Harris v. Harris

Annotate this Case
HARRIS_V_HARRIS.93-077; 162 Vt. 174; 647 A.2d 309

[Opinion Filed June 3, 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. 93-077

 Gina Harris                                  Supreme Court

                                              On Appeal from
      v.                                      Grand Isle Family Court

 Frank Harris                                 March Term, 1994

 David A. Jenkins, J.

 Paul D. Jarvis of Jarvis and Kaplan, Burlington, for plaintiff-appellant

 Stephen S. Blodgett of Blodgett, Watts & Volk, P.C., Burlington, for

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

      MORSE, J.   Plaintiff wife appeals a divorce judgment, arguing that the
 court abused its discretion by awarding custody of the parties' son to
 defendant father, thereby separating their two children; by awarding her
 only $10,000 of the marital property; and by declining to award her
 maintenance.  We affirm the custody determination, but reverse and remand
 the property divison and maintenance rulings.
      The parties had been married seven years when they separated in January
 1992.  Under temporary orders, the mother lived in the marital home in
 Grand Isle with both children from January to May 1992, and the husband
 lived in the marital home with the parties' son, Cole, from May to the final
 divorce hearing, four months later.  The parties' daughter, Marissa, moved


 from the home with her mother in May 1992, eventually to a condominium in
 Williston.  At the time of trial on September 11, 1992, Cole was just over
 five-and-one-half years old and Marissa was one day shy of her second
      Following the hearing, the family court ordered that Cole remain in his
 father's custody and that Marissa remain in her mother's custody, with
 visitation by both children on alternate weekends.  The father was awarded
 the marital home.  The court ordered the father to pay the mother, within
 one year of the judgment, $10,000 as her share of the marital assets, and it
 denied the mother's request for maintenance.
       The mother first argues that the court abused its discretion by
 awarding custody of Cole to the father, thereby separating the children.
 She contends the evidence does not support the court's finding that neither
 party was Cole's primary care giver.  In her view, the court erroneously
 gave the father custody of Cole based on the paternal grandmother's prior
 and continuing care for the boy.  She argues the evidence showed that she
 was the primary care giver, which required the court to award her custody of
 both children.  Finally, she contends that the court's findings failed to
 provide an adequate rationale for its custody award.
      We agree with the mother that the court's findings and conclusions
 regarding who was the primary care provider are equivocal.  At one point,
 the court found that it was unable to determine who Cole's primary care
 giver was because his care had been "split" between the mother, the father,
 and the paternal grandmother.  At another point, the court found that the
 father "participated in the care of the children but the care of Cole was


 usually divided between [his mother] and [his father's] mother," and at yet
 another point it concludes that "Cole's child care was divided between his
 mother and his grandmother."
      Our review of the record indicates that the latter statement is the
 most accurate one.  Before the separation, the mother cared for the children
 from the time they got up until noon and again from late afternoon until
 bedtime; the grandmother often cared for the children from noon until four
 o'clock in the afternoon, when the father came home from work.  Thus, this
 was a "traditional" marriage, in which the father worked and the mother
 stayed home and took care of the children.  After the mother moved from the
 marital home with Marissa, most of Cole's basic physical needs were provided
 by the paternal grandmother, who conducts a registered day care facility in
 her house, which is located only seventy-five yards from the marital home.
 She dressed Cole and fed him breakfast after the father went to work.  She
 cared for him during the day until the father got home.  More often than
 not, she served the dinner for both the father and Cole.  Frequently, Cole
 slept at her house.  In short, although the testimony indicated the father
 was very close to his son -- evidenced for the most part by their shared
 interest in fishing, hunting, and softball -- the father had only a limited
 role in providing for Cole's basic needs, even after the mother left the
 marital home.
      Although the grandmother played a significant role in caring for both
 children during the parties' marriage, and for Cole after the parties'
 separation, we conclude, focusing on all periods of the children's lives,
 Nickerson v. Nickerson, 158 Vt. 85, 90-91, 605 A.2d 1331, 1334 (1992), that
 the court erred in finding that it was unable to determine who was the


 primary care giver for Cole.  The evidence leaves no doubt that the mother
 was his primary care provider for his entire life until the last four months
 before the final divorce hearing.
      The court's erroneous finding does not require reversal of the custody
 award, however.  The court's error lies more in its failure to attach the
 appropriate label than to comprehend the relevant circumstances.  Indeed,
 the court's specific assessment of who provided what care for the children
 during particular times of the day was accurate.  The court acknowledged
 that the mother and paternal grandmother shared the child-care duties, and
 that the father's role in that regard was minimal.  We must determine, then,
 whether the mother's role in caring for the children entitled her to custody
 of Cole.
      "[T]he quality of the child's relationship with the primary care
 provider, if appropriate given the child's age and development," is one of
 the nonexclusive statutory factors the court must consider in making a
 custody award.  15 V.S.A. { 665(b)(6).  While we have recognized that this
 factor is entitled to great weight, we have declined to adopt "a rule that
 the primary custodian will be awarded custody as long as the parent is fit."
 Harris v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988); see Peckham v.
 Peckham, 149 Vt. 388, 390, 543 A.2d 267, 268 (1988) ("fact that one party
 acted as primary caretaker is not determinative").  Rather, { 665(b)(6)
 "directs the court to give some weight to continuation of the primary
 custodian with the weight to be determined by the quality of the
 relationship."  Harris, 149 Vt. at 418, 546 A.2d  at 214.  The court must
 consider whether breaking, or even loosening, the bond with the primary
 parent will be detrimental to the child's physical and mental well-being or


 to the child's need for a stable and secure environment.  See 15 V.S.A. {
 665 (court shall make custody award that serves best interests of child);
 Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (best-interest
 analysis examines bond between young child and primary parent as it bears on
 desirability of maintaining continuity).  Thus, the weight to be accorded to
 the primary-custodian factor depends on "the likely effect of the change of
 custodian on the child."  Harris, 149 Vt. at 418-19, 546 A.2d  at 214.
      This is precisely the type of evidence the court relied on in
 determining that Cole should remain with his father.  The court questioned
 the quality of the time Cole spent with his mother, noting that he was
 usually inside the house watching television, and, at times, when he was
 outside, he was left alone.  The court also noted that when Cole resided
 with his mother between January and May 1992, he frequently expressed a
 longing to be with this father, and it concluded, based on the testimony of
 several witnesses, that the boy's emotional state had significantly improved
 since he resumed living with his father.  The court emphasized the close
 relationship Cole and his father had, noting that they both enjoyed being
 outside playing ball or scouting for deer.  The court also pointed out
 that, to a greater extent than Marissa because of his sister's age, Cole had
 a network of friends and family in the Grand Isle area, and that he was
 attached to the community and the marital home.  Given these findings, which
 have support in the record, we conclude that the court's failure to identify
 the mother as the primary care provider does not require reversal.
      The court also made several findings concerning the paternal
 grandmother, stating that Cole was extremely close to her and that she
 played a significant role in his life and development.  The mother argues


 that the court, in effect, chose the grandmother rather than her as Cole's
 custodial parent.  We disagree with that assessment.  Though many of Cole's
 basic physical needs had been provided by the grandmother, the court found
 that the father spent a significant amount of time with Cole, and that the
 two engaged in a variety of activities constructive to Cole's emotional
 development.  The father should not be disadvantaged for his fortune in
 having a mother who operates a day care facility nearby and who is willing
 and eager to care for his son while he is at work.
      With little discussion, the mother argues that the court erred by
 separating the children.  Neither statutory nor case law in Vermont has ever
 directly addressed the appropriateness of separating siblings in custody
 cases.  In general, most courts have concluded that public policy favors
 keeping siblings together in the same home.  E.g., Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988); Anderson v. Anderson, 399 N.W.2d 363, 365
 (S.D. 1987); see Annotation, Child Custody: Separating Children by Custody
 Awards to Different Parents -- Post-1975 Cases, 67 A.L.R.4th 354, 360
 (1989).  The fundamental reason behind this policy is the assumption that
 separation of the children from each other will further weaken familial
 ties that have already been damaged by the parent's divorce, and thus will
 endanger the children's emotional well-being.  See Annotation, supra, at
 360; Pennington v. Pennington, 711 P.2d 254, 256 (Utah 1985) (suggesting
 that where bonding between siblings had occurred, siblings should not be
 forced to face "double emotional trauma" caused by cutting bonds with each
 other as well as with parent).  The potential for future bonding between
 siblings who are very young at the time of their parents' separation also
 militates in favor of keeping the children together.


      Some courts have gone so far as to hold that siblings should not be
 separated absent "compelling" or "exceptional" circumstances, but even those
 courts acknowledge that the ultimate determining factor is the "best
 interests" of the children.  See Wallace v. Wallace, 420 So. 2d 1326, 1328
 (La. Ct. App. 1982) (courts seek to avoid separation of siblings, but
 "paramount question" is what would serve best interests of children); Doren
 v. Doren, 431 N.W.2d 558, 561 (Minn. Ct. App. 1988) (split custody is not
 favored, but it may be appropriate where other factors outweigh need for
 siblings to reside together); Atwood v. Atwood, 664 S.W.2d 673, 674 (Mo.
 Ct. App. 1984) (children of divorced parents should not be separated absent
 exceptional circumstances, but trial court has power to decree separation if
 it is in best interests of children); Bilodeau v. Bilodeau, 557 N.Y.S.2d 471, 472 (App. Div. 1990) (while generally courts discourage separation of
 siblings, split custody decree is proper when best interests of each child
 lies with different parent); M.D. v. B.D., 485 A.2d 813, 816-17 (Pa. Super.
 Ct. 1984) (although general rule is that siblings should not be separated
 absent compelling reasons, this policy is but one factor to be considered in
 determining children's best interests).  Noting that deciding whether to
 separate children is not "susceptible to a precise formula," one court in a
 jurisdiction requiring "exceptional" circumstances to do so stated:
      Analysis of the cases in which this general rule is often
      reiterated discloses that rather than being exceptional, the
      circumstances considered in determining the propriety of an order
      separating siblings are simply those which are seen as being the
      least disruptive of intra-family relationships and the most
      conducive to the establishment and maintenance of a stable and
      nurturing environment during formative years.
 D.S.P. v. R.E.P., 800 S.W.2d 766, 769 (Mo. Ct. App. 1990).


      We agree with this analysis, and hold that the family court should
 avoid separating siblings in custody or divorce proceedings unless the
 evidence indicates that the best interests of the children favor split
 custody.  In determining whether split custody is in the children's best
 interests, the court should consider all relevant factors, including (1) the
 quality of the relationship that the siblings have established with each
 other and with each parent; (2) the age difference between siblings, and the
 existence or absence of common interests; (3) the geographic proximity of
 the separated or divorced parents, and the extent to which the children will
 have an opportunity to continue or develop their relationship through
 visitation; (4) the quality and circumstances of the custody arrangement at
 the time of trial, and the likelihood that a different arrangement would be
 disruptive to the children; and (5) depending on the age of the children,
 their expressed preference as to custody.  See id. at 770; see also Miller
 v. Miller, 444 N.W.2d 45, 47 (S.D. 1989) ("ages and relationships of the
 siblings are factors in determining whether compelling reasons exist to
 separate them").  This list of factors is not meant to be exhaustive, and
 none of the individual factors are meant to be controlling; rather, these
 and other relevant factors should be considered in order to determine the
 best interests of the children.
      In this case, the court found that Cole was especially attached to his
 father and paternal grandmother, and that he had developed roots in the
 community in which his father resided.  In contrast, the court found that
 Marissa was not exceptionally close to her father or her grandmother, and
 that, because of her age, she had not developed ties to the community in
 Grand Isle.  The court also found that Cole's emotional state had improved


 since he left his mother's custody, that he was thriving in his father's
 custody, and that a change in his current situation would have a potentially
 disruptive effect on his life.  Further, although only three and one-half
 years separated the children, the age difference is significant considering
 how young the children were at the time of separation.  Because Cole and
 Marissa were separated from each other when Marissa was only about twenty
 months old, the separation had less potential to create further emotional
 trauma for the children regarding their parents' divorce.  As for the
 children's relationship in the future, the court awarded liberal visitation
 to both parents.
      Based upon the facts of this case and the court's findings, which are
 supported by the evidence, we conclude that the family court did not abuse
 its discretion in ordering split custody of the children.  See Nickerson,
 158 Vt. at 88, 605 A.2d  at 1333 (trial court's broad discretion in custody
 matters will be disturbed only if erroneously exercised, or exercised upon
 unfounded considerations or to extent clearly unreasonable in light of
 evidence); cf. Wallace, 420 So. 2d  at 1328 (split custody upheld where five-
 year-old boy was well-adjusted living with his father for fifteen months
 prior to final divorce hearing, and father resided in family home located
 next door to his parents, who helped look after child); Sefkow, 427 N.W.2d 
 at 215 (split custody upheld where other factors -- bonding to parent and
 stability of home environment -- outweighed need for sisters to reside
 together); Jobe v. Jobe, 708 S.W.2d 322, 329 (Mo. Ct. App. 1986) (despite
 fact that children, ages five and three, got along well, and that father
 depended on his parents to help care for his son while he worked, split
 custody upheld where boy's emotional state improved under father's care,


 there was a close bond between father and son, and liberal visitation was
 available); Estes v. Estes, 490 N.Y.S.2d 939, 940 (App. Div. 1985)
 (separation of siblings upheld where both children were doing well in split
 custody situation under temporary order, son was attached to father and
 daughter was attached to mother, and liberal visitation would be available).
      We offer a final word of caution regarding the custody issue.  In
 rendering its decision, the family court suggested that Cole had a natural
 affinity for his father, who teaches him "things a young boy should know."
 Within the context of all of the court's findings and conclusions, we do not
 interpret its comments in this regard as an indication it applied a
 preference that Cole remain with his father because he was a boy.  If we
 did, we would be compelled to reverse the custody determination.  See 15
 V.S.A. { 665(c) ("court shall not apply a preference for one parent over
 the other because of the sex of the child [or] the sex of a parent"); cf.
 Nickerson, 158 Vt. at 98, 605 A.2d  at 1338 (Dooley, J., dissenting) (citing
 law review article on point that purpose of primary caretaker preference,
 among other things, is to preserve gender-neutrality).
      Next, the mother argues that the court abused its discretion in
 awarding her marital property in the amount of $10,000, which she claims is
 approximately 8% of the marital assets.  The court gave the following
 explanation for its division of the parties' property:
      Both parties are young and healthy.  Both have high school
      diplomas, but no higher education.  While plaintiff was active as
      a homemaker during the marriage, and this may have increased
      defendant's earning power due to the practical experience he
      acquired, neither party contributed to the education or training
      of the other.  Virtually all property acquired during the
      marriage came through the estate of defendant's father, including
      the marital home, the land it sits upon, the improvements made to


      the home financed by defendant's inheritance from his father, and
      the two notes defendant acquired through his father's estate.
      Cole, who will be residing with defendant, is extremely attached
      to and has always lived in the marital home.  Finally, plaintiff
      did not bring any property into, nor acquire, receive, or inherit
      any property during the marriage.
 The father contends that the court's award constitutes 12.6% of the marital
 assets, and argues that the wife is not entitled to more because (1) the
 $200 per month that he receives from two promissory notes valued at $20,000
 was reported as income and factored into the calculation for his child
 support obligation; (2) it was clearly desirable for him to receive the
 marital home because he had custody of Cole, who had lived in the home his
 whole life, and because the property was acquired solely through the
 paternal grandfather; and (3) the mother acted cruelly toward the father
 after the separation by bringing her boyfriend to the marital home.
      We agree with the mother that the court abused its discretion in
 awarding her only $10,000 in marital assets.  The only tenable reason the
 court gave for its minimal award to the mother is that most of the parties'
 marital assets came from the paternal grandfather.  While this is certainly
 a relevant factor, 15 V.S.A. { 751(b)(10) (court may consider party through
 whom property was acquired), it cannot, standing alone, justify the instant
 award.  The marital home was the party's most valuable asset, with an equity
 value of approximately $100,000.  The undisputed testimony was that the
 paternal grandfather gave the father land to build a home on in anticipation
 of the parties' marriage.  The marital home, which was constructed shortly
 before the parties' were married, was financed by a mortgage that has been
 gradually reduced throughout the marriage.  Both parties worked on the home
 before it was completed.


      More importantly, other relevant factors weigh in favor of the mother
 receiving a larger share of the marital assets.  Though this was not a
 particularly long marriage, the mother withdrew from the workforce for over
 seven years to care for the children and provide a home for the father, who
 gained earning power while he remained with the same company.  Although the
 court acknowledged the mother's role as a homemaker, its division of the
 marital property does not reflect the value of these services.  The mother's
 work in the home increased the father's earning power and his opportunity
 for future acquisition of assets.  See 15 V.S.A. { 751(b)(5), (8), and (11).
 Further, the court did not examine the respective needs of the parties, see
 id. { 751(b)(6), or their future prospects based on their vocational skills
 and employability.  See id. { 751(b)(4).  While the father had a steady job
 that paid an annual salary of $36,000, the mother was just reentering the
 work force at $5.35 per hour.  Moreover, because the father was awarded the
 marital home, the mother would have the additional expense of maintaining a
 suitable place to live for herself and her daughter.
      The property division here is strikingly similar to one that we
 overturned in Dreves v. Dreves, ___ Vt. ___, ___, 628 A.2d 558, 560 (1993).
 There, the wife received about 12.5% of the marital assets.  The trial
 court's only explanation for its decision was that the marriage, like this
 one, lasted only seven years, and that the assets were originally
 attributable to the husband.  We pointed out that the husband received a
 substantially larger share of the assets than the wife, despite the fact
 that the wife withdrew from the workforce for two years to serve as a
 homemaker, that the husband's earning capacity was considerably greater than
 the wife's, and that the wife would have to find a suitable place to live


 because she was not awarded the marital home.  Id.  Absent further findings
 from the trial court explaining such a large disparity in the amount of
 assets received by each party, we reversed the court's decision.  Id. at
 ___, 628 A.2d at 560-61; see Daitchman v. Daitchman, 145 Vt. 145, 150, 483 A.2d 270, 273 (1984) (property division awarding five times more assets to
 wife than to husband requires closer examination to assure court considered
 all relevant factors); Emmons v. Emmons, 141 Vt. 508, 511, 450 A.2d 1113,
 1115 (1982) (because property award is final and not subject to
 modification, wide discretion given to trial court must be tempered when
 findings are inadequate).
      We reach the same result here.  While the court should, and did,
 consider the impact of counting the monthly stream from the father's
 promissory notes as income for determining child support, the other factors
 noted by the father are irrelevant.  The fact that the father had custody of
 Cole, who had always lived in the marital home, does not justify a reduced
 award to the mother.  First, the mother has custody of the parties' other
 child.  More importantly, the identity of the custodian is a relevant factor
 in determining who should be awarded the marital home, which, depending on
 the parties' financial circumstances, might affect when the noncustodial
 parent will receive a fair share of the marital assets, but should not
 preclude the noncustodial party from receiving a fair share of those assets.
 As for the mother's alleged cruel treatment of the father, the court found
 that the father was "quite upset" that the mother's boyfriend visited her
 after the parties' separation at the marital home within plain view of the
 paternal grandmother's house, where the father was living at the time.
 While father's reaction is understandable, we fail to see how the mother's


 behavior constituted fault.  See 15 V.S.A. { 751(b)(12) (court may consider
 respective merits of parties).
      Finally, the court's refusal to award maintenance made the property
 award even more inequitable.  See id. { 751(b)(7) (court may consider
 "whether property settlement is in lieu of or in addition to maintenance").
 In declining to award maintenance, the court noted that the mother presented
 no evidence regarding her reasonable needs or her standard of living since
 the parties' separation.  The mother challenges this decision on appeal.  We
 need not reach the issue because we strike the court's maintenance ruling in
 light of our reversal of the property division.  See Dreves, ___ Vt. at ___,
 628 A.2d  at 561 (where property division is reversed, maintenance ruling
 should also be reexamined because of interrelationship between property and
 maintenance awards).
      The provisions of the divorce order dividing the marital assets and
 denying plaintiff maintenance are reversed, and the case is remanded for
 further consideration of those matters; the order is affirmed in all other

                                    FOR THE COURT:

                                    Associate Justice

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