Heffernan v. Harbeson (2004-008); 177 Vt. 239; 861 A.2d 1149
2004 VT 98
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
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2004 VT 98
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,
¶ 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: