Ellen M. Gates v. Winfield P. Gates, Jr.
No. 96-412
Supreme Court of Vermont
March 27, 1998
Motion for Reargument Denied June 11, 1998
716 A.2d 794
Prеsent: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
Winfield P. Gates, Jr., pro se, Bennington, Defendant-Appellee.
Skoglund, J. Mother Ellen M. Gates appeals the decision of the Bennington Family Court, which denied her request for modification of a parental-rights-and-responsibilities order. Mother contends that the court erred when it (1) concluded that there was no basis to modify either the parties’ shared-legal-responsibilities agreement or the visitation rights of father, Winfield P. Gates, Jr.; (2) failed to bifurcate the modification hearing; and (3) ordered the parties to submit future disputes regarding shared-legal responsibility to mediation and binding arbitration before seeking judicial relief. Father cross-appeals a part of the decision that conditioned the resumption of his visitation rights with the children upon the payment of half of mother‘s attorney‘s fees and court сosts and his completion, to the court‘s satisfaction, of a parenting-and-empathy-raising course. We affirm the court‘s denial of mother‘s motion to modify the parties’ shared-legal-responsibilities agreement and the parent-child-contact agreement. We strike, however, the court‘s order that the parties first attempt mediation or arbitration before bringing future disputes to the court. In addition, we strike the court‘s requirement that father must first pay mother‘s attorney‘s fees and court costs before he can resume visiting with his children.
The parties were divorced on February 12, 1993, after thirteen years of marriage. Pursuant to a stipulation developed by the parties with the help of two mediators, the court awarded mother physical rights and responsibilities for the parties’ three children. Legal rights and responsibilities, however, were tо be shared by the parties. In addition, father was awarded visitation with the children. The stipu
The parties soon experienced serious difficulty communicating with one another, and numerous conflicts arose between them. Less than a year after the divorce, mother was granted a relief-from-abuse order prohibiting father from communicating with her, except with regard to the children. In an attempt to facilitate communications, the parties began using a journal, which was mailed back and forth between them, to discuss issues involving the children.
The conflicts between the parties concerning the children, however, continued unabаted. Over the next few years, both parties petitioned the court on numerous occasions, and the court twice amended the final divorce order. The first amended order, of January 1994, which was the result of a stipulation reached by the parties after the father sought a modification of parental rights, provided greater specificity regarding parent-child contact. It explicitly incorporated by reference the majority of the divorce order, including the section dealing with dispute resolution. Shortly after the issuance of the first amended order, mother was granted an extension of the relief-from-abuse order, which retained all of the terms of the original relief-from-abuse order.
Less than a year later, after mother filed a motion for modification of parental rights, the final order was amended again by stiрulation of the parties. The second amended final order of November 1994 again added greater specificity regarding parent-child contact. Although quoting nearly verbatim the provisions of the first amended final order, this order did not include the section dealing with dispute resolution.
In addition to the motions to amend or extend the previous court orders, each party asked the court, on several occasions, to find the other party in contempt for violating one or another of the various court orders. For example, in May 1995, mother filed a motion to find father in contempt for failure to abide by visitation schedules. Two months later she amended the contempt motion and claimed that father failed to return their oldest son, then fifteen years old, on the day specified in the visitation schedule. Furthermore, mother rеported this incident to the Bennington County State‘s Attorney and the police, and father was charged with custodial interference.1 In
The court subsequently notified both parties that it would hear both mother‘s contempt petition and motions to modify in a bifurcated hearing. The court indicated that it would first hear the contempt petition and the “alleged basis for modification of the child custody order.” If mother met the required burden of proof concerning the modification order then, at a later date, the court planned to hear evidence concerning the “best interest of the children.” After the initiаl hearing, the court found that father had willfully, intentionally, and deliberately violated a court order and, therefore, was in contempt of court. Because he was in contempt of court, the court ordered that father‘s visitation rights be suspended until he completed an approved parenting-and-empathy-raising course and paid half of mother‘s reasonable attorney‘s fees and court costs.
In addition, the court found that no real, substantial, and unanticipated change of circumstances had occurred and, therefore, the court denied mother‘s motions to modify the shared-legal-responsibilities agreement and to limit or extinguish father‘s visitation rights. The court also found that the parties’ original agreement failed to contain a dispute-resolution plan and, therefore, ordered that the parties attempt to resolve any future disputes through mediation or binding arbitration before resorting to the court system. These appeals followed.
I.
Mother first contends the court abused its discretion by finding that there was no substantial change in the circumstances to support a modification of the parties’ shared-legal-responsibility agreement or father‘s visitation. Specifically, she claims that the inability of the “log” to facilitate communication between the parties caused a substantial change in circumstances. We conclude, however, that the court did not abuse its discretion. The parties’ allegations concerning the circumstances existing from the time of the divorce, the evidence presented at the modification hearing, and the court‘s findings, document a situation that has not changed substantially.
This Court will uphold the trial сourt‘s decision concerning whether there has been a substantial change in circumstances “unless ‘the discretion of the lower court was exercised on grounds or for
The parties initially agreed, after mediation, to the shared-legal-custody arrangement, and they again agreed by stipulation to continue this arrangement in the two amended divorce orders. From the time the divorce was final, the parties were involved in an antagonistic and contentiоus dispute concerning the children that was highlighted by the dearth of constructive and effective communication. A breakdown in communication between the parents may suffice as a substantial and unanticipated change. See id. at 555, 554 A.2d at 680. In this case, however, it appears that communications were consistently poor.
Thus, the court did not err in holding the parties to their original agreement, as modified by stipulation twice, by finding no substantial change in the circumstances of their parenting situation. We recognize that the parties’ decision to share legal custody may have made their lives as ex-spouses more difficult, but the ineffectiveness of the “log” as a method of communication requires that they try something else, not that the court alter the order establishing legal responsibility for the children‘s lives.
Further, mother did not seek to mоdify the shared legal responsibilities for the children based on a claimed inability of the parents to decide religious, educational, medical or other issues included in the scope of an award of legal responsibilities. See
II.
Mother next contends that the court erred by failing to bifurcate the hearing to determine whether to modify the parties’ shared-legal-responsibilities agreement and the father‘s visitation, as it had declared it would do. Specifically, she claims that the court went beyond consideration of issues of substantial change and included in its decision a consideration of the children‘s best interests. We find no reversible error, if any error at all.
Before a court can modify a custody or parental-rights-and-responsibilities order, the moving party must first prove that a “real, substantial and unanticipated change of circumstances” has occurred.
Pursuant to
In this case, the court issued an unambiguous pretrial order bifurcating the hearing. At the first phase of the bifurcated hearing, the court considered mother‘s claimed change in circumstances — the parties’ inability to communicate by use of the “log.” The court found that while the parties were nоt using the “log” to communicate candidly in the best interests of the children, “the problems with the ‘log’ cannot constitute a substantial basis for modification.” As was noted previously, this conclusion was not an abuse of discretion.
In its analysis, the court made reference to
Revisiting [
§ 666 ], . . . , the Court cannot find it is in the children‘s best interest to have the defendant excluded from ‘legal responsibility’ decisions. He is vitally interested in his children‘s upbringing, even if misguided. Further, the children love him and rely on his wisdom when he is providing it in a wholesomе manner.
(Emphasis added.)
Admittedly, the court‘s reference to the children‘s best interest is confusing and, at first glance, may appear to impermissibly
The court also denied mother‘s motion to modify father‘s visitation, finding no change of circumstances sufficient to grant her request. It did, however, find father in contempt for his violation of earlier child-contact orders. The court punished father‘s contempt by suspending his parent-child contact until he сompleted a parenting-and-empathy-raising course. Thus, the court chose to require further education of father rather than abridge his parent-child-contact rights. This was within the court‘s discretion and we find no error.
III.
Mother also contends the court exceeded its authority when it ordered that, in the future, if the parties experienced difficulties in communicating about their legal responsibilities that they seek mediation and, should mediation fail, that they submit the matter to binding arbitration before resorting to the court for relief. We agree.
The court noted that the parties’ agreement on shared rights and responsibilities, as reflected in the second amended order of divorce, failed to contain a dispute-resolution provision and opined that
Two of the main goals of ADR are to (1) allow the parties to settle their dispute and (2) “avoid the courts,” Thorgaard Plumbing & Heating Co. v. County of King, 426 P.2d 828, 833 (Wash. 1967) (noting that avoidance of court is the purpose of arbitration), and, thus, potentially avoid the stricter formalities, higher costs, and longer delays associated with litigation. See State v. P.G. Miron Constr. Co., 512 N.W.2d 499, 504 (Wis. 1994). For the same reasons, we acknowledge the crucial role that ADR processes play in settling disputеs in Vermont. See generally, The Governor‘s Commission on Dispute Resolution, Dispute Resolution in Vermont (1994) (summarizing ADR processes available in Vermont and recommending improvements). Furthermore, we note that Vermont has a long history of relying on ADR mechanisms, see id. at 6, and therefore conclude that ADR is a welcome, necessary, and complementary part of an integrated and healthy Vermont community.
In this case, however, the court‘s order can not stand. First, the order permits the parties to return to court after mediation has failed, but only after submitting the matter to binding arbitration. A court may not order the parties to submit their future disputes to arbitration without a voluntary agreement of the parties concerned, or a statute or rule authorizing such an order. See, e.g., Tracer Research Corp. v. National Envtl. Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994) (“Notwithstanding the federal policy favoring it, ‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.‘” (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960))); Allred v. Educators Mut. Ins. Ass‘n, 909 P.2d 1263, 1265 (Utah 1996) (statute permits court to order parties to submit future disputes to arbitration if both parties agree in writing); Employers Ins. of Wausau v. Jackson, 527 N.W.2d 681, 687 (Wis. 1995) (statute authorizes court to order parties to arbitration if one party fails, neglects, or refuses to perform under a written arbitration agreement); Kelm v. Kelm, 623 N.E.2d 39, 42 (Ohio 1993) (court required to order ADR based on written antenuptial agreement to arbitrate future disputes regarding domestic relations matters);
Further, the order contains no flexibility to accommodate emergency situations where time may be of the essence. It is certainly understandable that the court would seek to divert the parties’ hostilities to another forum. As written, howevеr, this provision exceeds the court‘s authority.
Therefore, we strike that portion of the court‘s order that states:
[I]n the future should difficulties in communication arise with regard to “legal responsibility” the parties will first seek to mediate the matter within 30 days and should that fail they shall submit the matter to binding arbitration. They shall bear all costs of such processes equally and only failing binding arbitration shall the matter be returned to Court with regard to necessary communication about the children‘s “legal responsibility.”
IV.
Finally, father, in his cross-appeal, contends that the court abused its discretion by conditioning visitation with his children upon his payment of half of mother‘s attorney‘s fees and court costs.3 We agree.
In Vermont, the legislative intent behind granting noncustodial parents the right to visit with their children is clearly established.
The legislature finds and declares as public policy that after pаrents have separated or dissolved their marriage it is in the best interests of their minor child to have the opportunity for maximum continuing physical and emotional contact with both parents, unless direct physical harm or significant emotional harm to the child or a parent is likely to result from such contact.
Granting, modifying, or denying visitation “is within the discretion of the trial court and will not be reversed ‘unless its discretion was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented.‘” Cleverly v. Cleverly, 151 Vt. 351, 355-56, 561 A.2d 99, 102 (1989) (quoting Loeb v. Loeb, 120 Vt. 489, 492, 144 A.2d 825, 827 (1958)). We conclude, however, that conditioning father‘s visitation upon his payment of half of mother‘s attorneys’ fees and court costs is unreasonable. While we have not had the opportunity to address this issue before, it is analogous to prior cases where we have struck down conditioning visitаtion upon the payment of outstanding child support and alimony payments. See Boone v. Boone, 133 Vt. 322, 323-24, 340 A.2d 53, 54 (1975) (“Denial of visitation rights where the record indicates the primary purpose to be punishment of the father for failure to pay support money for his child is not justifiable.“); see also Block v. Block, 112 N.W.2d 923, 927 (Wis. 1961) (“The paramount reason for visitation is the benefit to be derived by the child from associating with its parents and its welfare should not be jeopardized by an order conditioned upon payment of support money or alimony even though such order might prove effective as a collection device.“). The court‘s order was an effective method of ensuring that father would pay mother‘s bills and was also imposed as a punishment for father‘s contempt of the court‘s earlier order; however, the restriction goes too far and we can find no justification for its imрosition.
Further, taking away visitation from a parent necessarily takes it away from a child as well. Although father was in contempt of the
To be clear, the contempt-of-court fine stands; however, payment of the fine is not required before the father may resume visitation. Once he successfully completes a parenting-аnd-empathy-raising course to the court‘s satisfaction, his visitation should be reestablished.
At oral argument, father raised for the first time his request that we reverse the court‘s finding of contempt based on the fact that the eldest son was now residing with him, apparently with the acquiescence of the mother. This subsequent turn of events does not alter the facts as found by the court that the father, at the time of the hearing on the contempt motion, was in contempt of the court‘s order. Therefore, father‘s request is denied. See Hall v. Department of Social Welfare, 153 Vt. 479, 487, 572 A.2d 1342, 1347 (1990) (failure to raise issue at earliest opportunity precludes Court from considering it on appeal).
The denial of the motion to modify parental rights and responsibilities is affirmed; the provisions requiring the use of alternative-dispute-resolution methods before the parties may resort to the court and father‘s pаyment of his contempt fine prior to reestablishment of his visitation rights are stricken.
Dooley, J., dissenting. The majority recognizes that “at first glance” the family court‘s reliance on the best interest of the child to determine whether a change of circumstances in the custody situation existed “may appear to impermissibly expand the limited scope of the initial phase of the bifurcated modification hearing.” It fails to recognize that the court‘s action was also not proper at any other glance. Unfortunately, the majority‘s action leaves this litigation, and the parties, in status quo, the worst outcome possible. Accordingly, I dissent from the affirmance of the denial of the motions to modify.
Although the majority summarizes the facts and the proceedings below, I think some amplification is necessary. As the majority notes, these parties have been in continuous conflict and litigation since their
On July 1, 1995, plaintiff moved to modify the order establishing joint parental rights and responsibilities for the three children and defendant‘s visitation order. She requested that defendant‘s role in the children‘s lives be reduced to limited, supervised visitation. On the sаme day, she moved to hold defendant in contempt because, among other things, he used telephone contact to disparage plaintiff as a custodian and refused to return the oldest child from visitation. The motion to modify was amended in September to provide more specificity.
On October 10, 1995, the family court judge sent the parties a letter which stated in part:
As I indicated earlier, I intend to bifurcate this hearing. The first segment will deal only with the contempt and the alleged basis for modification of the child custody order. If as to the latter motion the burden of proof is carried, the court would then schedule the “best interests” phase of the hearing and seek the report and evaluation by Dr. Halikias.
Dr. Halikias is a psychologist who the family court judge apparently selected for a family evaluation.
Plaintiff‘s motions were hеard on December 8, 1995, March 26, 1996 and April 22, 1996. On June 27, 1996, the court issued its order holding defendant in contempt and denying the motions to modify. The court‘s entire rationale for denying the motion to modify the parental-rights-and-responsibilities order was:
Revisiting that statute, and at present, the court cannot find it is in the children‘s best interest to have the defendant excluded from “legal responsibility” decisions. He is vitally interested in his children‘s upbringing, even if misguided. Further, the children love him and rely on his wisdom when he is providing it in a wholesome manner. In short, the
problems with the “log” cannot constitute a substantial basis for modification and the plaintiff‘s motion is DENIED.
The rationale for the decision to deny the motion to modify the visitation order is spread over the modification section of the decision. It appears to be in the following sentences:
However, the children love the defendant and will benefit from wholesome and appropriate contact with him once he is able to participate in the same. . . . . In so far as the plaintiff seeks to limit or extinguish the defendant‘s right to contact with his children, that is DENIED. It is appropriate that at present his right be suspended for contact with his children until he has complied with this court‘s contempt order. . . . Until he prepares himself to do so, without reservation, the visits will neither be productive for him or for the children.
The contempt order required defendant to complete a parenting and empathy-raising course and to pay plaintiff‘s attorney‘s fees and the court costs associated with the proceeding.
I have no difference with the majority over the applicable law. The governing statute requires that the court engage in a two-step inquiry in determining a motion tо modify. See
Because the analysis involves two distinct steps, our rules authorize the court to bifurcate the presentation of evidence:
If a hearing is to be held on a motion to modify, the court may bifurcate the hearing and first determine and make findings as to whether there has been a real, substantial and unanticipated change of circumstances; if no such change is
found, the court may dismiss the motion without reaching the merits of the action.
The court‘s decisions on the motions to modify are clearly based on whether modification is in the best interest of the children and resolve the merits of the motion rather than the threshold question of change of circumstances. The modification of the legal responsibility order was denied because the children love defendant and rely on his wisdom. The modification of the visitation order was denied because the children will benefit from appropriate contact with defendant.
In the ordinary case, both of these decisions would be sustainable, and they may ultimately be the correct decision in this case. They are not sustainable, however, when the court has bifurcated the proceeding and is specifically required to make findings on whether there was a real, substantial and unanticipated change of circumstances and has failed to do so. See Pill, 154 Vt. at 460, 578 A.2d at 645 (“court must make findings sufficient to satisfy the threshold requirement“); Kilduff, 150 Vt. at 555, 554 A.2d at 680 (“court must make specific findings” on issue of whether breakdown of communication is a change of circumstances). Nor can we sustain the result when plaintiff relies on the bifurcation order to hold back evidence on the best interest of the children, only to find that the court‘s decision is based on its view of the children‘s interests.
As I read the majority decision, it hаs four answers to the above analysis: (1) the family court found that plaintiff failed to show a real, substantial and unanticipated change of circumstances with respect to both motions to modify; (2) because the evidence supports the court‘s decision that there was no change of circumstances, the court‘s findings about the best interest of the children are harmless and superfluous; (3) there never was a change of circumstances with respect to the legal responsibilities order because the parties never could communicate; and (4) the family court found that the parties could cooperate on decisions within the scope of their legal responsibilities.
My first disagreement with the majority decision is that its rationale relates solely to the motion to modify the legal responsibilities order. Contrary to the majority decision, the motion to modify
I also disagree with the majority‘s four reasons for affirmance of the legal rights and responsibilities order. They rest on the fiction that the family court concluded that no real, substantial and unanticipated change of circumstances existed and the rest of its findings and conclusions can be ignored. In fact, there is no finding or conclusion on whether a change of circumstances has occurred. All of the relevant statements are quoted above. The only statement that comes close to the majority‘s characterization is the family court conclusion that the problems with the log “can not constitute a substantial basis for modification.” That statement says nothing about change of circumstances. Cf. Pill, 154 Vt. at 459, 578 A.2d at 644 (subsidiary findings are not equivalent of finding that there was a real, substantial and unanticipated change of circumstances). More important, it follows immediately after the discussion of what is in the best interest of the children and starts “In short” to indicate that it is a summary of that discussion. We cаnnot fairly find from the court‘s statement that it concluded that no real, substantial and unanticipated change of circumstances existed.
There is a more fundamental reason why the majority cannot be correct. The family court modified the divorce order, albeit on dispute resolution, and had to find a real, substantial and unanticipated change of circumstances to do so. That modification is based on the inability of the parties to resolve their differences, exactly the grounds asserted for the motion to modify the legal responsibilities order.
Nor can I agree with the majority‘s other characterizations of the record, as used to support its decision. Nowhere did the family court find that the parties are able to effectively cooperate with respect to “religious, educational, medicаl or other issues included in the scope
Although I agree with the majority that we cannot affirm the family court‘s requirement of binding arbitration or its denial of visitation until defendant paid plaintiff‘s attorney‘s fees, the situation in which we are leaving these parties heightens the concerns behind this dissent. These parties are locked in a destructive pattern of intense conflict and continuous litigation that is consuming them and all their economic resources and alienating their children. In a disturbing demonstration that the present situation is not working, one of the children has filed in this Court an “emergency” motion to modify the custody order.2 The family court recognized that the status quo was unacceptable and fashioned an order to improve the situation. I doubt that it believed that the second choice was to do nothing, but that is exactly the result of today‘s decision.
To the extent that the majority opinion addresses the merits of this dispute, its view appears to be that when parties are in open warfare, more warfare can never be a change of circumstances to allow the court to intervene and try to bring order, especially to protect the interests of the children. This is a very disappointing message to the parties and children in this case, and a particularly disappointing message to the many parents who come to our family courts seeking stability in the lives of their children. I dissent.
Morse, J., dissenting. I agree with Justice Dooley that the parents’ existing legal relationship to the children is the “worst outcome possible.” On this record, I cannot imagine any good coming from continued shared legal rights and responsibilities.
I am dismayed also that we are creating a rule of law that there cannot be a “significant change of circumstances” if the custodial arrangement was bad from the start. If these parents made a mistake
In a related area of juvenile law, the concept of “stagnation,” denoting a continuation of the status quo, is deemed a “change of circumstances” to allow termination of parental rights. See In re J.R., 164 Vt. 267, 271, 668 A.2d 670, 673 (1995) (continuing risk supports finding of material change of circumstances).
In truth, stagnation is not a change in the facts, but the failure of anticipated improvement in the parent-child relationship. See In re D.B., 161 Vt. 217, 219, 635 A.2d 1207, 1209 (1993) (change of circumstances is “failure of . . . expectation“). Should not the failure of the expectation that parents with shared custody will cooperate in the future likewise be a change in circumstances?
This case, it seems to me, is evidence that my dissent in Gazo v. Gazo, 166 Vt. 434, 450-52, 697 A.2d 342, 351-52 (1997), proposing that the present two-pronged test required to modify custody should become an integrated standard, makes sense. Had this Court allowed the circumstances to be considered together with the their effect on the children‘s best interests, this case would be in an entirely different, and I venture brighter, light.
I would reverse.
On Motion for Reargument
Plaintiff‘s motion to reargue, filed April 10, 1998, fails to identify points of law or fact overlooked or misapprehended by this Court. The motion is therefore denied. See
Dooley, J., dissenting. The nucleus of plaintiff‘s motion for reargument is contained in the following statement:
As precedent, the Supreme Court‘s holding stands for the proposition that, as a jurisdictional matter, a course of willful, intentional and deliberate parental conduct, warranting the finding of contempt, the imposition of a $4,500.00 monetary sanction and the suspension of all parent-child contact pending completion of a parenting course, in conjunction with the complete cessation of all parent-to-parent communication, does not constitute a real, substantial and unanticipated change of material circumstances.
Appellant goes on to argue that if these facts do not show a change of circumstances to meet the jurisdictional requirement, it is hard “to imagine what does qualify.”
Our rule indicates that reargument is appropriate when this Court has “overlooked or misapprehended” a point raised by an appellant.
Notes
Furthermore, the dissent asserts that, in order to modify the divorce order to require dispute resolution, the court had to have found a real, substantial, and unanticipated change of circumstances. While we find that portion of the court‘s order requiring ADR to be error as discussed in section III of this opinion, we do not give the provision the significance bestowed upon it by the dissent. The appearance of an ADR requirement in this court‘s order should not be interpreted as a finding of a real, substantial, and unanticipated change of circumstances but, rather, the court‘s interpretation that such a provision was required by