Maurer v. Maurer (2003-572); 178 Vt. 489; 872 A.2d 326
2005 VT 26
2005 VT 26
SUPREME COURT DOCKET NO. 2003-572
OCTOBER TERM, 2004
Lesli Maurer } APPEALED FROM:
v. } Addison Family Court
Niel Maurer }
} DOCKET NO. 146-6-01 Andm
Trial Judge: David A. Jenkins
In the above-entitled cause, the Clerk will enter:
¶ 1. Father appeals from the family court's order modifying parental
rights and responsibilities, and awarding sole legal and physical parental
rights and responsibilities over the parties' minor child to mother.
Mother is proceeding pro se. (FN1) Father argues that the family court
erred because: (1) the evidence does not support a finding that there has
been a material change in circumstances; (2) the court's findings are
insufficient to show that a transfer of custody to mother is in the child's
best interests; and (3) the mediation provision in the parties' final
divorce decree must be enforced. We affirm the trial court's conclusion
regarding changed circumstances, but we reverse the court's conclusion
that a transfer of sole custody to mother was in the child's best
¶ 2. Mother and father are the parents of Benjamin Mauer, born in
May 1992. Parents separated in 1999, and were divorced in May 2002. At
the time of their divorce, they agreed to share legal and physical rights
and responsibilities over Ben. They also agreed to attempt to resolve any
future disputes through mediation before returning to court. On September
26, 2003, mother, then with counsel, filed a motion to modify parental
rights and responsibilities. Mother asserted that father had refused to
allow Ben to engage in counseling, which she believed was in Ben's best
interest. She also averred that father had discussed the issue of
counseling with Ben, thereby putting him in the middle of the
decisionmaking process. Mother acknowledged that the parties had agreed to
mediate disputes, but stated that father had refused to participate in
¶ 3. The family court held a hearing on mother's motion on October
21, 2003; father appeared pro se, and mother was represented by counsel.
Mother testified that, since October, the parties were no longer evenly
sharing physical custody of Ben; instead, Ben was spending most of his time
with her and every other weekend with father. Mother explained that in
December 2002, father had remarried and moved to a new residence
approximately twenty miles away, and recently it had become difficult for
father to pick Ben up at mother's home. Mother also stated that Ben was
spending less time at father's home because Ben did not feel that he had
his own personal space there. Mother testified that, beginning in December
2002, Ben began to have difficulty sleeping and with his schoolwork, and he
was suffering from low self-esteem. Mother introduced a recommendation
from Ben's pediatrician, dated September 18, 2003, referring Ben for
individual counseling. Mother testified that she had informed father of
the doctor's recommendation, and father had responded that they should
wait six months to see if the situation improved. Mother testified that
father had discussed counseling with Ben against her wishes. Mother also
stated that she and father disagreed about Ben's involvement in
after-school activities. She indicated that her communication with father
in this area had been "pretty acrimonious." She also asserted that father
had acted unilaterally in making decisions regarding Ben's activities.
¶ 4. Father testified on his own behalf. He stated that he and
mother had clear and steady communication about Ben. Father indicated that
he was reluctant to engage a mediator over Ben's after-school schedule,
instead finding it more appropriate to first attempt to work out the
problem themselves. Father stated that mother had first informed him about
Ben's self-esteem issues, and her desire that Ben engage in counseling, in
late September 2003. Father was concerned that the recommending physician
had not seen Ben directly, and felt that a better approach might be to
first increase Ben's participation in outside activities to see if this
helped boost his self-esteem. Father testified that he called Ben's
pediatrician as well as the school guidance counselor to garner more
information about Ben's condition. He stated that, while he preferred a
different initial approach, he remained open to the use of therapy.
¶ 5. The court rendered its decision on the record at the close of
the hearing. The court stated that, although the parties' final divorce
order provided that they would have joint legal and physical
responsibilities, the parties had modified that agreement through their
behavior. The court found that the parties had substantially different
parenting styles and methods, and they had demonstrated an inability to
share parental rights. The court explained that the parties were unable to
agree on transportation and counseling, and both parties were setting up
activities for Ben without consulting one another. The court thus
concluded that parents' inability to share joint legal and physical
responsibilities constituted a substantial and unanticipated change of
circumstances. The court found that Ben was suffering as a result of being
caught between two different parenting styles, and although it found value
in both parenting styles,"somebody's got to make the decision, and you've
got to consider the best interest of the child." The court stated that
children benefitted from being exposed to different activities, including
sports, and while mother could consult with father in this regard, "[n]ow
mother can make the decisions." A final judgment order was issued
transferring sole legal physical rights and responsibilities to mother, and
¶ 6. Father first argues that the evidence presented at the
hearing was insufficient to support a finding of changed circumstances.
