Payrits v. Payrits

Payrits v. Payrits (99-408); 171 Vt. 50; 757 A.2d 469

[Filed 16-Jun-2000]


       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. 99-408


Deanna Payrits	                                 Supreme Court

                                                 On Appeal from
     v.	                                         Rutland Family Court


Scott Payrits	                                 April Term, 2000


Mary Miles Teachout, J.

Bryden F. Dow, West Rutland, for Plaintiff-Appellant.

Edward R. Seager, P.C., Rutland, for Defendant-Appellee.


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


       AMESTOY, C.J.   Plaintiff-mother Deanna Payrits appeals a Rutland
  Family Court decision  granting sole parental rights and responsibilities
  for their children to defendant-father Scott Payrits.   Mother contends
  that the court erred by (1) finding that both parents have been primary
  care  providers for their children; (2) failing to find that mother is the
  primary care provider and failing to  conclude that the children should
  remain with mother absent a finding of the mother's unfitness; and  (3)
  failing to find that other 15 V.S.A. § 665(b) factors either favored mother
  or were neutral.  We  affirm.

       The family court found the following relevant facts.  The parties were
  married in 1991.  In  1992,  they had a daughter.  Between 1991 and 1994,
  the family moved several times.  In 1994, they

 

  moved to Vermont, and a son was born shortly thereafter.  The family lived
  with father's  parents from 1994 to 1996.  Throughout this time, father
  worked full-time and attended classes at a  community college, while mother
  worked sporadically.  

       The marriage experienced problems in the summer of 1996.  Mother filed
  for a separation  and moved into an apartment.  On September 4, 1996, the
  parties stipulated to a temporary order  which provided that the parents
  would share both legal and physical parental rights and  responsibilities,
  and that each would have equal time with the children.  

       In early 1997, the parties reconciled and moved in together.  Mother
  worked part-time at a  day care center, which the children attended. 
  Father continued to work full-time, though he ceased  attending classes,
  due in part to the demands of the household.  In 1998, the family
  experienced some  financial difficulties.  Problems arose in the marriage
  again, due in part to mother's "socializing,"  which affected her ability
  to devote her attention to the children.  

       In July 1998, mother filed for divorce.  Father moved out of the
  family apartment.  Mother  was fired from her job, and developed a
  relationship with another man.  In September 1998, the  parties again
  stipulated to shared legal parental rights and responsibilities.  Mother
  was assigned sole  physical rights and responsibilities, based on father's
  work schedule.  As a practical matter, the court  found, each parent spent
  equal time with the children.  

       In the fall of 1998, mother moved without telling father.  She
  transferred daughter to a new  school and son to new day care provider
  without informing father.

       The family court held divorce hearings over two days in the summer of
  1999.  The court  found that both parents had provided primary care for the
  children since they were born and that the  parties had shared equal time
  with the children from the September 4, 1996 stipulation until the time 

 

  of its August 1999 final divorce order.  It found that the children's
  schedule, with its frequent  transfers between parents, was "hectic" and
  inconsistent with the regular, stable schedule they  required.  It
  considered the probable effects on the best interests of each child if
  custody were  assigned to each parent.

       The court also considered, as required, each of the nine factors set
  out in 15 V.S.A. § 665(b)  ("In making an order under [§ 665], the court
  shall be guided by the best interests of the child, and  shall consider at
  least the following factors[.]").  Although mother disputes this, the
  record is clear  that the court found in favor of father in five of the
  factors (1-4, 7), in favor of neither party in three  (5,6, and 8), and
  that one factor did not apply (9).  

       Based on its findings, the court concluded that neither parent was
  unfit to raise the children,  but that because shuttling the children
  between the households was not in the children's best  interests, sole
  parental rights and responsibilities should belong to father:

          The factors as reviewed by the court show that between the 
     two parties, [father] has a greater sense of stability, greater maturity, 
     and a greater orientation toward the needs of the children. [Mother] is 
     a loving parent, enjoys the children, but is not as able to provide a 
     stable home environment for the children and is not as mature in her 
     ability to communicate about the children and to put the children's 
     needs first.

  The court also emphasized that the children's relationship with father's
  extended family also strongly  favored its decision.  Mother now appeals,
  arguing that the family court's findings of fact and  conclusions of law
  were erroneous.

       Mother is misguided in contending that our standard of review is de
  novo.  The family court  has broad discretion in awarding custody, and its
  findings will not be overturned unless clearly  erroneous.  See Putnam v.
  Putnam, 166 Vt. 108, 116-17, 689 A.2d 446, 451 (1996).  "Given its

 

  unique position to assess the credibility of witnesses and weigh the
  evidence, we will not set  aside the [family] court's findings if supported
  by the evidence, nor its conclusions if supported by  the findings." 
  Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998) (citations
  omitted).  In  determining the best interests of the children in custody
  matters, the court may draw upon its own  common sense and experience in
  reaching a reasoned judgement.  See Bissonette v. Gambrel, 152  Vt. 67,
  69-70, 564 A.2d 600, 601 (1989).

       Mother first argues that the family court's findings regarding the
  children's primary care  provider are clearly erroneous.  See § 665(b)(6)
  (court shall consider "quality of the child's  relationship with the
  primary care provider, if appropriate given the child's age and
  development").   The court found:

     Both parents have provided primary care for the children 
     continuously since they were born and continuously since 1996.  This 
     factor does not favor either parent, except as it relates to other factors, 
     and [father] has been a more reliable provider of care to slight degree 
     than [mother]; however, both have been primary care providers.

  Mother contends that the court's primary care provider finding was not
  supported by reasonable and  credible evidence.  She argues that the court
  failed to make accurate findings covering all relevant  periods of the
  children's lives and that father could not have been the primary care
  provider because  of his busy schedule, which included full-time work and
  attending community college classes, while  she worked only part-time or
  not at all.  

       Mother's argument that the family court failed to focus on all
  relevant periods of the  children's lives rather than on the time
  immediately preceding trial is not persuasive.  We observed  in Nickerson
  v. Nickerson, 158 Vt. 85, 89, 605 A.2d 1331, 1333 (1992), that we "have not 
  enunciated a definitive standard for determining the identity of the
  primary-care-provider under 

 

  § 665(b)(6)."  We cautioned that "mere physical custody by one of two fit
  parents, during the  time the estranged spouses live 'apart' to satisfy the
  no-fault divorce requirements, should not in  itself cause a former
  primary-care-provider to lose that status."  Id.  

       Here, the court assessed the entire period of the children's lives and
  the provision of care to  the children by the parties.  Unlike Nickerson,
  it does not appear that the court's evaluation of the  § 665(b)(6) factor
  gave undue weight to the father's role by failing to weigh mother's care of
  the  children.  Mother's contention that she served as primary care
  provider was contested by father.   There was conflicting testimony about
  who provided what care during which periods.

       Where there is conflicting testimony on such a factual issue, "we will
  not set aside a  judgment solely because we would reach a different
  conclusion on the facts."  Price v. Price, 149 Vt.  118, 120-21, 541 A.2d 79, 81 (1987).  We have consistently held that in such situations, 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.  See Putnam,
  166 Vt.  at 117, 689 A.2d  at 451.  We have never held, as mother
  essentially argues, that a court may not find  that both parents qualify as
  the primary care provider or that neither parent so qualifies, and we 
  decline mother's invitation to do so.  See, e.g., Harris v. Harris, 162
  Vt.174, 176-79, 647 A.2d 309,  311-13 (1994) (implicitly rejecting mother's
  contention that the family court erred in finding that  neither parent was
  the child's primary care provider).  Given the court's oft-repeated finding
  that the  parents spent approximately equal time with the children, its
  conclusion that both parents served as  the primary care provider for the
  last three years was not clearly erroneous.  See id. at 179, 647 A.2d   at
  313 (1994) ("Given these findings, which have support in the record, we
  conclude that the court's  failure to identify mother as the primary care
  provider does not require reversal.").

 

       Mother next argues that since she should have been adjudged the
  primary care provider, she  should have retained custody of the children
  unless the court found her unfit.  Our above holding  negates this claim,
  but we note that mother's argument is flawed because while a primary care 
  provider finding is entitled to great weight, we have continually declined
  to adopt "a rule that the  primary custodian will be awarded custody as
  long as the parent is fit."  Harris v. Harris, 149 Vt.  410, 418, 546 A.2d 208, 214 (1988); see also Hubbell v. Hubbell, 167 Vt. 153, 156, 702 A.2d 129,  131 (1997) ("We have held that [primary care provider] criterion
  should be given great weight unless  the primary custodian is unfit, but it
  does not create a presumption that the primary caretaker should  be awarded
  custody."); Harris, 162 Vt. at 178, 647 A.2d  at 312 (identification as
  primary care  provider only "one of the nonexclusive statutory factors the
  court must consider in making a custody  award").  In fact, the weight to
  be accorded the primary-caregiver relationship must be based on the  likely
  effect of a change of custodian on the child.  See Brennan v. Brennan, 165
  Vt. 525, 526, 685 A.2d 1104, 1105 (1996).  "Only when there is no evidence
  of that effect should the court ordinarily  find that the child must remain
  with the primary caregiver if fit."  deBeaumont v. Goodrich,  162 Vt.  91,
  101, 644 A.2d 843, 849 (1994).

       Finally, mother argues that the family court erred in its assessment
  of factors §§ 665(b)(2)  and (b)(4), and that "a de novo review shows that
  they favor [mother], while the other factors are  essentially neutral." 
  App. Br. at 20.  Mother's argument contains two flaws, each of which we 
  noted earlier.  First, mother again misapprehends our standard of review. 
  Our review is not de novo;  we will defer to the court's findings if
  supported by evidence.  See Begins, 168 Vt. at 301, 721 A.2d   at 471.  
  Second, the contention that the court did not find for father in any of the
  remaining factors is  not supported by the record.  

 

       Reviewing the court's finding on § 665(b)(4) (court shall consider
  "quality of the child's  adjustment to the child's present housing, school
  and community and the potential effect of any  change") under the
  appropriate standard,  we are satisfied that there is sufficient evidence
  in the  record to support the court's finding that "there is greater
  potential for future stability and security in  [father's] household than
  in [mother's household]."  Among the evidence the court cited to support 
  this finding was the children's relations with father's extended family,
  their involvement in father's  community's activities and church, and the
  stability of a long-term schooling plan in father's  community.

       Mother also challenges the court's findings on § 665(b)(2) (court
  shall consider "ability and  disposition of each parent to assure that the
  child receives adequate food, clothing, medical care,  other material needs
  and a safe environment").  While it is true, as mother contends, that the
  court  considered an incident in which mother did not comply with a
  doctor's recommendation for follow-up minor medical care for her son's
  temporary illness, the court concluded that both mother and  father were
  able to provide a safe environment for the children.  Similarly, while the
  trial court  observed that father had developed a stable earning capacity
  while mother had not, there is no  indication in the record that this was a
  dispositive finding unfairly penalizing mother for the  diminished earning
  capacity that may characterize a mother who undertakes parental
  responsibilities  and part-time employment.  

       We have previously noted that a family court "is required under §
  665(b) only to consider  each factor listed when making a determination of
  parental rights and responsibilities -- it imposes no  specific requirement
  on how this consideration is to be manifested in the court's findings and 
  conclusions."  Mansfield v. Mansfield, 167 Vt. 606, 607, 708 A.2d 579, 581
  (1998) (mem.).  Here, 

 

  the court carefully evaluated each of the § 665(b) factors.  Indeed, in
  addition to the findings  discussed above, the court specifically found
  either in father's or neither party's favor on the  remaining factors.
  
       Regarding § 665 (b)(1) (court shall consider "the relationship of the
  child with each parent  and the ability and disposition of each parent to
  provide the child with love, affection and  guidance"), the court found
  that both parents were equal in their love and affection for the children, 
  but that father was better able to provide guidance, citing his more stable
  living pattern and the fact  that he initiated counseling for one of the
  children which proved beneficial.  For § 665(b)(3) (court  shall consider
  "the ability and disposition of each parent to meet the child's present and
  future  developmental needs"), the court found that father had been more
  responsible in making the  children's needs his priority, citing again his
  lead in arranging counseling for one of the children as  well as adjusting
  his schedule around the children's needs, in contrast to mother's
  unilateral  decisions regarding the children's living and education
  arrangements.  The court found in favor of  neither parent on the fifth
  factor of § 665(b) (court shall 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"),  stating that
  both parties needed to improve at fostering a positive relationship with
  the other.  On  § 665(b)(7) (court shall consider "the relationship of the
  child with any other person who may  significantly affect the child"), the
  court found in favor of father, relying primarily on the strong 
  relationship the children have with father's large extended family.  As to
  the eighth factor of § 665(b)  (court shall consider "the ability and
  disposition of the parents to communicate, cooperate with each  other and
  make joint decisions concerning the children where parental rights and 

 

  responsibilities are to be shared or divided"), the court found that
  neither parent effectively  communicated with the other about decisions
  regarding the children.  Finally, the court found no  facts suggesting
  abuse, so it found inapplicable § 665(b)(9) (court shall consider "evidence
  of abuse,  as defined in section 1101 of this title, and the impact of the
  abuse on the child and on the  relationship between the child and the
  abusing parent"). 

       Based on this record, mother's contention that the family court did
  not find for father in any  of the remaining factors is not accurate. 
  Thus, the court's conclusion that transferring custody to  father was best
  for the children, even though mother had maintained physical custody of
  them prior  to the final divorce order, was not clearly erroneous.  See
  Mansfield, 167 Vt. at 607, 708 A.2d  at 581.  ("In this instance, the family
  court considered all nine factors in reaching its conclusion that the 
  interests of the children would be best served if defendant was given legal
  and physical responsibility  for them.").

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice