Habecker v. Giard

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Habecker v. Giard (2002-334); 175 Vt. 489; 820 A.2d 215

2003 VT 18

[Filed 14-Feb-2003]

ENTRY ORDER

2003 VT 18

SUPREME COURT DOCKET NO. 2002-334

NOVEMBER TERM, 2002

Kimberly A. Habecker } APPEALED FROM:
}
}
v. } Chittenden Family Court
}
Christopher Giard }
} DOCKET NO. 362-4-96 Cndm

Trial Judge: Helen M. Toor

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

¶ 1. Mother appeals from a Chittenden Family Court order granting
legal and physical custody of the parties' four children to father.
Mother, who is not married to father, claims that the court erred by: 1)
finding a real, substantial and unanticipated change of circumstances when
the evidence did not support such a finding; 2) concluding that transfer of
physical custody and legal parental rights and responsibilities to father
was in the children's best interests; and 3) improperly placing the burden
upon mother to file a motion to modify custody order prior to relocating.
We affirm.

¶ 2. The family court found the following facts. Mother and
father lived together with their children for many years in Vermont, Maine,
and New Hampshire; mother and father were never married. In 1996, when the
parties had three children, they separated and entered into a stipulation
and final order regarding parental rights and responsibilities. Under this
order, mother had sole physical custody, and the parties had joint legal
custody of the three children. Father was awarded visitation rights on
every other weekend and two full weeks during the year, with vacations and
holidays to be mutually agreed upon by the parties. In practice, father
has the children for an additional three hours one evening per week. After
the date of the agreement, mother and father later reunited, and their
fourth child was born in 1998. In 2000, the parties separated again. The
court issued an order in 2001, which granted mother sole physical and legal
custody of the parties' fourth child.

¶ 3. In 2001, mother began to contemplate a move from Vermont to
Arizona, and she mentioned this to father in September. In November 2001,
mother sent father a certified letter indicating her intention to relocate
to Arizona, but he did not receive it. In January 2002, mother applied for
a job in the same school system for which father works. Father was aware
of this fact, which led him to assume mother had decided to stay in
Vermont. One month later, mother became engaged to a man living in Arizona
whom she apparently met over the Internet. On March 5, 2002, mother sent
father a letter stating that she and the children were moving to Arizona
around June 1. One week later, mother wrote father again to notify him
that the move would take place on April 1. On March 20, 2002, father filed
a motion to modify parental rights and responsibilities accompanied by an
emergency motion to prevent the removal of the children from Vermont. The
court granted father's emergency motion, denied mother's motion to
reconsider, and held hearings on the motion to modify on May 13 and June
21, 2002.

¶ 4. The family court issued a twenty-five page, fact-specific
ruling in which it granted father's motion to modify. The court awarded
legal and physical custody of all four children to father, finding that 1)
the moving party, father, made a showing of a real, substantial and
unanticipated change of circumstances, and 2) a modification of the prior
parental rights and responsibilities determination was in the best
interests of the children.

¶ 5. In order to modify custody, a moving party must first make a
threshold showing of a "real, substantial and unanticipated change of
circumstances." 15 V.S.A. § 668; deBeaumont v. Goodrich, 162 Vt. 91, 95,
644 A.2d 843, 845 (1994). The court has discretion in determining a change
of circumstances for custody purposes. Lane v. Schenck, 158 Vt. 489, 494,
614 A.2d 786, 788 (1992). If the party makes this threshold showing, then
the court may change custody only when the best interests of the child so
require. 15 V.S.A. § 668; deBeaumont, 162 Vt. at 95, 644 A.2d at 845-46;
Lane, 158 Vt. at 497, 614 A.2d at 790. The burden for such a showing
remains on the moving party, and, due to the value of stability in a
child's life, it is a heavy one. deBeaumont, 162 Vt. at 102, 644 A.2d at
850.

¶ 6. Mother argues that the court erred in holding that father made
the required threshold showing of a real, substantial and unanticipated
change of circumstances. First, we agree with mother that relocation alone
does not automatically constitute a change of circumstances. We have
previously made clear that "relocation without more is not per se a
substantial change of circumstances." Id. at 97, 644 A.2d at 847 (emphasis
added); accord Gazo v. Gazo, 166 Vt. 434, 440, 697 A.2d 342, 345 (1997).
It is not appropriate for the court to substitute its judgment for that of
the custodial parent with respect to the wisdom of a decision to relocate,
McCart v. McCart, 166 Vt. 629, 630, 697 A.2d 353, 354 (1997) (mem.), nor
should the court choose where the custodial parent and children must
reside. See Gazo, 166 Vt. at 441, 697 A.2d at 346.

¶ 7. Our recent discussion of the relocation issue in Hoover v.
Hoover, 171 Vt. 256, 259, 764 A.2d 1192, 1194 (2000), a case in which the
parents had shared legal and physical custody, noted:

[W]hen childrearing and its concomitant decision-making are
shared, relocation to a remote location by one parent requires at
the very least a reassessment of the custodial arrangement and,
because of the practicalities involved in shared parenting, will
often necessitate a change in custody.

While the trial court recognized that Hoover does not directly address the
issue of changed circumstances, the trial court construed our observation
that relocation to a distant location "requires at the very least a
reassessment of the [shared] custodial arrangement" to mean that the move
mother contemplates in this case is "per se a change in circumstance."
Hoover, however, did not alter our previous holdings that where there is a
custodial parent, relocation without more is not per se a substantial
change of circumstances. For example, in Dunning v. Meaney, 161 Vt. 287,
288, 640 A.2d 3, 4 (1993), as in the case before us, the mother had
physical custody, and the parents shared legal custody. There, we held
that the custodial mother's "move itself does not amount to a real,
substantial or unanticipated change in circumstances justifying
modification of the physical rights and responsibilities." Id. at 290, 640 A.2d at 5.

¶ 8. Reassessment of the custodial arrangement was, however,
clearly warranted under the facts of this case. Notwithstanding mother's
focus on the court's reliance on relocation, the issue before us is whether
there was sufficient evidence below to support a threshold showing of a
real, substantial and unanticipated change of circumstances. We conclude
that there is such evidence, and therefore uphold the decision in this
regard. Cf. In re R.L., 163 Vt. 168, 174-75, 657 A.2d 180, 185 (1995)
(upholding involuntary hospitalization order where the record was clear
that voluntary treatment of patient was not possible even though the
court's findings and conclusions did not specifically focus on whether
voluntary treatment was possible).

¶ 9. While mother would have us examine the record below by
looking solely to relocation, a review of the evidence before the trial
court demonstrates that the contemplated move was but a single aspect of a
deteriorating and unanticipated change in the context of mother's
relationship to her family. The court, for example, was clearly disturbed
- in light of mother's past suicide threats and use of anti-depressants -
by testimony that mother was "calling in her own prescriptions" from the
doctor's office where she worked. Although mother denied such conduct, the
court did not find mother's denial to be credible and concluded that mother
engaged in "apparently criminal activity." Mother's sister testified that
mother's behavior had become unpredictable and emotionally abusive to the
children. The court had before it a recent letter from mother to father
stating that he would not be allowed to see the children if he persisted in
allowing them to have contact with their grandmother or aunts. The court
found that in the fall of 2001, she made statements to father that she
"can't take it anymore" and said, "Will you make sure the kids remember
me?" In light of the record and the court's findings, it is apparent that
evidence of mother's relocation plans were symptomatic of a substantial and
unanticipated change in mother's mental state, and the proposed relocation
was not, per se, a change of circumstances in and of itself. There is
sufficient evidence in this record to support a finding of a real,
substantial and unanticipated change of circumstances.

II.

¶ 10. Mother also argues that the family court improperly concluded
that a transfer of physical and legal parental rights and responsibilities
to father was in the children's best interests. The best interests of the
child must be the court's paramount consideration in awarding custody.
Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998). The court
must take into account all relevant evidence, including the factors found
in 15 V.S.A. § 665(b). Cloutier v. Blowers, 172 Vt. 450, 452, 783 A.2d 961, 963 (2001). Within the child custody context, however, the family
court has broad discretion, and we will not set aside the family court's
conclusions if supported by the findings. Payrits v. Payrits, 171 Vt. 50,
52-53, 757 A.2d 469, 472 (2000). Mother disputes only the conclusions of
the family court and not the findings. In its ruling, the family court
made findings regarding each of the nine factors in 15 V.S.A. § 665(b), and
determined that factors one, three, four, and nine did not substantially
favor either parent and that factor eight was not relevant since the court
was not considering shared or divided legal and physical custody. Thus,
the court primarily relied upon the second, fifth, and seventh factors, as
well as reviewing additional evidence.

¶ 11. As the trial court did here, a court must consider the second
factor: "the ability and disposition of each parent to assure that the
child receives adequate food, clothing, medical care, other material needs
and a safe environment." 15 V.S.A. § 665(b)(2). After reviewing the
evidence, the family court concluded, "[F]ather appears better suited to
providing a safe environment than does mother." The court found that

[m]other has exposed the children to a boyfriend who pushed mother
in front of the children, attempted to break into her home in the
middle of the night, and apparently threatened to kill her. . . .
mother has hit one of the children with a belt and slapped another
in the face.

¶ 12. The fifth factor, "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," id. § 665(b)(5), is also an
important statutory factor that must guide the court. Begins, 168 Vt. at
301, 721 A.2d at 471. Here, the family court concluded that "father is
much more likely to assure a positive relationship and ongoing contact with
mother than the reverse" after finding that mother engaged in conduct where
she repeatedly threatened father that he would never see his children
again.

¶ 13. The seventh factor, "the relationship of the child with any
other person who may significantly affect the child," 15 V.S.A. §
665(b)(7), was a critical component of the court's decision. The court
noted that the children's relationships with their maternal and paternal
grandparents and aunts were a source of stability for the children despite
the discord between their parents. The court concluded that to deprive the
children of these longstanding family ties and frequent contacts would be a
"great loss to the children."

¶ 14. Mother argues that the court failed to give enough weight to
the finding that mother was the primary care provider. Although a primary
care provider finding is entitled to great weight, Nickerson v. Nickerson,
158 Vt. 85, 89, 605 A.2d 1331, 1333 (1992), this does not create "a rule
that the primary custodian will be awarded custody as long as the parent is
fit." Payrits, 171 Vt. at 54, 757 A.2d at 472 (internal quotation marks
omitted). Instead, the weight accorded to the primary care provider factor
depends upon the quality of the relationship between the child and
custodian, as well as the likely effect that a change of custodian will
have on the child. Johnson v. Johnson, 163 Vt. 491, 494, 659 A.2d 1149,
1151 (1995). "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." Payrits, 171 Vt. at 55, 757 A.2d at 473 (internal quotation marks
omitted). After balancing the 15 V.S.A. § 665(b) factors, the court
awarded legal and physical custody of all four children to father,
concluding,

[F]ather is better able to place the children's needs ahead of his
own; offers a more stable and established home, community, and
extended family support system; is better able to provide for the
physical safety of the children; and is much more willing to
foster communication with mother and a positive relationship
between her and the children than she would offer with regard to
him.

The court made the appropriate inquiry regarding the factors and did not
abuse its discretion by concluding that a grant of custody to father would
serve the best interests of the children. Thus, we affirm the court's
decision.

III.

¶ 15. Finally, mother contends that the trial court improperly
placed upon her the burden of filing a motion to modify prior to relocating
and that this resulted in prejudice. Mother bases her argument on a
footnote in the family court's ruling, which reads in part:

From the court's perspective, mother was planning to unilaterally
modify the order by moving, and should have filed a motion to
modify herself before doing so. As noted below, a move across the
country essentially eliminates the possibility of continued joint
legal custody, as well as requiring revision to the parent-child
contact schedule. Thus, mother would have been in violation of
the existing order had she moved, and she should therefore have
moved to modify before doing so.

Vermont does not have a statute that requires the custodian to make an
affirmative showing of cause to justify removal nor a statute discouraging
relocation. Lane, 158 Vt. at 497, 614 A.2d at 790. Mother was not
prejudiced by the footnote in the family court's ruling however, as it is
clear that the trial court considered father the moving party and properly
placed the burden on him.

Affirmed.

BY THE COURT:

_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

Note: Justice Morse sat for oral argument but did not participate in
this decision.

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