Woodbury v. Woodbury

ENTRY_ORDER.93-106; 161 Vt. 628; 641 A.2d 367

[Filed 28-Feb-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-106

                             FEBRUARY TERM, 1994


 Darren Woodbury                   }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Windsor Family Court
                                   }
                                   }
 Patty Woodbury                    }
                                   }          DOCKET NO. F24-1-92WrDmd


              In the above entitled cause the Clerk will enter:

      In this divorce, both parties sought custody of their two young
 children.  By agreement, the children were to spend alternate weeks with
 each parent.  The court ordered legal and physical rights and responsibi-
 lities (custody) to mother.  Father was given visitation (parent-child
 contact) on the agreed-upon schedule.  The issue of child custody was close,
 and the court, consisting of the presiding judge and one assistant judge,
 disagreed as to the outcome of custody.  Father appealed.  We affirm.

      The court's findings of fact were signed by the two judges, but the
 assistant judge placed the word "dissent" in parenthesis after her signa-
 ture.  About two weeks later, the assistant judge filed a dissenting
 opinion in which she agreed with most of the facts, noting her few
 exceptions, and made additional findings of fact.

      Father first claims that the dissent triggered 4 V.S.A. { 457(d), which
 requires declaration of a mistrial when a court consisting of the presiding
 judge and one assistant judge "do not agree on a decision."  In Bolduc v.
 Courtemanche, 158 Vt. 642 (1992), we held that assistant judges may not
 award custody.  Nevertheless, the presiding judge must make the custody
 determination based on the findings of fact of the court, which include the
 findings of fact of the assistant judges.  Id.  Thus, merely because the two
 judges in this case differed in some of the findings of fact does not
 automatically lead to a mistrial.  We must decide if the disagreement on the
 facts caused the presiding judge's custody determination to be wrong as a
 matter of law.  We conclude that the disagreement here over some of the
 facts was not critical to the presiding judge's decision on custody, and a
 mistrial was not required.

      Father argues despite Bolduc that assistant judges have the authority
 to make custody determinations under the criteria set forth in 15 V.S.A. {
 665(b).  We disagree because such determinations are mixed questions of law
 and fact, which under 4 V.S.A. { 457(b) are to be decided by the presiding
 judge.  A custody determination involves the application of numerous facts

 

 about the parent-child relationship to the "best interests of the child" set
 forth largely as criteria or standards in 15 V.S.A. { 665(b) (eight factors
 enumerated).  This application is a classic question of mixed law and fact.
 Insofar as father suggests that the Vermont Constitution permits an
 assistant judge, contrary to the statute, to decide mixed questions of fact
 and law, he has inadequately briefed the issue.

      Finally, father contends the custody determination was not supported by
 the findings.  The presiding judge acknowledged that this was a very close
 case and tipped the balance in favor of mother because she had been the
 primary care-provider.  See Harris v. Harris, 149 Vt. 410, 418-19 (1988)
 (primary-care-provider criterion entitled to great weight).  Given the
 deference we give the family court's discretion, we cannot conclude the
 custody determination was clearly erroneous.  Nickerson v. Nickerson, 158
 Vt. 85, 88-89 (1992).

      Affirmed.


                                    BY THE COURT:


                                    _______________________________________
                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Ernest W. Gibson III, Associate Justice

                                    _______________________________________
                                    John A. Dooley, Associate Justice

                                    _______________________________________
                                    James L. Morse, Associate Justice
 [ ]  Publish
                                    _______________________________________
 [ ]  Do Not Publish                Denise R. Johnson, Associate Justice