Osmanagic v. Osmanagic (2004-176); 178 Vt. 538; 872 A.2d 897
2005 VT 37
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
¶ 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
¶ 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.
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.),