Ihinger v. Ihinger

Ihinger v. Ihinger (2001-236); 175 Vt. 520; 824 A.2d 601

2003 VT 38

[Filed 01-Apr-2003]

                                 ENTRY ORDER

                                 2003 VT 38

                      SUPREME COURT DOCKET NO. 2001-236

                               JUNE TERM, 2002

  Melissa Ann McGuire Ihinger	       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Addison Family Court
                                       }	
  Eddie L. Ihinger, Jr.	               }
                                       }	DOCKET NO. 215-11-93 Andm

                                                Trial Judge:  Edward J. Cashman

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

       ¶  1.  Melissa and Eddie Ihinger's three children appeal a decision
  by the Addison Family Court vacating a temporary order transferring custody
  of the children from Melissa to the children's maternal grandmother,
  Alberta Wedge.  We conclude that the children do not have standing to
  appeal the family court's order, and therefore dismiss the appeal. (FN1) 

       ¶  2.  Melissa and Eddie Ihinger were granted a divorce in Vermont
  in 1995.  Since 1986, their relationship has been characterized by cycles
  of estrangement and reconciliation.  At various times during the parties'
  relationship, Melissa and the children have resided with Wedge in Vermont,
  and later in North Carolina.  The record reflects that Wedge has played an
  important caretaking role in the lives of her grandchildren, and that she
  has voiced concern over Melissa and Eddie's lack of stability.  

       ¶  3.  In January 2001, Melissa and Wedge stipulated to transfer
  custody of the children to Wedge, alleging Melissa and Eddie's
  unpredictable and cyclical relationship had been harmful to the children. 
  The family court entered an order temporarily granting legal and physical
  custody of the children to Wedge in North Carolina.  The court also
  appointed a guardian ad litem and an attorney to represent the children's
  best interests.  In March, 2001, Eddie filed a motion to dissolve the
  temporary custody order.  By the time the court heard Eddie's motion, he
  and Melissa had reconciled, and they both expressed a desire to regain
  custody of their children.  
        
       ¶  4.  In an April 2001 decision, the family court concluded that it
  did not have jurisdiction to entertain Wedge's motion to modify parental
  rights and responsibilities.  It rejected Wedge's argument that her past
  custody of the children gave her party status in the proceeding equal to
  that of Melissa and Eddie.  The court therefore dismissed Wedge's motion to
  modify, 'dissolved' the January 2001 temporary custody order, and returned
  sole physical and legal custody of the children to their mother, Melissa. 
  Through their court-appointed counsel, the children appealed to this Court.  

       ¶  5.  The children's principal claim on appeal concerns Wedge's
  standing to seek modification of the order granting Melissa custody.  We
  note that Wedge did not file a notice of appeal, nor has she filed a brief
  supporting the arguments the children advance in this Court.  Melissa
  opposes her children's appeal, and argues that we lack jurisdiction over
  this matter because the children were not parties to the divorce proceeding
  below, and therefore they have no standing to appeal the family court's
  order. (FN2)  The children have not articulated a basis for this Court's
  jurisdiction or otherwise responded to their mother's jurisdictional
  argument.  Because standing is a jurisdictional issue, we must first
  determine the merits of Melissa's threshold argument.  Cooperative Fire
  Ins. Ass'n of Vt. v. Bizon, 166 Vt. 326, 330 n.3, 693 A.2d 722, 725 (1997).  

       ¶  6.  "Ordinarily, a party may appeal if the party has some legal
  interest which may be, by the judgment appealed from, either enlarged or
  diminished."  Id. at 330-31, 693 A.2d  at 725.  Moreover, because of their
  party status, a third party and an intervenor also may appeal any issue
  decided below which adversely affects their interests.  See id. at 331, 693 A.2d  at 725; see also Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per
  curiam) (only parties to a lawsuit, including those who intervened, may
  appeal an adverse judgment).   Thus, unless the Ihinger children had party
  status in the divorce proceeding below, they have no standing to appeal.  

       ¶  7.  Although minor children are affected by the decisions courts
  must make concerning parental rights and responsibilities in the course of
  divorce proceedings, minor children are not normally parties to such
  proceedings.  2 H. Clark, Jr., The Law of Domestic Relations in the United
  States, § 15.2, at 77 (2d ed. 1987) (children of marriage are not usually
  parties to the divorce action); Note, Balancing Children's Rights into the
  Divorce Decision, 13 Vt. L. Rev. 531, 561 (1989) ("Despite the strong
  infringement on a child's interests implicit in divorce, the law currently
  does not consider children to be affected parties.").  Divorce is a
  creature of legislative enactment, and courts may adjudicate matters in a
  divorce only in accordance with statute.  Gerdel v. Gerdel, 132 Vt. 58, 61,
  313 A.2d 8, 9-10 (1973).  We examine the statutes governing divorce
  proceedings in pari materia to ascertain and give effect to the
  Legislature's intent.  Beaudry v. Beaudry, 132 Vt. 53, 56, 312 A.2d 920,
  924 (1973).  
   
       ¶  8.  The reference to "parties" in the divorce statutes indicate
  that the Vermont Legislature did not intend for the minor children of
  divorcing parents to be statutory parties in the divorce proceeding.  See,
  e.g., 15 V.S.A. § 592 (a complaint for divorce may be brought "if either
  party to the marriage" has lived in Vermont for at least six months)
  (emphasis added); id. §  665(a) (in a divorce action, "the court shall make
  an order concerning parental rights and responsibilities of any minor child
  of the parties.") (emphasis added); see also, Reporter's Notes, V.R.F.P. 7
  (State's principal interest in divorce proceedings involving minor children
  is "to protect the best interests of nonparties -- the children") (emphasis
  added).  Rather than grant minor children party status to every divorce
  action, the Vermont Legislature has devised alternative means by which
  children's interests are protected during a divorce.  The court has the
  discretion to appoint a guardian ad litem and an attorney for the children
  to assure the children's best interests are met.  15 V.S.A. §§ 594, 669;
  V.R.F.P. 7.  Under certain circumstances, the court may permit a child to
  be a witness in the proceeding as well.  15 V.S.A. § 594(b).  Thus, while
  the Legislature has provided a mechanism to assure that children's best
  interests are accounted for in an action for divorce, it has not gone so
  far as to give children full party status with its attendant rights of
  appeal.  

       ¶  9.  We note that other states have resolved the question about
  the party status of minor children of divorcing parents by enacting
  legislation or promulgating rules addressing the issue.  See, e.g., Ohio R.
  Civ. Pro. 75(B)(2) (2002) (when it is essential to protect interests of a
  child in a divorce proceeding involving child's parents, court may join
  child as party defendant); N.Y. Fam. Ct. Law § 1120(b) (2003) (law guardian
  for minor child in domestic relations proceeding must continue with
  appointment without further court order if guardian appeals on child's
  behalf); Wis. Stat. Ann. § 767.045(5) (2002) (guardian ad litem for child
  in divorce action may appeal, participate in an appeal, or do neither). 

       ¶  10.  Although children are not statutory parties to a divorce
  action involving their parents, they may still become parties if they meet
  the usual standards governing intervention.  Rule 24 of the Vermont Rules
  of Civil Procedure sets forth the criteria for obtaining party status
  through a timely application for intervention.  V.R.C.P. 24.  Rule 24 is
  applicable in proceedings like the present one by way of Rule 4 of the
  Vermont Rules of Family Proceedings.  See V.R.F.P. 4(a) (Rules of Civil
  Procedure apply to divorce and legal separation proceedings, except as
  modified by Rule 4).  In this case, neither the children's attorney nor the
  guardian ad litem appointed to represent the children's best interests
  sought intervention for the children in the proceeding below.  Therefore,
  the children cannot be considered intervening parties with a right to
  appeal.

       ¶  11.  Accordingly, because the children lack party status in this
  proceeding, their notice of appeal was ineffective to confer jurisdiction
  on this Court.  We must, therefore, dismiss the appeal for lack of
  jurisdiction.  

       Appeal dismissed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       ________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  Justice Morse was present when the case was submitted on the briefs
  but did not participate in this decision.

FN2.  The children's father, Eddie Ihinger, Jr., did not file a brief in
  this Court.