Relying on Gates v. Gates, 168 Vt. 64, 716 A.2d 794 (1998), father
maintains that the communication problems that arose between mother and
father were insufficient to satisfy this threshold requirement. He asserts
that this is particularly true where, as here, the parties did not mediate
the issues between them before proceeding to court.
¶ 7. The court may modify a parental rights and responsibilities
order upon a showing of a real, substantial and unanticipated change of
circumstances where the modification is in the children's best interests.
15 V.S.A. § 668. There are no "fixed standards to determine what
constitutes a substantial change in material circumstances"; instead, the
court should be "guided by a rule of very general application that the
welfare and best interests of the children are the primary concern in
determining whether the order should be changed." Wells v. Wells, 150 Vt.
1, 4, 549 A.2d 1039, 1041-42 (1988) (citation omitted). The trial court
has discretion in making this determination, and we will not disturb the
court's determination unless it exercised its discretion on grounds or for
reasons clearly untenable, or if it exercised its discretion to a clearly
unreasonable extent. Meyer v. Meyer, 173 Vt. 195, 197, 789 A.2d 921, 923
¶ 8. Father relies on Gates to support his assertion that a
breakdown in communication is insufficient to establish changed
circumstances. In Gates, however, our conclusion rested on a finding that
communication between parents had been consistently poor since their
divorce. 168 Vt. at 68, 716 A.2d at 797. Thus, their ongoing
communication difficulties did not constitute an unanticipated and
substantial change in circumstances. We recognized that, under different
circumstances, a breakdown in communication between parents could suffice
as a substantial and unanticipated change. Id. In this case, the record
reflects that the parties' inability to share parental rights and
responsibilities was a new development. As the court found, parents were
unable to agree on transportation or counseling. They were setting up
activities for Ben without consulting one another, and they had different
parenting styles. Ben was suffering as a result. Additionally, as of
October 2003, Ben was spending substantially more time at mother's home
than at father's home. The court's findings in this case are supported by
the evidence, and they support its conclusion that a substantial and
material change of circumstances had occurred since the parties' divorce.
See Meyer, 173 Vt. at 197-98, 789 A.2d at 923 (upholding finding of changed
circumstances where parties disagreed on major issues involving the
children, there had been a significant change in parties' dealings with one
another since the divorce, and children were suffering the effects of
¶ 9. Moreover, we reject father's assertion that because the
parties did not engage in mediation, the family court erred in finding
changed circumstances. Father offers no legal support for this assertion,
and as discussed above, the court's findings indicate that a substantial
change in circumstances had occurred since the parties' divorce. In any
event, mother presented evidence that father refused to engage in
mediation. Father cannot take advantage of his own refusal to prevent the
court from acting. To hold otherwise would permit one parent unilaterally
to divest the family court of jurisdiction. For this reason, we also
reject father's argument that this case must be remanded to allow the
parties to mediate their disputes.
¶ 10. When the family court finds that there has been a real,
substantial and unanticipated change of circumstances, it must consider if
a change in parental responsibilities is in a child's best interests. 15
V.S.A. § 668. In conducting its analysis, the court must consider the
statutory factors set forth in 15 V.S.A. § 665(b). We recognize the trial
court's broad discretion in determining a child's best interests.
Spaulding v. Butler, 172 Vt. 467, 475, 782 A.2d 1167, 1174 (2001). We will
uphold the family court's factual findings if they are supported by
credible evidence, and we will uphold the court's conclusions if the
factual findings support them. Id. "We will, however, reverse if the
court's findings are not supported by the evidence, or if its conclusions
are not supported by the findings." Id. (internal citations omitted).
¶ 11. Father argues that the court's findings are insufficient to
establish that a transfer of custody to mother was in Ben's best interests.
Father asserts that the family court did not consider the best interests
standard, or at least not in a way that would allow for appellate review.
According to father, the court's findings indicate that it could have just
as easily ruled that a transfer to him of sole legal and physical rights
was in Ben's best interests.
¶ 12. We agree. Although father did not request findings under
V.R.C.P. 52(a), the family court made findings on the record on its own
initiative. This is permissible under V.R.C.P. 52(a), but "findings made
under these circumstances must still meet the test of adequacy." Mayer v.
Mayer, 144 Vt. 214, 215, 475 A.2d 238, 239 (1984). As we explained in
Mayer, "[a] major purpose of findings is to enable this Court, on appeal,
to determine how the trial court's decision was reached. Therefore, the
facts essential to the disposition of the case must be stated." Id. at
216-17, 475 A.2d at 240 (internal citations omitted). We do not require,
as the dissent states, that findings be made in all custody cases.
Instead, we simply require that when the court makes findings on its own
initiative, as in this case, the findings must meet the test of adequacy
upon review. Id. at 215, 475 A.2d at 239. The court's findings are
¶ 13. In support of its conclusion, the family court stated:
We are not going to dictate parenting styles. And we're not going
to select the style that is better for the child or not. This is
one of the problems when people get divorced. The children
suffer. This child is suffering because of the different
parenting styles, and he's caught in the middle. And you have to
learn how to avoid that. In many respects we would encourage the
parenting style of the father to be observed. In other respects
perhaps the mother's parenting style has some attributes to it.
However, somebody's got to make the decision, and you've got to
consider the best interests of the child. Children need to be
exposed to different activities and the different experiences.
Sports are important for young boys. You should consult, but you
can't do it unilaterally. Now the mother can make the decisions.
These findings do not support a conclusion that a transfer of sole custody
to mother was in Ben's best interests. Other than its statement that Ben's
best interests would be served by vesting sole decisionmaking authority in
one parent, the court fails to explain why that parent should be mother. We
reject the dissent's assertion that the family court's remarks should be
considered as a hortatory utterance rather than as findings of fact. The
family court prefaced its remarks with a statement that it "finds on the
evidence." While the use of the words "we find" in discussions prior to
the formal announcement of a notice of decision does not necessarily
transform remarks from the bench into intentional findings within the
meaning of V.R.C.P. 52(a), Helm v. Helm, 148 Vt. 336, 339, 534 A.2d 196, 198 (1987), the family court in this case also stated in its written order
that its decision was "predicated upon the evidence presented and the
findings of the court." Even assuming that the family court's remarks were
hortatory, however, they indicate the court's thinking, and they reflect
its failure to properly consider Ben's best interests in reaching its
conclusion that mother should have sole custody.
¶ 14. We faced a similar situation in Mayer. In that case, neither
party requested findings, and the court made findings on its own
initiative. We reversed and remanded the family court's custody award
because the court simply concluded that it was in the child's best
interests to be in the custody of father without making any findings as to
why the child would be better off with one parent rather than the other.
Mayer, 144 Vt. at 216-17, 475 A.2d at 239-40. As in this case, the court's
findings in Mayer indicated that either parent would have been appropriate
as the custodial parent. Id. at 215, 475 A.2d at 239. We reiterated that
trial courts must "state the dispositive or key facts in close cases." Id.
at 217, 475 A.2d at 240.
¶ 15. Similarly, in Jensen v. Jensen, 139 Vt. 551, 433 A.2d 258
(1981), neither party requested findings, and the court made findings on
its own initiative. We reversed and remanded the court's custody award
because the court had merely concluded that its custody decision was in the
children's best interests without offering any factual findings in support
of its conclusion. Id. at 553, 433 A.2d at 260. We explained that the
court's failure to identify the facts that dictated its conclusion denied
this Court the assistance that we needed to engage in meaningful appellate
review. Id. As we stated, the family court's failure to make necessary
findings left this Court "to speculate as to the basis upon which the trial
court made its findings and reached its decision. This we will not do."
¶ 16. In this case, as in the cases discussed above, the family
court's findings leave us with no way to determine whether and how the
family court applied the best interest factors, or how it reached its
conclusion to award mother sole legal rights and responsibilities. See
Pigeon v. Pigeon, 173 Vt. 464, 465-66, 782 A.2d 1236,1237-38 (2001) (mem.)
(where family court made no reference to its consideration of the best
interest factors, nor stated that its decision was in child's best
interests, and also failed to explain what factors made mother the better
parent to make medical decisions on child's behalf, Supreme Court could not
determine whether or how family court applied best interest factors, or how
it reached its conclusion to award mother sole legal rights and
responsibilities); see also Nickerson v. Nickerson, 158 Vt. 85, 88-89, 605 A.2d 1331, 1333 (1992) (conclusions of law must be supported by findings of
fact and an explanation of how the court reached its decision). We
therefore reverse and remand the question of whether the transfer of sole
rights and responsibilities to mother was in Ben's best interests to the
family court for additional findings.
Affirmed in part, reversed and remanded in part.
¶ 17. KATZ, J., dissenting. I disagree with the final portion of
the majority opinion, remanding the matter for failure of the trial court
to make findings of fact regarding the best interests of the child.
¶ 18. There is no question but that the trial court did not make
findings on that key issue. It did make rudimentary statements of the
facts relied upon in concluding that joint custody was no longer workable,
but failed to say anything about which parent was more suited to be the
resulting, sole custodian. The majority is quite correct in noting that
the quoted statement from the bench does not constitute findings or any
analysis of the statutory custody criteria established by 15 V.S.A. §
665(b). Instead, the statement is more properly characterized as a
reassuring or hortatory utterance from the court, perhaps made to relieve
any hurt on the part of the father.
¶ 19. My disagreement stems solely from the clear words of Rule
52(a) of the civil rules, which require that "the court shall, upon request
of a party participating in the trial made on the record or in writing
within 5 days after notice of the decision . . . find the facts specially
and state separately its conclusions of law thereon." V.R.C.P. 52(a)(1).
Rule 52(a) applies to family court proceedings. V.R.F.P. 4(a)(1). It is
recognized that no such request was ever made by either party here. The
majority correctly cites Pigeon v. Pigeon, 173 Vt. 464, 782 A.2d 1236
(2001) (mem.), Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331 (1992),
Mayer v. Mayer, 144 Vt. 214, 475 A.2d 238 (1984) and Jensen v. Jensen, 139
Vt. 551, 433 A.2d 258 (1981), as reversing for inadequate findings of fact.
But none of these cases discuss the explicit requirement of Rule 52(a) that
findings must be made only if timely requested. In failing to address that
distinction, the ruling in this case does more than merely follow the cited
precedent. Instead, the Court is now specifically departing from the Rule.
In effect, the law of Vermont now becomes: "At least in custody cases,
findings must be made, regardless of whether or not requested." This is a
plain overruling of at least several applications of the straightforward
wording of the Rule: Am. Trucking Ass'ns v. Conway, 152 Vt. 363, 375, 566 A.2d 1323, 1331 (1989); Viskup v. Viskup, 149 Vt. 89, 92, 539 A.2d 554, 557
(1987); Chaker v. Chaker, 147 Vt. 548, 549, 520 A.2d 1005, 1006 (1986);
Kaplan v. Kaplan, 143 Vt. 102, 104, 463 A.2d 223, 224 (1983); Moulton v.
Moulton, 134 Vt. 125, 127, 352 A.2d 680, 681 (1976). No explanation for
this change in course is offered.
¶ 20. It would also be unwise to imply that any statements by the
trial court which might constitute findings or reasons behind its decision
triggers the duty to make findings as if requested by a party under Rule
52. Although courts may certainly make findings on their own volition, and
such should not be discouraged, the implication in the majority decision
sends exactly the wrong signal: Better not to say anything, for even a
little will trigger some greater duty and thereby lead to reversal. Any
statement by the trial court as to the reasons for the decision is
generally desirable, but it should be within the sound discretion of that
court how far to go. This is particularly true regarding an oral statement
from the bench at a time when one or more of the participants may have an
emotional response. Just because the trial court here stated its reasons
for concluding that joint custody was no longer functioning as it should,
it did not thereby become bound to issue detailed findings on the
¶ 21. Vermont's Rule, depending as it does on a request from a
party, is different from the federal equivalent. Rule 52(a) of the Federal
Rules of Civil Procedure mandates findings in any case heard without a
jury. F.R.C.P. 52(a); see generally 9A C. Wright & A. Miller, Federal
Practice and Procedure § 2574 (1995) (noting that findings are required in
all actions and may not be waived). The Vermont rule was derived from Rule
52 of the Maine Rules of Civil Procedure. Reporter's Notes, V.R.C.P. 52.
Like Vermont's Rule 52(a), Maine's rule does not require the court to issue
factual findings in all non-jury case. Me. R. Civ. P. 52(a); Bayley v.
