*1 Cabot, III D. Cabot Thomas Ellen Adams 644] [697 No. 96-087 D.J., Specially Skoglund, Johnson, JJ., Dooley, Gibson, Morse Present: Assigned 23,May Opinion Filed 2,1997 Reargument July Denied Motion *3 R. Schoenberg, fishier, Debra Burlington, Nicholas E. Niskayuna, (On York, Davison, New P. Brief), Stowe, and Robert Jr. Plaintiff-Appellant. Murray
Susan M. E Peter Langrock Langrock Sperry & Wool,Middlebury, for Defendant-Appellee/Cross-Appellant.
Johnson, J. In this decision we address a number of arising issues out of a lengthy complicated proceeding. divorce Both appeal the order; court’s and responsibilities husband, Tom, claims that he should have been awarded sole parental rights, wife, Ellen, while the argues that the court lacked authority joint legal to award parental rights and responsibilities agreement absent the parties. Ellen also appeals number of issues, financial including the court’s valuation and division of the marital estate and failure to its award agree maintenance. We that the authority lacked joint legal parental rights and responsibilities and therefore reverse and remand the order; in all other we affirm respects, the decision below.
The parties were married in 1984 and have lived in Vermont thrоughout their marriage. They have one child. Ellen has worked nurse registered and has operated her own business, nutrition but not has worked outside the since home the child’s birth. Tom has his own business as architect and real estate developer, but has not had *4 much financial success. Although party neither earned substan- tial during income the marriage, well, the family lived very supported by income derived from Tom’sfamily inheritance. The parties began 1991, to live apart in late and the divorce was in April filed 1992. Over the next years, three-and-a-half the parties litigated every aspect of divorce, this in culminating the separate parental-rights-and-respon- sibilities and property-distribution subject orders that are the of appeal. As we address each of arguments the parties, raised the we explain the relevant factual procedural and background in more detail. Responsibilities
I. Rights Parental in first 1988. For the child, a was born daughter, parties’ only The life, together in the lived child’s of the years three-and-a-half however, 1991, Shelburne, of In the fаll in Vermont. home the marital spend Tom first to Ellen asked disintegrate. marriage began the sister; Tom and his nearby a house owned nights a week four altogether. of later, him to move out the house she asked months two Tom months, therapy in couples remained parties the For several 1992, that Tom of Ellen insisted the child. In March to see continued per visits daily child from contact three time with the reduce his 1992, In April attending couples therapy. stopped Ellen also week. she the divorce day began the same that Ellen for divorce. On filed house Maine parents’ to her daughter she took her proceedings, Tom. telling without thereafter, giving into a stipulation the entered
Shortly subject physical rights temporary, primary Ellen The trial court incor- parent-child contact. right to Tom’s to certain In less into order. June porated agreement temporary a order, Ellen refused to the court issued its than two months after believed Tom was the child. Ellen testified that she allow Tom to see during from the marital home property items of removing personal stop her to visits, then-attorney advised and claimed that explanation question- “seemfed] noted that Ellen’s visits. court conduct was a deliberate likely found it more that Ellen’s able” and a of the child. As result to reduce or sever Tom’scontact with attempt actions, nearly four his child for Ellen’s Tom had no contact with allow contact the court ordered Ellen to months. In October child, psychia- Tom but on the advice the child’s between a hours twice a week trist, limited at first to few that contact was third-party a observer. presence job a accepted nursing Ellen that she had July In told Tom Charlottesville, Virginia, placed deposit had on a house Septem- move in planned in school there. Ellen enrolled child from enjoin the trial court Ellen year. requested ber of that Tom motion, Virginia. granted her to taking child with testified, however, Virginia. and Ellen decided not to move divorce was final. Virginia to move to after the planned she asking the trial same Ellen filed motion year, In October contact with the child. After a discussion court to reduce Tom’s court, on Ellen’s motion attorneys hearing and the between the rights and hearing respon- into a final on was transformed *5 adjudicate sibilities. The court that decided issue before consider- issues, ing property part and maintenance of Ellen’s because plan Virginia to move to with the child. findings,1
After extensive making evaluating and each the factors § 665(b), listed 15 V.S.A. physical parental awarded sole and responsibilities joint but ordered legal rights and responsibilities. granted The court also Tom substantial contact, weekend, parent-child including every other shared or vacations, forty-five days alternated school during the summer. schedule, up court drew an alternate visitation should Ellen move state; Virginia another distant plan, under that child would every be with Tom for school vacation and almost all of the summer.2 Each parent challenges part some of the court’s parental-rights-and- Tom argues order. that he should have been awarded sole and responsibilities, while Ellen maintains that by joint the court erred ordering legal parental rights responsi- bilities.
A. Tom’s Claim We first address Tom’s claim that trial court abused its discretion him failing legal sole and physical parental rights and responsibilities. Tom does challenge any not of the court’s findings, but argues instead that findings those do not support its decision physical rights to award and responsibilities to Ellen. Specifically, points Tom to several findings regarding attempts Ellen’s to limit or eliminate Tom’scontact with the child and to interfere with relationship. father-child Based on these findings, the court that, if concluded awarded primary legal responsibilities, rights and Tom would be much likely more to support and foster the child’s with Ellen relationship than Ellen would be to encourage child’s 665(b)(5) (one relationship Tom. See 15 V.S.A. factor court must examine is “ability disposition of each parent to foster a positive relationship frequent continuing contact with the argues clearly 1 Ellen that this Court should strike erroneous a number of the findings order, made trial parental-rights-and-responsibilities its but she explain argument point does not how her on this relates to the relief she seeks on rate, appeal. examining record, At after we findings that conclude the court’s supported by the evidence. brief, In plan her parent-child the court’s alternate for contact unfairly punishes moving argument, At out-of-state. oral her counsel withdrew claim, and we do not it address here. willing Tom is able and The court also concluded parent”). other affection, love, to ensure guidance; the child with provide *6 and future met; present to meet her and physical her needs basic (court 665(b)(l)-(3) must 15 V.S.A. developmental needs. See determination). In Tom’s making custody in these factors consider an award the court mandated by conclusions view, findings these and to him. responsibilities rights and of sole rights and physical parental to award based its decision The court that Ellen has been on its conclusion to Ellen responsibilities more than fulfilling] this role “clearly provider, care primary child’s 665(b)(6) See 15V.S.A. Tom,” separation. and after the both before care (court primary quality rеlationship shall of child’s consider Johnson age development); child’s and given if appropriate, provider, (1995) (absent 1149, 491, 494, 1151 Johnson, A.2d Vt. 659 v. 163 custodian, court should ordi- change likely on effect evidence if that primary remain with custodian should narily find child in fit). figure that Ellen “was the central The court found parent relationship emotional life,” depth that “the child’s] [the child] that between equal [the does not [the Tom and child] between disrupt the child’s unfortunate efforts to Ellen’s Despite and Ellen.” father, reluctant break close her the court was to relationship with bond. mother-daughter that, findings, on the court’s with Tom based agree
We do not award sole failing its to the court abused discretion 91, Goodrich, Vt. 162 to him. See deBeaumont responsibilities (1994) (trial 843, in court has broad discretion 103, 850 matter; cannot its because custody Court set aside decision Supreme facts); Myott v. reached different conclusion from it would have (1988) 573, 1336, 578, (Supreme Court Myott, 149 Vt. A.2d court’s custody matter unless that affirm trial court’s decision must exercised, un erroneously upon or was exercised discretion was clearly light or to an extent unreasonable founded considerations evidence). attempts Ellen’s recognized The court and considered life, concluded that Tom but on balance exclude from the child’s preserve the care and the need to primary provider Ellen’s role warm, relationship” be “close, and consistent resulting nurturing, outweighed the other concerns. daughter tween Ellen and Overall, grant court’s sole supports decision the evidence than Tom. to Ellen rather physical parental rights (1989) Gambrel, 601-02 152Vt. See Bissonette v. (court mother, custody primary who was by awarding not err did provider, despite animosity
care evidence that mother’s and rebuff of care). father it for father made difficult child’s participate that, awarding Tom also physical paren sole tal rights responsibilities, the court sanctioned he what calls Ellen’s “deliberate scheme” to exclude him from the life child’s primary establish herself as the care provider. findings do not support Tom’sclaim that Ellen “acquired” her status as primary care provider by limiting, period cutting for a off completely, contact between Tom and child. The court specificallyfound that Ellen has primary child; been the care provider from birth of the although sought she become sole care provider after the filed divorce, she was the primary provider care even before the separa Moreover, tion. the court neither ignored sanctioned nor Ellen’s misconduct, but stated that Ellen change needed to her attitude Tom toward and his relationship decision, with the child. In making its *7 however, the court appropriately focused on “the best interest of the child, not equity Id. parties.” 70, between the 602; 564 at A.2d see Orr, also Orr v. 473, 177 (welfare 122 470, 233, (1962) Vt. 235 of concern; child paramount is of opposing desires hostile parents, they insofar as conflict child, with well-being of must yield). The court was not free punish Ellen for her his, behavior reward Tom for but instead guided had be the needs of the child. See Nickerson Nickerson, 85, (1992) (attention Vt. should be focused on needs of child rather than actions of parents).
B. Ellen’s Claim Ellen challenges joint the court’s legal parental award rights and responsibilities. She argues provision that this of the court’s order 665(a), § violates 15 V.S.A. states part: parties “When the agree cannot parental to divide or share rights and responsibilities, the court shall parental rights and responsibilities primarily or solely to parent.” one As Tom and Ellen did not form an agreement to divide or share parental their rights and responsibilities, see 15 § V.S.A. Ellen maintains that the court lacked under authority the statute to joint make a award. justified
The its order noting parties, that the despite their many arguments, for the part agree most major on the issues affecting the child’s The welfare. court emphasized that the have similar backgrounds values, and as well as similar for aspirations the child’s future. Despite parties’ the lack agreement, and their it was child, concluded that the disputes over frequent rights legal parental couple joint to entrust the try” “worth involve the other shall “[e]ach and ordered responsibilitiеs, and education, and health, religion, regarding child’s] [the decisions welfare.” authority by its exceeded Ellen that the court agree with
We joint parental A rights responsibility. and joint legal parental ordering one violates both such as this order responsibilities and rights 665(a) provision. underlying policy § and the language 665(a) agree, cannot parents where meaning plain: (or sole) responsibili and rights primary court must award Here, characterized as order cannot be the court’s parent. to one ties to Ellen. responsibilities rights and awarding primary parental respon parent physical rights with sole3 as Although daily care and sibilities, for the “routine responsible is primarily 664(1)(B), no child,” she can make see 15 V.S.A. control of the consulting behalf of the child without decisions on important she, Tom, primary nor Neither has reaching agreement with Tom. child; rather, forced to share they have been this responsibility statute, not have Under the court does responsibility.4 absent the consent of authority arrangement to order parents. responsibilities, grants physical rights it 3 Although the court’s order Ellen “sole” may spend grants parent-child child one-fourth Tom substantial contact. The also circumstances, be better of her with Tom. Under these order one-third time physical rights responsibilities. granting “primary” described dissent the court awarded greater “primarily” share of those to Ellen because it awarded her *8 — is, responsi parties legal parental rights responsibilities and that while the share responsibilities. equally, physical rights this of the and On bilities Ellen received most fifty 665(a)
view, nothing parent § more than that one must receive means more than rights percent parental responsibilities. We do not believe that the of the and response Legislature’s to those Legislature provision This is the intended this result. responsibilities.” agree parental rights parents share and who “cannot to divide or 665(a) added). recognized parents Legislature that where (emphasis § VS.A. primary responsibility make parent given to together, one must be cannot work statute, that a court cannot this means decisions on behalf of the child. In terms of agree responsibilities parents do not to joint legal parental rights to who award such an award. language,” 166 we Vt. “distorted] to the claim that have We see no basis dissent’s explicit 658, provision. is based on statute’s 697 A.2d at of this Our decision responsibilities primarily rights or requirement parental that court must “award view, “primarily” permit solely parent.” does not the court Id. In our the word to one major affecting parents a child. responsibility to for all decisions to force share 665(a) § Our reading prohibiting of an of joint legal rights parental responsibilities agreement absent of the § reinforced by provisions governs agreements parents. between This requires parents agree statute dowho to share parental divide an complete agree- addresses, ment that among things, procedures other for communi- cating disputes, about child’s welfare and for resolving see 15 — 666(b)(6) (7) that, V.S.A. & ironically, issues did not discuss in its in By order this case. requiring parents willing who are together to work to nonetheless consider and resolve these issues in advance, Legislature recognized difficulties in inherent shared-parenting arrangements. In light provisions, these it seems unlikely Legislature that the intended to allow courts to force such an arrangement on parents. recognize
We in this by case was frustrated Ellen’s' violation its earlier unwillingness order and Tom’s foster relationship with the child. The court tried to ensure meaning- Tom’s ful involvement child’s life requiring Ellen to share decision-making authority joint- him. But a court-imposed parenting arrangement problem cannot solve the parents. of fighting Instead, by forcing unwilling parents to share rights and joint decisions, make a court risks a placing child the middle of constant and harmful disputes over everything from how much television the child watches to what school or church the child attends. or separated Divorced parents who agree share responsibility for on, their children take credit, to their a challenging requiring task communication, cooperation, and flexibility. parents Where have not evinced willingness together, work they very unlikеly to successfully negotiate process.5 recognized Gazo,
As we
Gazo
166 Vt.
II. Value estate, including several marital assigned parties’ court investments, gross estate, property, of business pieces real challenges net value of million. million and a value of $4.3 $7.1 regarding the values different findings of the a number court’s improperly potential considered court assets also value of the marital it calculated the net liability tax when future in turn. Ellen’s arguments We address each of estate. Marital Estate
A. Net v. Gross by reducing erred claim is that Ellen’s most substantial consequences of a potential tax of certain assets reflect the value Johnson, where we on Johnson v. sale those assets. She relies of the tax of assets the hands one stated that “the status valuation, unless the decree their fair market should not affect (1992). 160, 165, In Vt. necessitates their sale.” 158 case, on the wife’s by relying held the trial court erred we tax on the sale of possible impact on the law nonexpert testimony matter partnerships, interest in two limited remanded 164-65, value of those assets. Id. at of the fair market reconsideration 860. reasons, holding not that our persuaded For we are several in Johnson First, we in this case. noted Johnson compels reversal that, affect the value of income taxes do not although potential *10 asset, “they ‘may marital be another in establishing factor to consider payment the method of of Id. monetary amount and award.”’ at Rosenberg Rosenberg, A.2d at 860 v. (quoting (Md. 1985)).In marriage, Ct. this the Spec. App. primary marital Webber, asset was Tom’s substantial investment account with Paine had a the court found market value of close to million dollars. $4 Throughout marriage, parties lifestyle the the funded their account; borrowing against way, parties enjoyed this the the benefit of the in the growth paying investments without taxes on the gain. have been able to live on “paper wealth” for many their years, performed because investments have Awell. downturn in market, however, the could force Tom to sell investments to repay the debt; in so he doing, liability would incur substantial tax because of his low In of light parties’ situation, basis. the unusual financial potential tax liability was relevant to the court’s overall of evaluation their finances.
Moreover, Ellen requested and received a cash award as her share
of the marital property. Had she
real
received
estate or stocks of
value,
comparable
assets,
to liquidate
wished
those
she would
Instead,
have faced
tax
large
payments.
she
the
received
full benefit
award,
of her
with no need worry
about future tax problems. As the
noted, however,
court
Tom
had
presumably
liquidate
assets to pay
consequently
incurred
liability
And,
tax
on the sales.
account,
Tom retains the investment
he also bears the risk that a
market downturn will force him to sell some
and pay
investments
circumstances,
taxes on the gain. Under these
it was not unreason-
the
able for
court to
potential
consider
tax consequences associated
(in
assets
the marital estate.
id.
See
Finally, if even the underestimated net value of the marital estate deducting tax potential liability, error was not relevant its decision and was therefore spread- harmless. As the reveals, sheet attached to the court’s decision the court was well aware both gross of net values of the parties’ assets. The not estate, did award Ellen a fractional share of the but instead calculated an award generate that would appropriate income, an given duration of the marriage and the of living standard during convinced, We marriage. based on the thorough court’s of the estate issue, the net value redefining discussion above, the court As discussed court’s decision. change not would its making liability tax potential consider properly still would merely be cosmetic. would change decision.
B.
Real Estate
Value of
several
findings regarding
Next,
the court’s
Ellen contests
parties’
attempt
relitigate
reject
We
real estate.
pieces
findings
does not disturb
appeal,
On
Court
disputes.
factual
most
“unless,
light
in the
the evidence
viewing
the trial court
modifying
the effect
excluding
prevailing party
to the
favorable
Semprebon,
Semprebon
evidence,
clearly
erroneous.”
finding
*11
standard,
(1991).
209, 214, 596
361, 363
Disregarding
A.2d
Vt.
157
evidence that
accept
Court should
that this
essentially argues
of
That
found that
number
trial court.
court
rejected by the
was
“inflated,”
and that
“grossly,”
Ellen were
some
suggested by
values
Moreover,
was not
without foundation.”
“simply
others were
broker who served
testimony
the
of the real estate
impressed by
many of the broker’s
finding
for
that
an
witness
expert
fact, it
As the trier of
“wide of the mark.”
valuations were
property
the
credibility
the
of
the trial court
determine
province
was the
of
Bruntaeger
the
of the evidence.
persuasiveness
and weigh
witnesses
247,
123, 126 (1986);
also Kanaan
Zeller,
252,
A.2d
see
v.
147Vt.
515
(trial
(1995)
128,
Kanaan,
402, 405,
131
court’s
163 Vt.
unique
is in
on
because court
accorded wide deference
review
findings
evidence);
of
credibility
weight
of witnesses and
position
assess
(role
(1994)
714,
250, 261,
of
720
Phelps,
Mullin v.
162 Vt.
reweigh
of fact is not to
reviewing findings
Supreme Court
novo).
findings
credibility
de
evidence
to make
claims,
the
first note that
specific
Ellen’s
we
Addressing
4, Bayview
Hill Lot
Lot
to Pheasant
by
values
assigned
by
values claimed
Lot 4 fell
between the
Bayview
somewhere
within its discretion
by
Tom. The court was
broker
those claimed
presented.
of the evidence
range
value within the
to choose a
Tom’s
214, 596
accepted
The court
A.2d at 364.
Vt.
Semprebon,
And
Lot
not exist.
Bayview
Orchestra
did
testimony that
so-called
of the broker’s values
understandably skeptical
the court was
finally,
lots,
the Black Walnut
Lot and
Building
Hill Reserve
for the Pheasant
lots were
that the
assumption
her calculations on
as she based
on cross-
The broker admitted
available for sale.
approved that
examination
the Reserve
not
Building
permitted
Lot was
her purported
that
“valuation”
not in
was
fact the market value of the
Tom,
turn,
as it
lot
existed at the time of the trial.
testified that the
Building
Reserve
Lot was held in
all
common
the Pheasant Hill lot
owners,
consent;
and could not be developed without their unanimous
most
the Black Walnut
are
subject
pending
lots
of a
agreement
nearby
development
landowners
would restrict
lots;
on those
and that one of the Black Walnut lots has no available
for a
place
septic system,
actually become a
for Tom.
liability
evidence,
Based on this
the court’s
findings
Building
the Reserve
Lot had
value as a separate
no
lot and that
“possibility
of a
positive financial return
on
Black Walnut lots
too remote
[wa]s
inclusion in
marital estate” are
clearly
th[e]
not
erroneous. See
Kanaan,
(court
C. Other Marital Property challenges Ellen’s other to the findings similarly trial court’s without merit. She that the court erred by omitting Chestnut $400,000 Street Exchange worth securities over from its valuation of the Paine Webber trial, account. During court discussed with counsel for both parties the difficulty valuing account, given the daily changes prices. stock The court asked the parties stipulate to Paine Webber’s 28,1995, stated value of the account as of February *12 the first of Kanaan, day trial on the financial See issues. 163 Vt. at (as 410, 659 A.2d at matter, general maritаl assets should be valued as close to date trial as possible). agreed Tom’s attorney to obtain a statement from Paine showing Webber the value of the entire portfolio and the date, debt on it owed as and stated that “if objection there’s any copy any way, in attorney will [Ellen’s an opportunity later, have] to tell me.” days Two during Tom’s direct testimony, Tom identified a document aas statement from Paine Webber showing the market value of the account February million, 1995 to be approximately and the debt $4 on that date to be approximately million. Ellen’s attorney object $2 did not to the evidence, admission the document as nor did question he raise the of the Chestnut Street securities during his cross-examination of Tom or at other time during the trial. On appeal, points Ellen another Paine Webber statement which shows a market value of $4.4 attorney Ellen’s to the court submitted This was
million. document Although as evidence. trial, admitted and was not end of the after the under- at trial introduced that the statement be correct may Ellen account, challenge those the time proper of the the value stated the findings, adopt The court’s the trial. during was figures clearly errone- are not the evidence and on based figures, lower ous. in The Waterfront of Tom’s interest valuation
The court’s in real estate that owns commercial partnership a limited Company, The court by the evidence. Burlington, supported also downtown .at all as “not. . company valuation of the proposed Ellen’s rejected well performed had not company court found that the credible.” Tom, owes company On paper, debt. and had substantial found, The court thousand dollars. several hundred general partner, repaying before however, attempted to collect that debt that if Tom him. investments, would sue partners the limited partners’ limited situation, a the court faced analogous in an recognized we have As in asset; value of a share the market valuing difficult task in business, be difficult closely may of a held like the value partnership, Konaan, 407, 659 at 132.Given the Vt. at precisely. to fix See in court, Tom’sinterest to value its decision evidence before $100,000 clearly erroneous. was not company relying court erred in on complains that the Finally, Ellen specif personal property, certain valuing evidence “post-hearing” motorcycle. automobiles, Although inoperable, some ically three that, the items were sold hearing, after acknowledged the court them, the court did or Tom’svalues for for far less than either Ellen’s Instead, Tom’s adopted the court price. at the sale not value items for an choose a value its discretion Again, values. Semprebon, range presented. of the evidence that is within asset at 364. 157 Vt. at Maintenance Property
III. Division and marital Next, property of the challenges Ellen the court’s division The court concluded its her maintenance. failure award value financial provide contained sufficient the marital estate slightly more awarded independence parties, for each of million, maintenance found that mostly cash. than $1.5 property income and unnecessary, [the] because “Ellen’s was *13 her] enable [and her reasonable needs be sufficient for [would] 500 at
support living herself the standard during established marriage.” As the court’s property and maintenance are decisions linked, respect Ellen’s claims with to these issues must be considered DeGrace, 466, 470, 520 together. 987, See DeGrace 147Vt. A.2d 990 (1986) division (property closely and maintenance award are related scheme). statutory under Vermont’s
Division of marital property 751, 15 governed by V.S.A. grants authority the court “equitably divide and assign the a property” sets out number of may factors that the court making Jakab, consider in its 575, 585, decision. See Jakab v. 163Vt. (1995). 261, 267 noted, 664 A.2d As we have often property division is science, not an exact and the trial court has broad discretion statutory considering factors and fashioning an appropriate order. See, Klein, (1988). e.g, 466, 469, 555 Klein v. 382, 384 150Vt. A.2d must, however, provide a clear statement as to what was Jakab, why. 585, decided and Vt. at 267. brief,
In her Ellen challenges the cоurt’s with respect conclusions a statutory number of the not, however, factors. She has succeeded demonstrating an abuse of 585, discretion the court. See id. at (court’s A.2d at 267 will upheld decision be unless its discretion was abused, withheld, or exercised on clearly untenable grounds). For the most part, the arguments nothing evidence, more than recital of such as that of Ellen’s claimed contributions to Tom’s business activities, that rejected as not credible. event,
In any Ellen does not link arguments request these to a a larger share of the Instead, marital estate. she that this Court should “add back” the assets that she claims erroneously were excluded or court, undervalued the trial and then divide this revalued marital using estate the same ratio that the trial court employed. As we already discussed, however, have the court’s factual findings regarding value clearly marital estate were not erroneous, will Moreover, and we not disturb them. the court did not estate; award Ellen a “share” of the marital it calculated cash award that it cоnsidered appropriate given the relevant statutory factors. decision, The court’s well-explained which is and supported by the is not an findings, abuse of discretion.
Ellen further claims that the court should have awarded her pursuant maintenance to 15 V.S.A. 752. Although a court significant maintenance, amounts of both property see Johnson, Johnson v. (1990), 155 Vt. a court *14 of mainte lieu property to make an award of has discretion also (1989); 1342, 1344 Kurz, 355, 358, 566 v. Vt. nance. Naumann (court it 752(a)(1) if finds order maintenance may see 15V.S.A. income, property, sufficient maintenance lacks seeking spouse court, to for reason both, provide apportioned by including property needs). case, of the marital substantial size In this given able each marital to allow estate, property to the court chose divide necessarily challenge Ellen does not independence. financial party to small be her settlement too property but considers approach, this in this case. payments for maintenance substitute adequate аn adequate court did not give claim is that the The focus of Ellen’s the mar- during established living to the consideration standard (2) (court 752(a)(1) maintenance & order 15 V.S.A. riage. See provide maintenance cannot for spouse seeking if it finds that living herself standard of cannot support reasonable needs and the court’s takes issue with marriage). She during established marriage parties’ lifestyle during of the characterization authority no court had to “inappropriate” their means. living beyond and Tom were consider whether she her sufficient have awarded According to the court should spend her to property to allow income-producing maintenance and/or if that level was marriage, spending even during as she did and assets. given parties’ income unreasonable living the standard the court must consider Although Legis cannot conclude that the during marriage, we established reality in to economic these situations. ignore lature intended courts so, if to and choose to do live may, they A are able obtain credit couрle But a financial lifestyle they cannot afford. such extravagant an forever, rarely beyond it last arrangement cannot last can divorce, to split support must be two property when and income Kohut, 942, households. See Kohut 164 Vt. 663 A.2d (1995)(where money constantly borrowing receiving parties were unlikely was parents during marriage, from husband’s it assistance divorce). Indeed, Ellen’s lifestyle that their was sustainable after for over prove point request financial demands well: her $2.3 in cash have more than out the investment wiped million would account, to forcing liquidate pay pay Tom to other assets her little, taxes, any, if leaving very income-producing property $48,000 per year combined maintenance and request fund her correctly concluded that these demands were support. child “unreasonable.” settlement,
In light of the property the court did not abuse its discretion in failing award maintenance Ellen. Ellen received fees, sufficient cash to pay attorney’s purchase a home worth $200,000, approximately $1,000,000. and still invest The income investment, $18,000 stream from that per combined year child needs, support provide for the child’s should allow Ellen very living. comfortable standard of We grounds see no that justify Johnson, disturbing the court’s decision. See 155 Vt. at at 506 (party appealing maintenance decision must show that there is it). no reasonable basis support *15 Other
TV. Issues A. Child Support Order court, noting that the parties presented had not suffi cient evidence to support calculate the amount based on the guide lines, did not attempt such a calculation or make findings on the issue. Instead, the court $1500, a monthly support estimated amount of invited parties, they if litigate issue, wished to to request a hearing 461(a)(1) magistrate. before the 4See V.S.A. (magistrate jurisdiction has proceedings establishment, hear for modification and enforcement of child support). unusual, Although the court’s order was reasonable under the circumstances. The estimate $1500 was not significantly higher than per in month set $1350 a 1992;moreover, temporary order the court may have believed that the parties prefer would to accept the estimate rather than engage expensive another legal event, dispute. In if one the parties was dissatisfied, she he could take the issue to the magistrate for resolution. instruction,
Disregarding this Ellen instead seeks to contest the child on support order appeal. argues She that Tom should be required pay a month in support, $2000 child rather than $1500 ordered by Court, however, the court. This inis no position better than the trial court to determine the appropriate amount of child support. If the parties wish to continue this dispute, they should present their evidence arguments magistrate. to the
B. Legal Fees Both are dissatisfied with the court’s handling of Ellen’s legal fees. To facilitate the parties’ financial independence, the court issued an interim final order that Tom required to pay Ellen $1.25 for responsible party shall be that “[e]aeh in cash and stated million property In the final fees.” expert witness or her own counsel his final that “an additional order, concluded thе court distribution costs and litigation $200,000 cover [Ellen’s] is sufficient buy home.” money ample leave her with will $200,000 Ellen awarding erred that the court Tom claims not, $104,600. We do requested only when she attorney’s fees as an award court’s order however, portion of the read this Ellen that Tom and stated previously fees. The court had attorney’s order, final In the for those costs. individually be responsible would Ellen’s that would cover an cash award calculated additional home, and still leave of a new purchase price and the obligations $200,000 an would be $1,000,000 The court decided to invest. There was no error. amount. appropriate by failing to court erred for her part, order attorney’s temporary Tom to fees due under require pay merit in this claim. the interim order. We see no predated order, gave by the interim which superseded order was temporary fees, final- attorney’s responsibility for her own order, unpaid litiga Ellen’s considered distribution property obligation has no further the final award. Tom calculating tion costs attornеy’s for Ellen’s fees. pay *16 Judge C. Presiding Role of seeks, Ellen relief she explain she does not what Although this by continuing to over judge preside that the trial erred claims According she family after his term in court ended. matter role in this case because judge’s continuing prejudiced was on the frivolous. Our his toward her. This claim borders “hostility” state, “the previously recognized, that plainly and we have rules power over a case judge’s of a term does not affect a expiration DeGrace, 469, 520 147Vt. at pending judge.” has before the been 6(c) way in no affects 989; of term of court (expiration see V.R.C.E civil any proceeding any to do act or take any of court power it). Moreover, our review has been before pending proceeding of the part bias or on prejudice the record does not reveal with the Indeed, judge patience exhibited remarkable judge. vehemently these protracted attorneys parties during proceedings. divorce disputed
The parental rights responsibilities order is reversed and remanded not proceedings inconsistent with opinion. for further In all respects, other the decision below is affirmed.
Morse, J., concurring. While I concur in the I write holding, separately joint to discuss one aspect of the custody issue.
I readily agree with the parents Court’s conclusion that divorced ability must manifest an cooperate compromise over basic joint child-care decisions to warrant an respon- award of Any sibilities. other conclusion be contrary would to the best interests children, of the subjected who should not to ongoing be parental strife judicial and continual disharmony, intervention. Amid such only court’s reasonable option is to award parental rights and or “primarily solely” to parent. one 15 V.S.A. 665(a). § cases, however,
Even in such may there exist circumstances that would warrant the court reserving specific, discrete area of responsibility parent. noncustodial The statutory scheme 665(d) (court specifically such contemplates an award. See id. order parent who is awarded responsibility for “a certain matter involving a child’swelfare” to inform other parent major when change occurs) added). (emphasis A case where the parent noncustodial feels very strongly about religious upbringing while the custodial parent is or perhaps neutral even assents to the wishes of the other is a good example. Although the situation might otherwise not be suitable for joint an award of custody, might it appropriate be to award rights and responsibilities generally “primarily ... parent,” one id. 665(a) added), (emphasis while awarding specific area of respon sibility to the other. As we recognize Gazo, 434, 697 Gazo Vt. (1997), A.2d 342 the absence of complete parental agreement “does not mean that only an alternative is award of all rights and responsibilities solely to one parent. The use of the word ‘primarily’ shows that the Legislature expected that some sharing responsi bilities, joint short of custody, could be ordered.” Id. at at 347.
In the appropriate case there bemay advantages to such an award. Chief among them is fostering parent’s noncustodial sense of responsibility. The parent remains involved with the only child not *17 the physical visitation, sense of but also in the broader emotional retaining sense of responsibility for an aspect of the child’s upbring- ing. Enhancement of the parent-child relationship, and ultimately themselves, potential are also parents the between cooperation
better order, serves Thus, appropriate, an where such benefits. long-term of divorce the children ensuring goal legislative express the continuing physical for maximum opportunity continue “to have § 650. V.S.A. parents.” contact with both emotional decision, I it today’s believe while I concur Accordingly, awards custodial preclude to interpreted that it not be important outlined above. the kind I dissenting. D.J., concurring
Skoglund, Specially Assigned, court family holding that only majority’s with the disagree rights and awarding joint legal parental authority by its exceeded meaning of 15 V.S.A. holding ignores plain responsibilities. rights primarily 665(a), parental to award requires to those share agree cannot parent parents one when solely to who divorcing parents Worse, further incentive provides it rights. on spouses with their cooperate refuse to to primary caregivers thus undermines rights responsibilities, sharing parental best interests farthering children’s policy stated Legislature’s contact with both physical and emotional continuing their maximizing 15 V.S.A. 650. following divorce. parents negative to see the farther than the instant case One need look no although Tom court found today’s ruling. impact healthy enjoyed good parenting skills had demonstrated signs of begun had to exhibit his the child relationship daughter, with attempts of Ellen’s Syndrome Alienation as the result Parental while Despite happy contented and being her from her father. alienate house, her mother that she repeatedly the child told at her father’s time him. As spend did not want to hated her father and she testimony, reacting the child was expert found based on court wanted by telling her mother what she hostility Ellen’s toward Tom to hear. wаs affected being negatively both that the child
Recognizing resulting her from her and that the Ellen’s efforts to alienate father unchecked, alienation, potential destroy if had the left family’s that the relationship, the court concluded father-daughter — attempts remove by Ellen’s the stress caused principal problem — by change would be best resolved Tom from the child’s life child’srelationship than the destruction of the Ellen’s attitude rather would be in Thus, that while it with her father. determined lifelong primary to remain with the child’s best interest responsibilities share caregiver, legal should *18 allow Tom to a continuing meaningful have involvement in his daughter’s life. because, arrangement
The court concluded that this was possible ironically, notwithstanding attempts Ellen’s to undermine the child’s father, relationship with her the had parties generally been coopera- view, In concerning daughter. tive matters their the court’s though life, the in styles approaches they differed and had been major able to communicate and on agree the issues the conсerning Indeed, court, child’s upbringing. according to the the parties had values, similar backgrounds, social and educational similar and simi- aspirations daughter. lar their for majority conclusions,
The does not dispute findings of these or but rather asserts that the court’s is order unauthorized under 665(a) § because it cannot be characterized as awarding primary parental rights responsibilities and to Ellen. majority The acknowl- edges family that the court gave Ellen sole physical rights and that, therefore, responsibilities, and she primarily is responsible the routine daily Nevertheless, care and control of the child. majority assignment minimizes parental this responsibilities and concludes because Ellen can important make no decisions .that concerning child without consulting and reaching agreement with Tom,parental rights and responsibilities were not awarded primarily to Ellen. majority’s conclusion is unsound it because on a faulty based
premise. I submit that it is the day-to-day routine matters that parent connect a child with a and that offer the most opportunities for parent growth to affect a child’s and development. Undoubtedly, Ellen would be unwilling places trade with Tom respect to the court’s rights. determination of parental statute,
Under the parental rights responsibilities include both 664(1). legal physical responsibilities. § See 15 V.S.A. Ellen was granted physical sole responsibility and legal shared responsibility then, for the child. Plainly, though family court required consen- major sus on decision-making gave Tom rights, visitation it awarded rights parental and responsibilities primarily to Comment, Ellen. See A Critical Look at Vermont’s New Child Law, (1986) (word Custody 11 Vt. L. Rev. 675-76 “primarily” 665(a) § implies one although parent may majority have of rights responsibilities, other still parent will share or legal physical rights and responsibilities).
The majority avoids obvious fact distorting language the governing statute. According majority, to the parents “where the (or sole) rights primary court must award agree,
cannot A.2d at 649. 166 Vt. parent.” to one responsibilities statute, provides: wrote Legislature not how the That is parental rights or share agree cannot to divide parents “When and respon- the comb shall responsibilities, 665(a). Thus, one V.S.A. solely parent.” or primarily sibilities determining what the court some discretion Legislature gave parent. each assign and" 665(a), phrase “primarily particularly language *19 conferees, who House between compromise a solely,” represents custody absent joint from judges granting to prohibit wanted to conferees, unwilling were who and Senate agreement, parties’ A. Davenport, in such a manner. in contested cases judges constrain to Vermont’s 181, Amendments History A of Act 1986 Legislative (1986). then a Law, Davenport, state Child-Custody Judge at 3 As pointed out: representative, reflects con- in the final version language compromise in contested case judge sides. It allows a
cessions on both solely or “primarily and rights responsibilities to award however, is, tempered 15 judge’s ability parent.” one 665(b)(8), able to parents § that be requires which V.S.A. rights responsibilities with each other when cooperate or shared. are divided of the word this use
Id. Considering history, Legislature’s judges some giving family should seen as “primarily” be adopted by depart all-or-nothing approach from the discretion majority. bill, Further, enacted part Legislature of the same
. separated “that after have declaring finding parents provision of their minor child their it is in the best interests marriage dissolved emo- physical and continuing for maximum opportunity have the § 650. This parents.” provision with both 15 V.S.A. tional contact family that the comb’s order majority’s undercuts the conclusion 665(a) policy § but also the behind only language not violates 665(a) Indeed, part §§ at from 650 and resulted least the statute.1 665(a) 666(b), majority reading 15 that its is reinforced VS.A. 1 The states requires parents agreed or divide to include have to share who address, procedures things, agreement among for provisions other in their resolving agree disputes. I that it communicating about the child’s welfare and issues, agree family but I do not might helpful for the court to address these have been an effort to adoption presumption against override Court’s of a Lumbra, see Lumbra joint 529, 532, 394 custody, 136Vt. (1978); Davenport, supra, A. and thus follow the national away trend from the against common-law presumption sharing responsibilities.2 This trend has been fueled by suggesting research emotional trauma and parents experience following children divorce by parental is exacerbated conflict from stemming custody sole awards, under which one parent right “wins” the to exercise exclusive decision-making authority, while the other parent right “loses” the an integral part by having remain of the life say child’s some Robinson, Custody: Joint An child’s growth development. H. Come, (1983). Idea Whose Time Has J. Fam. L. When parental rights and solely parent, awarded to one that parent truly assumes “a power awesome shape influence of, toward, Id. image child’s attitude parent.” the noncustodial at 647. This often results in the parent noncustodial from withdrawing child, which, turn, contact with the can create in the feelings child of abandonment. Visitation rights alone cannot overcome these problems. A child’s of a perception parent noncustodial is tainted when parent lacks the ability to exercise control or any make major in the decisions child’s life. recognizes
The majority *20 preserve court’s desire to father, child’s with her relationship but states that an imposing order shared is decision-making inappropriate where the parents “have not willingness
evinced a
together.”
to work
166 Vt. at
at
A.2d
650. The
readily agrees
concurrence
that divorced
“must
parents
manifest an ability
cooperate
compromise
and
over basic child-care
decisions to warrant an
of joint rights
and responsibilities.” Id.
inserting stating: presumed “[I]t sentence shall be that shared 124,1997 the best interest of the child.” S. Sess. close, loving preserve who want to Here, parents two we have Ellen, daughter. with their has had that each of them relationship the child authority over her however, history abusing has the father- protect To from her father. to alienate her attempting role meaningful Tom have some allow daughter relationship the child her, the court allowed uprooting life without the child’s granted but both caregiver, primary remain with affecting major make the decisions authority to parental Tom shared case, and circumstances Under the facts daughter’s life. their Further, the order awards because order is reasonable. explicitly parent, to one responsibilities primarily I 665(a), authority. would within the court’s it is permitted entirety. in its affirm order Vermont, Agency of Andrew Jordan State
Kevin and Transportation 58] [702 96-196 No. (Ret.), Johnson, JJ., Allen,1 Dooley, Gibson, C.J. Morse Present: Assigned Specially July Opinion Filed *21 participate in this argument but did not decision. Allen sat at oral Chief Justice