*1 Amy v. A. Christopher J. Nickerson Nickerson 1331] [605 A.2d No. 90-225 Allen, Dooley, C.J., Gibson, Johnson, Present: Morse and JJ.
Opinion February Filed Junction, Donahue, Plaintiff-Ap- J. River William White *2 pellee. & Upson, for De- L. Waterbury,
Susan Aranoff Aranoff fendant-Appellant. award- judgment a divorce
Morse, wife appeals J. Defendant court of their The custody daughter. to husband ing plaintiff also appeals son to wife. She couple’s of the awarded hus- to visitation between judgment relating of the part the trial and remand because their son. We reverse band and primary- of the application adequately explain court did.not criterion to the facts. care-provider the course During married in March 1979. were parties in husband lonely, part wife because marriage became a hours, with woman began and she long worked in after a tempo- filed for divorce April in 1988. Husband at attempts unsuccessful Following various rary separation. separated perma- in and the couple reconciliation nearby to a town in when wife moved nently October son, was five months Morgan, her lover. The couple’s live with time, last and has resided with wife when wife left for the old couple’s seven-year-old final left the departure. since her Wife the final separation, with husband. Before Ashley, daughter, have in that husband would agreed writing wife had she was custody Morgan, would have whom Ashley and she this agree- that she entered into then She testified carrying. rights “uninformed about parental ment because she was by felt threatened [and] [husband].” worked trial, At and wife testified husband both husband and at least hours week the summers per from 50-70 at his as director of market- job week in the winters per hours trial, Sundays inn. husband had at a local As of the date ing during Husband retained same schedule Mondays and off. brought and trial. Husband separation months between the six stayed him she was not at school. She to work with when Ashley another room, she sometimes played in a vacant where child, husband or supervised glass and was door through workers. often ate meals at the inn restaurant. When other She worked, the inn father Ashley was not at with her while he she of a or school. baby-sitter care trial, teacher, As of employed the date of wife was as a work- ing during year. 8:00 a.m. 12:30 the school Both p.m. agreed couple that while the lived wife had parties together, for the and meal primary responsibility shopping, laundering bathed, and Wife dressed fed the morn- preparation. school, ings, planned or her noon meal at prepared pre- evening ate the meal with her. She read the child pared daily, although husband also did this “once in a while.” She took Ashley on educational excursions museums and her taught music, which about classical activities in not partic- husband did Wife took health ipate. largely responsibility Ashley’s needs brought her to dentist and doctor for examina- regular tions.
The court found that wife had although Ashley’s pri- been mary-care-provider separation, before the had been husband *3 Ashley’s after that The court con- time. cluded it was in Ashley’s best interest remain husband’s however, custody. not left Morgan, had his mother’s primary care since he born in May was and the court concluded wife should have of him. Split custody, to the according court, satisfactory was because the age difference between Ashley they and and because had Morgan developed not a rela- with tionship one another.
Visitation was liberal. Wife was awarded contact parent-child with visitation Ashley, Friday with through Sunday night other every weekend and on the Saturday intervening weekend. Visitation also included holidays, alternate the first two weeks first July and the two weeks of August. Husband was parent-child awarded contact with Morgan on alternate Sun- days and as as every Monday, well alternate until holidays, two, Morgan age reached after which visitation would include an overnight stays and additional four-week period the sum- mer. The court made additional holiday accommodation for con- tact between the two children once school Morgan reached age.
Wife claims that the trial court erred in granting husband legal sole and and for physical rights responsibilities Ashley In care provider. the primary that he was finding
based on of law on court’s conclusions addition, that the she argues of custodian change Ashley effect on the potential issue and findings. supported are not factor the primary-care-provider the evidence Analyzing of various testimony through counsel established that wife’s resided to- the parties that “when witnesses, the court found She took Ashley. caretaker of the primary gether, [wife] attentive, mother loving an and was daily needs Ashley’s care of found, however, that since court also her.” The towards earlier, left six months care when wife was left husband’s wife and child’s primary-care-provider had become the husband that status. retained longer no and emo- [Ashley’s] physical has provided
[Husband] daily in her ac- involved very and has become tional needs clothed, fed, He insures she is schooling. tivities and good par- has supervision. adult [Husband] has appropriate Ashley’s needs. [Husband] and a sense enting good skills much. very his daughter loves that a change on the conclusion findings, Based on these life, granted split child’s the court to the disruptive would be In so quo.” doing, the “status thereby maintaining custody, child’s should be given that “great weight court stated This was a ref- her caretaker.” primary with his or relationship 665(b)(6), factor that re- statutory § to 15 V.S.A. erence order, consider, along court, making quires factors, “the of the child’s quality other with seven the child’s given care provider, the primary appropriate (criterion six)! development” age
I. court has broad discretion that the trial We recognize *4 573, 578, 547 A.2d v. Myott Myott, 149 Vt. in matters. custody (1988) (“trial in a court has discretion 1336, 1339 broad ‘erroneously the discretion is matter, we must affirm unless considerations or exercised, unfounded upon or was exercised evidence’”) in of the light unreasonable clearly to an extent 581-82, 1155, Jensen, 141 580, 450 A.2d v. Jensen Vt. (quoting of law (1982)). fact, from which conclusions Findings 1156 flow, will not be set aside unless clearly erroneous. V.R.C.P. 52(a). criteria, When the relevant legal among them the eight 665(b), § factors set out in 15 facts, V.S.A. are applied it is important for the appellate court to know how the trial court weighed the facts and blended the standards to arrive at the words, conclusion. In other need we to review the explanation as well as the found facts to determine if application criteria to the facts is If sound. the explanation is equivocal, indicating that a misapplication occurred, of the law may have the trial court decision is Klein, insufficient. See Klein v. (1990) 900, 572 A.2d must address (findings reasoning and weight given various factors to conclu- support reached). sions We conclude case the court did not adequately explain application of criterion six.
We agree with the trial court that the factor
relating
the primary-care-provider under criterion six “should be enti
tled to great weight unless the primary custodian is unfit.”
Harris,
Harris v.
(1988).
149 Vt.
This does not create a
presumption
favor of the primary-
care-provider, but instead allows the court to give due consid
eration to the primary custodian in evaluating the child’s best
interests.
418-19,
See id. at
The factor relating to the primary-care-provider is one consideration a nonexhaustive list outlining appropriate considerations determining best interests of the child. 665(b) (“the § See 15 V.S.A. court shall be guided by the best child, interests of the and shall consider at least fac [eight] tors”). We have not enunciated definitive standard for deter mining the identity under 665(b)(6). § Nevertheless, mere physical one of custody by two fit parents, during time the estranged spouses live “apart” satisfy the no-fault divorce requirements, should not in itself cause former primary-care-provider to lose that status. See 551(7) (a § 15 V.S.A. divorce may be decreed a married “[w]hen person has lived apart his or her spouse for six consecu-
90 of marital resumption finds that the months and the court
tive Emmons, cf. Emmons v. reasonably probable”); relations is not (1982) 511, 450 1113, 1115 (“Merely leaving 508, A.2d 141Vt. justify finding not sufficient to in and of itself is homestead re Such a property]. of marital to distribution fault [relevant provi the no-fault divorce circumvent substantially would sult statute.”). our sion authorized may cause contrary holding A from the marital home to children uproot to leave the wishing court, the remain, pri view of the solely residence 551(7). This kind of paren § 15 See V.S.A. mary-care-provider. of children. inimical to the best interests tal strategizing rather needs of the children be directed to the Attention should Gambrel, v. See Bissonette 152 parents. than the actions of the (1989) (“focus of the court’s deci 602 Vt. child, not equity interest of the between sion must be the best 166, 172 609, 618, 256 Lafko, v. 127 A.2d parties”); Lafko (1969) (in desires of hostile “opposing parents custody dispute consideration of the children’s ... must yield paramount well-being”). Harris, balancing importance
In
we underscored
that the
Agreeing
primary
interests-of-the-child factors.
best
fit,
factor,
great
if that custodian is
is entitled
custodian
cannot be deter-
weight
we stated that
exact
weight,
“[t]he
of the
likely
change
unless there is evidence of the
effect
mined
Harris,
418-19,
A.2d
child.”
husband could with spend Mondays Ashley summer, during her school impossible schedule made this during months was in school session. Upon separation, Ashley was transferred from the almost full-time care her mother to the full-time co-workers, husband, care of baby-sitters, husband’s who Ashley’s school, often took her to work. extracurricular activ- ities and not community changed would have been had wife When granted custody. Ashley husband, lived with much of formerly had care she by replaced to her others care provided from a parent. received time at penalized should not be that a parent realize
We child’s child, but consideration away work spent of each of the attributes comparison “requires best interests Bissonette, Concededly, A.2d at 601. 152 Vt. at parent.” home, but this family after left the care wife provided husband him absence, only par- made wife’s which was a function of perform- on the solely cannot be decided ent at home. issue who testified expert, The husband’s ance of one Id. parent. remain should father and good husband was reason,” investigated only had him “compelling with absent justify The court failed to Ashley. husband’s the entire relevant an of the facts over analysis its conclusion time period.
