Dunning v. Meaney

DUNNING_V_MEANEY.92-441; 161 Vt. 287; 640 A.2d 3

[Opinion Filed 05-Nov-1993]

[Motion for Reargument Denied 26-Jan-1994]

 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. 92-441


 Glenn Dunning                                Supreme Court

                                              On Appeal from
      v.                                      Washington Family Court

 Barbara (Dunning) Meaney                     September Term, 1993



 Dean B. Pineles, J.

 Brian J. Grearson of Grearson & Rose, P.C., Barre, for plaintiff-appellant

 Richard I. Burstein and Pamela Stafford, Randolph, for defendant appellee/
  cross-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.




      GIBSON, J.   Plaintiff Glenn Dunning appeals the denial of his motion
 to modify the divorce decree and award him sole physical rights and
 responsibilities for the parties' minor child, Travis.  Defendant Barbara
 (Dunning) Meaney cross-appeals, claiming the court erred by failing to
 terminate Glenn's shared legal rights and responsibilities for Travis and by
 denying attorney's fees.  We reverse the denial of attorney's fees, but
 otherwise affirm the court's decision.
      The parties were divorced on July 26, 1989.  Pursuant to stipulation,
 the court awarded Barbara physical rights and responsibilities for Travis,
 with legal rights and responsibilities relating to health, education, and

 

 general welfare to be shared by the parties.  The decree provided a liberal
 visitation schedule for Glenn and included a procedure for working out a
 change in the schedule if circumstances warranted.
      In 1990, Barbara finished the two-year program at Vermont Technical
 College and obtained full-time employment.  During this period, Travis spent
 approximately half of his time with Glenn, which was more time than the
 stipulated schedule provided.  This arrangement continued until Barbara was
 injured at work and became unemployed.
      Desiring to complete her bachelor's degree in the horticultural field,
 Barbara decided to attend the State University of New York in Albany and
 planned to move there in the summer of 1992.  Glenn objected to this move
 and the parties attempted to resolve the disagreement through the process of
 mediation, as provided in the divorce decree.  Mediation failed, however,
 and Glenn moved to modify the decree, seeking sole physical and legal
 responsibility for Travis.
      The court granted Barbara's motion to bifurcate the trial, ruling that
 it would consider the best interests of the child only if there were a
 threshold showing of a real, substantial and unanticipated change of circum-
 stances.  See Pill v. Pill, 154 Vt. 455, 459, 578 A.2d 642, 644 (1990)
 (court may consider best interests of children only after it has made
 threshold finding that there has been real, substantial and unanticipated
 change of circumstances).  The court did not reach the "best interests"
 issue because it concluded there was no change of circumstances sufficient
 to satisfy the threshold; it therefore refused to modify the physical or
 legal rights and responsibilities for Travis.

 

      On appeal, Glenn claims that (1) he was entitled to a hearing on his
 motion to amend the findings of fact; (2) the court erred in considering
 evidence that predated the divorce order; (3) the court's findings do not
 support its conclusions; and (4) the court should have examined the best
 interests of the child because the parties waived the threshold showing, or,
 alternatively, because the threshold showing was satisfied.  In her cross-
 appeal, Barbara argues that the court erred by failing to award attorney's
 fees, failing to modify the legal rights and responsibilities of the
 parties, and concluding that a future move may be a sufficient change of
 circumstances to warrant modification.
                                     I.
      Glenn first argues that the trial court erred in denying a hearing on
 his motion to amend the findings of fact and conclusions of law.  A hearing
 on a motion to amend findings of fact and conclusions of law is not
 required.  V.R.C.P. 78(b)(2) (providing for disposition of motions without
 hearing).  The court denied the motion, stating that Glenn's arguments were
 essentially restatements of arguments that had already been fully consider-
 ed.  We find no abuse of discretion in this ruling.
      Second, Glenn asserts that the trial court erred by relying on evidence
 that predated the divorce decree.  In a modification proceeding, a trial
 court's findings concerning events that occurred prior to the divorce decree
 will not be reversible error unless there is a demonstration of prejudice.
 Hayes v. Hayes, 144 Vt. 332, 338, 476 A.2d 135, 139 (1984).  In its
 findings, the court referred to the parties' predivorce discussions of a
 possible 100-mile restriction on Barbara's relocation.  The court did not
 rely on these discussions for its conclusion that Glenn had failed to make a

        

 threshold showing of a change in circumstances.  Rather, this evidence
 merely aided the court in concluding that there had been uncertainty about
 Barbara's future plans at the time of the divorce.  There has been no
 demonstration of prejudice to Glenn.
      Third, Glenn contends that the court's findings fail to support its
 conclusions.  As long as the findings reasonably support the judgment, we
 will uphold the court's decision.  Bassler v. Bassler, 156 Vt. 353, 363, 593 A.2d 82, 88 (1991); see also Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988) ("We cannot set aside the custody award because we would
 have reached a different conclusion from the facts.").  Glenn claims that
 since the court found his contact with Travis had increased to fifty
 percent, it could not conclude that Barbara had retained sole physical
 rights and responsibilities, and that a change of such magnitude requires a
 modification of physical rights and responsibilities.  The court found,
 however, that the divorce order had provided Glenn with liberal visitation
 rights and that the parties had always cooperated and been flexible with
 respect to parent-child contact.  It concluded, therefore, that the
 increased contact with Travis was not a substantial change and was not
 unanticipated.  Further, the court concluded that to find a change in
 circumstances on the basis of increased contact would penalize Barbara for
 her willingness to allow the contact.  The court's findings support its
 conclusions.
      Glenn further contends that the divorce order contemplated the
 possibility of a permanent move by Barbara to pursue a career, whereas her
 move to pursue an education in Albany would be temporary and was thus not
 anticipated by the parties.  The court did not find this distinction

 

 significant.  It found that the parties clearly anticipated that Barbara
 might move and that they had provided for a possible change in the visita-
 tion schedule if such a move occurred.  Although the parties may wish to
 alter the visitation schedule in light of Barbara's move to Albany, we
 agree that the move itself does not amount to a real, substantial or
 unanticipated change in circumstances justifying modification of the
 physical rights and responsibilities.
      Glenn also argues that the court's findings could equally well support
 an award in his favor and that the court erred in not pointing out what
 evidence "tipped the scale in favor of" Barbara.  Gustin v. Gustin, 148 Vt.
 563, 565, 536 A.2d 933, 935 (1987).  Since the threshold showing of a real,
 substantial and unanticipated change in circumstances was not met, we do not
 reach this argument.
      Finally, Glenn claims the court should have examined the best interests
 of the child because the parties waived the threshold requirement in para-
 graph 3 of the divorce decree.  That paragraph states:
           Both parties recognize that at such time as the
         Defendant completes her college education and obtains
         full time employment, such circumstances may indicate
         the need for a change in the visitation schedule as set
         forth in the preceding paragraph.  The parties will
         attempt to come to an agreement that takes into consid-
         eration their residences and work schedules and which is
         at the same time consistent with the child's best inter-
         ests in maintaining contact and a meaningful relation-
         ship with both the parties, as circumstances may allow.
         If the parties are unable to reach an agreement between
         themselves, they will attempt mediation process before
         either party seeks relief from the Court for a change in
         the visitation schedule as set forth above.

 This paragraph refers only to a possible change in "the visitation

 

 schedule," and not the physical rights and responsibilities.  Therefore, the
 waiver argument lacks merit.
                                     II.
      In her cross-appeal, Barbara first contends that the court erred in
 denying attorney's fees.  The trial court has discretion to award attorney's
 fees, but to make a decision "[w]ithout knowing the financial obligations
 and resources of the parties . . . would be an abuse of discretion."
 Cleverly v. Cleverly, 151 Vt. 351, 358, 561 A.2d 99, 103 (1989).  "The
 primary consideration in awarding attorney's fees is the ability of the
 supporting party to pay and the financial needs of the party receiving the
 award."  Nevitt v. Nevitt, 155 Vt. 391, 399, 584 A.2d 1134, 1139 (1990).
 Here, the court summarily denied Barbara's motion for attorney's fees
 without considering the parties' financial resources or expenses.
      The trial court's findings indicate that Glenn had been steadily
 employed for several years at the time of the modification hearing.
 Barbara, however, had been unemployed for several months, and she was
 planning to return to school full-time in another state.  Beyond this
 general information, the findings fail to analyze the ability of either
 party to pay attorney's fees.  Accordingly, we reverse and remand for a
 further hearing on this issue.
      Barbara also argues that the court erred by not terminating the shared
 legal rights and responsibilities of Glenn.  In the trial court, Barbara
 argued that the modification of legal rights and responsibilities was not an
 issue, and the court agreed with her that the parties' disagreement over
 physical custody of Travis while Barbara completed her schooling did not
 amount to a real, substantial and unanticipated change of circumstances.

 

 Inasmuch as the issue was not raised by Barbara in the trial court, we shall
 not address it here.
      Barbara also argues that the court abused its discretion by discussing
 her possible relocation after she completes school.  The court's observation
 on this point merely mirrored the parties' own agreement that at some point
 there might need to be a change in the visitation schedule.  The observation
 was dicta and, as such, was harmless.
      Reversed and remanded for further hearing on defendant's request for
 attorney's fees; affirmed as to all other issues.


                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice