Pearson v. Pearson
Annotate this Case
Pearson v. Pearson (97-102); 169 Vt. 28; 726 A.2d 71
[Filed 29-Jan-1999]
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. 97-102
Joseph S. Pearson Supreme Court
On Appeal from
v. Caledonia Family Court
Darlene J. Pearson May Term, 1998
Mary Miles Teachout, J.
Robert R. Bent of Zuccaro, Willis and Bent, St. Johnsbury, for
Plaintiff-Appellee.
Thomas R. Paul of Paul and Paul, St. Johnsbury, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. Defendant mother challenges the Caledonia Family
Court's final divorce order awarding to plaintiff father sole parental
rights and responsibilities of the parties' son, Justin. Mother argues
that the court erred in basing its award on the assumption that father
would establish a household in Waterford, Vermont, and in defining a
failure to do so as a change in circumstances for the purpose of assuming
jurisdiction in a future modification proceeding. Mother also argues that
in determining parental rights and responsibilities, the court erred in
emphasizing the parties' conduct immediately following their separation and
while mother was training for a new job and that the court erred when it
did not order any shared parental rights and responsibilities. Further,
she argues that if we remand the parental rights and responsibilities
award, the court's award of $15,000 to father must likewise be
reconsidered, and that the court's imposition of a $15,000 lien on
mother's home violates the homestead exemption pursuant to 27 V.S.A. §
101. We vacate and remand the family court's award of sole parental rights
and responsibilities and the division of marital property.
The family court found, and the parties do not challenge, the
following facts. The parties
were married in June of 1990. They resided in a Lyndonville home that
mother purchased before the marriage. Justin was born in February of
1992. The parties separated in June of 1995 when father moved out of the
Lyndonville residence and into his mother and stepfather's home in
Lancaster, New Hampshire. The final divorce order issued on February 14,
1997. The court found that both parents were fully able to exercise
parental rights and responsibilities over Justin. Based in part on its
finding that father intended to follow through on the parties' formerly
shared plan to move to Waterford in order to enroll Justin in the school
system there, the court awarded father sole parental rights and
responsibilities. In its order, the court stated that if father failed to
move to Waterford within a prescribed time period, it would consider that
failure a substantial change of circumstances sufficient to warrant court
review of the award.
I.
We first address mother's challenge to the court's order defining a
change of circumstances for the purpose of assuming jurisdiction in a
future modification proceeding. Mother contends that the order
contravenes our decision in Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342
(1997), in which we held that the family court may not predetermine what
will constitute a substantial change in circumstances sufficient to confer
family court jurisdiction in a future modification proceeding. In Gazo,
we addressed for the first time whether, as a general matter, a divorce
order can determine what will constitute a change of circumstances in the
future. See id. at 440-42, 697 A.2d at 345-46. To answer this question,
we examined our decision in deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994), in which we enforced a provision of a family court order
specifying that a move of more than fifty miles from either party's
preexisting home would constitute a change of circumstances such that the
court could reconsider the parental rights and responsibilities award. We
explained in Gazo that we enforced the deBeaumont provision for two
reasons: first, the order set a reasonable benchmark to determine changed
circumstances; and, second, the order was based on the parties' stipulation
that a change in their living arrangements would have an impact on a
co-parenting situation. See Gazo, 166 Vt. at 440, 697 A.2d at 345
(citing deBeaumont, 162 Vt. at 96, 644 A.2d at 846). We held in Gazo that
where neither of the
deBeaumont conditions is present, the family court cannot predetermine a
substantial change in circumstances with a court order. See id. at
440-41, 697 A2d at 345.
In the instant case, the family court ordered that if father did not
move to Waterford two weeks prior to the start of the 1997-1998 Waterford
school year, "then the court would consider that [failure to move] a real,
substantial, and unanticipated change of circumstances that would justify
court review of parental rights and responsibilities."(FN1) The court's
order was not based on a stipulation of the parties that established their
expectations about their living arrangement nor the effect of a change of
those arrangements on the child. Nor can we conclude that the court
established a reasonable benchmark to determine changed circumstances when
it imposed a deadline by which father was to accomplish a vague and
uncertain plan to move. By defining in advance what would constitute a
change in circumstances sufficient to assume family court jurisdiction
absent either of the deBeaumont factors, the court crafted an order that
did precisely what we determined in Gazo to be an improper restriction on
parents' legal and physical rights and responsibilities for their
children. This retention of future jurisdiction by the family court
constitutes clear error under the rule in Gazo.
We next address the propriety of the court's assumption that father
would move to Waterford, rather than basing its decision on the current
living arrangements of the parties. Father argues that the anticipated
move to Waterford was not the determinative factor for the court when
making its award of parental rights and responsibilities. He contends that
the court's findings indicate that, even disregarding his intended
relocation, he is better suited to assume primary care of Justin, and,
therefore, any error made by the court is harmless. Mother argues that
the proposed move was a critical factor for the court in awarding father
custody.
The court clearly premised its custody determination on its assumption
that father would
move to Waterford. Indeed, the court stated that "[i]n making this
decision, the court is taking into account [father's] stated plan to
establish a household of his own in the Waterford school district."
Moreover, the court's retention of jurisdiction in the event the move did
not take place, although error, also demonstrates the significance of the
proposed move on the court's award. We agree with mother that the court
placed a significant emphasis on father's relocation in making its award.
Although in Gazo we rejected the family court's preestablished
definition of a change of circumstances, we recognized the difficult task
of deciding an award of parental rights and responsibilities, particularly
where both parents are almost equally situated in terms of the factors set
forth in 15 V.S.A. § 665. See Gazo, at 441, 697 A.2d at 346. We
acknowledged that in those circumstances, the parties' proposed residences
can become a dominant factor in the court's decision, and we instructed
the court to give the parties the choice of specifying the residences upon
which it should base its custody award. See id. at 441-42, 697 A.2d at
346. Accordingly, in Gazo, plaintiff had the option of telling the court
either that she would move, so that any later relocation by her consistent
with the proposed relocation would be anticipated, or, that she had made
no firm decision to move, so that any later relocation by her would be
unanticipated. See id.
Here the court found that father planned to move to Waterford, but it
also acknowledged the uncertainty of the plan and its contingency upon
father's financial circumstances. Rather than "giv[ing] plaintiff the
choice of specifying the facts upon which the court should base its custody
decision," id., the court imposed on father a deadline by which he was to
accomplish what was merely an indefinite ambition to move. Because the
court issued the decision without the benefit of our decision in Gazo, its
assumption that father would move was not the result of the type of
affirmative choice on father's part that we suggested to family courts in
Gazo. Because we hold that the court order contravenes our decision in
Gazo, and that the court's error was not harmless, we vacate the award of
parental rights and responsibilities to the family court and remand for
proceedings not inconsistent with this opinion. (FN2)
II.
In light of our decision vacating the court's parental rights and
responsibilities award, the remaining parental rights and responsibilities
issues mother raises need not be decided. Because they may arise again on
remand, however, we address them below.
Mother contends that in deciding parental rights and responsibilities,
the court erred in emphasizing the parties' post-separation conduct. She
contends that the court, in contravention of our mandate in Nickerson v.
Nickerson, 158 Vt. 85, 605 A.2d 1331 (1992), focused on the fact that
father provided primary care for Justin after the parties separated. In
Nickerson, we held that, when evaluating the best interests of the child,
the inquiry "should focus on all relevant periods of the child's life,"
and not solely on the pre- or post-separation periods. Id. at 91, 605 A.2d at 1334. In that case, we reversed the trial court's custody
determination for "apparently accept[ing] a per se rule that the parent
with physical custody at the time of the divorce hearing is the
primary-care-provider." Id. at 91, 605 A.2d at 1334. We declined "to
excerpt any period from the child's life in determining who, out of two
competing parents, has provided the nurturing that would make the parent
the primary-care-provider." Id.
Here, however, in making its custody determination, the court properly
considered both the pre- and post-separation periods. Although it
considered mother's behavior during the post-separation period, it also
found that father's role as active primary care giver before the separation
tipped the scale in his favor. In Nickerson, we were concerned primarily
with discouraging primary-care providers wishing to leave the home from
uprooting children from the marital residence solely to remain, in the
view of the court, the primary-care provider. See id. at 90, 605 A.2d at
1334. Here the court considered many factors, only one of which was
mother's conduct following the parties' separation; the court did not
apply the per se rule we disapproved of in Nickerson.
Mother also contends that in awarding sole parental rights and
responsibilities to father, the court gave undue weight to the period from
January 1995 through May 1995, during which she was training for a new
job. She argues that the court's emphasis on her behavior during that
time is contrary to our decision in Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149 (1995). She contends that Johnson stands for the proposition
that the court should not focus on negative incidents involving the mother
in custody determinations and instead should provide an even-handed
analysis of the statutory factors enumerated in 15 V.S.A. § 665(b).
In Johnson, we expressed concern where the family court "focused more
on a few negative incidents involving the mother than on the general
parenting skills of the parties . . . ." Id. at 495 -96, 659 A.2d at
1152. We also recognized that testimony concerning the mother's conduct on
those occasions had "at least some relevance to determining the quality of
her parenting skills," but we noted that "evidence concerning each
parent's day-to-day relationship would be far more relevant." Id.at 496.
Here, the court determined that, although both parents have the ability and
disposition to meet Justin's present and future developmental needs, see §
665(b)(3), father is slightly better able to do so. This determination
was based in part on mother's conduct during the period from January 1995
through May 1995. Yet the family court also considered individually each
of the other statutory factors enumerated in 15 V.S.A. § 665(b) in making
its ultimate custody determination. See Johnson., 163 Vt. at 496, 659 A.2d at 1152 (affirmance generally appropriate in such circumstances given
wide discretion court has in custody matters). There was no error.
Mother contends that the court erred in awarding sole parental rights
and responsibilities to father instead of awarding father primary parental
rights and responsibilities with the sharing
of some rights and responsibilities between the parties. Mother claims
that the court, in finding the parents incapable of effective
communication, "extrapolated the conflict over schedule changes to all
other issues affecting Justin's life." Indeed, the court did find that the
parties had tremendous difficulty communicating about Justin's schedule;
however, it also concluded generally that the parties could not
communicate, cooperate or make joint decisions well enough to share
parental rights and responsibilities. While we have held that
circumstances may support the reservation of a specific, discrete area of
parental responsibility for the noncustodial parent, see Shea v. Metcalf,
__ Vt. __, 712 A.2d 887, 891 (1998) (affirming such award of responsibility
for school and health care decisions), "family courts have broad discretion
to craft parental rights and responsibilities that serve the best
interests of children," Cabot v. Cabot, 166 Vt. 485, 491, 697 A.2d 644,
651 (1997). In the instant case, the court found that the "sharing of
decisionmaking between the parents is wholly unsatisfactory, and that it is
in Justin's interest for the court to establish the stability of having
one parent exercise sole legal and physical parental rights and
responsibilities . . . ." (emphasis added). We have reiterated that
"[t]he trial court has broad discretion in a custody matter, and we must
affirm unless the discretion is `erroneously exercised, or was exercised
upon unfounded considerations or to an extent clearly unreasonable in
light of the evidence.'" Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336,
1339-40 (1988) (quoting Jensen v. Jensen, 141 Vt. 580, 581-82, 450 A.2d 1155, 1156 (1982)). The family court did not exercise its discretion
erroneously in deciding not to award any shared parental rights and
responsibilities.
III.
We address next mother's argument that if we remand the court's
custody determination, we must likewise remand the court's $15,000 marital
property settlement to father. Mother argues that this amount was
inextricably related to the court's award to father of sole parental
rights and responsibilities and cannot be justified independent of that
award. We agree.
When dividing marital property, the family court is guided by 15
V.S.A. § 751(b) which provides a non-exhaustive list of twelve factors
that may be considered. The court analyzed each
of the twelve factors in making its award, and, although the court
considered the financial contributions father made to improve the property
and pay the mortgage, as well as the labor he exerted, it also underscored
the need for father to have sufficient equity to establish a home for
Justin and him. Indeed, in its conclusions of law, the court stated that
"[s]ince the court has decided that Plaintiff shall have sole legal and
physical parental rights and responsibilities for the parties' child, it
is important that Plaintiff receive sufficient equity to invest in
developing a residence for himself and Justin." Although the trial court
has wide discretion in dividing marital property, see Johnson v. Johnson,
155 Vt. 36, 43, 580 A.2d 503, 506 (1990), in light of our decision to
vacate the parental rights and responsibilities award, a significant basis
on which the court made its property division no longer exists. Because
we conclude that the court's division of marital property rested in large
part on its concern that father have sufficient equity to establish a
residence with Justin, we vacate the property division and remand the issue
to the family court.
Finally, although not necessary due to our decision vacating the
marital property division, we address mother's contention that the court's
imposition of a $15,000 lien on her real estate, which the court
determined to have a fair market value of $40,000, must be vacated in light
of 27 V.S.A. § 101. This section exempts from judicial attachment or
execution, "the homestead of a natural person . . . not exceeding
$75,000.00 in value." Although the purpose of § 101 is "to protect
homeownership from loss to creditors," Mercier v. Partlow, 149 Vt. 523,
524, 546 A.2d 787, 788 (1988), the statute governing property settlement
in divorce proceedings explicitly makes "[a]ll property owned by either or
both of the parties" subject to the jurisdiction of the court, which must
"equitably divide" it, 15 V.S.A. § 751(a). Title 15, section 754 then
establishes that when a copy of the judgment is recorded in the land
records of the town where the real estate is located, it "shall be
effective to convey or encumber the real estate in accordance with the
terms of the judgment, as if the judgment were a deed." 15 V.S.A. § 754.
"In construing conflicting statutes that deal with the same subject
matter, the more specific provision controls over the more general one."
Stevenson v. Capital Fire Mut. Aid Sys., Inc., 163 Vt. 623, 625, 661 A.2d 86,88 (1995) (mem). In broad terms, 27 V.S.A. § 101 provides for
the protection of homeownership from loss to creditors. See Mercier, 149
Vt. at 524, 546 A.2d at 788. The statutory authority to "encumber the
real estate in accordance with the terms of the [divorce] judgment"
conveyed by 15 V.S.A. § 754 provides the court with the power to place a
lien on the marital home. If the homestead exemption were to apply to the
division of marital property, the language of § 751, that "[a]ll property
owned by either or both of the parties, however and whenever acquired,
shall be subject to the jurisdiction of the court" for division,
regardless of ownership or title, would be contravened. The homestead
exemption does not apply in the context of a divorce and, accordingly, the
court did not err in its division of martial property by placing a $15,000
lien on mother's real estate.
The parental rights and responsibilities award and the division of
marital property are vacated and remanded for proceedings not inconsistent
with this opinion. Affirmed in all other respects.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. We acknowledge that our decision in Gazo did not issue until
several months after the family court entered its judgment. Under Vermont
law, however, a change in law will be given effect while a case is on
direct review, except in extraordinary cases. See State v. Styles, 166 Vt.
615, 616, 693 A.2d 734, 735 (1997) (mem).
FN2. At oral argument, counsel represented that father has not moved
to Waterford. Because father did not relocate by the deadline imposed by
the court, prior to the oral argument on this appeal, mother filed a
motion in family court to modify the award of parental rights and
responsibilities based on the order's assumption of future jurisdiction.
Although the family court's decision on the motion was not made part of
the record before us, counsel represented that the court denied the
motion. That decision was not appealed. This issue, however, is not
currently before us and we make no determination as to the effect of the
denial. Nor do we consider father's failure to relocate to Waterford.
See V.R.A.P. 10(a) (only original papers and exhibits filed in superior or
district court, transcript of proceedings, and certified copy of docket
entries shall constitute record on appeal).
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