Heffernan v. Harbeson

Annotate this Case
Heffernan v. Harbeson (2004-008); 177 Vt. 239; 861 A.2d 1149

2004 VT 98

[Filed 01-Oct-2004]

       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.

                                 2004 VT 98

                                No. 2004-008

  Kathleen M. Heffernan	                         Supreme Court

                                                 On Appeal from
       v.	                                 Windsor Family Court

  Joseph W. Harbeson	                         September Term, 2004

  Paul F. Hudson, J.

  Patricia G. Benelli of Dakin & Benelli, P.C., Chester, for

  Jean Anne Kiewel of Weber, Perra, Munzing, Krochmalny & Kiewel, P.C.,
    Brattleboro, for  Defendant-Appellant.

  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

       ¶  1.  JOHNSON, J., Father appeals the family court's ruling that 15
  V.S.A. § 665(a) controls the assignment of parental rights and
  responsibilities in actions brought under the Parentage Proceedings Act
  (PPA), 15 V.S.A. §§ 301-308.  Father also appeals the parent-child contact
  schedule fashioned by the family court on remand from this Court's panel
  decision.  Father claims that the schedule fails to equalize the time that
  his son spends with each parent.  We affirm.
       ¶  2.  Mother gave birth to the parties' child in October 1999. 
  Mother and father did not marry.  Both mother and father have been deeply
  involved in the child's upbringing, each dedicating countless hours to
  raising the child.  The parties separated in August 2000, and some months
  later, mother filed this parentage action.  The family court held hearings
  and issued a written decision containing extensive findings of fact and
  conclusions of law.  The court's decision awarded primary physical rights
  and responsibilities to mother, noting her plan to open a daycare facility
  that would allow her to care for the parties' child during the workday
  while still earning an income.  The court's order also established a
  parent-child contact schedule that allowed father to spend weekdays with
  the child between the hours of 3:30 p.m. and 7:00 p.m. in addition to three
  weekends each month, three weeks in the summer, and alternating holidays. 
  The court awarded the parties joint legal rights and responsibilities,
  i.e., the ability to participate in important aspects of the child's
  upbringing such as "education, medical and dental care, religion and travel
  arrangements."  15 V.S.A. § 664(1)(A).  In settling upon these
  arrangements, the court considered "the best interests of the child"
  factors set forth in 15 V.S.A. § 665.
       ¶  3.  Mother and father both appealed various aspects of the family
  court's initial order.  In considering that appeal, a three member panel of
  this Court noted that "[i]t is not clear . . . whether § 665 applies to
  actions under the Parentage Proceedings Act, 15 V.S.A. §§ 301-308." 
  Heffernan v. Harbeson, Docket No. 2002-297 (Vt. May 7, 2003), at 2 
  (unpublished mem.).  We noted that the PPA merely provided that "[i]n an
  action under this subchapter, the court may determine parentage and may
  include in its order provision[s] relating to the obligations of parentage,
  including future child support, visitation and custody," but provided no
  standards to guide the courts in making determinations concerning
  "obligations of parentage."  Id. (quoting 15 V.S.A. § 306).  By contrast,
  15 V.S.A. § 665(a), which applies to the assignment of parental rights and
  responsibilities in marital dissolution cases, provides that "[w]hen the
  parents cannot agree to divide or share parental rights and
  responsibilities, the court shall award parental rights and
  responsibilities primarily or solely to one parent."  Because the parents
  in this case could not agree on the proper division or sharing of parental
  rights and responsibilities, we remanded to the family court to determine
  whether § 665(a)'s prohibition of shared rights and responsibilities
  applied here, in the absence of parental agreement.  Id.

       ¶  4.  On remand, and after briefing from both parties, the family
  court concluded that § 306 and § 665(a) must be read in pari materia
  because the statutes concerned the same subject matter: child custody.  See
  In re Cottrell, 158 Vt. 500, 504, 614 A.2d 381, 383 (1992) (stating that
  the Court determines legislative intent by reference to the entire
  statutory scheme, and in so doing the Court reads statutes in pari
  materia).  As a result, the family court amended its order, assigning sole
  legal custody to mother in compliance with the court's understanding of §
  665(a).  In awarding sole physical and legal custody to mother, pursuant to
  15 V.S.A. § 665(d), the court required  mother to notify father whenever
  there is a major change in the child's welfare.    

       ¶  5.  Father appeals the family court order claiming error in the
  conclusion that § 665(a) applies in parentage actions.  Father argues that
  this conclusion is inconsistent with the plain meaning of the statutes as
  written.  In his view, the court's authority to "order provisions relating
  to the obligations of parentage, including future child support, visitation
  and custody," 15 V.S.A. § 306, is undefined and unrestricted because the
  PPA contains no standards to guide the courts in parentage cases.  Further,
  father argues that § 665(a)'s application is limited, by its language, to
  custody disputes arising from annulment and divorce.  Accordingly, he
  argues that the court's original order assigning joint legal custody to
  mother and father should not have been disturbed on remand.  
       ¶  6.  We cannot agree that the Legislature intended to create a
  detailed, mandatory set of guidelines for our courts to apply only when
  resolving custody disputes in divorce and other dissolution proceedings,
  while giving the courts unfettered discretion to resolve the same issues
  between unwed parents.  Accordingly, we affirm.

       ¶  7.  Whether the family court properly construed the controlling
  statutes is a question of law that we review de novo.  Office of Child
  Support v. Sholan, 172 Vt. 619, 620, 782 A.2d 1199, 1202 (2001) (mem.).
  "When construing a statute, the function of the court is to ascertain and
  give effect to the intention of the legislature."  Paquette v. Paquette,
  146 Vt. 83, 86, 499 A.2d 23, 26 (1985).  When the statute's scope and
  meaning are readily apparent, no construction is necessary, and we apply
  the statute according to its terms.  Id.  In cases where there is doubt or
  ambiguity, however, we discern legislative intent by considering the
  statute as a whole, reading integral parts of the statutory scheme
  together.  Id.; see also In re S.B.L., 150 Vt. 294, 301, 553 A.2d 1078,
  1083 (1988) (stating that court construes statutes relating to same subject
  matter in pari materia).  "Thus, we must look not only at the letter of a
  statute but also at its reason and spirit," to avoid results that are
  irrational or unreasonable.  150 Vt. at 301, 553 A.2d  at 1083.
       ¶  8.  The PPA's stated purpose is to ensure that "the legal rights,
  privileges, duties and obligations of parents be established for the
  benefit of all children, regardless of whether the child is born during
  marriage or out of wedlock."  15 V.S.A. § 301.  By its terms, this policy
  statement indicates a legislative desire that the courts adjudicate
  parental obligations in a consistent fashion so that children are not
  treated differently under the law solely because of the relationship
  between their parents at the time of their birth.  The PPA contains no
  standard for establishing parental rights and responsibilities for children
  born to unmarried parents, but a standard for these determinations is
  provided in the part of Title 15 that deals with children "born during

       ¶  9.  Section 665 contains the "best-interest-of-the-child standard." 
  The best-interests standard "has been the primary consideration in
  determining issues of custody for over sixty years," Paquette, 146 Vt. at
  90, 499 A.2d  at 28, well before the Legislature enacted the PPA in 1983. 
  When we interpret statutes, we presume that the Legislature was mindful of
  relevant precedents and prior legislation.  Thayer v. Herdt, 155 Vt. 448,
  453, 586 A.2d 1122, 1125 (1990).  Therefore, in light of its stated purpose
  in enacting the PPA, we cannot accept father's argument that the
  Legislature would have wanted courts to use some alternative standard in
  determining custody disputes for children born to unmarried parents while
  the best-interests standard has long been used to assign custody in divorce
  cases.  As mother points out, such a holding would frustrate the statutory
  purpose by creating a situation where children whose circumstances are
  alike in all material respects, other than the legal relationship of their
  parents, would be subjected to widely varying custody arrangements.  This
  irrational result can be avoided by reading § 665 in pari materia with the
       ¶  10.  In Cabot v. Cabot, we recognized that, under § 665, courts
  lack the power to force divorcing parents to share legal rights and
  responsibilities when they cannot reach a voluntary agreement on sharing
  and dividing parenting obligations.  166 Vt. 485, 493-94, 697 A.2d 644,
  649-50 (1997).  We reasoned that such an arrangement was not in the best
  interests of the child because it would "creat[e] a situation in which each
  decision will be a source of further conflict and trauma for the child." 
  166 Vt. at 494 n.5, 697 A.2d  at 650 n.5.  Father's brief attempts to
  distinguish the relationships of unwed parents from those of married
  parents.  Despite his analysis, he has not identified any different general
  characteristics of unwed couples that might have led the Legislature to
  conclude that the danger of decision-by-decision parental conflict that §
  665(a) seeks to prevent would not be present in custody disputes involving
  unwed parents.    Both § 665 and § 306 involve the same general subject
  matter where the same policy concerns apply.  Accordingly, we see no reason
  why the two statutes should not be read, consistent with our rules of
  construction, in pari materia.  See Beaudry v. Beaudry, 132 Vt. 53, 56, 312 A.2d 922, 924 (1973) (concluding that "sufficiently cognate" statutes are
  "in pari materia and are to be construed with reference to each other as
  parts of one system").

