Meyer v. Meyer

Meyer v. Meyer (2000-420); 173 Vt. 195; 789 A.2d 921

[Filed 09-Nov-2001]

[Motion for Reargument Denied 21-Dec-2001]


       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. 2000-420


                                                 Supreme Court
Lee R. Meyer
                                                 On Appeal from
     v.	                                         Chittenden Family Court


Erika Meyer	                                 March Term, 2001


Linda Levitt, J.

Jack Long of Clark Long & Werner, Burlington, and Carolyn R. Wah, Associate 
  General Counsel, Watchtower Bible and Tract Society of New York, Patterson, 
  New York, for Plaintiff-Appellant.

Nicholas E. Tishler (Of Counsel) of Schoenberg & Associates, Burlington, for 
  Defendant-Appellee.


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


       MORSE, J.   Father appeals from an order of the family court granting
  mother's motion to  modify the parties' original divorce decree regarding
  the allocation of parental rights and  responsibilities for their two
  daughters.  He argues that (1) mother failed to meet the jurisdictional 
  threshold of demonstrating changed circumstances, (2) the court's order and
  its consideration of his  religious beliefs are unconstitutional, and (3)
  the court abused its discretion by failing to appoint a  guardian ad litem
  for the girls.  We affirm.

       Father and mother have two daughters together, Hannah and Hillary.  At
  the time of their  divorce in April 1995, father and mother stipulated to
  joint parental rights and responsibilities for the 

 

  girls.  In June 1999, mother moved to modify the parties' original divorce
  decree, seeking both sole  legal and sole physical rights and
  responsibilities for the children.  Following an eleven-day hearing,  the
  family court granted her motion to modify, ordering that mother have sole
  rights and  responsibilities.  Father appeals to this Court.

                                     I.

       Father first argues that mother failed to demonstrate a real,
  substantial and unanticipated  change in circumstances as required by 15
  V.S.A. § 668 for modification.  Specifically, he argues  that the parties
  have consistently disagreed about major issues concerning the girls since
  the time of  divorce, and that he and mother have never been able to
  communicate effectively.  Thus, he argues  under our holding in Gates v.
  Gates, mother failed to meet the jurisdictional threshold for 
  modification.  Cf. Gates v. Gates, 168 Vt. 64, 68-69, 716 A.2d 794, 797-98
  (1998) (finding no abuse  of discretion by trial court in concluding that
  continued antagonism between parties on issues  concerning the children was
  not a change in circumstances).

       We emphasize that the standard of review regarding a trial court's
  finding of changed  circumstances is a deferential one.  The trial court's
  determination is a matter of discretion.  Lane v.  Schenck, 158 Vt. 489,
  494, 614 A.2d 786, 788 (1992).  Thus, we will not disturb the court's 
  determination unless its exercise of discretion was on grounds or for
  reasons clearly untenable, or the  exercise of discretion was to a clearly
  unreasonable extent.  Gates, 168 Vt. at 67-68, 716 A.2d  at 797.

       Our review of the record reveals that this case is easily
  distinguishable from Gates.  First,  both mother and father testified that
  they disagree on just about every major issue concerning the  children,
  including religion, education, extra-curricular activities, whether the
  children should be

 

  participating in counseling and with whom, childcare, and how mother and
  father should be  communicating about the children.  Cf. id. (noting that
  parties had been able to effectively cooperate  on several major issues,
  including religious, educational and medical matters, despite disagreement 
  on others).  Second, mother's testimony chronicled a significant change in
  the parties' dealings with  one another, notwithstanding father's
  conclusory testimony to the contrary.  Mother testified to  extensive
  cooperation on issues regarding Hannah and Hillary immediately following
  the divorce,  including shared access to one another's homes, the exchange
  and transport of the children's  belongings between the two homes, frequent
  and open communication between mother and father  without limitation, joint
  parent-teacher meetings, and flexibility about time and contact with each 
  parent.  Her testimony then outlined a significant change for the worse in
  these areas starting in the  latter half of 1996, including father
  prohibiting the girls from contacting mother while they were in  his care,
  prohibiting mother from entering his home, and refusing to communicate with
  mother  except in writing.  Father also requested separate parent-teacher
  meetings - on one occasion  specifically asking the school not to invite
  mother to a meeting he had arranged with the school  principal, Hannah's
  teacher and Hannah's guidance counselor - and insisted that the children
  have  separate and duplicate possessions for each household.  Finally, the
  trial court based its finding of  changed circumstances in part on the
  effect of the parties' disagreements on the children, particularly  Hannah. 
  Even if the parties had anticipated disagreeing continually as father
  contends, the effect of  this on the children was not necessarily
  anticipated.  Given this state of the record, the family court  did not
  abuse its discretion by concluding that mother had sufficiently
  demonstrated a real,  substantial and unanticipated change in circumstances
  justifying modification. 

  

                                     II.

       Father next argues that the portion of the court's order providing
  that he not bring Hannah and  Hillary to any Jehovah's Witness religious
  gatherings or attempt to raise the girls as Jehovah's  Witnesses is
  unconstitutional.  He further argues that any consideration by the trial
  court in this case  of his religious beliefs was in violation of the both
  the Vermont and United States constitutions.   Because father never argued
  that mother's request for such a provision in the court's final order was 
  unconstitutional, nor objected to the introduction of evidence on his
  religious beliefs and practices on  constitutional grounds, our review on
  appeal is limited.  See Varnum v. Varnum, 155 Vt. 376, 383,  586 A.2d 1107,
  1111 (1990) (stating standard of review for unpreserved constitutional
  claim in a  custody case).  We will reverse the family court's order in
  such circumstances only if there exists a  "fundamental miscarriage of
  justice that we cannot overlook."  Id.  We cannot say that there has been 
  one in this case for several reasons.

       First, consideration of father's religion by the trial court was not
  unconstitutional per se.  As  we noted in Varnum, courts may take into
  account a parent's religious practices when making a  custodial
  determination if there is evidence that the practices have a direct and
  negative impact on a  child's physical or mental health.  Id. at 384, 586 A.2d  at 1111; see also Jakab v. Jakab, 163 Vt. 575,  583, 664 A.2d 261,
  265-66 (1995).  Mother presented extensive evidence that the conflicting 
  practices and rules in each household that stemmed from her and father's
  disparate religious beliefs  were causing Hannah and Hillary to experience
  extreme confusion and anxiety.  For instance,  Hannah's teachers testified
  to Hannah's struggle over participation in birthday and holiday activities 
  at school, a practice that father's religion, that of the Jehovah's
  Witnesses, prohibits, but a practice  that mother encouraged.  Hannah's
  third grade teacher testified to an incident in which father came 

 

  to the school one day to discuss Hannah's participation in such activities,
  indicating that he did not  want Hannah participating and that the teacher
  should inform him if she was.  The teacher went on to  describe how Hannah
  confronted her the next day extremely upset, and told her that she had made 
  the situation for Hannah worse, asking "why did you tell him?" (about
  Hannah occasionally  participating).  One of Hillary's teachers testified
  that Hillary also appeared to struggle with the  decision of whether to
  participate in birthday and holiday activities as well, but it was mostly 
  confined to the beginning of the school year. 

       Mother also testified to symptoms of anxiety in both girls - Hannah
  experiencing nightmares,  stomach aches, and a constricted throat; Hillary
  being very clingy and sucking her thumb.  Hannah's  pediatrician had ruled
  out organic causes for her physical symptoms after seeing her on two 
  occasions, and indicated in her testimony that she thought the symptoms had
  been caused by anxiety.  She stated that she recommended counseling to
  mother for Hannah.  The counselor who had been  seeing Hannah at mother's
  request - prior to her termination by father - testified that she
  considered  Hannah to be suffering from anxiety and attributed it to
  Hannah's conflicted situation, including the  conflict of mother and
  father's religious beliefs and practices. 

       Based on this and other evidence, the court made specific findings
  regarding the negative  effects on the children of mother's and father's
  differing sets of beliefs, including the children's  feelings of
  disloyalty, guilt, confusion, and anxiety.  Thus, not only was evidence of
  harm presented,  but the trial court made specific findings that the
  conflicting beliefs and practices in each household  were having a palpable
  negative impact on the children, and would continue to do so.  Cf. Varnum, 
  155 Vt. at 385, 586 A.2d  at 1112 (noting trial court made no findings
  regarding the impact of 

 

  parent's religious practices on child, but nevertheless concluding court's
  order was not a fundamental  miscarriage of justice).

       Second, there was extensive evidence of father attempting to alienate
  Hannah and Hillary  from mother that independently supports the court's
  disposition in this case.  Without chronicling it  at length, there was
  evidence from mother that father refused to communicate with her in person
  on  repeated occasions in front of the children, including incidents of
  father refusing to answer the door  for her, refusing to roll down the car
  window while she attempted to talk to father at an exchange of  the
  children, communicating to her through stepmother while he stood by
  silently during exchanges,  and hanging up the phone on her.  Father also
  prohibited the children from communicating with  mother while they were in
  his care.  Several other witnesses also testified to father's attitude
  toward  mother - one of Hannah's teachers stated that in a meeting she had
  with father and stepmother at the  beginning of the school year, father
  painted mother in a negative light, and Hannah's counselor  indicated that
  father expressed to her his desire that mother not be part of his family
  life at all, that he  did not consider her part of his family system. 

       Father himself had indicated in a letter that he did not want any
  contact between mother and  the children when they were with him because he
  found it "disruptive."  When asked why he would  not honor mother's request
  that the girls not call stepmother "mommy," father responded that he did 
  not consider her request "justified" and thought it was merely the result
  of "jealousy."  Such actions  and efforts on the part of father not only
  prevented the parties from effectively co-parenting - necessitating the
  modification of that arrangement at issue in this appeal - but also weighed
  against  making father the sole custodian for the children.  See 15 V.S.A.
  § 665(b)(5) (in determining best  interests of child court shall consider,
  among other things, the ability and disposition of each parent 

 

  to foster a continuing relationship with the other parent).  The religious
  issues aside, the evidence at  trial painted a stark picture of attempts at
  parental alienation.

       Third, regarding the provision that father not involve the children in
  his religious observances  or raise the children as Witnesses, the court
  was merely making explicit mother's decision as the  custodial parent
  charged with legal responsibility for the children.  See Jakab, 163 Vt. at
  583, 664 A.2d  at 266 (decision regarding children's religious upbringing
  belongs to the custodial parent).   Mother specifically requested that such
  a provision be included in the order in the event she was  granted legal
  rights and responsibilities for the girls.  Therefore, the court was not in
  the position of  picking a religion for the children, but was only giving
  effect to mother's decision on that issue.  Nor  does the provision prevent
  father from exercising his religion on his own - in fact the court 
  structured the visitation to avoid conflicts between father's religious
  meetings and his time with the  girls.  Considered in light of the evidence
  of harm discussed above, the provision is not inconsistent  with
  constitutional principles.  See LeDoux v. LeDoux, 452 N.W.2d 1, 5-6 (Neb.
  1990) (court could,  consistent with constitution, prohibit noncustodial
  parent from exposing child to religion at odds  with that chosen for child
  by custodial parent, given evidence and finding of harm stemming from  the
  conflict); see also Lange v. Lange, 502 N.W.2d 143, 148-49 (Wis. Ct. App.
  1993) (even absent  showing of harm, court may constitutionally enjoin
  noncustodial parent from inculcating children in  particular religion when
  it subverts custodial parent's right to choose children's religion), cert.
  denied,  511 U.S. 1025 (1994).  Therefore, there has been no fundamental
  miscarriage of justice requiring us  to reverse the order of the family
  court.

 

                                    III.

       Father's final argument on appeal is that the trial court erred by
  failing to appoint a guardian  ad litem for the girls under 15 V.S.A. § 669
  and V.R.F.P. 7; therefore, we should reverse and remand  for a new hearing. 
  We have noted previously the role of a guardian ad litem at a merits
  hearing "is  limited."  Gilbert v. Gilbert, 163 Vt. 549, 554, 664 A.2d 239,
  241 (1995).  As the Reporter's Notes to  Rule 7 observe, the guardian ad
  litem serves primarily to protect and advise the children in the course  of
  the adversarial proceedings, but is not there to supplant the adversarial
  decision-making process of  a contested merits hearing.  Reporter's Notes,
  V.R.F.P. 7.  Father points to no evidence in this case  that either party
  to this custody proceeding had anything other than the children's best
  interest in  mind in the course of the litigation.  Cf. Putnam v. Putnam,
  166 Vt. 108, 115-16, 689 A.2d 446, 450  (1996) (noting in case where trial
  court had made a finding of collusion on the part of the parents,  father
  failed to show that guardian did not adequately protect child's interests
  such that failure to also  appoint an attorney was reversible error). 
  Consequently, we cannot say that the court's failure to  appoint a guardian
  ad litem for Hannah and Hillary was an abuse of discretion or rendered the 
  proceedings so flawed as to require reversal of the family court's
  disposition.

        Affirmed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice