Sochin v. Sochin

Sochin v. Sochin (2003-237); 177 Vt. 540; 861 A.2d 1089

2004 VT 85

[Filed 25-Aug-2004]

                                 ENTRY ORDER

                                 2004 VT 85

                      SUPREME COURT DOCKET NO. 2003-237

                              MARCH TERM, 2004

  Gregory W. Sochin	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Windham Family Court
                                       }	
  LeaAnn B. Sochin	               }
                                       }	DOCKET NO. 2-1-02 Wmdmd

                                                Trial Judge: Paul F. Hudson

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

       ¶  1.  Mother appeals from a divorce order of the Windham Family
  Court.  She contends the court erred in: (1) setting a parent-child contact
  schedule with father that results in equal custodial time between the
  parties;  (2) requiring that the parties stipulate to consistent parenting
  rules; (3) ordering that father be able to attend the child's medical
  appointments; (4) declining to award her spousal maintenance; and (5)
  declining to award her a share of the equity in the marital home.  As to
  the first three contentions, we hold that the claims were rendered moot by
  a subsequent family court order modifying parental rights and
  responsibilities, and as to the fourth and fifth contentions we affirm.

       ¶  2.  The parties were married in 1991, and had one child, born in
  September 1998.  Both parents worked as support staff at various
  restaurants and inns during the marriage.  Following their separation, the
  parties entered into an interim stipulation, filed with the court in March
  2002, providing for a shared custodial arrangement, father having the child
  from Thursday morning until noon on Sunday, mother from Sunday until
  Wednesday at 4:30 p.m., and alternating custody on Wednesdays from 4:30
  p.m. until the following morning.  

       ¶  3.  The court held a final hearing over two days in September
  2002 and January 2003.  Mother's initial request for findings, filed in
  September, proposed an award of shared physical and legal parental rights
  and responsibilities, and provided for a continuation of the contact
  schedule in place under the interim stipulation.  Mother filed a set of
  revised requests in early January 2003, however, seeking an award of sole
  legal and physical parental rights and responsibilities, and proposing to
  limit parent-child contact with father to three weekends per month. 
  Although mother testified at the continued hearing in January that she
  wanted the shared contact schedule to continue, she was concerned that
  father's inconsistent parenting rules and lack of communication had made an
  award of primary rights and responsibilities necessary.   
   
       ¶  4.  The court issued a final opinion and order in April 2003,
  awarding mother sole physical and legal parental rights and
  responsibilities, while maintaining the contact schedule under the interim
  stipulation. The court found, in this regard, that the parties' inability
  to agree to share parental rights and responsibilities required an award of
  sole rights and responsibilities to one of the parents. See 15 V.S.A. §
  665(a) (when parties cannot agree to divide or share parental rights and
  responsibilities, court shall award them primarily or solely to one
  parent).  Applying the relevant best interests criteria, id. § 665(b), the
  court further found that while both parents had provided the child with
  love and affection and were equally capable of providing for his material
  and developmental needs and a safe environment, mother's role as the
  primary parent impelled that she be awarded sole parental rights and
  responsibilities.   

       ¶  5.  The court also found, however, that the child had "done very
  well under the temporary order," noting that his relationship with each
  parent was "marked by a deep, reciprocal love," that he was excelling in
  his pre-school, and had received valuable support and security through
  regular contact with father's extended family who lived nearby.  The court
  recognized that father had been actively involved in raising the child, had
  altered his demanding work schedule as a chef to spend more time at home
  with the child, had graduated from a Montessori child care program, and had
  worked as a teacher's assistant at the child's pre-school.  Accordingly,
  the award of sole custody to mother was made "subject to the contact
  schedule that [father] currently enjoys."  

       ¶  6.  Despite its finding that the child had done well under the
  existing contact schedule, the court noted that the parents had disparate
  parenting styles that had resulted in significant conflicts, and that "due
  to the disparity of the rules between the [father's] and the [mother's]
  homes" the child "lives in a whipsaw, and the parties need to modify their
  conduct or their son will be the loser."  The court thus recommended
  continued therapy for the child, and ordered that, within five days of the
  divorce judgment, the parties "meet with their respective attorneys and
  stipulate to written, consistent parenting rules for [the child]."  Failure
  to reach a "complete stipulation" within 21 days of the order would require
  that the parties meet with a mediator "and establish such rules."  While
  also recognizing that the parties' inability to communicate and reach
  agreement on the best interests of the child had resulted in frequent
  conflict over the best course of treatment for the child's medical
  problems, the court ordered that father be allowed to be present at the
  child's appointments and extracurricular activities.  

       ¶  7.  The court declined mother's request for an award of spousal
  maintenance, finding that the parties earned approximately equal incomes
  and parented the child on a nearly equal basis,  and that mother was able
  to meet her reasonable needs and support herself at the standard she had
  enjoyed during the marriage.  The court awarded the parties their personal
  property and individual debts.  The only significant marital asset was the
  parties' home, which the court initially awarded to father on condition
  that he pay mother $12,000 within three years as her share of the $24,000
  net equity in the home.  The court subsequently granted father's motion to
  amend the judgment to eliminate the $12,000 payment, finding that it had 
  misinterpreted the evidence and that there was, in fact, no equity in the
  home.  Following a subsequent hearing, father was ordered to pay child
  support of $50 per week.  This appeal followed.
   
       ¶  8.  While the instant appeal was pending, mother moved to modify
  the shared parent-child contact schedule to enable her to move to Florida
  to live for part of the year with her fiancé, who is employed principally
  in that state.  Father filed an opposition to the motion and a cross-motion
  to modify custody by awarding him sole physical and legal rights and
  responsibilities.  Following a hearing, the court issued a written
  decision, concluding that mother's planned move constituted a real,
  substantial, and unanticipated change of circumstances, and that the
  child's best interests required an award of primary parental rights and
  responsibilities to father, and substantial parent contact with mother
  during summers and holidays.  Mother appealed the court's modification
  order, and that appeal remains pending.      

       ¶  9.  Following notification of the court's modification order, we
  issued an order directing the parties to show cause why the instant appeal
  should not be dismissed as moot.  Each of the parties having filed
  supplemental briefing addressed to the issue, we now conclude that the
  court's order modifying parental rights and responsibilities and
  parent-child contact has superseded that portion of the original decree
  related to these issues, thus rendering mother's claims as to these issues
  moot and beyond the consideration of this Court.  See Nevitt v. Nevitt, 155
  Vt. 391, 395, 584 A.2d 1134, 1137 (1990) (where parties stipulated to court
  order modifying custody provision of divorce judgment, claims on appeal
  from divorce judgment relating to custody were rendered moot); Martin v.
  Martin, 815 S.W.2d 130, 132 (Mo. Ct. App. 1991) (order modifying visitation
  schedule while dissolution judgment was pending on appeal rendered appeal
  from judgment moot and mandated dismissal of appeal).    
   
       ¶  10.  The modification order did not, however, address any issues
  other than custody and visitation.  Therefore,  mother's claims concerning
  the denial of maintenance and the division of the marital property were not
  rendered moot by the order.   A trial court has considerable discretion in
  ruling on maintenance, and the party challenging a court's decision must
  show that there is no reasonable basis to support it.  Johnson v. Johnson,
  155 Vt. 36, 40, 580 A.2d 503, 506 (1990).  The court's factual findings
  will stand unless, viewing the evidence in the light most favorable to the
  prevailing party and excluding the effect of modifying evidence, there is
  no credible evidence to support them.  Hoover v. Hoover, 171 Vt. 256, 258,
  764 A.2d 1192, 1193 (2000).  

       ¶  11.  Here, mother asserts that the court's denial of maintenance
  is inconsistent with its findings that mother's reasonable monthly expenses
  exceed her income, that she has experienced severe financial shortfalls,
  and that she was in arrears on doctors and utility bills.  The court
  actually found that mother's stated monthly income of $1815 was roughly
  equal to her adjusted expenses of $1989 for herself and the child (mother
  was also later awarded child support of $215 per month), and the evidence
  supports these findings.  The parties' assets and liabilities were few, and
  the court divided them approximately equally.  The court awarded the only
  significant marital asset, the home, to father, but also required that he
  assume sole responsibility for the $136,000 mortgage.  The court further
  noted that some of the parties' earlier costs and debts were attributable
  to their acknowledged substance abuse, which appeared to be under control,
  that the parties' current monthly incomes were roughly equal (father's was
  $1839), and that mother was able to meet her reasonable needs and support
  herself at the standard of living established during the marriage.  These
  findings are supported by the evidence, and support, in turn, the court's
  conclusion that mother failed to meet the threshold criteria for an award
  of maintenance under 15 V.S.A. § 752(a) (court may award spousal
  maintenance where it finds that spouse seeking award lacks sufficient
  income to provide for his or her reasonable needs and is unable to support
  himself or herself at standard of living established during marriage).  The
  only finding specifically challenged by mother is the court's reference to
  the costs attributable to the parties' substance abuse, and here the record
  evidence showed that mother had experienced many costs, including an
  automobile accident and residential treatment, attributable to her alcohol
  abuse.  Accordingly, we discern no basis to conclude that the court's
  denial of maintenance was an abuse of discretion.
        
       ¶  12.  Mother next contends the court's property award was in error.
  The court enjoys considerable discretion in making a property award, which
  is reversible only upon a showing that there is no reasonable basis to
  support it.  Soutiere v. Soutiere, 163 Vt. 265, 271, 657 A.2d 206, 209
  (1995).  The parties here had agreed that father should be awarded the
  marital home, but disagreed as to the amount of equity, if any, there was
  to divide between the parties.  The court initially found that the home had
  a fair market value of $160,000 and a mortgage of $136,000, and ordered
  father  to pay mother $12,000 over three years based on its finding that
  there was equity of $24,000 in the home.  The court's finding was based on
  an appraisal and testimony by an expert appraiser. The court subsequently
  issued an order granting father's motion to amend the judgment, explaining
  that it had reviewed the record and realized that it had misunderstood the
  appraiser's evidence, which showed that the current value of the home was
  $129,000, and that the value would rise to $160,000 only after the
  completion of certain repairs and improvements.  Accordingly, the court
  found that there was no net equity in the home to award to mother.  While
  the court acknowledged that this left no significant assets of any kind to
  award mother, as the parties had not accumulated any, it also noted that it
  left mother with no significant debts, responsibility for the mortgage
  having been assigned exclusively to father.  

       ¶  13.  Mother now contends the court abused its discretion in basing
  its findings on a "bogus" appraisal submitted by the expert, who admitted
  that the $160,000 figure was mostly for the purpose of obtaining a bank
  loan. Mother does not demonstrate how this undermines the credibility of
  the $129,000 figure, which she has not specifically challenged.  Mother
  also asserts generally that the court abused its discretion in awarding the
  marital home to father and failing to award her any assets, but mother
  stipulated to the award of the home to father, and identifies no other
  marital assets that the court might have assigned to her or wrongly
  allocated.  Accordingly, we discern no basis to disturb the property award. 

       The claims on appeal relating to the provisions of the divorce
  judgment dealing with parent-child contact are dismissed as moot.  The
  provisions of the divorce order relating to spousal maintenance and the
  division of the marital property are affirmed.
            

                                       BY THE COURT:


                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice




  Note:  Chief Justice Amestoy was present when the case was submitted on the
  briefs but did not participate in this decision.