The parties were married in 1997, and their son was bom later that year. They separated in February 1999, and father filed for divorce shortly thereafter. Voluminous motions were filed and several hearings were held between March 1999 and August 2000. A temporary order gave father parental rights and responsibilities over the parties’ child apprоximately seventy percent of the time. On June 8, 2000, the parties were notified that the final divorce hearing would take place on August 22. On August 8, the court held a status conference to assure that the parties would be adequately prepared for trial, particularly considering that father was acting pro se at the time. The cоurt informed the parties that a full evi-dentiary hearing on all issues would take place on August 22, unless the parties settled the matter in a manner satisfactory to the court. Two days before the scheduled final hearing, father failed to transfer the parties’ child to mother as provided under the terms of the temporary order. On August 22, father failed to appear at the final hearing. As it turned out, father had taken the child to Texas, apparently because he feared losing custody of his son.
After mother made an oral counterclaim for divorce, the court proceeded without father, taking testimony from mother and Dr. Lawrence Bart, who had performed the court-ordered family forensic evaluation. Following the hearing, the court awarded mother parental rights and responsibilities, and suspended all contact between father and the parties’ child pending further hearing. The court followed up its August 22 final order with a
Father first argues that the family court erred by allowing mother to file an oral counterclaim and go forward at the final hearing when he failed to appear. Father concedes that mother was entitled to file a counterclaim at any time before final judgment under V.R.F.P. 4(f), but claims he was entitled to notice and an opportunity to file an answer under V.R.C.P. 12(a)(2). There was no error.
We agree with father that, generally, the subject of a cross-claim is entitled to notice and an opportunity to file an answer. Given the facts of this case, however, father was not prejudiced by the lack of noticе. The family court proceeded on the theory that father had brought the very same issues to the court, which were set for trial, that were raised by mother’s counterclaim — namely claims for divorce and custody of the couple’s child. Other than mother’s request for attorney’s fees, 1 no issue went forward on the day of the hearing of which fаther had not already had notice, and upon which he had prayed for the same relief. Thus, father suffered no harm because of an alleged lack of notice that the court would go forward on the very issues he had raised himself. Indeed, the matters at issue in this divorce were not new to the parties or the court. The divorce proceedings were contentious, and the parties had been before the court on numerous occasions leading up to the trial, including several evidentiary hearings on temporary custody, motions for protective orders, and motions for contempt. At a status conference held just two weeks before the August 22 hearing, the family court informed the parties that it intended to proceed on a full evidentiary hearing concerning all issues. Those issues did not change in two weeks. Father’s complaint is really that, in his voluntary absence, mother was given custody.
Moreover, in light of the facts before the family court on the day of the hearing, the court had little choice but to go
forward. It made the following findings: (1) although father had notice of the final divorce hearing and had appeared at a pretrial status conference just two weeks earlier, he failed to appear at the scheduled final hearing and gave no reason for his nonappearance; (2) father had fаiled to return the parties’ son to mother two days
Father’s second claim of error is that the family court erred by adopting, verbatim, the biased and erroneous supplemental findings, conclusions, and order proposed by mother’s attorney. Father acknowledges that V.R.C.P. 52(a)(2) does not bar verbatim adoption of proposed findings as long as they are not clearly erroneous, but contends that some of the findings in this instance were overkill at best and malicious distortion at worst. Before generally addressing this contention, we examine each of the challenged findings.
Father first challenges the court’s finding stating that mother was the primary caregiver before issuance of the temporary order, had demonstrated devotion in caring for the child, and was fully capable of assuming primary care of the child. Notwithstanding father’s citation of evidence indicating that both father and mother were actively involved in caring for their child following his premature birth, and that mother had acted negligently on occasions while caring for the child in the past, the evidence supported the finding that mother had been the primary caregiver and, like father, was capable of assuming primary care of the child. See
Mullin v. Phelps,
There are two findings, though, that are not entirely supported by the record. In one, the court found that Dr. Bart testified that father’s apparent removal of the child from the jurisdiction and alienation from mother will have a detrimental effect on the child. In fact, Dr. Bart testified that father’s actions could have a detrimental impact on the child depending on what he told the child and how long the period of alienation lasted.
Given the above evidence, a more accurate finding would have noted the
possibility
rather than the
high probability
of father’s psychopathology. Indeed, the parties would have been better served by the court culling through the mother’s proposed .findings, removing the еxaggerated statements, and supplementing the proposed findings where necessary. For the most part, however, the findings are accurate and supported by the evidence, and to the extent that they are not, they were not controlling with respect to the court’s ultimate decision to award custody to mother and suspend father’s right to parent-child contact pending further hearings on what happened with father and the child. Cf.
In re A.F.,
The family court was entitled to draw reasonable inferences from the testimony and the report, and err on the side of caution with respect to father’s character. See
Kanaan v. Kanaan,
Father claims, however, that his failure to appear and his custodial interference were given too much weight by the trial court, which erred in failing to conduct a complete and balanced analysis required by 15 V.S.A. § 665(b). A review of the transcript refutes father’s contention. First, Dr. Bart’s report and testimony provided the critical evidence at the trial, and while Dr. Bart leaned “slightly” toward mother, the report and the testimony reflected that both parents had had significant difficulties in their lives and in the marriage, that neither parent was capable of a neutral interactiоn with each other, but that each appeared to have a loving and caring relationship with their son. The court carefully reviewed with Dr. Bart the degree of alienation of affection of which each party might be capable, given the degree of hostility in their interactions, and was concerned about how to work оut a schedule that would minimize hostility displayed in front of the child. This evidence was fairly weighed by the trial court, as evidenced by its questioning. Second, the trial court’s questions of Dr. Bart asked him to consider hypothetical that included, but also excluded, the fact that father had taken his son and failed to appear at the final hearing. While fathеr’s actions certainly tipped the balance toward mother in what might have otherwise been a close case, we cannot agree with father that this factor was given too much weight or was the only fact taken into account. The trial court properly focused on the best interests of the child. See
Bissonette v. Gambrel,
Finally, father claims that the family court abused its discretion in denying, without first holding a hearing, his motion for a new trial, an amended judgment and/or relief from judgment. The relevant portion of V.R.C.P. 60 states that a court may relieve a party from judgment because of mistake, inаdvertence, surprise, or excusable neglect. V.R.C.P. 60(b)(1). A trial court’s decision on a Rule 60(b) motion is committed to the sound discretion of the court and will stand on review unless the record indicates that such discretion was abused.
Bingham v. Tenney,
Affirmed.
Motion for reargument denied November 2,2001.
Notes
Father has not claimed, either in his post-trial motion or here on appeal, that the award of attorney’s fees to mother was unwarranted; rather, he argues only that he was not given notice of the claim.
We note that the final order issued by the trial court contemplated further hearing regarding parent-child contact after the return of the child to mother’s custody. At oral argument, counsel informed us that an amended order permitting contact between father and son had been entered.