Fabiano v. Cotton
Annotate this CasePlaintiff challenged the trial court’s order granting defendant’s motion to modify the parties’ parenting schedule. The parties were married in 2012. Plaintiff gave birth to their child in 2015, and defendant adopted the child through a second-parent adoption that was final in October 2016. The parties ended their sexual relationship in January 2017, but continued to live together and act as co-parents. In November 2017, the parties signed a “Marital Settlement Agreement” with the help of an application called “Wevorce.” In negotiating the agreement, they did not consult with lawyers or third parties, except for one half-hour consultation with “a lawyer on Church Street.” At the same time, they signed a court form titled “Agreement on Parental Rights and Responsibilities, Parent Child Contact and Provisions Relating to Children.” Plaintiff filed for divorce in December 2017, and submitted the parties’ stipulation to waive final hearing. The parties were still living together and sharing in the child’s care when they commenced the divorce action. The divorce was finalized in July 2018 at an uncontested hearing before the family division. Both parties represented themselves. At the time and following the divorce, they continued to live in the same house and to share care of the child. In November 2018, plaintiff moved out and became reluctant to allow defendant time with the child. Plaintiff had not discussed this “total move” with defendant beforehand. In January 2019, defendant filed a motion to modify parent-child contact on the ground that “[t]here has been a real, substantial and unanticipated change of circumstances in that the parent and child are no longer all living in the same household and there is no schedule for any parent child contact for Defendant.” Plaintiff opposed the motion to modify. When the request was granted, Plaintiff appealed, arguing the trial court abused its discretion by: (1) holding a hearing on the motion to modify when a prior judge had determined that the case should proceed as a motion for relief from judgment; (2) finding that there was a real and unanticipated change in circumstances; and (3) assessing the best interests of the child. Finding no abuse of discretion or other reversible error, the Vermont Supreme Court affirmed the trial court.
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