Osmanagic v. Osmanagic

Osmanagic v. Osmanagic  (2004-176); 178 Vt. 538; 872 A.2d 897

2005 VT 37

[Filed 23-Mar-2005]

                                 ENTRY ORDER

                                 2005 VT 37

                      SUPREME COURT DOCKET NO. 2004-176

                             DECEMBER TERM, 2004

  Alma Osmanagic                     }     APPEALED FROM:
                                     }
                                     }
       v.                            }     Chittenden Family Court
                                     }     
  Nedzad Osmanagic                   }
                                     }     DOCKET NO. F915-11-02 Cndm

                                           Trial Judge: Linda Levitt

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

       ¶ 1.     Father appeals from the Chittenden Family Court's final
  divorce order awarding parental rights and responsibilities of the parties'
  minor child to mother.  Because the family court's assessment of the
  factors contained in 15 V.S.A. § 665(b) is supported by the record, we will
  not disturb its conclusion that it is in the child's best interests to
  remain with mother as she relocates to their native Bosnia.  Accordingly,
  we affirm the court's award of parental rights and responsibilities to
  mother.

       ¶ 2.     The parties, both Bosnian citizens, were married in Bosnia in
  September 1996.  Their son, Alem, was born in Bosnia in 1997.  Seeking to
  escape the war in their home country, the family moved to Vermont in 1999. 
  In November 2002, the parties separated, and mother filed for divorce. 
  While the divorce action was pending, mother was awarded temporary parental
  rights and responsibilities over Alem, and father was granted three
  overnight visits per week with him.  After two days of hearings, the family
  court issued the divorce order currently on appeal.  

       ¶ 3.     In its order, the family court found that while both parties
  have been loving parents to Alem, mother has been Alem's primary caregiver. 
  She maintained the family's home, cooked meals, made Alem's medical
  appointments, found his daycare provider, registered him for school, and
  stayed home with him when he was sick.  The court observed that father had
  allowed Alem to watch "horror and sex movies," and, as a result, "Alem
  knows more about sex than the average child."  The court also noted that
  father once advised Alem to retaliate physically against another child who
  kicked him, and that father had been violent towards mother throughout the
  marriage.

        
       ¶ 4.     During the divorce proceedings, mother expressed her
  intention to return to Bosnia with Alem.  She has no family in the United
  States, and wishes to return to her family in Bosnia, where she expects to
  be employed as well.  Her family there is "relatively well off," as her
  father holds a "high position in the education field."  Alem can speak
  Bosnian and is close to his Bosnian relatives-particularly his maternal
  grandmother, who has made "lengthy visits to Burlington."  The family court
  also noted that since the family's arrival in Burlington, Alem has made
  friends, learned English, and done well in school.  Alem is close to
  father's sister and brother-in-law, who also live in Burlington. 

       ¶ 5.     The family court enjoys broad discretion in determining
  parental rights and responsibilities.  We will disturb the family court's
  findings only if, viewing the record in the light most favorable to the
  prevailing party and excluding the effect of modifying evidence, there is
  no credible evidence in the record to support the findings.  Hoover v.
  Hoover, 171 Vt. 256, 258, 764 A.2d 1192, 1193 (2000).  We will not overturn
  the family court's legal conclusions so long as they are supported by its
  findings.  Payrits v. Payrits, 171 Vt. 50, 53, 757 A.2d 469, 472 (2000).  

       ¶ 6.     In awarding parental rights and responsibilities, the family
  court "shall be guided by the best interests of the child."  15 V.S.A. §
  665(b).  In assessing the child's best interests, the family court must
  consider the nine factors contained in § 665(b), and otherwise enjoys the
  broad discretion outlined above.  Habecker v. Giard, 2003 VT 18, ¶  10, 175
  Vt. 489, 820 A.2d 215 (mem.).  The family court "may draw upon its own
  common sense and experience in reaching a reasoned judgment" as to the best
  interests of the child.  Payrits, 171 Vt. at 53, 757 A.2d  at 472.  

       ¶ 7.     The family court's decision to award parental rights and
  responsibilities to mother follows from its factual findings, which in turn
  are supported by the record.  Specifically, the family court emphasized
  that mother has demonstrated consistently that "[s]he can meet Alem's
  present and future developmental needs," but father, "while a loving
  parent, is less able to provide guidance to Alem."  In reaching that
  conclusion, the court relied on its findings, which father does not
  challenge, that father used violence against mother in Alem's presence and
  permitted Alem to watch age-inappropriate sex and horror movies.  The court
  recognized that leaving Burlington and moving to Bosnia will be difficult
  for Alem, but, on balance, concluded that it had "no doubt that [mother]
  will look out for Alem's best interests."  The court's conclusion here is
  supported by the record, and we will not second-guess the balance it struck
  in this case.

       ¶ 8.     Father argues that the family court erred because its order
  is "silent" concerning "the ability and disposition of each parent to
  foster a positive relationship and frequent and continuing contact with the
  other parent" under § 665(b)(5).  However, § 665(b) "imposes no specific
  requirement on how [the court's] consideration is to be manifested in [its]
  findings and conclusions."  Mansfield v. Mansfield, 167 Vt. 606, 607, 708 A.2d 579, 581 (1998) (mem.).  Moreover, the record contains no evidence to
  suggest that mother's desire to return to her homeland is intended to
  obstruct the relationship between father and Alem. 

        
       ¶ 9.     Father also asserts that the court abused its discretion by
  failing to consider "all of the factors unique to a foreign relocation." 
  Citing a California case, he urges this Court to require the family court
  to consider three additional concerns specific to cases in which a parent
  intends to move to a foreign country with the parties' child: (1) the
  "cultural problem;" (2) the "distance problem;" and (3) the "jurisdictional
  problem."  In re Marriage of Condon, 73 Cal. Rptr. 2d 33, 42 (Cal. Ct. App.
  1998).  While a trial court may have discretion to consider these or other
  factors not contained in § 665(b), the statute does not require a court to
  consider them, and we decline father's invitation to graft the Condon
  factors onto the statute.

       ¶ 10.     Finally, father argues that the court erred by failing to
  utilize the analysis proposed by the American Law Institute's Principles of
  the Law of Family Dissolution (ALI Principles).  This Court will not
  consider issues "not briefed at the trial court level" and raised for the
  first time on appeal.  Agency of Natural Res. v. U.S. Fire Ins. Co., 173
  Vt. 302, 311, 796 A.2d 476, 482 (2001); see also Duke v. Duke, 140 Vt. 543,
  545, 442 A.2d 460, 462 (1982) ("We will not reverse a lower court when a
  party's failure to raise some matter below denied the court an opportunity
  to consider it.").  Thus, because father failed to raise the ALI Principles
  before the family court, we decline to consider them on appeal.

       ¶ 11.     The family court's conclusion that Alem's best interests
  will be served by awarding parental rights and responsibilities to mother
  is supported by the record.  Therefore, we will not disturb it on appeal.

       Affirmed.               



       BY THE COURT:



  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice
  
  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Paul L. Reiber, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned