Kasper v. Kasper

Kasper v.  Kasper (2006-171)

2007 VT 2

[Filed 04-Jan-2007]

                                 ENTRY ORDER

                                  2007 VT 2

                      SUPREME COURT DOCKET NO. 2006-171

                             DECEMBER TERM, 2006


  Joseph P. Kasper                     }         APPEALED FROM:
                                       }
      v.                               }
                                       }         Washington Family Court
                                       }
  Eileen Kasper                        }
                                       }         DOCKET NO. 346-9-04 Wndm

                                                 Trial Judge: Christina Reiss

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

       ¶ 1.  Father appeals the family court's final divorce decree in
  which the court assigned physical rights and responsibilities for both of
  the couple's minor children to father but assigned legal rights and
  responsibilities for the youngest child, Masen, to mother.  Father received
  legal rights and responsibilities for Nolan. 

       ¶ 2.  Joseph and Eileen Kasper were married in 1985.  They
  separated in 2004.  They have two minor children, Nolan, age seventeen, and
  Masen, age six.  Mother was willing to share parental rights and
  responsibilities for the two minor children, but father refused.  Thus, the
  trial court had to award sole legal and physical rights and
  responsibilities to one parent or the other.  The court found that mother
  was the primary caregiver until each of the children reached school age,
  and she brought them to work with her when it was necessary for her to do
  so.  Mother has demonstrated love and affection and has consistently
  addressed their medical needs.  Mother was the primary source of regular
  income for the family, and she paid all of the household bills.  As the
  children entered school, father adjusted his work schedule to better help
  the children get ready for school.  He was also home when they got home. 
  The minor children have primarily resided with father since the separation,
  although Nolan attends boarding school.  Father has been primarily
  responsible for daily care of Masen and for getting both boys to sporting
  events. 
   
       ¶ 3.  In evaluating the factors set forth in 15 V.S.A. § 665, the
  family court concluded that both parties had involved the children in their
  marital disputes, "including within the court's observation.  Mr. Kasper
  has done this to a greater extent than Ms. Kasper.  In addition, he has
  fostered the children's alienation from their mother."  The court
  determined both parties to be equally capable of providing for their
  children's present and future developmental needs.  The court agreed with
  father that neither Nolan nor Masen would benefit from moving their primary
  residence to mother's home; however, the court concluded that "Eileen
  Kasper has demonstrated parental judgment at least equivalent to that of
  her husband.  She has participated in her children's sports activities
  without giving them undue precedence.  She has always been the primary
  decision-maker regarding non-emergency medical care."  The family court
  noted that Nolan demonstrated significant alienation from his mother.  "The
  estrangement between Nolan and his mother renders it impossible for her to
  exercise legal rights and responsibilities by consulting with him and
  seeking his input regarding her decision making.  At 17 years old, a child
  should be able to participate in this process."  Thus, the family court
  agreed that father should have both legal and physical rights and
  responsibilities for Nolan.

       ¶ 4.  The court determined that Masen's relationship with his
  mother was strong, and that it was in his best interests to protect that
  relationship.  Granting father all decision-making authority would likely
  exclude mother from the process completely.  The court noted that if
  parents cannot agree, one party must have the ability to make decisions on
  behalf of the child.  "But that requirement does not lead to the inexorable
  conclusion that one parent must be awarded all rights and
  responsibilities."  Shea v. Metcalf, 167 Vt. 494, 500, 712 A.2d 887, 890-91
  (1998).  Therefore, the family court awarded physical rights and
  responsibilities for Masen to father, but it awarded legal rights and
  responsibilities to mother.  

       ¶ 5.  "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).  Where the family
  court's award of custody reflects its reasoned judgment in light of the
  record evidence, its decision may not be disturbed.  Porcaro v. Drop, 175
  Vt. 13, 18, 816 A.2d 1280, 1285 (2002).  

       ¶ 6.  Father first argues that the trial court's conclusions were
  not supported by the evidence.  To support this claim, father submits
  numerous arguments about what the testimony showed.  For example, he
  asserts that "[t]he court incorrectly found that Joe had returned Christmas
  presents to Eileen that she had sent to the children, when, in fact, the
  uncontroverted testimony was that the children 'had to take them back'
  because the clothes smelled bad."  Father also objected to the trial
  court's implication that he over-emphasized his sons' participation in
  sports.  Having examined the transcript, the Court concludes that the
  family court made no error in describing the evidence in the manner that it
  did.  The family court, in exercising its broad discretion in custody
  determinations, is entitled to "draw upon [its] own common sense, . . .
  experience in life, and the common experience of mankind and be able to
  reach a reasoned judgment."  Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 601 (1989).  The family court's conclusions were supported by the
  evidence in this matter. 
        
       ¶ 7.  Father next argues that awarding mother legal rights and
  responsibilities was an abuse of discretion.  Specifically he contends that
  mother's past mental health problems make her unfit to exercise legal
  custody over Masen.  He also claims that awarding mother legal rights and
  responsibilities is not in Masen's best interests.  The family court
  addressed both concerns.  The court found that although mother was as
  capable as father of providing Masen with food, clothing, medical care, and
  material possessions, her mental health issues weighed against awarding her
  physical rights and responsibilities.  The court also stated that both
  parents could provide Masen with love and affection, but there was little
  evidence that either could provide appropriate guidance.  The court found
  that the parents had equal ability to provide for Masen's present and
  future developmental needs.  In addition, neither parent had much ability
  to foster a positive relationship between Masen and the other parent, but
  mother's behavior had been less egregious than father's.  The court
  concluded that it was in Masen's best interest to maintain relationships
  with both of his parents.  The relationship between the parents, as
  testified to and observed throughout the proceeding, left the court with
  doubt that father would foster a relationship between Masen and his mother
  absent a court order.  Father suggests that the family court could have
  effected this same result using other tools, such as requiring father to
  consult with mother on major decisions.  See 15 V.S.A. § 665(d) ("the court
  may order a parent who is awarded responsibility for a certain matter . . .
  to inform the other parent when a major change in that matter occurs."). 
  Whether the family court had other effective options is not the focus of
  our inquiry.  This Court must determine whether the family court abused its
  discretion in choosing the option it did.  Having considered the record
  that was before the family court, we cannot conclude that the judgment in
  this case was unreasonable.  

       Affirmed.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice