Bigelow v. Bigelow

Bigelow v. Bigelow  (97-508); 168 Vt. 618; 721 A.2d 98

[Opinion Filed 10-Sep-1998]
[Motion for Reargument Denied 20-Oct-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-508

                               MAY TERM, 1998



       Harold and Sheila Bigelow	}	APPEALED FROM:
                                        }
          v.	                        }
                                	}	Rutland Family Court
       Carolyn Bigelow	                }	
                                        }
                                        }	DOCKET NOS.  F544-11-96 Rdfa	
                                                             F546-11-96 Rdfa


       In the above-entitled cause, the Clerk will enter:

       The maternal grandparents of two minor children each filed a
  relief-from-abuse petition in family court against their daughter, the
  mother of their grandchildren.  The petitions were on behalf of themselves,
  and grandfather's was also on behalf of the grandchildren.  In its final
  relief-from-abuse order, the family court awarded grandparents temporary
  custody of the two children.  Mother claims that this award should be
  vacated because (1) the family court did not have jurisdiction to award
  grandparents custody of mother's children in an abuse-prevention
  proceeding, and (2) the court was without authority to appoint counsel and
  a guardian ad litem to represent the children's interests.  Mother also
  appeals the denial of her request for attorney's fees.  We conclude that
  the family court lacked jurisdiction and therefore vacate its final
  relief-from-abuse order.

       The family court made extensive findings in this case.  The pertinent
  facts are summarized as follows:  Harold and Sheila Bigelow (grandparents)
  are husband and wife, the parents of defendant, Carolyn Bigelow (mother),
  and the grandparents of mother's two children, M.L. and M.B., ages eight
  and five.  Mother and the children have lived with grandparents for the
  last five years.  When mother was unable or unwilling to care for her
  children, grandparents were the primary caretakers.

       Mother has a demonstrated history of erratic and irrational behavior
  which, at times, has interfered with her ability to parent her children. 
  Her conduct has consisted of dramatic mood swings, unusual sleeping
  patterns (a reversal of day and night), threatening suicide, intermittent
  drug use and abuse, and violent behavior directed toward grandmother.

       The specific events leading to the family court's involvement began in
  July 1996.  At that time, mother confronted grandmother and threatened to
  commit suicide and "take her daughter with her because no one wanted
  [her]."  According to grandparents and confirmed by the children's
  therapist, mother made the same statements to the children.  Concerned that
  mother was unable to perform her parental responsibilities, grandmother
  contacted the Department of Social and Rehabilitative Services (SRS).  SRS
  advised grandmother to monitor the situation carefully and to contact the
  police immediately if mother made any attempt to act on her threats.  

  

       On November 6, 1996, M.B. ran to her grandmother, imploring her for
  protection from mother.  M.B. was in an extreme state of fear and attempted
  to get grandmother to hide with her in a closet.  She also advised
  grandmother that if mother found M.B. in grandmother's room, she would kill
  M.B.  Eventually mother awoke and started screaming for M.B.  Mother became
  increasingly belligerent and threatening.  Grandmother called the police. 
  Mother attacked grandmother, pushing her into a closet, punching her in the
  back, and "forcing the receiver of the telephone into her mouth," causing a
  cut to her lip.  The police arrived at the scene shortly thereafter and
  took mother into custody.  Mother was charged with domestic assault, which
  charge is still pending.

       On the day of the alleged assault, grandmother again contacted SRS. 
  Upon being told that mother had been removed from grandparent's home, SRS
  declined to file a petition on grounds that the children were in need of
  care and supervision (CHINS).  SRS reasoned that the danger to the children
  was over because mother was no longer in the house.  Grandmother then filed
  a relief-from-abuse petition with family court on her own behalf.  Later
  that evening, mother called grandfather (at that time, grandparents were
  not living together) and threatened to take the children and leave the
  state.  The next day, grandfather filed a relief-from-abuse petition on his
  own behalf and on behalf of his grandchildren.

       The family court issued a temporary restraining order on November 7,
  1996, granting temporary custody of the children to grandfather.  On the
  same day, grandparents filed a motion for joint temporary custody of the
  children.  Several days later, grandmother filed a motion to amend the TRO
  to give temporary custody of the children to grandparents jointly.  By
  then, grandparents had reconciled and were living together, and they were
  concerned that the children maintain as much stability and continuity in
  their lives as possible.

       The court appointed counsel and a guardian ad litem to represent the
  minor children's interests.  The children have different fathers.  The
  father of M.B. never appeared in the proceedings below and has not played
  an active role in parenting M.B.  The father of M.L., Donald Letarte, who
  initially was represented by counsel, filed a cross-petition for custody. 
  Subsequently, his attorney withdrew and, since that time, Mr. Letarte has
  not appeared in any of the proceedings below.  Rather, he advised the trial
  court by letter that he would not cooperate and would not appear for a
  scheduled deposition regarding his petition.  Subsequently, grandmother
  filed a motion to dismiss his claim; the motion went unopposed and
  ultimately was granted.

       In December 1996, mother, who by then was represented by counsel,
  filed a motion to dismiss based on lack of jurisdiction.  She alleged that
  grandparents did not have standing to file a relief-from-abuse petition on
  behalf of her minor children.  The motion to dismiss was denied.  Mother's
  attorney filed a motion to withdraw in February 1997.  Mother was given
  thirty days to hire new counsel or proceed pro se.  A contested merits
  hearing was held in June 1997.  All parties were present and represented by
  counsel except mother, who appeared pro se.  The court issued a final
  relief-from-abuse order in which it found that mother was unfit to parent
  her children properly.  It also found that mother's actions, especially
  since July 1996, amounted to emotional abuse of the children. 	

       Accordingly, the court granted temporary custody of the children to
  grandparents until such time as mother is able to prove to the court that
  she is fit to parent her children.  Mother was awarded supervised visits. 
  The order states that it shall remain in effect for one year, but may be
  extended upon motion.

  

       Mother did not appeal the family court's final relief-from-abuse
  order.  Instead, she obtained counsel in August 1997 and immediately filed
  a motion under V.R.C.P. 60(b) motion to vacate the order.  Mother requested
  that the order should be set aside because, among other things, the court
  lacked jurisdiction.  In addition, she requested attorney's fees.  The
  court denied both requests, and it is from these denials that mother
  appeals.

       We begin by addressing mother's contention that the family court
  lacked jurisdiction to adjudicate a custody dispute between herself and
  grandparents, as part of an abuse-prevention proceeding, because
  grandfather did not have standing to file a relief-from-abuse petition on
  behalf of his grandchildren.(FN1)

       We agree that grandfather did not have standing to file a
  relief-from-abuse petition on behalf of his grandchildren under Vermont's
  Abuse Prevention Act (APA).  See 15 V.S.A. §§ 1101-1115.  This conclusion
  is based on the plain language of 15 V.S.A. § 1103(a), which provides that
  "[a]ny family or household member may seek relief from abuse by another
  family or household member on behalf of him or herself or his or her
  children by filing a complaint under this chapter."  (Emphasis added.) 
  This language does not encompass petitions by third parties, even
  grandparents, on behalf of minor children.  See Conn v. Middlebury Union
  High Sch., 162 Vt. 498, 503, 648 A.2d 1385, 1388 (1994) ("Where the meaning
  of a statute is plain on its face, this Court will enforce the statute
  according to its terms . . . .") (internal quotations and citations
  omitted).  Thus, because of grandfather's lack of standing, the family
  court did not have jurisdiction to make a temporary award of custody under
  the APA.  Accordingly, we vacate the final relief-from-abuse order.

       In addition, we agree with mother that the family court has the
  discretion to award attorney's fees in connection with petitions for relief
  from abuse.  See Mullin v. Phelps, 162 Vt. 250, 268, 647 A.2d 714, 725
  (1994) ("In proceedings dealing with motions to modify parental rights and
  responsibilities, the trial court may award attorney's fees in its
  discretion.").  Thus, we instruct the family court to consider and rule on
  attorney's fees.

  

       The family court's final relief-from-abuse order is vacated, and the
  matter is remanded for further proceedings.

       BY THE COURT:


       _______________________________________
       Jeffrey L. Amestoy, Chief Justice

       _______________________________________
       John A. Dooley, Associate Justice

       _______________________________________
       James L. Morse, Associate Justice

       _______________________________________
       Denise R. Johnson, Associate Justice

       _______________________________________
       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  At oral argument, grandparents contended that mother's
  jurisdictional claims were not properly before this court because the
  family court's final relief-from-abuse order dated June 25, 1997, was never
  appealed.  While we recognize that a Rule 60(b) motion is "`not intended to
  function as a substitute for a timely appeal,'"  Donley v. Donley, 165 Vt.
  619, 619-20, 686 A.2d 943, 945 (1996) (quoting Richwagen v. Richwagen, 153
  Vt. 1, 3, 568 A.2d 419, 420 (1989)), we also observe that in this case,
  mother was not represented by counsel at the time of the merits hearing,
  and did not obtain counsel until approximately two months after the final
  order was entered.  Therefore, in light of mother's lack of representation,
  in addition to her alleged mental instability and the fundamental nature of
  the rights at stake, we conclude that justice requires us to consider her
  claims of error.