Sochin v. Sochin

Sochin v. Sochin  (2004-271); 178 Vt. 535; 872 A.2d 373

2005 VT 36

[23-Mar-2005]


                                 ENTRY ORDER

                                 2005 VT 36

                      SUPREME COURT DOCKET NO. 2004-271

                             DECEMBER TERM, 2004

  Gregory Sochin                     }     APPEALED FROM:
                                     }
                                     }
       v.                            }     Windham Family Court
                                     }     
  Lea Ann Sochin                     }
                                     }     DOCKET NO. 2-1-02 Wmdm

                                           Trial Judge: Katherine A. Hayes

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

       ¶ 1.     Mother appeals a Windham Family Court decision denying her
  motion to modify parental rights and responsibilities so that she could
  relocate to Florida with the parties' minor child.  Because it is
  undisputed that mother's proposed relocation is a "real, substantial and
  unanticipated change of circumstances," 15 V.S.A. § 668, this case turns on
  a determination of the best interests of the child.  The family court's
  evaluation of the factors contained in 15 V.S.A. § 665(b) is supported by
  the record, and, therefore, we will not disturb the court's conclusion that
  it is in the child's best interests to remain with father in Vermont. 
  Accordingly, we affirm the court's decision to award primary legal and
  physical parental rights and responsibilities to father.

       ¶ 2.     The parties were married in 1991, and have one child,
  Demetri, who was born in September 1998.  Following their separation, the
  parties entered into an interim stipulation, filed with the family court in
  March 2002, providing for a shared custodial arrangement-Demetri would
  spend from 8:00 a.m. Thursday morning until noon on Sunday with father and
  from noon on Sunday until Wednesday at 4:30 p.m. with mother, with
  alternating custody on Wednesdays from 4:30 p.m. until Thursday morning. 
  The parties have followed that contact schedule since the filing of the
  interim stipulation, and in fact began splitting Demetri's time between
  them roughly in half in March 2001 when the divorce action was filed. 

        
       ¶ 3.     The court issued a final divorce order in April 2003,
  awarding mother sole physical and legal parental rights and
  responsibilities, while maintaining the contact schedule from the interim
  stipulation.  Mother appealed, and, while that appeal was pending, she
  moved in family court to modify the shared parent-child contact schedule to
  enable her to move to Florida to live for part of the year with her fiancé,
  who is employed principally in that state.  Father opposed the motion and
  cross-moved for sole parental rights and responsibilities.  Following a
  hearing, the court issued the decision currently on appeal, concluding that
  mother's planned move constituted a real, substantial, and unanticipated
  change of circumstances, and that the child's best interests required an
  award of primary parental rights and responsibilities to father, and
  substantial parent contact with mother during summers and holidays.   For
  the reasons that follow, we now affirm.

       ¶ 4.     The family court enjoys broad discretion in determining
  custody, and we accept its findings unless they are clearly erroneous. 
  Payrits v. Payrits, 171 Vt. 50, 52-53, 757 A.2d 469, 472 (2000).  We will
  disturb the family court's findings of fact 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 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, 171 Vt. at 53, 757 A.2d  at 472.  

       ¶ 5.     The legal framework for custody modification cases consists
  of a two-step inquiry.  First, the party seeking to modify custody must
  demonstrate that the proposed modification is a "real, substantial and
  unanticipated change of circumstances."  15 V.S.A. § 668.  See Habecker v.
  Giard, 2003 VT 18, ¶  5, 175 Vt. 489, 820 A.2d 215 (mem.) (characterizing
  "change of circumstances" as a "threshold showing").  In this appeal,
  neither party disputes the family court's conclusion that mother's proposed
  move to Florida would be a real, substantial, and unanticipated change of
  circumstances.

       ¶ 6.     Next, the moving party must show that the proposed
  modification would be in the best interests of the child.  15 V.S.A. § 668;
  Habecker, 2003 VT 18, ¶  5.  In assessing the child's best interests, the
  family court must consider the nine factors contained in 15 V.S.A. §
  665(b), and otherwise enjoys the broad discretion outlined above.  Id. ¶ 
  10.  As long as the court considers each factor, § 665(b) "imposes no
  specific requirement on how this consideration is to be manifested in the
  court's findings and conclusions."  Mansfield v. Mansfield, 167 Vt. 606,
  607, 708 A.2d 579, 581 (1998) (mem.).  Further, the 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.     This Court has described a change in physical custody as a
  "violent dislocation," Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677,
  680 (1988), and has required the noncustodial parent to prove that the
  child's best interests "would be so undermined by a relocation with the
  custodial parent that a transfer of custody is necessary."  Lane v.
  Schenck, 158 Vt. 489, 499, 614 A.2d 786, 792 (1992).  However, the trial
  court should evaluate the effect of a proposed relocation and determine
  whether a change in custody is warranted by examining the actual parenting
  arrangement experienced by the child and not the arrangement described in a
  prior court order concerning parental rights and responsibilities.  Thus,
  where, as here, the parties share "childrearing and its concomitant
  decision-making," relocating to a distant place "requires at the very least
  a reassessment of the custodial arrangement and . . . will often
  necessitate a change in custody," especially when the parties are unable to
  share parenting responsibilities due to their own difficulties
  communicating.  Hoover, 171 Vt. at 259, 764 A.2d  at 1194.  This follows
  because, where parents have shared parenting responsibilities over time and
  have both spent substantial time with the child, the child's loss from one
  parent's relocation is substantial regardless of which parent gets custody
  of the child.

       ¶ 8.     This case required just such a reassessment of the custodial
  arrangement established in the divorce order.  While the divorce order
  granted sole physical and legal responsibility to mother, it continued the
  parties' pre-existing contact schedule under which father and mother
  equally share time with Demetri.   In ruling on the motion to modify
  custody, the family court noted that the parties have maintained this
  arrangement since March 2001.  As a result of the virtually equal amounts
  of time each parent spent with Demetri for more than three years leading up
  to the modification decision, the loss to Demetri of either parent's
  presence would be substantial.  See deBeaumont v. Goodrich, 162 Vt. 91,
  102, 644 A.2d 843, 850 (1994) (recognizing that when divorced parents have
  spent roughly equal time with child, loss to child of either parent's
  presence is "very great").  Thus, the family court correctly framed its
  core task in this case as a reexamination of Demetri's best interests in
  light of mother's proposed move to Florida.  See id. at 100, 644 A.2d  at
  849 ("The whole point of the modification process is that changed
  circumstances may have made the initial decision inappropriate, so a
  reexamination of the interests of the children is warranted.").

       ¶ 9.     The family court evaluated Demetri's best interests properly,
  carefully assessing the factors contained in 15 V.S.A. § 665(b) in light of
  the evidence presented at the modification hearing and mother's proposed
  move to Florida.  First, the court acted within its discretion in
  determining that several factors did not weigh in either party's favor. 
  Under § 665(b)(1), the court concluded that both parties are devoted to
  Demetri and are equally able to provide him with love, affection, and
  guidance.  Discussing § 665(b)(5), the court observed that each party wants
  Demetri to have a positive relationship with the other, but simultaneously
  wants to be his primary parent.  Thus, the court concluded they are equally
  likely to "encourage regular and frequent contact with the other parent." 
  Under § 665(b)(8), the court noted that both parties have failed to
  communicate effectively with each other and thus did not weigh this factor
  in either party's favor.  As for § 665(b)(9), the court found it irrelevant
  because there was no evidence of abuse.

        
       ¶ 10.     The court also determined that "the quality of the child's
  relationship with the primary care provider," § 665(b)(6), played no role
  in the decision because the parties had been sharing their time with
  Demetri equally since before the divorce order.  Mother argues that the
  court abused its discretion by concluding that she was not the primary care
  provider because the court considered no new evidence and thus was bound by
  collateral estoppel from revising the divorce court's order.  This argument
  fundamentally misapprehends the nature of these proceedings.  "For purposes
  of a modification motion, of course, the most relevant period is that
  between the divorce and the filing of the motion to modify."  deBeaumont,
  162 Vt. at 101, 644 A.2d  at 849.  In other words, the court must reassess
  the divorce order's allocation of parental rights and responsibilities in
  light of " 'all relevant periods of the child's life.' "  Id. (emphasis
  added) (quoting Nickerson v. Nickerson, 158 Vt. 85, 91, 605 A.2d 1331, 1334
  (1992)).  The family court here did just that, considering substantial new
  evidence adduced by both parties concerning events and experiences that
  transpired after the divorce order.  For example, the court's detailed
  findings of fact discuss Demetri's trip to Florida in June 2003, mother's
  work with a therapist, father's work in several parenting classes,
  Demetri's enrollment and the parties' volunteer work at West River School,
  the parties' responses to Demetri's asthma, and Demetri's relationship with
  mother's fiancé.  The court also recognized that during all relevant time
  periods, the parties spent almost exactly equal amounts of time with
  Demetri.  Thus, we conclude that the family court acted within its
  discretion in determining that neither party "ha[d] the role of primary
  care provider."  See Payrits, 171 Vt. at 54, 757 A.2d  at 472 (upholding
  family court's determination that because both parents spent approximately
  equal time with the children for the three previous years, both were the
  children's primary care providers).

       ¶ 11.     With respect to "the ability and disposition of each parent
  to assure that the child receives adequate food, clothing, medical care,
  other material needs and a safe environment," § 665(b)(2), the court found
  that "[b]oth parents have equal abilities in this regard, except as to
  medical care."  The court noted that mother had "shown greater insight"
  into Demetri's asthma treatment, but tempered its finding by observing that
  mother had shown "undue suspicion" about the risk to Demetri posed by his
  pet dog and that she had not shared medical information with father.

       ¶ 12.     The court concluded that the remaining factors showed that
  Demetri's bests interests would be served by allocating primary legal and
  physical rights to father.  The tipping point of the court's analysis was
  its assessment of each parent's ability to meet Demetri's "present and
  future developmental needs," § 665(b)(3).  The court recognized that the
  time father had spent in parenting classes gave him "a somewhat more
  sensitive ability to meet Demetri's developmental needs," and that father's
  testimony "showed a much more detailed and thoughtful understanding of how
  to impose discipline in a positive manner than did the mother's." 
  Significantly, the court found that "[t]his is clearly one of Demetri's
  most important needs . . . as described by all parties."  Thus, the court
  properly concluded that this factor was critical to Demetri's best
  interests and that it tipped the § 665(b) balance in father's favor. 

        
       ¶ 13.     As we noted at the outset, the family court enjoys broad
  discretion in determining the best interests of the child in deciding a
  motion to modify parental rights and responsibilities.  Habecker, 2003 VT
  18, ¶  10.  Here, the family court found that father had demonstrated a
  greater ability to meet Demetri's developmental needs, a factor that, as
  the court noted, all parties viewed as especially important for Demetri. 
  The court also found that none of the factors weighed decidedly in mother's
  favor.  As a result, the court properly exercised its discretion by
  concluding that the § 665(b) factors warranted a reallocation of primary
  legal and physical parental rights and responsibilities to father.

       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

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                                  Footnotes


  FN1.    In light of the decision granting parental rights and
  responsibilities to father, we dismissed as moot mother's appeal of the
  initial divorce order's parent-child contact schedule.  Sochin v. Sochin,
  2004 VT 85, ¶ 9, 15 Vt. L. Wk. 280, 861 A.2d 1089 (mem.).

  FN2.  Excluding the alternating 15.5 hour period from Wednesday afternoon
  until Thursday morning, mother spent 76.5 hours per week with Demetri and
  father spent 76.

  FN3.    As for the remaining two factors, the court found that Demetri's
  "adjustment to [his] present housing, school and community and the
  potential effect of any change," § 665(b)(4), and his "relationship[s] with
  any other person who may significantly affect [him]," § 665(b)(7), weighed
  in father's favor.  The court based that conclusion on its findings that
  Demetri, having spent his whole life in his current community, "has
  established routines" in Vermont where he enjoys "a network of loving
  relatives."