Sally Gazo v. John Gazo
No. 95-339
Vermont Supreme Court
May 23, 1997
697 A.2d 342
Prеsent: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Because the claim of hostile environment was improperly attributed to the Department and, as the Board found, was “inextricably intertwined” with the claim of disparate treatment, I would reverse.
John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for Defendant-Appellee.
Dooley, J. This action for child custody and support requires us to grapple again with the difficult issue of a proposed relocation in the midst of a divorce. We hold that the family court exceeded its authority in defining a relocation as a change of circumstances for the purpose of retaining jurisdiction under
Plaintiff Sally Gazo and defendant John Gazo were married in 1983. During their marriage, the parties had two children, both girls, one born in 1984 and the other in 1985. Prior to the parties’ separation in March 1990, the parties were equally involved in all aspects of the daily care of their children. Both parties are experienced teachers in the same school system, both have master‘s degrees, and both earned identical salaries of $49,661.82 at the time of their divorce. The parties commingled assets and made equal contributions to their mortgage debt and car loans, and to the child support payments that defendant was obligated to pay on behalf of his children by a prior marriage.
Plaintiff first filed for divorce in February 1990, аnd in a March order, was awarded temporary legal and physical rights and responsibilities for the parties’ two children, then aged five and four.
Plaintiff discontinued the first divorce action and eventually filed two others that were interspersed with attempts at reconciliation. Plaintiff filed her third and final divorce action in December 1993. On March 21, 1994, the parties stipulated to a temporary order, pursuant to which plaintiff had legal and physical rights and responsibilities for the children and defendant had parent-child contact on alternating weekends and holidays, and for several weeks during the summer. In an order dated March 29, 1994, the magistrate set defendant‘s child support obligation at an amount below that specified in the guidelines. In June 1994, the parties listed their marital residence in Waterbury Center for sale.
In July 1994, plaintiff travelled to Michigan, where her parents live, and interviewed for a teaching job. She was offered a position on August 15, 1994 and informed defendant of her intention to accept the offer two days later. In response, defendant immediately sought temporary legal and physical rights and responsibilities for the parties’ children and an еxpedited hearing to be held before plaintiff moved to Michigan. The next day, plaintiff moved to amend the schedule of parent-child contact, and sought permission to remove the children from Vermont so they could accompany her to Michigan. The court held an expedited hearing on August 31, and at the conclusion of the hearing granted defendant‘s motion to prevent the removal of the children from Vermont. Because plaintiff testified that she would stay in Vermont if she were not able to take the children to Michigan, the court denied defendant‘s motion to modify the preexisting custody order. The court‘s action left the location issue in status quo.
The family court held further hearings and, at the conclusion of the December 13 heаring, orally announced its findings of fact and conclusions of law with respect to parental rights and responsibilities. In the resulting order issued in May 1995, the court awarded legal and physical rights and responsibilities of the parties’ children to plaintiff, with extensive visitation granted to defendant according to a schedule that contemplated that the parties would be living close to one another. The order provided that any move by plaintiff from the Waterbury area “shall confer jurisdiction on this Court to review parental rights and responsibilities for the children and to determine
On March 24, 1995, the court issued written findings of fact and conclusions of law with respect to marital assets and child support. The court determined that the marital residence was worth $155,000, the outstanding mortgage on the house was $18,728, and the net equity was $136,272. Taking into account each party‘s initial contribution towards the purchase of the house, the court determined that plaintiff‘s interest in the net equity was $62,636 and defendant‘s interest was $73,636.
In the May order, the court required plaintiff to refinance the marital home so that she could pay defendant $37,636, or approximately half of his equity interest, immediately. The court permitted plaintiff to defer paying defendant the remaining $36,000 of his equity interest in the home until either the house was sold or the children completed high school, whichever came first. During the deferment period, the court ordered plaintiff to pay monthly interest to defendant at an annual rate of 7.5%, or $225 each month. The court also awarded defendant a right of first refusal should plaintiff choose to sell the marital residence, and a tax deduction for one of the parties’ minor children. Finally, the court granted defendant a downward deviation from the child support guidelines for the period March 28, 1994 to March 24, 1995.
Following the final order, plaintiff sought to reopen the evidence on the value of the house to offer an appraisal showing the value as $110,000. The family court denied the motion.
In this Court, plaintiff challenges the restrictions on her physical and legal rights and responsibilities, the distribution of the parties’ marital residence, the award to defendant of a right of first refusal on the sale of the house, the award of a tax deduction for one minor child, and the grant of a temporary deviation from the child support guidelines.
A.
We begin by addressing plaintiff‘s challenges to the restrictions placed on her legal and physical rights and responsibilities over the parties’ children. Plaintiff‘s primary challenge is to the provision that confers jurisdiction on the family court to review the parental rights and responsibilities order should she move from the Waterbury area.
A moving party must cross two hurdles in order to modify a custody determination. First, the moving party must make “a showing of real, substantial and unanticipated change of circumstances.”
We have not decided whether as a general matter a divorce order can define a “change of circumstances” for the purpose of assuming jurisdiction in a future modification proceeding. deBeaumont, 162 Vt. at 96, 644 A.2d at 846. In deBeaumont, we did enforce a provision that specified that if either party mоved more than fifty miles from their preexisting home, it would be considered a change of circumstances. We did so for two reasons: (1) the order set a reasonable benchmark to determine changed circumstances, consistent with our case law, and (2) the order was based on a stipulation of the parties that established their expectations about their living arrangements and the effect of a change of these arrangements on a co-parenting situation.
Neither of the deBeaumont circumstances is present here. In this case, the court attempted to confer jurisdiction upon itself in the event plaintiff relocates outside of the Waterbury area. The provision does not set a reasonable benchmark to determine changed сircumstances, since any move out of the Waterbury area, of any distance, would be considered a substantial change. Thus, it is not consistent with our ruling that “relocation without more is not per se a substantial change of circumstances.” Id. at 97, 644 A.2d at 847; see also Dunning v. Meaney, 161 Vt. 287, 290, 640 A.2d 3, 5 (1993) (relocation alone “does not amount to a real, substantial or unanticipated change in circumstances justifying modification of the physical rights and responsibilities“). Nor is the relocation provision based on an agreement between the parties. We do not believe the court can
At the same time, we recognize that the court was placеd in the difficult position of dealing with plaintiff‘s desire to relocate to Michigan. Consistent with our precedents, see deBeaumont, 162 Vt. at 97, 644 A.2d at 847 (where father had parent-child contact for three days each week, mother‘s relocation to Pennsylvania with children was change of circumstances); Lane v. Schenck, 158 Vt. 489, 496, 614 A.2d 786, 790 (1992) (relocation, like move to Iowa before court, “often triggers jurisdiction under the modification statute“), the court believed that a move to Michigan would be a change of circumstances from the situation before it. The court‘s difficulty was heightened by the threshold requirement that a parent cannot seek modification of a custody determination unless the changed circumstances are “unanticipated.” See
In general, we encourage courts to award parental rights and responsibilities in light of a parent‘s proposed relocation. As we have stated before, “The place of residence for a family is central to childrearing,” Lane, 158 Vt. at 495, 614 A.2d at 789, and it is not appropriate for the court to direct where the custodial parent and children shall reside. See id. at 497, 614 A.2d at 790. Cognizant of the parent‘s proposed relocation, the court can fashion alternate visitatiоn schedules depending on where the custodial parent chooses to live. A future move consistent with the proposed relocation would not be an unanticipated change of circumstances and would therefore not justify a modification of the custody order.
This case is unusual, however, in that both plaintiff and defendant were almost equally situated in terms of the factors set forth in
B.
Plaintiff next argues that the family court exceeded its jurisdiction when it ordered her to confer, in good faith, with defendant to reach a mutual agreement before making any major decisions regarding the exercise of her parental legal rights and responsibilities. In the event that the parties do not agree, the order gives plaintiff the final authority to make all decisions. Plaintiff‘s position is that she was awarded legal rights and responsibilities for the children, and this restrictiоn undercuts the award.
Under plaintiff‘s position, the court can award parental rights and responsibilities to one parent, or it can award joint custody where all parental rights and responsibilities are shared, but nothing in-between. We do not believe that the statutory scheme creates such rigid and inflexible categories. The controlling statute provides that the “court may order parental rights and responsibilities to be divided or shared between the parents on such terms and conditions as serve the best interests of the child.”
This reading of the Legislature‘s intent is supported by other statutory sections.
Although the court must ensure that one parent is the child‘s primary parent, the court does retain some flexibility to fashion an award that keeps both parents involved in decision-making. Such an award may be appropriate where it appears that such involvement is in the best interest of the children and will reduce conflict over parental decisions. See generally H. Robinson, Joint Custody: An Idea Whose Time Has Come, 21 J. Fam. L. 641, 645-52 (1983) (describing detrimental effects of excluding one parent from decision-making process). Thus, where the circumstances warrant it, the family court may require the primary parent to consult with the other parent before making certain decisions.
We are concerned, however, abоut the scope of the order under review. An order may not be overly broad, and must be sufficiently specific to be enforceable. See Klein v. Klein, 150 Vt. 466, 478, 555 A.2d 382, 389 (1988); Roya v. Roya, 145 Vt. 488, 491, 494 A.2d 132, 134 (1985). The requirement that plaintiff confer with defendant refers to “major decisions.” We find the terminology broad and vague
C.
Plaintiff also contests those portions of the order that prohibit plaintiff from imposing “any limitations on who the children see or what the children do when they are having parent-child contact with the Defendant” and from “exercis[ing] any control over the Defendant‘s parent-child contact.” The court based this provision upon findings that both plaintiff and defendant would be suitable parents, and that it was in the children‘s “best interest to have maximum contact with both parents.” The court also determined that, although defendant made responsible decisions concerning the children, plaintiff tended “to seek to exert an unduly large amount of control over what the girls do while they are in defendant‘s care.” Specifically, the сourt found:
[Plaintiff] has made restrictions about who [the children] can see when they are with [defendant], and has made decisions about whether or not they can spend time with their father based upon her own assessment of whether or not she wants them to be with other individuals. . . . [T]his is not founded under these circumstances where there is no information that any of the people that defendant spends time with when he‘s with the children is likely to have any detrimental effect on the children. . . . [P]laintiff has been very sparing of permitting the defendant to spend any more than the minimal amount of time required by court orders with the children.
The parent without physical responsibility for the children has a right to some measure of parent-child contact unless the best interests of the childrеn require otherwise. See Cleverly v. Cleverly, 147 Vt. 154, 157, 513 A.2d 612, 614 (1986). Where the best interests of the children clearly require it, the court may impose conditions on visitation, see Palmer v. Palmer, 138 Vt. 412, 415, 416 A.2d 143, 145
We have observed that “[w]ithout mutual tolerance and understanding, these rights of visitation can become a nightmare for both parents and a disaster for the child or children involved.” Boone v. Boone, 133 Vt. 170, 174, 333 A.2d 98, 101 (1975). The evidence here supported the family court‘s finding that defendant showed that tolerance and understanding, but plaintiff did not.
Although we find the court‘s findings to be supported by the evidence, we cannot affirm its conclusions and order. We find that the order is overly broad to the extent that it interferes with the award of parental rights and responsibilities to plaintiff. Plaintiff was awarded the right to control at least the “education, medical and dental care, religion and travel arrangements” of the children,
Ordinarily, we would remand a provision that is overly broad so that the court below would have the opportunity to fashion a narrower provision if appropriate. In this instance, however, we believe the provision prohibiting plaintiff from placing restrictions on defendant‘s parent-child contact is also unnecessary. The court justified its order based on plaintiff‘s lack of flexibility in allowing discretionary visitation. The 1990 temporary order, which was the only order issued until 1994, provided for visitation at all reasonable times and places upon agreement of the parties and with advance notice. The final order on parent-child contact, in comparison, set out a detailed annual schedule of visitation leaving nothing to plaintiff‘s discretion. Although the court found plaintiff was not forthcoming and flexible about defendant‘s parent-child contact, it never found that she violated his
II.
We next consider plaintiff‘s attacks on the manner in which the court valued and distributed the marital residence. Plaintiff first argues that the court should have reopened the evidence after trial to permit plaintiff to submit an appraisal of the home. Without an appraisal, she contends, the court could not order a specific dollar-amount division of the parties’ interest in the marital residence and could not order her to refinance the home to pay defendant‘s share. She also argues that the court could not rely on the valuations presented by the parties because they were stale.
We will not disturb a trial court‘s findings in making a property distribution unless they are clearly erroneous. See Schwartz v. Seldin-Schwartz, 165 Vt. 499, 501, 685 A.2d 665, 666 (1996). The court‘s ability to value property is limited by the evidence put on by the parties and the credibility of that evidence. Kanaan v. Kanaan, 163 Vt. 402, 407, 659 A.2d 128, 132 (1995); see also Ellis v. Ellis, 150 Vt. 650, 650, 552 A.2d 406, 407 (1988) (mem.) (division of property will not be disturbed where defendant failed to present evidence). Here, both parties testified as to the value of the house: plaintiff opined that the value was $140,000, defendant valued it at $155,000. See
Plaintiff next argues that the court, in making the property award, failed to сonsider the factors enumerated in
Finally, plaintiff challenges the award to defendant of a right of first refusal on the marital residence. At the request of defendant, the court ordered that plaintiff execute an instrument providing that if plaintiff seeks to sell the house, defendant would have an option to purchase it first. In its conclusions, the court indicated that the right of first refusal gives defendant the option of purchasing the home to “maintain it as a hоme for the girls.” Plaintiff argues that this purpose relates to the award of parental rights and responsibilities, and is not authorized by the statute governing property distribution,
We reiterate that the family court has broad discretion in the distribution of property. See Guiel v. Guiel, 165 Vt. 584, 584-85, 682 A.2d 957, 958 (1996). We have authorized the use of option-to-purchase arrangements in other contexts. See Sullivan v. Sullivan, 137 Vt. 544, 546, 409 A.2d 561, 562 (1979); Hutchins v. Hutchins, 135 Vt. 350, 352, 376 A.2d 744, 746 (1977). Nothing in
III.
Plaintiff‘s next claim of error concerns the award to defendant of a tax exemption for one of the parties’ minor children. The Tax Reform Act of 1984 amended the Internal Revenue Code to create a presumption that the parent with custody of a child is entitled to the dependency exemption for that child.
IV.
Plaintiff next challenges the court‘s grant of a temporary deviation from the child support guidelines for the period March 28, 1994 to March 24, 1995. Defendant was ordered to pay support in accordance with the guidelines at all other times.
The Vermont child support guidelines are established by rule of the Secretary of Human Services.
We have warned against deviating from the guidelines based upon slight variations in the needs of children or their parents. Ainsworth v. Ainsworth, 154 Vt. 103, 109, 574 A.2d 772, 776 (1990). In particular, we noted that “the actual expenditures of the parents are not relevant to the guideline calculation.” Id. at 107, 574 A.2d at 775. When the court deviates from the guidelines, the court‘s “findings and conclusions must show it considered the factors specified in
In this case, the guideline calculation required defendant to pay plaintiff $833.15 per month, and the court ordered him to pay that amount in the future. Pursuant to a stipulated temporary agreement signed a year earlier, defendant had been paying only $759.18 per month. Under the court‘s order, defendant wаs not required to make up the difference of $74 per month for the one-year period.
The court‘s analysis showed a consideration of all the relevant factors. The court found that, during the parties’ extended period of separation, defendant had no access to his interest in the property and did not receive the tax benefits of his ownership of the property or his support of the children. The amount of the deviation was relatively small, and the parties had stipulated to the temporary payment level. In these circumstances, we conclude that the deviation from the guidelines fell within the court‘s discretion.
V.
Defendant has requested that we award him attorneys’ fees on appeal and require plaintiff tо fulfill all financial obligations within
The following sections of the final order of divorce are stricken: (1) the third sentence of section 4; (2) section 6; and (3) section 10. The custody and visitation awards are vacated and remanded for proceedings not inconsistent with this opinion. The remaining provisions of the order are affirmed.
Mоrse, J., concurring and dissenting. I concur in the Court‘s resolution of the relocation issue. Nevertheless, I continue to believe, as I have elsewhere stated, deBeaumont v. Goodrich, 162 Vt. 91, 104-06, 644 A.2d 843, 851-52 (1994) (Morse, J., concurring), that we have made the modification-of-custody proceeding needlessly complex and artificial through the two-step approach described in the recent case law and reaffirmed in today‘s decision.
I.
The governing statute provides that a court may modify a custody award “upon a showing of real, substantial and unanticipated change of circumstances . . . if it is in the best interests of the child.”
I acknowledge this Court has held expressly to the contrary, most notably in Kilduff v. Willey, 150 Vt. 552, 554, 554 A.2d 677 (1988). There,
It is thе settled law of this Court that to warrant the modification of a custody order, the petitioner must show a substantial change in the material circumstances since the date of the decree. Thus the petitioner must prove a substantial change in the material circumstances and that under the new conditions a change of custody is in the best interests of the child or children. It is equally well settled that it is the welfare of the child which in the last analysis is determinative in a custody matter.
Id. at 399, 306 A.2d at 694 (citations omitted) (emphasis added).
The underscored language in Gerety strongly supports an approach in which the two issues are combined, and the substantiality of the change is evaluated in light of its effect on the child. That this was the understanding in Gerety is confirmed later in the opinion, where we stated:
There can be no fixed standards to determine what constitutes a substantial change in material circumstances. Thе court is guided by a rule of very general application that the welfare and best interests of the children are the primary concern in determining whether the order should be changed.
Id. at 402, 306 A.2d at 695 (emphasis added); see also Miles v. Farnsworth, 121 Vt. 491, 493, 160 A.2d 759, 760 (1960) (welfare of child is critical determinant in evaluating motion for modification of custody); McKinney v. Kelley, 120 Vt. 299, 309, 141 A.2d 660, 667 (1957) (in evaluating modification-of-custody motion, “the real question . . . was [whether] the change [was] detrimental as far as [the child‘s] welfare is concerned“), cert. denied, 356 U.S. 972, reh‘g denied, 357 U.S. 944 (1958).
Thus, the modification statute does not, in my view, contemplate a mechanistic two-step approach to change-of-custody issues, but rather a flexible test in which the change of circumstances and the welfare of the child are evaluated together in a single, unified inquiry.
II.
I disagree with the Court‘s conclusion that the order requiring plaintiff to consult with defendant about “major decisions” affecting the children was impermissibly vague. While a more detailed order tailored to the specific circumstances of the case might in some cases be useful, the absence of such detail is not fatal. No mystery surrounds the meaning of “major decisions” in this context. The statute expliсitly defines the six fundamental areas that a child-custody agreement must address. These are: (1) physical living arrangements; (2) parent-child contact; (3) education of the minor children; (4) medical, dental and health care; (5) travel arrangements; and (6) procedures for communicating about the children‘s welfare.
Accordingly, I dissent from that portion of the Court‘s decision striking the consultation order and remanding for consideration of a more specific provision.