Renaud v. Renaud

Renaud v. Renaud  (97-366); 168 Vt. 306; 721 A.2d 463

[Filed 11-Sep-1998]


       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. 97-366


Daniel M. Renaud                                  Supreme Court

                                                  On Appeal from
    v.                                            Franklin Family Court

Gail E. Renaud                                    March Term, 1998


Linda Levitt, J.

       Jan E. Bernasconi of Paul, Frank & Collins, Inc., Burlington, for
  Plaintiff-Appellant.

       Sandra M. Lee of Keiner & Dumont, P.C., Middlebury, for
  Defendant-Appellee.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.



       JOHNSON, J.   Daniel Renaud (father) appeals from a divorce judgment
  of the Franklin Family Court.  He contends the court: (1) abused its
  discretion in awarding Gail Renaud (mother) sole legal and physical
  parental rights and responsibilities notwithstanding the court's finding
  that mother had interfered with the relationship between the child and
  father; and (2) erroneously divided the marital estate.  We affirm.

       The parties were married in October 1989.  They had one child, a son,
  born in January 1994. In May 1996, the parties separated following father's
  disclosure that he was having an affair with a co-worker and wanted a
  divorce.  At the time of trial in April and May of 1997, mother was living
  with the three-year-old child in the marital home, and father was living
  with the co-worker and her children.

       Both parties worked full time in supervisory positions for the federal
  government.  Before the separation, both shared in attending to the minor's
  childcare needs.  Mother arranged her work schedule to have Fridays off to
  spend with the child.  Father took the child to daycare in 

 

  the morning, visited him there during the day, and brought him home at
  night.  Mother generally took time off from work when the child was sick,
  purchased his clothes, and did his laundry.  The court found that both
  parents provided the child with love, discipline, structure, and guidance,
  and that either would be fit to serve as the custodial parent.
  
       Following the separation, father voluntarily moved out, and mother and
  child continued to reside in the family home.  Almost immediately, mother
  began to impede father's contact with the child, forcing father to file a
  number of motions to establish an emergency visitation schedule. Following
  a hearing in July 1996, the court established a temporary visitation
  schedule.  Thereafter, mother filed a succession of relief-from-abuse
  petitions, alleging that father had physically and sexually abused the
  minor.  The allegations ranged from evidence of diaper rash, to sunburn,
  cuts and bruises, and inappropriate touching.  These petitions further
  disrupted father's contact with the child, resulting in periods of
  non-contact and supervised visitation.

       None of the abuse allegations was substantiated, and all of the
  petitions were ultimately dismissed.  Indeed, the court found that father
  had never abused the minor, that the factual support for the "excessive
  number of motions and petitions" was "weak at best," and that mother had,
  in fact, "imagined abuse where there was no abuse."  The court further
  found that mother's actions were the result of a heightened distrust of
  father because of his marital unfaithfulness, and that her "baseless
  suspicions ha[d] adversely affected [the minor] in that he is no longer as
  loving towards [father] as he once was."  A team of psychiatric experts
  appointed by the court observed that the child interacted well with each
  parent, but noted that mother's repeated accusations had damaged the
  child's relationship with father, and warned that if such accusations
  continued they could seriously compromise the father-child relationship.

       The court awarded sole parental rights and responsibilities to mother,
  albeit "with some hesitation."  The court found that the child had an
  extremely close emotional relationship with mother and that "upsetting that
  relationship [was] likely to be detrimental to [the child]."  The court
  further observed that mother had sought counseling to overcome her
  emotional problems 

 

  resulting from the divorce, and concluded that she would be able "in a
  reasonable period of time .  .  . [to] help repair the damage she caused to
  the relationship between [father] and [the child]," and could "actively
  encourage frequent and open contact" between them.  To further ensure that
  this occurred, the court specifically ordered mother to encourage the child
  to develop a warm and loving relationship with father, forbade either
  parent from making disparaging remarks about the other in the minor's
  presence, and ordered extensive visitation with father totalling about
  fifty percent of the minor's time.  This appeal followed.
  
                                     I.

       In light of the court's express findings that mother had undermined
  the child's relationship with father by filing excessive and baseless abuse
  allegations, father contends that the court's decision to award mother sole
  parental rights and responsibilities was a patent abuse of discretion. Like
  the trial court here, we are reluctant to condone any conduct by a parent
  that tends to diminish the child's relationship with the other parent. 
  Indeed, in awarding parental rights and responsibilities, the court is
  statutorily required to consider "the ability and disposition of each
  parent to foster a positive relationship and frequent and continuing
  contact with the other parent, including physical contact, except where
  contact will result in harm to the child or to a parent."  15 V.S.A. §
  665(b)(5). Across the country, the great weight of authority holds that
  conduct by one parent that tends to alienate the child's affections from
  the other is so inimical to the child's welfare as to be grounds for a
  denial of custody to, or a change of custody from, the parent guilty of
  such conduct.  See generally Annotation, Alienation of Child's Affections
  as Affecting Custody Award, 32 A.L.R.2d 1005 (1953) (collecting cases).

       The paramount consideration in any custody decision, however, is the
  best interests of the child.  See Bissonette v. Gambrel, 152 Vt. 67, 70,
  564 A.2d 600, 602 (1989); Lafko v. Lafko, 127 Vt. 609, 618, 256 A.2d 166,
  172 (1969).  Children are not responsible for the misconduct of their
  parents toward each other, and will not be uprooted from their home merely
  to punish a wayward parent.  See Nickerson v. Nickerson, 158 Vt. 85, 90,
  605 A.2d 1331, 1334 (1992) 

 

  (attention should be directed to needs of the children rather than actions
  of parents).  Nevertheless, a child's best interests are plainly furthered
  by nurturing the child's relationship with both parents, and a sustained
  course of conduct by one parent designed to interfere in the child's
  relationship with the other casts serious doubt upon the fitness of the
  offending party to be the custodial parent.  See Young v. Young, 628 N.Y.S.2d 957, 958 (N.Y. App. Div. 1995) (interference with relationship
  between child and noncustodial parent raises "a strong possibility that the
  offending party is unfit to act as a custodial parent") (quoting Maloney v.
  Maloney, 617 N.Y.S.2d 190, 191 (N.Y. App. Div. 1994)); see also McAdams v.
  McAdams, 530 N.W.2d 647, 650 (N.D. 1995) ("A parent who willfully alienates
  a child from the other parent may not be awarded custody based on that
  alienation.").
  
       This is not to say that evidence of alienation of affection
  automatically precludes the offending parent from obtaining custody.  See
  Slinkard v. Slinkard, 589 S.W.2d 635, 636 (Mo. Ct. App. 1979) ("[A]lthough
  alienation of a child's affections from his natural parent and interference
  with visitations rights may be grounds for change of .  .  . custody, they
  do not compel such a result.").  The best interests of the child remains
  the paramount consideration.  Courts should be wary, however, of
  over-reliance on such otherwise significant considerations as the child's
  emotional attachment to, or expressed preference for, the offending parent,
  or on such factors as stability and continuity.  For as one court has
  observed, "The desires of young children, capable of distortive
  manipulation by a bitter, or perhaps even well-meaning, parent do not
  always reflect the long-term best interest of the children."  Nehra v.
  Uhlar, 372 N.E.2d 4, 7 (N.Y. 1977).  And although stability is undoubtedly
  important, the short-term disruption occasioned by a change of custody may
  be more than compensated by the long-term benefits of a healthy
  relationship with both parents.

       Thus, where the evidence discloses a continual and unmitigated course
  of conduct by a parent designed to poison a child's relationship with the
  other parent, a change of custody from the offending parent may well be in
  the child's long-term best interests.  See Begins v. Begins, 

 

  No. 97-334, slip op. at 6 (Vt. September 11, 1998) (court                
  abused its discretion in awarding custody to father where single most
  significant factor contributing to sons' estrangement from mother was
  constant poisoning of relationship by father); see also Lewin v. Lewin, 231 Cal. Rptr. 433, 437 n.4 (Cal. Ct. App. 1986) (change of custody compelled
  where mother engaged in ongoing conduct intended and designed to interfere
  with development of healthy father-daughter relationship); Thurman v.
  Thurman, 245 P.2d 810, 815 (Idaho 1952) (trial court abused discretion in
  refusing to award custody to mother where father had "by design and
  planning" interfered with mother's visitation rights);  In re Leyda, 355 N.W.2d 862, 866 (Iowa 1984) (trial court abused discretion in awarding
  custody to mother where evidence disclosed that she had "sought to
  obscenely denigrate and deny the emotional relationship between [the child]
  and her father").

       A more subtle, but no less invidious, form of interference in
  parent-child relations may take the form of persistent allegations of
  physical or sexual abuse.  In Young, for example, the court reversed an
  award of custody to the mother where the trial court had inexplicably
  ignored uncontradicted evidence that the mother had filed numerous false
  accusations of sexual abuse by the father.  As the court observed, "[t]hese
  repeated uncorroborated and unfounded allegations of sexual abuse brought
  by the mother against the father cast serious doubt upon her fitness to be
  the custodial parent."  628 N.Y.S.2d  at 962.  Other decisions are to
  similar effect.  See, e.g., Lewin, 231 Cal. Rptr.  at 437 n.4 (change of
  custody compelled where mother had "made numerous bizarre, outrageous and
  totally unfounded accusations" of child abuse against father); In re
  Wedemeyer, 475 N.W.2d 657, 659 (Iowa Ct. App. 1991) (upholding change of
  custody where mother's "flagrant and continuing destructive conduct,"
  including persistent allegations that father was "an insane sex addict who
  masturbates and performs sexual acts with animals," had interfered with
  children's association with father); Ellis v. Ellis, 747 S.W.2d 711, 715
  (Mo. Ct. App. 1988) (change of custody justified where mother had "used the
  device of making a false accusation of sexual abuse against [father] as a
  weapon to cut off his access to [the child]").

       The situation is more difficult where the allegations of abuse,
  although ultimately found 

  

  to be baseless, may initially be in doubt.  Society has a strong interest
  in encouraging parents to take action if they suspect that their child is
  being abused.  Accordingly, courts should infer an ulterior motive in the
  filing of such charges only where a parent knew, or reasonably should have
  known, that they were groundless.  Here, the court found that the factual
  support for mother's relief-from-abuse petitions was "weak at best," and
  that mother "imagined abuse where there was no abuse" because of her
  emotional distress and distrust of husband.  The record amply supports
  these findings, but the findings do not indicate whether mother knew or
  reasonably should have known that the petitions were groundless.

       The record mitigates in favor of mother in this regard.  The evidence
  showed that she did not act precipitously in filing the petitions, but
  consulted with the child's pediatrician and therapist, as well as her own
  therapist, about her suspicions.  The child's pediatrician recalled at the
  first relief-from-abuse hearing that mother had expressed grave concern
  that father was neglecting the child's physical well being, and did not
  appear to be acting out of malice or spite.  Moreover, while he informed
  her that the child's physical condition did not necessarily suggest abuse
  or neglect, he also told her that if the child's sunburns continued he
  would "be quite alarmed," and would feel that the "caregiver [father] is
  not able to protect [the child] from an obvious source of harm."  Although
  the court ultimately dismissed the petition, finding no evidence of abuse,
  it did express concern about the sunburn and bruises, and urged father to
  "re-double [his] efforts to be vigilant."

       Mother also expressed her concerns to the child's therapist.  She was
  particularly anxious about statements by the child suggesting that father
  had manipulated the child's penis.  The therapist recalled at the second
  relief-from abuse hearing that mother "chiefly wanted guidance."  Although
  he ultimately concluded that it was unlikely the child had been abused, he
  was sufficiently concerned to contact Social and Rehabilitation Services. 
  Later, when mother informed him that she had filed a relief-from-abuse
  petition, the therapist reassured her that he would have done the same
  under the circumstances.  Although the court again found the 

 

  allegations of abuse to be groundless, it stressed that it was "not at
  all suggesting that the mother's reaction wasn't appropriate.  She was
  obviously concerned.  She was obviously worried.  But we don't find anyting
  devious about what she did here .  .  .  basically as a concerned mother
  under the circumstances."

       Mother's therapist also contacted SRS on mother's behalf after hearing
  her concerns.  Like the pediatrician and the child's therapist, he believed
  that mother was primarily seeking expert guidance and reassurance that the
  child was being well cared for.

       Thus, the record evidence does not support a finding that mother's
  purpose was to alienate the child from his father, or that her concerns
  were wholly unreasonable.  It is particularly significant in this regard
  that mother repeatedly sought expert guidance before acting and received
  ambiguous messages, suggesting on the one hand that the physical evidence
  of abuse was weak, but on the other hand that her concerns were not
  entirely unfounded and certainly warranted investigation.

       The trial court also focused on the relatively transient nature of
  mother's emotional distress, finding it "likely that, in a reasonable
  period of time, [mother] will be less distrustful of [father] and will help
  repair the damage she caused to the relationship between [father and
  child]."  Although there was conflicting evidence on this point,
  substantial credible expert evidence supported the conclusion that mother's
  actions were a transient reaction to a highly volatile emotional situation,
  and that she had progressed to the point where she could within a
  reasonable period of time cooperate with father and foster a healthy
  relationship with the child.  We note that the child's tender years may
  facilitate the healing process envisioned by the court, whereas an older
  child might not be so amenable to change.

       Indeed, the evidence and the findings here contrast sharply with those
  in another case decided today, Begins, No. 97-334, slip op. at 6.  There,
  the family court awarded the father parental rights and responsibilities
  for two teenage boys, notwithstanding its express finding that the father
  had willfully poisoned the mother's relationship with the boys and had
  demonstrated 

 

  no inclination to act otherwise.  The court had also found that the mother
  had been the children's primary care provider before the separation, and
  was the custodian of choice in all other significant respects.  We thus
  concluded that an award to the father in these circumstances would
  seriously impede the mother's opportunity to reestablish a healthy
  relationship with her sons in the future, and that reversal of the judgment
  was compelled.  Id.  Here, in contrast, the court expressly found that
  mother's actions were transitory, unlikely to be repeated, and subject to
  cure.

       Finally, we note that the court awarded father extremely liberal
  visitation, resulting in a nearly equal sharing of time with the child. 
  This fact, coupled with the court's finding that a change of custody would
  be highly detrimental to the minor, and that mother would be able to foster
  a healthy relationship with father within a reasonable period of time,
  leads us to conclude that the court did not abuse its discretion in
  awarding parental rights and responsibilities to mother.  We hasten to
  remind the parties, however, that the court's ruling is subject to future
  modification, and underscore the court's specific admonishment to mother to
  encourage a warm and loving relationship between father and child.

                                     II.

       Father additionally contends the court abused its discretion in
  awarding mother a substantially greater share of the marital estate. 
  Specifically, he argues that the evidence failed to support the court's
  finding that mother's future income was likely to be less than father's;
  that the court failed to consider wife's future proceeds from a personal
  injury claim; and that the court placed undue emphasis on marital fault.

       "We have repeatedly held that the `disposition of property pursuant to
  a divorce decree is a matter of wide discretion for the trial court.'" 
  Milligan v. Milligan, 158 Vt. 436, 439, 613 A.2d 1281, 1283 (1992) (quoting
  Lalumiere v. Lalumiere, 149 Vt. 469, 471, 544 A.2d 1170, 1172 (1988)).  We
  will not disturb that disposition unless the court's discretion was abused,
  witheld, or exercised on clearly untenable grounds.  See id.  Where
  reasonable evidence supports the court's findings and conclusions, they
  must be affirmed.  See Johnson v. Johnson, 155 Vt. 36, 



 

  43, 580 A.2d 503, 507 (1990).

       We have reviewed the record and conclude that it amply supports the
  court's finding that father's income will increasingly outstrip mother's in
  future years.  The court also correctly declined to consider any potential
  damages from a car accident that occurred subsequent to the parties'
  separation, noting that the value of the claim was unknown, and that any
  damages awarded would be used to compensate mother for her losses.  These
  findings were supported by the record evidence, and thus may not be
  disturbed on appeal.  See id.  Finally, father's claim that the court
  placed undue emphasis on fault is expressly contradicted by the court's
  findings, which noted that father's fault in the breakup of the marriage
  was fully offset by mother's dissipation of marital assets through the
  filing of excessive motions and petitions, and thus that neither factor
  would be considered in the property division.

       Affirmed.

                               FOR THE COURT:



                               _______________________________________
                               Associate Justice