       ¶  11.  We are also not persuaded by father's interpretation of § 665
  as being limited to custody disputes arising out of divorce and annulment. 
  He cites the first sentence of § 665(a) which states: "In an action under
  this chapter the court shall make an order concerning parental rights and
  responsibilities of any minor child of the parties."  The remainder of the
  section goes on to establish the standards for making such orders.  Nothing
  in the cited passage implies that the standards that follow are exclusive
  to orders issued under Title 15, Chapter 11.  Thus, we reject father's
  argument on this point.

       ¶  12.  The parties before us were unable to agree to share or divide
  legal rights and responsibilities for their child.  Under these
  circumstances, § 665(a), while not requiring an "all or nothing" approach,
  does prohibit a court-ordered sharing arrangement.  Cabot, 166 Vt. at
  494-95, 697 A.2d  at 651.  In light of our conclusion that §665(a) applies
  to parentage actions, and in the absence of any argument on appeal that the
  award of sole legal custody to mother was not in the best interests of the
  child, we affirm the family court's amended order with respect to
  assignment of parental rights and responsibilities.
       ¶  13.  Father also appeals the parent-child contact schedule
  established by the family court's amended order after remand.  The court's
  original order allotted father parent-child contact from 3:30 p.m. to 7:00
  p.m. every weekday of every week.  We reversed the previous order because
  it led to a patent "lack of balance" in the contact each parent had during
  the "rich unstructured hours after school."  Heffernan, Docket No. 2002-297
  (Vt.  May 7, 2003), at 2.  The amended order provides that, once the child
  begins school, mother shall have contact with the child in even numbered
  weeks of the month from 3:30 p.m. to 7:00 p.m. on Monday through Wednesday,
  and father will have contact during the same hours on Thursday and Friday. 
  The contact schedule flips for the odd numbered weeks, with father getting
  contact Monday through Wednesday, and mother Thursday and Friday.  There
  was also a question about vacation time that the parties resolved through a
  stipulation that the court adopted in its amended order.  Father
  acknowledges that the family court essentially equalized after work and
  school time.  Nonetheless, he claims that it erred in not achieving an even
  greater degree of equalization by extending father's contact through dinner
  and after dinner time, including more overnight contact beyond that which
  he would have during his weekend and vacation visitations.  

       ¶  14.  The family court has broad discretion in custody matters. 
  Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998).  We will not
  reverse a family court's order absent a showing that the court abused its
  discretion or exercised it in a manner that was clearly unreasonable in
  light of the evidence.  Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336,
  1339 (1988). 
       ¶  15.  We remanded the case to eliminate a patent imbalance created
  by the court's first order.  In doing so, we did not require absolute
  equalization in the time that the child spends with each parent; that would
  be shared physical custody.  We think the court succeeded in achieving a
  reasonable balance in its amended order with respect to contact,
  recognizing that only so much contact is feasible when one parent retains
  sole physical custody.  Accordingly, we see no abuse of discretion in the
  court's amended parent-child contact schedule.


                                       FOR THE COURT:

                                       Associate Justice