Bayley, 602 A.2d 1152, 1154 (Me. 1992). Rather, the rule mandates findings
only when timely requested by a party. Me. R. Civ. P. 52(a); Bayley, 602 A.2d at 1154.
¶ 22. The distinction between the federal rule and that adopted in
Vermont and Maine is an important one because it affects the standard of
review on appeal. Maine precedents interpreting Rule 52(a) distinguish
between cases where the parties requested findings and cases where no such
timely requests were made. When findings are not timely requested and the
court's judgment is challenged on appeal, the Maine Supreme Judicial Court
assumes the trial court found all facts that are necessary to support the
judgment. Powell v. Powell, 645 A.2d 622, 623-24 (Me. 1994). The same
standard applies if a trial court issues findings that are incomplete, so
long as no party timely requested findings pursuant to Rule 52(a). Id.;
see also In re Zoe M., 2004 ME 94, ¶ 10, 853 A.2d 762 (addressing
grandmother's challenge to custody order as lacking specific finding on
child's best interest, court explains that in absence of request for more
findings under Rule 52, court assumes that lower court made all of the
findings necessary to support its decision); cf. Bayley, 602 A.2d at 1154
(explaining that where party requests specific findings under Rule 52,
reviewing court will not assume findings in support of judgment; findings
must be sufficient on contested issues to support judgment). Arizona has
adopted the same standard under its version of Rule 52(a), with language
nearly identical to V.R.C.P. 52(a) and Me. R. Civ. P. 52(a). 16 A.R.S. R.
Civ. P., Rule 52(a); see also Pizziconi v. Yarbrough, 868 P.2d 1005, 1009
(Ariz. Ct. App. 1994) (reaffirming the principle that in absence of request
for findings, appellate court will "assume that the trial court found every
controverted issue of fact necessary to sustain its decision and the
judgment will be upheld if there is reasonable evidence to support it").
An intermediate appellate court in Arizona explained the standard under
Rule 52(a) this way:
[A]s a general rule, an appellate court may infer that the trial
court has made the additional findings necessary to sustain its
judgment. This principle applies as long as the additional
findings are reasonably supported by the evidence and are not in
conflict with any of the trial court's express findings. However,
the principle does not apply when a party has requested findings
of fact pursuant to Rule 52(a).
Elliott v. Elliott, 796 P.2d 930, 937 (Ariz. Ct. App. 1990).
Parenthetically, the standard of review consonant with the present rule
does not create work for the appellate court. Whether findings were made
or not in the trial court, it remains appellee's duty to point out where
the record supports the decision on appeal.
¶ 23. Vermont's Rule 52(a) must provide the basis for decision
here. Any view that Rule 52(a) should be altered is best handled straight
on, by suggestion to the Advisory Committee and possible amendment. It
should not be accomplished by implication or accident.
¶ 24. Reviewing the record in this case under the proper standard,
the decision of the family court is well supported. Father conceded at
oral argument that the boy was living mostly with his mother, in Vergennes,
at the time of trial. Mother would therefore seem to have become the
"primary care provider." 15 V.S.A. § 665(b)(6). The record contains
numerous references to the child's ties to the Vergennes school and its
after-school activities. Id. § 665(b)(4). Finally, the extensive email
record father submitted as evidence before the family court demonstrates a
failure on his part to foster a positive and cooperative relationship with
the mother, relating to the child. Id. § 665(b)(5), (b)(8). Instead, the
record shows a father more given to laying down his own point of view as
the final word, whether on counseling, mediation, or after-school
activities. According the deference to which the family court is due,
particularly in the absence of any request for findings, its decision is
amply supported by the record.
¶ 25. I would therefore affirm the decision of the family court in
full. I am authorized to state that Justice Reiber joins this dissent.
Dissenting: BY THE COURT:
Paul L. Reiber, Associate Justice Denise R. Johnson, Associate Justice
Matthew I. Katz, Superior Judge, Marilyn S. Skoglund, Associate Justice
Frederic W. Allen, Chief Justice (Ret.),
FN1. We reject father's request that we disregard mother's brief because it
fails to comply with V.R.A.P. 28(a)(4). See Beyel v. Degan, 142 Vt. 617,
619, 458 A.2d 1137, 1138 (1983) (we will consider issues raised by pro se
litigant even though litigant failed to properly or clearly brief issue on