Adamson v. Dodge

Adamson v. Dodge (2005-255); 180 Vt. 612; 910 A.2d 821

2006 VT 89

[Filed 24-Aug-2006]

[Motion for Reargument Denied 03-Oct-2006]


                                 ENTRY ORDER

                                 2006 VT 89

                      SUPREME COURT DOCKET NO. 2005-255

                               MAY TERM, 2006
    

  Dawn Adamson (Dodge)              }            APPEALED FROM:
                                    }
                                    }
       v.                           }            Chittenden Family Court
                                    }  
  Jeffrey Dodge                     }
                                    }            DOCKET NO. 474-6-99 Cndm

                                                 Trial Judge:  Helen M. Toor

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

       ¶  1.  Father, Jeffrey Dodge, appeals the family court's denial of
  several motions related to the relocation of mother and custodial parent,
  Dawn Adamson.  Father contests the denial of his request to enforce and
  find mother in contempt of a parent-child contact order; he opposes the
  award of mother's motion for modification of parent-child contact; and he
  challenges the denial of his request for fees and costs.  We affirm.

       ¶  2.  The parties were divorced after eleven years of marriage. 
  The divorce order gave mother sole physical rights and responsibilities
  concerning the parties' four children subject to father's periodic
  visitation.  The order provided the parties with shared legal rights and
  responsibilities regarding the children.  A recitation of the facts that
  accompanied the divorce can be found in Adamson v. Dodge, 174 Vt. 311,
  313-14, 816 A.2d 455, 458-59 (2002).  The matters before us relate solely
  to events that occurred in the years following the divorce.  In 2000,
  shortly after the divorce, father moved to Wisconsin to begin his medical
  career.  He did so with the hope that mother would move the family to
  Wisconsin.  Id. at 314, 816 A.2d  at 459.  Shortly after father's move,
  mother informed him that she was not moving to Wisconsin, a revelation that
  prompted father to give six-month notice of resignation only two weeks
  after starting his job.  Id. at 315, 816 A.2d  at 460.  In December 2000,
  father returned to Plattsburgh, New York, where he purchased a home and
  joined a medical practice, anticipating that mother and the children would
  remain nearby in Vermont.  In June 2003, however, mother and the children
  moved to Wisconsin in order to seek employment, be nearer to her family,
  and pursue a romantic relationship.  The issues presently before the Court
  emanate from mother's relocation.
   
       ¶  3.  At the time of mother's move in June 2003, father and mother
  filed cross-motions to modify their parental rights and responsibilities. 
  Father sought sole physical rights and responsibilities; mother sought sole
  legal rights and responsibilities.  The court did not rule on the motions
  for more than eighteen months, but ultimately denied both in January 2005
  on the grounds that mother's move was not a significant and unanticipated
  change of circumstances necessary to trigger modification pursuant to 15
  V.S.A.   668.  Neither parent appealed this decision.  In February and
  April of 2005, father filed two pro se motions relating to mother's move. 
  The first sought to enforce the existing parent-child contact order, and
  asked that the court find mother in contempt of the order due to her
  relocation to Wisconsin.  Father also sought to compel mother to return to
  Vermont with the children.  In response, mother filed a motion requesting
  that the court establish a new parent-child contact schedule in light of
  the parties' changed locations.  Father thereafter filed a motion to
  recover fees and costs.  On June 3, 2005, the family court ruled that it
  lacked authority to force a parent to move, and established a new,
  logistically feasible, parent-child contact order.  Father's request for
  fees and costs was denied.  This appeal followed.   

       ¶  4.  We note at the outset that many of father's arguments on
  appeal are directed at the denial of his June 2003 motion to modify the
  parental rights and responsibilities order-a ruling he did not appeal at
  the time of the family court's January 2005 decision.  In arguing that we
  should now consider the unappealed order, father contends that the court's
  denial of the cross-motions to modify was confusing, and that because he
  was unclear about the impact of the rulings, he did not appeal.  We
  appreciate that the delay between the parties' filing and the court's
  denial of the motions may have exacerbated the confusion regarding the
  motion.  However, we have a strong interest in finality, especially with
  respect to orders affecting the interests of children.  If father did not
  understand the effect of the order denying both motions, he could have
  asked for clarification from the family court.  Although we will not permit
  unfair advantage to be taken of a pro se litigant, it is not the obligation
  of the family court or this Court to offer affirmative help.  Nevitt v.
  Nevitt,155 Vt. 391, 401, 584 A.2d 1134, 1140 (1990).  Having failed to
  timely appeal the denial of his motion regarding parental rights and
  responsibilities, father has waived his right to now contest the result. 
  Stein v. Stein,173 Vt. 627, 628, 800 A.2d 460, 462 (2002) (mem.). 
  Accordingly, the only issues before this Court are those raised in response
  to the family court rulings of June 3, 2005. 

       ¶  5.  Father argues that the family court erred when it refused to
  order mother to return to Vermont to comply with the parent-child contact
  order in the parties' final divorce order. He contends that her return was
  the necessary consequence of the denial of her motion to modify parental
  rights and responsibilities.  We disagree.  The 2000 divorce order did not
  require that mother reside in Vermont.  While the relocation of a custodial
  parent may be a ground to modify a preexisting parental rights and
  responsibilities order, it is not a sufficient ground to order that parent
  to return to this state.  See Lane v. Schenck, 158 Vt. 489, 499, 614 A.2d 786, 791 (1992) (establishing that although visitation orders are meant to
  facilitate parent-child relationships, such orders "do not warrant
  nullification of the custodial parent's reasonable decisions" as to
  residence).

       ¶  6.  Father next challenges the family court's award of the new
  parent-child contact order consistent with mother's request.  The previous
  parent-child contact order in the divorce decree was specific: father was
  entitled to visitation on two weekends per month, and if the parties
  resided more than ninety miles apart, the parent-child visitation schedule
  was to be "altered so that it does not interfere with the children's school
  life, performance attendance, activities, etc."  Mother alleged in her
  motion to modify that the parties were unable to agree to a new schedule to
  reflect the parties' changed living arrangement.  She therefore requested
  that the court order a new schedule, which the court did.  On appeal father
  maintains that mother should be made to abide by the original terms of the
  parent-child contact order, and he opposes the existence, rather than any
  specific facet, of the modified order.

       ¶  7.  The family court acted within its discretion when it modified 
  the parent-child contact order to account for the distance between the
  parties and the logistical dilemmas this distance presented.  Hawkes v.
  Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273.  As we explained in
  Hawkes, 

    A relocation will frequently require modifying parent child
    contact, regardless of whether the relocation amounts to a change
    of circumstances for custody purposes.  The burden of showing
    changed circumstances with respect to a motion to alter parent
    child contact is "not as high" as the heavy burden of showing
    changed circumstances with respect to a motion seeking a change of
    custody. 

  Id.  Indeed, the original parent-child contact order in this case
  contemplated a relocation that would leave the parties over ninety miles
  apart.  Since the mother's relocation, both parties acknowledged a
  breakdown in communication.  The court's modification of the parent-child
  contact order attempted to minimize acrimony by establishing clear rules
  and diminishing the need to "negotiate."  See Gates v. Gates, 168 Vt. 64,
  68, 716 A.2d 794, 797 (1998) (finding that parents' toxic relationship
  warranted change in communication method rather than change in legal rights
  and responsibilities).  Given the parties' respective locations, adherence
  to the existing parent-child contact order was impossible.  Father now has
  extended visits during school vacations and holidays, which are both known
  in advance and convenient for the children.  Visits between Wisconsin and
  New York require air travel, advanced planning, and increased parental
  cooperation, all of which enhance the need for a structured process.  We
  conclude that the modification order was reasonable and within the court's
  discretion.

       ¶  8.  Father also appeals the denial of his request for attorney's
  fees and costs.  Though he now appears pro se, father was represented by
  counsel for a substantial period of time and seeks attorney's fees relating
  to the work performed during that period on the cross-motions to modify. 
  Just as we cannot consider issues related to the denial of these motions
  due to father's failure to file a  timely appeal, we cannot now award
  attorney's fees for work in connection with those motions.  Nor can we
  award attorney's fees for pro se representation.  See Kay v. Ehrler, 499 U.S. 432, 435 (1991).  Additionally, the trial court  reasonably denied
  father's request for costs because it found that neither party's position
  was frivolous.  See Bowman v. Ackerman, 177 Vt. 589, 591-92, 865 A.2d 1120,
  1123 (2004) (mem.) (upholding denial of costs when record reveals "at least
  a colorable basis" for the opposing party's claim).   

       Affirmed.    


                                       BY THE COURT:

                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice