Putnam v. Putnam (95-535); 166 Vt. 108; 689 A.2d 446
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
Catherine A. Putnam Supreme Court
On Appeal from
v. Windham Family Court
Jeffrey S. Putnam, Sr. September Term, 1996
John P. Wesley, J.
Gwendolyn W. Harris of Kiewel & Harris, P.C., Brattleboro, for
David A. Gibson, Brattleboro, for defendant-appellant
PRESENT: Allen, C.J., Dooley, Morse and Johnson, JJ., and
Mandeville, D.J. (Ret.), Specially Assigned
ALLEN, C.J. Defendant husband appeals from a final order of the
Windham Family Court in a divorce action in which the court awarded legal
rights and responsibilities for the parties' minor child to plaintiff wife.
Husband claims that the court erred by (1) striking the final stipulation
of the parties in which they agreed, with court approval, to joint legal
responsibility for their child and payment of $7500 from husband to wife;
(2) denying his motion for appointment of an attorney to represent the
interests of the child; (3) awarding wife sole legal and physical
responsibility for the child; and (4) awarding $12,000 to wife as her share
of the equity in the marital home. We affirm.
Husband and wife married in 1987 and had a son in 1991. Since 1994
husband has been employed by the buildings department of a college. Prior
to that date he worked for a plumbing service. Wife has been employed as a
school bus driver since 1990. According to the trial court, the marriage
was "characterized by a high degree of criticism and intolerance" with
husband often degrading wife's performance as a wife and mother. Although
husband was not
regularly physically abusive toward wife, the court found that in spring of
1993, he "became violently angry over being refused sex . . . [and] kicked
her repeatedly until she was forced to leave their bed and bedroom." It
also found that, "[i]n a manner which [wife] took as serious, [husband] has
indicated that he has felt angry enough to kill her."
Prior to the bedroom incident the couple discussed divorce but decided
to stay together for their son. Husband also made it clear that he would
fight wife for custody if she insisted on a separation. After the
incident, however, wife began to spend a substantial amount of time away
from the marital home. On several occasions she stayed out late or did not
return home, spending some time with a male companion. During these
periods, husband cared for the child. Wife arranged to be home when husband
was not present and while at home she cared for the child.
In 1992 husband's parents gave the parties the house in which they had
been living since 1987. In fall of 1993 husband and wife negotiated a
$40,000 mortgage on the home. The purpose of the financing was, in part,
to provide wife with money to buy her own residence. Husband gave wife
$1700 from the mortgage proceeds when the parties separated in October
When wife left, husband did not allow her to take the child, who was
almost two years old. From October 1993 to the filing of the divorce
action by wife in February 1994, the child resided primarily with husband.
Prior to their separation, both parents had shared responsibility for their
son, although wife was principally responsible for his day-to-day care and,
as the trial court found, almost entirely responsible for his medical care.
On the same day that wife commenced this action for divorce, the court
issued a final order of relief from abuse, finding that husband had
physically abused wife during an altercation concerning parent-child
contact. The court also decreed shared custody of the parties' son with
exchanges of the child to be conducted through wife's adult daughter.
Following several modifications and an uncontested hearing, the parties
signed a final stipulation on September 12,
1994. The agreement called for joint legal responsibility and a
continuation of the schedule set forth in previous temporary orders. The
stipulation also required husband to pay wife $7500 for her interest in the
The court approved the final stipulation on September 13 and directed
counsel to prepare a written order. On September 26, wife, through her new
attorney, moved to strike the stipulation, arguing that she had entered
into the agreement under duress. Wife also moved for appointment of a
guardian ad litem (GAL). The court appointed a GAL and issued an order of
divorce reserving for further hearing the issues of parental rights and
responsibilities and property distribution. The court set aside the final
stipulation on March 2, 1995. It found that wife signed the stipulation
while under duress and described the agreement as a fraud upon the court
involving collusion between the parties. Husband then moved for
appointment of an attorney to represent the child, which the court denied.
After a hearing on the merits, the court decreed sole legal and
physical responsibility for the child to wife, subject to husband's right
to parent-child contact. The court also valued the parties' equity in the
residence at $35,000 and awarded wife $12,000 as her share.
On appeal, husband first contends that the court erred in striking the
final stipulation of the parties because there is no evidence of duress,
collusion, or fraud. He maintains that "[t]here may well have been
pressure, as there is in every contested suit, to bring matters to a
close," but such pressure is not sufficient to justify the setting aside of
the stipulation. Wife argues that the evidence was sufficient to support
the court's findings and its order striking the final stipulation.(FN1)
Although we agree with husband that "this Court should reinforce the
policy that settlement agreements between parties are to be promoted and
should be enforced," we also note that the policy favors "voluntary
settlement of marital disputes." Bendekgey v. Bendekgey, 154 Vt. 193, 197,
576 A.2d 433, 435 (1990) (emphasis added). A court-approved, property
distribution agreement can be set aside if there is a showing of "fraud,
unconscionable advantage, impossibility of performance, hampering
circumstances beyond the expectation of the parties, collusion, or duress."
Burr v. Burr, 148 Vt. 207, 209, 531 A.2d 915, 917 (1987). Agreements
concerning parental rights and responsibilities that have received court
approval can be set aside if similar findings are made. See V.R.F.P.
4(a)(1) (Vermont Rules of Civil Procedure apply to divorce proceedings);
V.R.C.P. 60(b) (court may relieve party from final order because of
mistake, inadvertance, excusable neglect, newly discovered evidence, fraud,
etc.). They may also be set aside if a "real, substantial and
unanticipated change of circumstances" has occurred and modification is in
the best interests of the child. 15 V.S.A. § 668. The court in the
present case found that duress, collusion, and a fraud upon the court were
all present when the parties signed the final stipulation. Because we hold
that the evidence was sufficient to support the court's finding of duress
and that the court did not abuse its discretion in setting aside the
stipulation, we do not address the findings of collusion and fraud.
At the hearing on the motion to set aside the stipulated order, wife's
former attorney testified that based on his observations of wife and his
conversations with her, husband "was the boss and she had to do things the
way and at the time that he requested that they be done or demanded that
they be done." He further testified that wife "was always . . . concerned
about what [husband] would do or wouldn't do if she took a particular
position." He observed that wife feared her husband and that fear never
subsided during his representation of her. He also
testified that she was "tired of fighting . . . battles every time she
wanted to see her son" and "she had reached the end of her rope." He
acknowledged that in many divorce cases there comes a time when the parties
are "emotionally spent" and need to put the divorce behind them, but that
the extent and degree of wife's emotional exhaustion was more severe than
in most cases.
Under the parties' temporary agreements wife and husband shared legal
and physical responsibility for the child. This was implemented through a
complicated schedule of visitation. Wife testified that the parties
originally followed the arrangement but stopped doing so because it was not
in the child's best interest. She explained that her son "was a mess. He
was sick all the time. He was having spiked fevers. He . . . just could
not handle going back and forth. He could not handle the two separate
schedules . . . ." She testified that she tried seeing a counselor to find
out what would be best for the child. She also tried talking to her
husband about the situation, but these attempts were futile because "[h]e
said there was no problem." Because "nothing worked," she "gave up" and
"backed away" from the child. To provide her son with more stability, she
told husband that she would see the child only occasionally.
At the hearing prior to the court's approval of the stipulation, wife
testified that the parties were not following the temporary, joint custody
agreement because it was not in the child's best interest. She also
stated, however, that she agreed with the final stipulation and that the
parties would follow it, even though it too required shared custody. When
questioned at the hearing to determine whether the stipulation should be
set aside, she testified that she did not express her disagreement with the
stipulation because she was afraid of what would happen to her if she
fought for sole custody. She feared that if she made husband angry, he
would cause her bodily harm or use the child to punish her, as he had in
the past. Because she was too afraid to express her real opinion, she was
hoping the court would realize that there was something wrong as the
parents were signing an agreement that they had not been following. She
testified that she "felt [she] had no other choices. Everything was just
Nobody was listening."
We agree with husband that parties are often under pressure in
contested divorces and normally pressure alone is not sufficient to
overturn a court-approved agreement of the parties. There are situations,
however, where the normal boundaries of negotiation and compromise are
exceeded and the court is justified in refusing to honor such agreements.
See Burr, 148 Vt. at 209, 531 A.2d at 917 (setting aside court-approved
stipulation because of substantial pressure placed upon parties by court).
The testimony indicates that wife feared that husband would harm her if she
expressed a view contrary to his. Prior to the stipulation, husband
physically abused wife on two occasions, emotionally abused her regularly,
and threatened her. In addition, there was testimony as to wife's mental
exhaustion and sense of hopelessness from repeatedly attempting to
cooperate with husband to no avail. We hold that the totality of
circumstances in this case, as demonstrated by the evidence, show that wife
entered into the final stipulation while under duress and that the trial
court did not err in setting aside the stipulation.
Husband next argues that the court erred in denying his motion for
appointment of counsel to represent the child because "the situation and
the widely diverse positions of the parties" necessitated legal
representation. He maintains that whether the court was correct in finding
collusion, "the fact that it was so observed . . . is an indication that
the lower court believed that neither parent was thinking foremost of what
was in the best interests of their son." Wife responds that there was no
need for an attorney because the court appointed a GAL and there was no
indication that the GAL could not adequately represent the child's
V.R.F.P. 7 governs representation of minors by attorneys and GALs in
divorce and separation proceedings. Appointment of counsel is within the
trial court's discretion. V.R.F.P. 7(b); see also 15 V.S.A. § 594(a) ("The
court may appoint an attorney to represent the interest of a minor or
dependent child with respect to child support and the allocation of
and responsibilities.") (emphasis added). This is in contrast to V.R.F.P.
6, which governs representation of minors in proceedings involving juvenile
court and involuntary guardianships. Appointment of an attorney is
mandatory under Rule 6(b). The difference stems from the State's role
under each rule. In Rule 6 proceedings the State and minor child are
adversaries and assignment of counsel "is critical to maintaining a fair
balance between the state and the individual." Reporter's Notes, V.R.F.P.
6. Under Rule 7, the State's "interest is principally to protect the best
interests of nonparties - the children." Reporter's Notes, V.R.F.P. 7.
Thus counsel is generally not assigned because "[t]he focus is almost
exclusively on best interests rather than on rights." Reporter's Notes,
V.R.F.P. 7. The best interests of a minor in Rule 7 proceedings may be
adequately protected by a GAL, who "act[s] as an independent parental
advisor and advocate whose goal [is] to safeguard the child's best
interest." V.R.F.P. 7(d).
Husband has not demonstrated that the court abused its discretion in
declining to appoint counsel for the child. Without determining whether
the court was correct in finding collusion, we note that the assumption
that neither parent was thinking of the best interests of their son does
not necessarily follow from such a finding. Furthermore, regardless of
whether the child was foremost in the parties' thoughts, the court
appointed a GAL to protect the child's best interests, and husband does not
show that the GAL failed to protect those interests.
Husband's third claim of error is that the court should not have
awarded wife sole legal and physical responsibility for the child. In
support, he argues that (1) during the first year and a half both parties
cared for the child, but during the next year and a half husband was the
primary care provider; (2) wife "deliberately failed to care for or nurture
[the child] for the full amount of time allotted to her"; (3) the court
gave too much weight to the testimony of a clinical psychologist who
recommended that wife provide primary care for the child, and not enough
weight to the testimony of a day care provider who testified that husband
acts like a loving father who knows his child's needs; and (4) the court
ignored Harris v. Harris, 162 Vt. 174, 647 A.2d 309 (1994), in which
custody was awarded to the father, who, husband claims, had become the
primary care provider.
Orders of the court concerning parental rights and responsibilities
are governed by 15 V.S.A. § 665. That section directs the court to
consider the best interests of the child and at least nine factors in
making its determination. Id. § 665(b)(1)-(9). The court must "make
findings on as many of those factors as the evidence will support."
Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989). It has
broad discretion in awarding custody, Nickerson v. Nickerson, 158 Vt. 85,
88, 605 A.2d 1331, 1333 (1992), and its findings will not be overturned
unless clearly erroneous. V.R.C.P. 52(a)(2).
Although the court in the present case observed that "[e]ach parent
has demonstrated a significant capacity to provide [the child] with love
and affection," it found several factors that favor wife and none that
favor husband. It concluded that wife is better able to provide the child
with guidance, meet his present and future developmental needs, and apply a
perspective in tune with the child's needs. See 15 V.S.A. § 665(b)(1),
(3), (5). As the court found, these conclusions are supported by the
manner in which wife handled the child's inability to adapt to shared
custody. "Believing that an equal sharing of time was not in [the child's]
best interest, and finding [husband] unresponsive to any proposal for
lessening his periods of responsibility for the child, [wife] unilaterally
decreased her time, hoping to provide [the child] with a more stable
The court also found that wife is the primary care provider. See id.
§ 665(b)(6). The court acknowledged that husband had had more
responsibility for the child since spring of 1993, yet it emphasized "the
significantly greater role played by" wife from the child's birth to the
point of marital crisis. It also found that before and after the parties'
separation, wife exercised exclusive responsibility for the child's medical
care. These findings are sufficiently supported by the record. We
therefore reject husband's argument that in determining which parent is the
primary care provider, his time with the child after the separation
outweighs the role wife played, and continues to play, in the child's life.
Regarding husband's other arguments, we agree that wife intentionally
declined to maximize the time allotted to her by the temporary custody
agreements. As the court observed, however, wife did not fully exercise
her rights because of the negative effect shared custody was having on the
child. We will not penalize wife for placing the mental and physical
health of her child above her own self-interest. Next, we find no error
with the court's weighing of the testimony of the psychiatrist and day care
provider. "We have consistently held that `"[w]hen the evidence is
conflicting the credibility of the witnesses, the weight of the evidence,
and its persuasive effect are questions for the trier of fact, and its
determination must stand if supported by credible evidence . . . ."'"
Nurenberg v. Corey, 145 Vt. 341, 343, 488 A.2d 440, 441 (1985) (quoting
LaFlamme v. Church, 143 Vt. 219, 220, 465 A.2d 268, 269 (1983) (quoting
Concra Corp. v. Andrus, 141 Vt. 169, 173, 446 A.2d 363, 365 (1982))). The
court was well within its discretion in emphasizing the testimony of the
psychiatrist over the testimony of the day care provider. We also do not
agree that the court ignored Harris, 162 Vt. at 174, 647 A.2d at 309.
Contrary to husband's belief, the court did not find that the father in
Harris had become the primary care provider. Instead, the court
specifically held that the mother was the primary care provider but that
the child had a stronger relationship with the father and would thrive in
his custody. Id. at 177-79, 181, 647 A.2d at 312, 314. This wide
discrepancy between the child's relationship with one parent and his
relationship with the other is not present in this case; as the court
observed, the child "has a strong and caring bond with each [parent]." We
see no inconsistency between Harris and the trial court's order in the
In addition, husband seems to imply that the court awarded custody to
wife simply because of gender, an action that is prohibited by 15 V.S.A. §
665(c). Husband does not cite anything in the record to support his theory
and we likewise do not find any statements by the court to substantiate his
argument. We hold that the court did not act contrary to the mandate of §
665(c) in awarding sole legal and physical responsibility to wife.
Finally, husband contends that the court improperly awarded wife
$12,000 as her share
of the equity in the marital home. He explains that the parties originally
agreed to $5000 but that he "yielded" to wife by consenting to $7500.
According to husband, the court should have awarded wife only $7500, the
amount set forth in the final stipulation. Next, husband argues that the
motion to vacate the stipulation pertained only to the issue of parental
rights and responsibilities because wife stated that property distribution
was not a factor in her decision to file the motion. Finally, husband
maintains that the short duration of the marriage, the source of the gift
of the property, and the receipt by wife of a portion of the mortgage
proceeds and other personal property should have led the court to find that
an award of $7500 was fair and reasonable.
The distribution of property in divorce proceedings is governed by 15
V.S.A. § 751. Under § 751, the court is required to consider all relevant
factors, twelve of which are listed. Id. § 751(b)(1)-(12). The court has
broad discretion in determining property dispositions. Williams v.
Williams, 158 Vt. 574, 577, 613 A.2d 200, 202 (1992).
We disagree that wife's motion to strike the final stipulation
concerned only the provisions relating to custody. The motion specifically
requested the court to vacate the agreement "in its entirety." In
addition, at the hearing on the motion the court explained that its new
"order deals with the property and the parental rights and
responsibilities." The court thus struck the entire stipulation. We also
disagree with husband's characterization of the statements wife made at the
hearing. Wife did not say that property distribution was not a factor in
her decision to file the motion. Instead, she stated that she did not care
about the money. She merely expressed a sentiment that the custody of her
son was her foremost concern. We also note that husband's "yielding" to a
request for an amount that the court later found to be inadequate does not
prove that wife voluntarily signed the agreement. The court therefore did
not err in vacating the entire stipulation.
In examining the statutory factors, the court acknowledged that the
marital home was given to the parties by husband's parents. Because of the
short duration of the marriage, it
inferred that the intention of the parents was to benefit their son. Yet
it also found that the contributions of each party to the marital estate
were essentially equivalent. It found that the parties had already divided
the personal property and, as far as the testimony indicated, each received
property of nearly equivalent value. The court then awarded the marital
home to husband and ordered him to pay wife a sum equal to only one third
of the equity in the property. We find no abuse of discretion and hold that
the court did not err in making its property disposition.
FOR THE COURT:
FN1. Wife also argues that husband's appeal of the March 2, 1995
order striking the stipulation is untimely. She contends that the court's
decision constitutes a final order and husband should have appealed within
thirty days of the order. See V.R.A.P. 4; 12 V.S.A. § 2383.
"To be final and appealable an order must end litigation on the merits
or conclusively determine the rights of the parties, leaving `"nothing for
the court to do but execute the judgment."'" In re Burlington Bagel
Bakery, Inc., 150 Vt. 20, 21, 549 A.2d 1044, 1045 (1988) (quoting Nagle v.
Lee, 807 F.2d 435, 438 (5th Cir. 1987) (quoting Catlin v. United States,
324 U.S. 229, 233 (1945))). After the court set aside the parties' final
stipulation, the issues of parental rights and responsibilities and
property distribution remained for further consideration. The court's
order, therefore, was not final, and husband's appeal, filed within thirty
days of the September 15, 1995 order awarding parental rights and
responsibilities and $7500 to wife, was timely.
FN2. Wife also argues that husband's appeal of the denial of his motion for
appointment of counsel is untimely. We disagree for reasons previously