Raymond E. Knutsen v. Karen Cegalis
No. 08-256
Supreme Court of Vermont
December 10, 2009
2009 VT 110 | 989 A.2d 1010
Present: Dooley, Johnson, Skoglund and Burgess, JJ., and Eaton, D.J., Specially Assigned
¶ 43. We understand the frustration of the trial court when it receives a one-sided presentation in support of the admission of scientific evidence under
Affirmed.
Alan P. Biederman of Biederman Law Office, Rutland, and Kurt M. Hughes of Murdoch Hughes & Twarog, Burlington, for Defendant-Appellant.
¶ 1. Skoglund, J. Mother appeals the Rutland Family Court order awarding her primary rights and responsibilities of the parties’ minor child until March 1, 2010, at which time the rights
¶ 2. The relevant facts may be briefly stated. The parties were never married. They met in 2004, conceived a child, and subsequently moved in together in father‘s Vermont residence in March 2005. Their child was born on August 16, 2005. The parties lived together on a somewhat steady basis until February 2006 when the relationship dissolved and mother took the child from their Vermont home and moved to New Hampshire.
¶ 3. Thereafter, father filed a complaint for parentage in the Rutland Family Court, which resulted in a temporary order for parental rights and contact. For purposes of the temporary order, the parties agreed that the child would remain with mother in New Hampshire and have contact with father every other weekend and on one weekday per week.
¶ 4. In seeking a final order before the family court, father requested additional contact with the child until the start of kindergarten and primary rights and responsibilities for the child thereafter. Specifically, father testified that he would support mother having custody of the child until the child started kindergarten as long as he could have contact with the child every other week from Wednesday through Sunday with one additional weekday contact on every off-week. Father testified that when the child started kindergarten and he obtained primary custody, he would support contact with the mother as frequently as every weekend and every school vacation. In opposition, mother requested that she be granted permanent primary rights and responsibilities over the child, but with a temporarily expanded contact schedule for father until the child began kindergarten. Mother proposed that contact thereafter be reduced to accommodate the child‘s school schedule. The parties’ proposals overlapped in that they both suggested that mother retain custody until the child started kindergarten and proposed identical contact schedules for father
¶ 5. In its final order, the family court awarded primary rights and responsibilities to mother until the start of kindergarten, subject to contact with father every other week from Wednesday through Sunday with one additional weekday contact during every off-week. The court also awarded primary rights and responsibilities to father from a date six months prior to the child‘s matriculation at kindergarten — March 1, 2010 — through the remainder of the child‘s minority.1 In reaching this decision, the court weighed the nine factors for determining the best interests of the child,
¶ 6. On appeal, mother challenges the order on the grounds that the provision automatically shifting primary rights and responsibilities to father is unlawful — specifically because the automatic switch: (a) is scheduled to happen in the future and is therefore unsupported by findings, based on speculation as to what the circumstances will be at that time, and fails to consider the child‘s best interests; (b) violates the principles of res judicata because the court is essentially reversing its own judgment without any new facts; and (c) impermissibly circumvents the court‘s need to establish jurisdiction to modify the order. Mother also argues that the court disregarded the parties’ agreement that the child remain with mother until age six — instead awarding custody of the child to father some five months before his fifth
¶ 7. The issue of whether an automatic custody change provision is lawful is a pure question of law which we review de novo. See Heffernan v. Harbeson, 2004 VT 98, ¶ 7, 177 Vt. 239, 861 A.2d 1149. We reverse the family court‘s order because automatic changes in parental rights and responsibilities are contrary to precedent and contravene policies behind the child custody statutes.
¶ 8. We discussed automatic changes of custody in deBeaumont v. Goodrich, 162 Vt. 91, 96-97, 644 A.2d 843, 846 (1994). There, we upheld a final custody decree that included a provision naming the occurrence of a particular event as sufficient for establishing the changed circumstances — and thus the jurisdiction — needed to modify the award. Id. at 95-96, 644 A.2d at 846; see also
¶ 9. At the outset, we note that deBeaumont is in line with the law of our sister states. An overwhelming majority of courts that have considered the question take the view that automatic change provisions in custody orders are impermissible.2 In contrast, we were able to find only two courts that have upheld such provisions under direct attack. See Maeda v. Maeda, 794 P.2d 268, 270 (Haw. Ct. App. 1990); State v. Hart, 132 P.3d 1249, 1254 (Idaho 2006) (noting that such a “case creates a difficult issue“); see also Roberts v. Roberts, 64 P.3d 327, 330 (Idaho 2003).
¶ 10. Moreover, our reasoning in deBeaumont — that changes in custody must be based on real-time determinations of a child‘s best interests — remains persuasive. The variables are simply too unfixed to determine at the time of a final divorce decree what the circumstances of the parties will be at the time a future contingency occurs. Cf. Scott, 578 S.E.2d at 880 (citing unfixed and indeterminate variables in determining that automatic change provision unlawful). As a result, the family court cannot resolve prospectively whether an automatic change in custody will
¶ 11. Father urges us to distinguish this case from deBeaumont on the grounds that, unlike in deBeaumont where neither the fact nor the timing of the condition‘s occurrence was certain, in this case, the child‘s matriculation at kindergarten is an anticipated event that occurs on a date certain. Setting aside the fact that the parties actually dispute the date on which the child will begin kindergarten, see supra, ¶ 5 n.1, the distinction father asks us to make is without a difference, and makes no difference to a child. See Herstine, 1994 WL 37209, at *3 (reasoning that the difference between automatic change provisions involving definite versus indefinite dates “is not critical” and that both are unlawful).
¶ 13. A blanket rejection of automatic custody change provisions is also consistent with the policy against forcing shared custody onto parents who are at war with each other. The Legislature has provided that “[w]hen the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.”
¶ 14. Again, the weight of authority supports our view. Courts that reject automatic custody change provisions do so
¶ 15. We also wish to clarify that it makes no difference whether the court‘s award of primary rights and responsibilities to mother, and then to father, was apparently premised on father‘s concession to the arrangement.3 Even if it were fair to say that an “agreement” flowed from father‘s concession, any such agreement would not circumvent the court‘s duty to act in the best interests of the child. Luce v. Cushing, 2004 VT 117, ¶ 10, 177 Vt. 600, 868 A.2d 672 (mem.). Despite the Legislature‘s determination that an agreement between the parties on the issue of parental rights and responsibilities is presumptively in the best interests of children, see
¶ 16. Finally, we need only briefly discuss mother‘s contention that because father failed to cross-appeal that portion of the custody award granting mother primary rights and responsibilities until March 1, 2010, the award is res judicata and that that portion of the custody award may not be revisited on appeal or on remand. The natural extension of this argument is that we should affirm the award and remand with directions to reconsider parental rights and responsibilities thereafter. Mother‘s argument is without merit. The doctrine of res judicata “bars litigation of a claim or defense if there exists a final judgment in former litigation in which the parties, subject matter, and causes of action are identical or substantially identical.” Kellner v. Kellner, 2004 VT 1, ¶ 8, 176 Vt. 571, 844 A.2d 743 (mem.) (emphasis added) (quotation omitted). Stated more generally, the doctrine precludes relitigation in a second suit of what was or could have been litigated in a suit in which there has been a final judgment. The doctrine is thus on its face an ill fit for mother‘s contention. This is because, of course, neither proceedings on appeal nor remand constitute a second suit for purposes of res judicata. The family court made a comprehensive ruling in which the temporary award of custody to mother was premised on the eventual, indefinite award to father. Thus, there is also no basis in logic for prohibiting the family court from reevaluating the entire custody award on remand. In fact, in order to safeguard the best interests of the child, the family court must be given the latitude to make another comprehensive order, consistent with law. Cf. Cleveland, 18 So. 3d at 952 (rather than simply voiding an automatic change provision, remanding with instructions to vacate the provision and determine the custody arrangement “that currently serves the best interests of the [child],” where it was not clear from the record what the child‘s best interests were).
¶ 17. We find it unnecessary to reach the remainder of the parties’ arguments in light of our decision. We reverse the family court‘s order, but continue the custody and parental contact provision as specified in the final order until such time as that court can revisit its decision. On remand, the family court shall reevaluate the custody order in its entirety in light of the opinions expressed herein.
Reversed and remanded.
¶ 19. In this case, father elected not to contest mother‘s request to retain primary rights and responsibilities until their child is old enough to attend kindergarten. Instead, he proposed an alternative that would give him liberal contact in the short term and primary rights and responsibilities in the long term. The trial court concluded that father‘s proposal was in the best interests of the child, but the majority now rejects the order as unlawful. Not only does the majority‘s rejection of the court‘s decision penalize father for his effort to be amicable and cooperative, it also removes the trial court‘s broad discretion in the area of child custody. Because I believe the trial court acted within its discretion in fashioning a parental rights and responsibilities order that was in the best interests of the child, I dissent.
¶ 20. I begin with the substance of the court‘s order. The family court concluded that it was in the child‘s best interests to have a meaningful relationship with both parents and accomplished this by awarding mother parental rights with liberal contact for father and then granting father parental rights once the child begins school. The court based its decision on extensive findings, including an analysis of the statutory best interest factors.
¶ 21. While the majority briefly recounts the facts, I believe it is important to underscore that the trial court‘s findings are supported by extensive evidence. Beginning even before the child was born, mother sought to limit father‘s parental rights to his son. The court found that mother refused to have father‘s name put on the birth certificate. In addition, mother left the state on three occasions, once when she was eight months pregnant, once in September 2005, and finally in February 2006 when she left permanently. The trial court found that mother desired to negate father‘s parental rights by moving the child out of Vermont. When mother left for the final time on February 9, 2006, she did not tell father where she was going or that she was leaving with their child. The court found that mother‘s actions were “calculated to minimize [father‘s] ability to have meaningful and comfortable contact with his son.” Even after father filed for parentage, mother continued to be uncooperative in allowing father to see his son. Mother at first refused to acknowledge father‘s paternity, but eventually mother stipulated that father was the child‘s biological father. The parties agreed on a temporary order for parental rights and contact, which granted mother primary parental rights and responsibilities and gave father contact every other weekend, starting at 7:00 p.m. on Friday evening. The agreement also allowed father to have a weekday visit from 3:00 to 7:00 p.m. When father sought to have the weekday visit on Fridays to allow him to pick up his son at a more reasonable hour and arrive home in time to have dinner and go to bed, mother refused.4
¶ 23. At trial, father testified that he was in general agreement with the evaluator‘s recommendation and did not contest mother continuing parental rights in the short-term as long as he was granted contact with the child from Wednesday evening through Sunday evening every other week, and primary rights and responsibilities once the child starts kindergarten. Father proposed that mother could have contact every weekend. Father explained that his work schedule would allow him to be home in the morning before school, take the child to school and to pick him up at the end of the day. In answer to why he was not contesting mother initially continuing parental rights, father stated:
this is a tough thing, this is not easy, and I want as little hard feelings to come out of this hearing as possible, so if I need to give a little bit now to, to help maintain the peace, I think, I think that should be done. I want us to get along.
¶ 24. Mother testified that she agreed with the evaluator‘s recommendation to gradually increase father‘s time with son. Mother opposed father‘s proposal to transfer custody once the child begins school because she felt it would involve too much travel time for the child to visit her every weekend. Mother, however, did not object to father‘s request based on an assertion that such an order would violate the law. In fact, mother requested that the court look forward and incorporate how parental rights and parent-child contact should change as the child gets older and starts school.
¶ 25. Given these facts, the court concluded that it was in the child‘s best interests to design a transitional parental rights order. The court found that once the child starts kindergarten the current contact schedule would be impractical because the parties live too far apart to shuttle the child to and from the same school.
¶ 26. First and foremost, this is a classic application of the adage: “let no good deed go unpunished.” As the family court reported, “Mother argues that changing custody before [the child] starts kindergarten would be a ‘violent dislocation’ that is not in [the child‘s] best interest.” Father responded to mother‘s “violent dislocation” argument by proposing a compromise that left the child in the mother‘s primary custody until the child started kindergarten. While the court was not necessarily bound by father‘s concession, it properly honored it as a voluntary settlement offer. See Harris v. Harris, 149 Vt. 410, 420, 546 A.2d 208, 215 (1988) (“We have a strong policy in favor of voluntary settlement of contested custody matters.“). Thereafter, mother did not object on the basis she now asserts — that it is beyond the court‘s discretion to order a future transfer as a matter of law. See Sundstrom v. Sundstrom, 2004 VT 106, ¶ 21, 177 Vt. 577, 865 A.2d 358 (mem.) (“[T]o preserve an issue for appeal, a party must present the issue with specificity and clarity in a manner which gives the trial court a fair opportunity to rule on it.” (quotation omitted)). Not only did mother not claim such a compromise was unlawful, she essentially sought the compromise by objecting strenuously to any custody change before the child entered school. Had she objected to the transfer on the point now raised on
¶ 27. The majority ignores mother‘s lack of preservation and the invited error, and blindsides father for proposing the compromise in the first instance. As I have observed before, it is in the child‘s worst interests to be subjected to continuous litigation over custody, which is the real result here. Cloutier v. Blowers, 172 Vt. 450, 457-58, 783 A.2d 961, 967 (2001) (Dooley, J., dissenting). We are inflicting an injustice on the child under the guise of protecting the child‘s best interests, and ignoring preservation requirements to do so. At the same time, we are encouraging parents to fight and never compromise.
¶ 28. Putting aside the unique circumstances of this case that make the majority‘s application of a new rule inappropriate, I also believe that for general reasons the majority‘s bright-line rule should not be adopted. The majority argues that the disputed provision delaying the transfer of custody is unlawful because it is “contrary to precedent and contravene[s] policies behind the child custody statutes.” Ante, ¶ 7. I have looked at our precedents and the “policies behind the child custody statutes,” id., and find no requirement for such a bright-line rule. Indeed, I believe that the new rule is inconsistent with the policies behind the child custody statutes and our precedent for four specific reasons. The most important of these reasons, as discussed below, is the fourth, but I have put it last because the others reasons are important and would alone cause me to reject the majority decision.
¶ 29. First, we must acknowledge that our primary rule has been to give trial courts broad discretion in fashioning parental rights and responsibilities orders. The majority‘s blanket prohibition detrimentally removes necessary discretion from the family court, and is contrary to our cases that have unequivocally afforded the family court broad discretion in assigning parental rights and responsibilities. See Rogers v. Parrish, 2007 VT 35, ¶ 26, 181 Vt. 485, 923 A.2d 607; Kasper v. Kasper, 2007 VT 2, ¶ 5, 181 Vt. 562, 917 A.2d 463 (mem.). We generally affirm the court‘s findings in child custody matters unless they are clearly erroneous, and “[w]here the family court‘s award of custody reflects its reasoned judgment in light of the record evidence, its decision [is not] disturbed.” Kasper, 2007 VT 2, ¶ 5. Thus, in this case, while a court cannot make a future determination of a child‘s best
¶ 30. Second, we must recognize that we have previously upheld orders that change parent-child contact at a future date or when a child enters school with no hint that such an order is illegal. See Heffernan, 2004 VT 98, ¶ 13 (affirming parent-child contact schedule that changes once child begins school); Nickerson v. Nickerson, 158 Vt. 85, 87, 605 A.2d 1331, 1332 (1992) (outlining parent-child contact schedule that changes once younger child turns two and again when child reaches school age); see also Trim v. Brunton, No. 2005-027, 2005 WL 6151846, at *1 (Vt. Oct. 28, 2005) (unpub. mem.), available at http://www.vermontjudiciary.org/d-upeo/eo05-027.F.aspx (affirming custody order maintaining the existing contact schedule of alternating weeks with mother until the child entered kindergarten, when visitation would change to every other weekend). Indeed, my sense from reviewing family court divorce and parentage orders is that such provisions are routine. The majority‘s rationale appears to apply equally to parental rights and responsibility orders as well as parent-child contact orders. Thus, I assume these routine parent-child contact orders are now illegal, and our earlier cases allowing them are now overruled. Rather than being commanded by precedent, the majority‘s new rule overturns precedent.
¶ 31. Third, in general, we have allowed creative custody orders even though their elements are not specifically authorized by statute. For example, in Kasper, this Court held that the trial court had discretion to award physical responsibilities to the father and legal rights and responsibilities to the mother. 2007 VT 2, ¶ 7; see also Solsaa v. Solsaa, 2008 VT 138, ¶ 8, 185 Vt. 587, 969 A.2d 116 (mem.). In addition, this Court has concluded that the family court has discretion to award responsibility for decisions in some areas to father and for other areas to mother. See Shea v. Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998) (affirming division of discrete legal rights and responsibilities between mother and father). Moreover, we have worked out practical approaches to be sure that changes of circumstances and their consequences are properly evaluated in determining parental rights and responsibilities. See Gazo v. Gazo, 166 Vt. 434, 441-42,
¶ 32. Fourth, the application of the majority‘s restrictive rule is inconsistent with our settled law on modification of custody orders. That law, which allows modification only upon a showing of an unanticipated change of circumstances, prevents the majority‘s announced purpose of its rule — to prevent speculation on a child‘s future needs — from being fulfilled. As the majority states, “[t]he variables are simply too unfixed to determine at the time of a final divorce decree what the circumstances of the parties will be at the time a future contingency occurs.” Ante, ¶ 10. It goes on to reason that “[a]s a result, the family court cannot resolve prospectively whether an automatic change in custody will be in the best interests of the child at the time of the triggering event.” Id. That rationale would make sense if the court could reevaluate custody at the time of the triggering event, in this case the child‘s entry into school, but it is inapplicable, and seriously misguided, if the court cannot make that reevaluation. Our custody modification law prevents that reevaluation.
¶ 33. The governing statute provides that a court may modify a custody order “upon a showing of real, substantial and unanticipated change of circumstances.”
¶ 35. Thus, the majority‘s reason for imposing its rigid rule is a fiction. Whatever custody determination is reached on remand, it will commence before the child attends school and continue after the child attends school without change. Directly contrary to the majority‘s rationale, it will be based on a prediction of “what the circumstances of the parties will be at the time a future contingency [starting school] occurs.” Ante, ¶ 10. In effect, the trial court will by default be making exactly the prediction the majority bars the trial court from making. Assuming the family court sees the circumstances the same way after remand, the difference between the order that has been reversed and the new order is that the new one will not be in the child‘s best interests, either in the short run before the child enters school, or in the long run thereafter.
¶ 36. Putting aside the policy reasons why I believe that the majority‘s decision is wrong, I also disagree with the majority‘s argument that its rule is compelled by our case law, specifically the decision in deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994), the primary precedent relied upon by the majority. In deBeaumont, the final order granted mother sole parental rights and responsibilities and father parent-child contact three days each week. The order also contained a provision mandating that if either party moved more than fifty miles from his or her current home the move would be a change of circumstances and would give the court jurisdiction to reconsider parental rights. Thereafter, mother moved out of state and sought sole parental rights and responsibilities. We held that the provision was effective to demonstrate changed circumstances because it was based on a stipulation of the parties and it established a reasonable benchmark to determine changed circumstances. Id. at 96, 644 A.2d at
¶ 37. I disagree that this case involves the kind of automatic change provision deBeaumont referenced. This transfer is not an open-ended clause allowing an automatic transfer upon an indefinite event, such as the custodial parent‘s relocation. Instead, the transfer is to occur at a date certain because of a known and anticipated change in the child‘s life. Moreover, the order is premised on the undisputed fact that once the child starts school the child will necessarily not be able to split time between the parents in the manner the parties are currently doing. Although the trial court found that this change would affect the child, there could be no reexamination of custody at that time because the triggering event is anticipated. This is in contrast to deBeaumont where the event was unanticipated and could trigger a change of circumstances sufficient to warrant modification.
¶ 38. Similarly, I do not believe this case is governed by the long list of cases from other states that the majority cites for the proposition that “automatic change provisions in custody orders are impermissible.” Ante, ¶ 9. Most of the cases cited are relocation cases, like deBeaumont, in which the trial court mandates that if the custodial parent moves out of a certain area, then custody will automatically transfer to the other parent. See, e.g., Hovater v. Hovater, 577 So. 2d 461, 463 (Ala. Civ. App. 1990) (giving no effect to clause that would automatically divest parent of physical custody if she moved out of school district); Emerick v. Emerick, 502 A.2d 933, 938 (Conn. App. Ct. 1985); In re Marriage of Seitzinger, 775 N.E.2d 282, 289 (Ill. App. Ct. 2002) (invalidating provisions in final order automatically changing primary physical custodian upon parent‘s move from certain counties). Others automatically change custody upon other nonspecific events, such as the custodial parent‘s change of living situation, association with a particular person or choice to pursue a certain career. See, e.g., Pardue v. Pardue, 518 So. 2d 954, 956-57 (Fla. Dist. Ct. App. 1988) (invalidating provision automatically revoking
¶ 39. The concern of these cases is that it is pure speculation to surmise how future unknown events will alter a child‘s situation and, therefore, it is impossible to know what a child‘s future best interests will be. See Hovater, 577 So. 2d at 463. I share this general concern about reversionary clauses such as those cited above, but conclude that the order in this case is simply not such an automatic change provision.
¶ 40. I acknowledge that there are also a few cases wherein courts have nullified provisions that involve a transfer on a given date or when the child reaches a certain age, but the ability to modify a custody order in the future may be different in these jurisdictions.5 I am not persuaded that these cases present any cogent reasoning for adopting the bright-line rule advanced by the majority. Generally, these cases seem to regurgitate the generally adopted rule that provisions automatically changing custody on the occurrence of an event are invalid. See, e.g., Cleveland v. Cleveland, 18 So. 3d 950, 952 (Ala. Civ. App. 2009) (eliminating clause in divorce judgment that automatically transformed mother‘s physical custody of daughter into joint physical custody at daughter‘s first birthday); Herstine v. Herstine, No. 13873, 1994 WL 37209, at *3 (Ohio Ct. App. Feb. 9, 1994) (invalidating
¶ 41. The necessity of an individualized assessment is illustrated here. The family court judge struggled with the conflicting pressures of meeting the child‘s needs in the short and long terms in fashioning its order. The court balanced the hardship caused to the child by transferring custody to father “versus the strong potential for stability from age six to eighteen.” The court arrived at its decision after considering the child‘s best interests both now and in the future. The majority argues that future transfers of custody always build instability and disruption into a child‘s life. In this case, however, the trial court found exactly the opposite, and the finding is supported by the evidence. The court found that the child has a good relationship with both parents and adjusts well to transitions between his parents’ households. In addition, the court fashioned a gradual transition schedule to minimize instability.
¶ 42. I disagree with the majority‘s criticism of this gradual transition schedule. The majority asserts that the parental rights and responsibility order is prohibited by
¶ 43. I have commented in the past on the tendency of this Court to pay lip service to a discretionary standard of review in contested custody cases, but to actually engage in de novo review. See Cloutier, 172 Vt. at 456-57, 783 A.2d at 966. This case should be viewed as another example of that trend as this Court limits family court discretion in the name of an inappropriate and rigid rule of law. It should come as no surprise that in doing so the majority ignored normal preservation rules and punished the party who made a voluntary concession to reduce the acrimony between the parents. Rather than rendering all such orders unenforceable, this Court should encourage the foresight displayed by the trial court in this case. When a court can respond to anticipated life changes and build corresponding changes in parental rights and parent-child contact into final orders, then these changes will not require court intervention and parents will not be required to continually go to court to alter schedules that are no longer practical for a child‘s lifestyle.
¶ 44. Whether we would have reached the same result as the family court is not the point. Kasper, 2007 VT 2, ¶ 7 (“Whether the family court had other effective options is not the focus of our inquiry.“). The trial court has broad discretion in custody cases, and the court should have discretion to do what it did here in order to protect the best interests of the child. The abuse of discretion lies with us for not staying within our limited role. I believe that the court acted within its discretion in this case, and would affirm on that basis.