Trahnstrom v. Trahnstrom

Trahnstrom v. Trahnstrom (99-333); 171 Vt. 507; 756 A.2d 1242 

[Filed 22-May-2000]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-333

                              MARCH TERM, 2000


Nils Trahnstrom	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Rutland Family Court
                                       }	
                                       }
Ana Trahnstrom	                       }	DOCKET NO. 460-10-97Rddm

Trial Judge: Patricia Zimmerman, J.

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


       Father appeals from the decision of the family court awarding sole
  physical parental rights  and responsibilities for the parties' children to
  mother and ordering father to pay mother $14,526 as  an equitable
  distribution of the marital assets.  Father claims that the court failed to
  consider the  impact of a change in custody, erred in finding that father
  was less likely to foster a relationship with  the other parent, erred in
  concluding that mother was the primary care giver, should have considered 
  the children's relationship with their daycare provider, and made an
  inequitable property settlement.   We affirm.

       The court found the following facts.  The parties were married in 1989
  and separated in 1997  because mother was having an affair.  Father worked
  as an interior woodworker throughout the  marriage; mother worked until
  1992, when their first child was born.  A second child was born in  1995.  
  Mother was the primary caretaker for the children during the marriage. 
  After the parties  separated, father remained in the marital home in Mendon
  and mother moved out.  Between August  1997 and November 1997, mother
  returned to the marital home daily, to care for the children there  while
  father worked.  By November, mother had rented a home in Warren and found
  employment at  Sugarbush Ski Area.  The court specifically found that,
  although no evidence of it was admitted at  the November 5, 1997, temporary
  hearing, the parties had reached an agreement in November that  the
  children would move to Warren to live with mother.  On November 15, 1997,
  father helped  mother and the children move into the Warren home.  

       On November 19, 1997, the court issued a temporary order, awarding
  sole physical parental  rights and responsibilities to father, and the
  children then moved back to Mendon.  For eighteen  months, the children
  lived in Mendon with father and saw mother three out of four weekends, for
  at  least two overnights and sometimes three.  In May1999, the court held a
  trial and awarded sole  parental rights and responsibilities for the
  children to mother.  In making its 

 

  decision, the court considered the statutory factors outlined in 15 V.S.A.
  § 665(b), and found the  parties equally situated with respect to most
  factors.  The court awarded physical custody to mother  based on her
  position as primary caretaker and her greater ability to promote the
  children's  relationship with the other parent.  

       On appeal, father contends that the court failed to consider the
  impact of a change of custody  and erroneously found that mother was better
  able to foster the children's relationship with the other  parent. Under §
  665(b), the court is required to consider each factor listed when making a 
  determination of parental rights and responsibilities; that subsection
  "imposes no specific  requirement on how this consideration is to be
  manifested in the court's findings and conclusions."  Harris v. Harris, 149
  Vt. 410, 414, 546 A.2d 208, 212 (1988).  The court found that the evidence 
  showed the children were adjusted to being with mother in her home in
  Warren and there was  testimony from both mother and one of mother's
  friends to that effect.  The court explicitly examined  the impact of a
  change in custody and concluded that the children were comfortable and
  well-adjusted to mother's home.  The finding is supported by reasonable
  credible evidence and supports  the court's conclusion; therefore, neither
  will be disturbed.  See Stickney v. Stickney, ___ Vt. ___,  ___, 742 A.2d 1228, 1230-31 (1999).  Further, the court noted that both parents had an
  ability to  foster a relationship with the other parent but found that
  mother was better able to foster a  relationship with the other parent,
  based on father's continuing resentment over the end of the  marriage and
  his refusal to allow the children to be in the marital home with mother
  alone.  The  court's conclusion was supported by its findings and the
  findings were supported by the evidence. 
	
       Father also challenges the court's findings of fact underlying its
  conclusion that mother was  the primary caretaker.  Factual findings are
  entitled to deference and will not be overturned unless  clearly erroneous. 
  See Semprebon v. Semprebon, 157 Vt. 209, 214, 596 A.2d 361, 363 (1991). 
  The  court found that mother had been the primary caretaker for the
  majority of the children's lives  because she had been the primary
  caretaker for Alexandra, born in 1992, for five years at the time of 
  separation, although father had been the primary caretaker for eighteen
  months after the temporary  order.  Similarly, the court found that mother
  had been the primary caretaker for Keenan, born in  1995, for two years
  before the separation, and father for eighteen months under the temporary
  order.   Further, the court noted that the parties had agreed in November
  1997 that mother would continue to  be the primary caretaker, and found
  that nothing in her situation in Warren prevented her from filling  that
  role.  The court then properly relied on our oft-repeated holding that the
  primary-care-giver  inquiry should focus on all relevant periods of a
  child's life, not just the period preceding trial.   See  Pearson v.
  Pearson, ___ Vt. ___, ___, 726 A.2d 71, 74-75 (1999); Nickerson v.
  Nickerson, 158 Vt.  85, 90-91, 605 A.2d 1331, 1334 (1992).  The court's
  finding that mother was the primary caretaker is  amply supported by the
  evidence.
	
       Father next contends that the court erred in considering the amount of
  time spent in daycare  in each custody situation. The court did mention
  that the children would spend two fewer days in  daycare if mother were
  awarded custody, due to mother's flexible work schedule.  This comment, 
  however, followed an exhaustive analysis of the years of care mother had
  given to both 

 

  children, the parties' agreement that mother should continue to be the
  primary care giver, and the fact  that mother had expected to continue as
  the primary care giver and prepared for it by researching  housing,
  schools, and daycare.  Such a comment about daycare does not undermine the
  court's  conclusion that the children will be best served by living with
  their primary caretaker.

       The court made mention of mother having been "punished" for her
  affair.  Father argues that  the court's "consideration" of punishment was
  error as custody awards should not be made to punish  or reward a parent. 
  We see nothing in the court's decision to support father's theory that
  mother was  awarded custody as some sort of reparation.  The court's
  reference to punishment was in the context  of  considering whether
  mother's situation in Warren affected her ability to continue to be the 
  primary caretaker; it was not an independent basis for awarding custody to
  mother.  For the many  reasons detailed in its findings, the  court
  determined that there was no reason why mother should not  continue as
  primary caretaker.  Mother's position as the children's primary care giver
  is entitled to  great weight unless she is unfit.  See Mansfield v.
  Mansfield, 167 Vt. 606, 607, 708 A.2d 579, 581  (1998) (mem.); Harris v.
  Harris, 162 Vt. 174, 178, 647 A.2d 309, 312 (1994).  The evidence supports 
  the court's findings regarding the care of the children, and those findings
  support its conclusion that  mother was the primary caretaker.  Where the
  findings are not clearly erroneous and the conclusion  is supported by the
  findings, we will not disturb the court's determination.  See Stickney, ___
  Vt. at  ___, 742 A.2d  at 1230-31. 
	
       Father next argues that the court erred by failing to consider the
  children's relationship with  their Mendon daycare provider under §
  665(b)(7).  The court below concluded that the relationship  with a daycare
  provider was not one of the relationships intended by § 665(b)(7).  The
  subsection  provides that the court may consider "the relationship of the
  child with any other person who may  significantly affect the child." 15
  V.S.A. § 665(b)(7).  There is nothing, in either the statutory  language or
  our case law, to indicate that the Legislature intended courts to consider
  daycare  providers.  Rather, this provision has been interpreted to refer
  to relatives such as grandparents,  siblings, step-parents, or their
  equivalents.  See, e.g., Harris, 149 Vt. at 414, 546 A.2d  at 212  (holding
  that court can consider relationship of children to mother's live-in
  partner under  §665(b)(7)).   Because the daycare provider is not a party
  before this Court and the "relationship"  with the children is controlled
  by economic choices made by parents, we do not believe the  Legislature
  intended courts to consider daycare providers in awarding custody to one
  parent or  another.

       Finally, father claims that the property distribution of $14,526
  ordered by the court is  inequitable because it does not properly account
  for the source of marital assets nor sufficiently  weigh mother's "fault"
  in having the affair.  Both of these contentions are meritless.  The family
  court  has broad discretion in making property settlements and we will
  uphold its decision, absent abuse or  withholding of discretion.  See
  Milligan v. Milligan, 158 Vt. 436, 439, 613 A.2d 1281,  1283 (1992). 

       Father argues that he should have received seventy percent of the
  marital assets and that  mother should have received thirty percent.   His
  analysis of the assets, however, ignores money

 

  lent by mother's family as well as underestimates mother's contributions as
  a homemaker.  The court  considered all of the parties' assets.  It also
  took into account father's higher earning potential and the  fact that the
  property settlement was in lieu of maintenance.  The court specifically
  concluded that it  did not put significant weight on fault in its
  distribution, noting that marriages fail for many reasons  and stating
  that, based on credible testimony, it could not conclude that the failure
  was solely  mother's fault.  Father has failed to show any abuse of
  discretion in the court's property distribution.  

       Affirmed.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
	                               John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned