183 A.3d 600
Vt.2018Background
- Parents divorced 2016; two children; divorce order based on stipulation granted shared physical and legal parental rights, but mother retained sole right to choose children's residence and school and primary residence with mother.
- Original parenting-time schedule gave father ~35.7% of overnights; parents later adjusted schedule by agreement without changing overnight percentages.
- Mother purchased a home in Proctor and moved (Feb 2017) and filed to modify parent-child contact to reduce midweek travel; father moved to dismiss, arguing no change of circumstances and opposing the move.
- At hearings, father elicited and introduced evidence about best interests and custody; mother repeatedly objected that no motion to modify parental rights and responsibilities (PR&R) had been filed and that only contact was before the court.
- Trial court found a real, substantial, unanticipated change of circumstances (mother’s relocation), concluded PR&R were appropriately before it, transferred mother’s sole school/residence decision to father, and reduced mother’s parenting time; appellate court reversed as to PR&R modification and remanded to set a new contact schedule.
Issues
| Issue | Churchill (mother) Argument | Bonk (father) Argument | Held |
|---|---|---|---|
| Whether the court could modify parental rights and responsibilities without a filed motion on PR&R | Only parent-child contact was before the court; no motion to change PR&R so court lacked authority to modify PR&R | Father argued his motion to dismiss and litigation conduct effectively put PR&R at issue and Rule 15(b) permits amendment to conform to evidence | Reversed: court abused discretion by modifying PR&R absent motion or amendment; only contact modification was properly before court |
| Whether mother’s move constituted a change of circumstances for modifying parent-child contact | Move to Proctor made midweek schedule infeasible; warranted contact modification | Argued move was avoidable and no sufficient change occurred; alternatively requested PR&R change if court considered it | Affirmed that mother’s relocation was a real, substantial, unanticipated change for contact modification; remanded to set new contact schedule |
| Application of V.R.C.P. 15(b) to allow amendment to pleadings based on evidence at hearing | Opposed admitting PR&R-focused evidence without amendment; objected repeatedly and said father should have moved to amend | Asserted the issues were tried by implied consent and father’s proposed findings sought amendment; evidence supported considering PR&R | Court must treat issues not in pleadings as raised only where tried by express or implied consent; here mother’s objections prevented implied consent so amendment was required and not obtained |
| Standard for appellate review of family court findings on change of circumstances and best interests | Not directly disputed; requested deference to factual findings supporting contact modification | Sought deference to trial court’s best-interest reallocation of PR&R | Affirmed deference to factual findings on change of circumstances but reversed legal conclusion permitting PR&R modification without proper pleading or amendment |
Key Cases Cited
- Molleur v. Leriche, 458 A.2d 1139 (Vt. 1983) (issue not tried by consent cannot be included when opposing party objected)
- Withington v. Derrick, 572 A.2d 912 (Vt. 1990) (party seeking to admit evidence beyond pleadings must move to amend)
- Chase v. Bowen, 945 A.2d 901 (Vt. 2008) (modification affirmed where movant’s own motion put custody and parenting in issue)
- Hoover v. Hoover, 764 A.2d 1192 (Vt. 2000) (relocation in shared parenting often necessitates reassessment of custodial arrangement)
- Hawkes v. Spence, 878 A.2d 273 (Vt. 2005) (relocation justifies reexamination of PR&R when it significantly impairs a parent’s exercised responsibilities)