections from the other is so inimical to the
child's welfare as to be grounds for a denial of custody to, or a change of
custody from, the parent guilty of such conduct."); Wells, 150 Vt. at 4,
549 A.2d at 1042. We are mindful, however, that "willful interference with
court ordered visitations, no matter how deplorable, cannot be made the
basis for an 'automatic' change of custody." Wells, 150 Vt. at 4, 549 A.2d
at 1042 (internal quotation marks and citation omitted). The primary
consideration is a child's best interests, and in making its determination,
the court must consider all of the relevant evidence, including whether the
harm caused by one parent's obstruction of visitation outweighs the harm
that could be caused by a change in custody. Id. at 4-5, 549 A.2d at 1042.
In this case, the family court considered the statutory factors, and all of
the relevant evidence, in arriving at its decision that a transfer of
custody was in the children's best interests. The court's findings are
supported by the evidence, and we find no abuse of discretion.
¶ 39. The relevant factors to guide the court's analysis of a
child's best interests are set forth in 15 V.S.A. § 665(b), and the court's
analysis reflects its consideration of these factors. See Harris v.
Harris, 149 Vt. 410, 413-14, 546 A.2d 208, 211 (1988) (specific findings
tied to each factor unnecessary; it is sufficient if the findings as a
whole indicate that the court took all relevant statutory factors into
consideration in reaching its decision). The family court found that:
mother's anger and vindictiveness created an unhealthy environment for the
children; mother's behavior indicated that she placed her own emotional
needs before the children's needs, to the children's significant detriment;
father, in contrast, demonstrated an ability to put the children's needs
first, and he recognized the damage that this situation was inflicting on
the children; and father showed an appropriate concern for the children's
well-being. The court thus concluded that father was more capable than
mother of providing the children with the guidance that they needed,
meeting their present and future developmental needs, and fostering a
positive relationship with mother. The court also found that the children
had a good relationship with father's new wife, and with their stepsister.
¶ 40. While the court did not discuss in detail the quality of the
children's adjustment to their present housing, school and community, and
the potential effect of any change, or their relationship with mother, it
did consider these factors. The court acknowledged that the children had
lived with mother since the divorce, and that stability was valuable to
them. It found that mother had created a negative and nonsupportive
environment for the children, however, which outweighed the value of this
stability. As the court explained, "the harm caused by Mother's
manipulation and alienation of the children in pursuit of her desire to
punish Father outweighs any benefit that exists in their remaining in her
home." The evidence supports these findings, and the findings reflect the
court's consideration of the effect that a change in custody would have on
the children's present situation, as well as its consideration of the
children's relationship with mother.
¶ 41. Finally, we reject mother's assertion that the court erred by
failing to consider the factors enunciated in Wells, 140 Vt. at 4, 549 A.2d
at 1042. In Wells, we concluded that the family court had abused its
discretion by modifying custody without considering whether the harm caused
by mother's obstruction of visitation outweighed the harm that could be
caused by a change in custody. Id. We noted that in analyzing potential
harm, the court erred by failing to discuss the possible effect of the
removal of the children from mother's household, the extent to which the
children had adjusted to their new out-of-state home, or the children's
preferences. Id. at 5, 549 A.2d at 1042. We stated that the court erred
by modifying custody without considering these questions. Id.
¶ 42. In this case, as previously discussed, the family court
addressed the potential harm that could be caused by a modification of
custody. It specifically found that any harm that would be caused by a
change in custody was outweighed by the benefit of removing the children
from mother's home. Presented with a different factual situation than that
found in Wells, the family court was not obligated to analyze potential
harm using the same method as the Wells court. In light of the family
court's consideration of the overarching principle discussed in Wells, as
well as its consideration of the statutory factors, we find no error.
¶ 43. Further, there is no requirement, as mother argues, that the
court must first find mother in contempt before it may find a transfer of
custody in the children's best interests. Similarly, there is no
requirement that a parent must interfere with physical contact, rather than
just telephone contact, before a modification of custody is appropriate.
The cases cited by mother do not support such blanket propositions.
Finally, we cannot conclude that the family court relied upon dicta from
the 1999 decision to reach its own decision. The record shows that the
court conducted an independent analysis of the relevant factors in arriving
at its decision.
Affirmed in part and reversed in part.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_____________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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Footnotes
Note: Chief Justice Amestoy was present when the case was submitted on
the briefs but did not participate in this decision.
FN1. Mother appealed from one of these orders to this Court, arguing that
the family court had modified the final divorce order without making a
finding that there had been a real, substantial and unanticipated change in
circumstances. We affirmed, finding that the record established that there
had been a change in circumstances, but concluding that the appeal was moot
because the telephone contact schedule at issue had been modified by a
later order.
FN2. The family court's 2001 order was signed only by the presiding judge.
The two assistant judges later filed a notice indicating their disagreement
with the presiding judge's findings of fact, and the new presiding judge
sua sponte struck the court's order and set the matter for a retrial.
Mother appealed to this Court. We reversed the order that called for a
retrial, and reinstated the family court's 2001 order after concluding that
father had waived his right to challenge this decision by failing appeal.
FN3. The docket entries indicate that at a status conference immediately
following this Court's decision reinstating the 2001 order, the family
court ruled that all outstanding motions were moot. Apparently concerned
with the accuracy of that assessment, the court asked the parties to
specify which motions were alive and needed to be heard. The motion to
modify custody was filed in 2002, well after the denial of the earlier
motion to modify, and it was based on conduct that occurred after the 2001
decision. As a result, the court ordered that this motion be heard.
FN4. Mother suggests that there is no showing that this order was mailed to
her. This would be true of any court order. In any event, by filing the
"affidavit" discussed in footnote 5 below, mother showed that she knew that
the motion to modify would be considered by the court. She also filed a
motion to dismiss the custody modification motion, which the court denied,
which shows her awareness of the pending motion.
FN5. The notices were computer generated on a standard form. The notice
sent after mother filed the additional motions was apparently intended to
clearly specify that the new motions would be heard along with those filed
earlier. The bottom of the notice indicated that the specified motions
"will be heard with the currently scheduled hearing." Mother clearly knew
at that point that the motion to modify custody was still pending because
she thereafter filed an "affidavit" asking the court to specify the
unanticipated change of circumstances. As specified by the family court in
its December order, the only motion for modification filed by father that
was still pending was that requesting a change of custody.
The final notice, sent three weeks later, struck the line that stated
that the new, specified motions would be heard with the earlier ones and
substituted "***RESCHEDULED FROM 2/14/03 DUE TO COURT SCHEDULE*****."
Except for the list of motions, which was also on the earlier notice, there
is nothing to suggest that the scope of the adjourned hearing had been
narrowed from that of the earlier hearing.
FN6. The court had terminated the appointment of the guardian approximately
two months before the hearing, finding it unnecessary to have a guardian ad
litem when the children were represented by court-appointed counsel.
FN7. The court reduced the spousal maintenance obligation and remanded to
the magistrate to set a new child support obligation in light of the
changed financial circumstances of the parties and the custodial change.
Mother has not appealed these prospective orders.