II. remand, is ordered on custody disposition If a different Still, visitation order. to alter the may required the court be is un arrangement visitation challenge original wife’s *7 the trial court’s order respecting founded. that argues Wife allowed for excessive Morgan visitation between husband that testimony Even indicated though contact. parent-child summer, trial court more did during husband worked four weeks of awarding its discretion in husband not abuse Palmer v. Pal the summer. See Morgan during visitation with (1980) (visitation 414-15, 143, 144 mer, 416 A.2d 138 Vt. discretion). Considering for trial court’s is arrangement trial, time of the court’s order was they facts as existed at the appropriate. that she denied a fair trial based
Wife’s contention is also without merit. by judge on remarks 665(b) remand, § the factors of to the apply the court is to On remand, solely of on not hearing situation at the time final divorce hearing. as it existed at the time of the situation (court Klein, rely at 904 must on at Cf. in maintenance fashioning recent information available” “most remand). in part. Reversed in part affirmed J., Dooley, majority opin- who reads the dissenting. Anybody remand, will that the Court carefully recognize despite ion has ruled that Nickerson must be awarded custody Ashley suggests defendant as a matter of law. Although opinion that in trial court decision is the failure to explain the defect rationale, as only I think the can be understood opinion holding primary-care-provider. that defendant remained the the rule of law is extracted from the it is majority opinion, Once impossible plaintiff prevail. case, I in unjustified
While believe this result is this is major- hallmark of a error in the The greater majority opinion. in fact a trial court of the ity opinion opinion. Most “facts” court, in stated the first few were not found the trial pages and some are construes the disputed. opinion narrowly trial court decision order to criticize it. Little discretion is accorded to the trial judge her evaluation of the evidence. Moreover, the “error” found by majority involves an issue short, not In raised below. this Court has now “tried” case on theories different from presented those to the trial court and awarded of the child based on its and eval- fact-finding uation of the evidence.
I do not it just believe to abandon the proper role appellate review even where the hindsight Justices of this Court shows we would have reached a different result. Such appellate decisionmaking this kind inevitably makes bad law that haunts us the future try stay when we within our proper role.
It is at helpful the outset to examine the procedural posture of the case. Not did defendant leave the child with plaintiff agree that he should have custody, she did not contest cus- tody when In plaintiff filed for divorce 1989. January of she filed a counterclaim requesting receive cus- plaintiff tody and she have visitation rights. It was not until March, shortly before the divorce hearing, changed she her mind and sought custody.
Both submitted parties trial memoranda of law dedicated al- entirely most to the effect of defendant’s lesbian Plaintiff custody question. briefly stated that the primary- factor, care-provider 665(b)(6), § as in 15 in specified V.S.A. was favor. his Even more defendant briefly, stated the evidence
would show that she was the children’s primary-care-provider. trial, During the trial a “weather judge gave report” based on the evidence to that She indicated that point. she was leaning the status keeping quo because of the disruption changing statement, custody. Despite this defendant never addressed the in question closing her Nei- argument. ther party submitted for requests findings of fact. There were no post-trial relevant motions. cases,
Except very we have exceptional insisted that issues of law be raised court before they will be considered by this I Court. have no doubt that if defendant had raised the
application the primary-care-provider factor to a situation where the custodian of the child at the time of trial is not the person who was the primary-care-provider prior separation, the trial court would have Instead, resolved directly. this is- sue is resolved for the first time on appeal. It is particularly ironic that the majority faults the trial court fully for not ex- its decision plaining when defendant failed to take the minimal steps necessary obtain an explanation. Without preservation any help lawyers, the trial is left with judge unmeetable burden of an explaining everything appellate court might want to know response creative new arguments raised by losing party the first time on appeal.
In Varnum, Varnum v. 382-83, (1990), 1110-11 a custody case where the claim on appeal was improper consideration of the mother’s religious beliefs in violation of her constitutional rights, we emphasized the critical interest of the children in family stability is undermined treating issues for the first time on appeal. After balancing mother’s constitutional rights against the interests of the chil- dren, we held: “Even with the important rights interests vindicate, defendant seeks to we think the balance tips de- cidedly favor of rules of enforcing preservation to avoid the impact of lengthy delays on the well-being children.” Id. at at A.2d 1111. This is not a case where appellant excused from preservation because she was unaware of the trial court’s error until the decision was rendered. The posi- court’s tion crystal clear in its “weather report,” and appellant failed to respond to that position with the arguments she makes result, here. As a we are abandoning the requirement preser-
95 decision, vation. Almost after the trial court’s years two overturn the award on an issue never Court will based trial court. I cannot that the trauma to presented believe custo- gain the child is a better outweighed possible dian. I
Even there had been could not preservation, accept couched in that criticizes the majority opinion. language While decision, trial court for rea- explain majority’s failure really on the is soning primary-care-provider argument the trial court plaintiff primary- found be the improperly and, thus, that factor in his care-provider improperly weighed Instead, favor. majority concludes defendant was Thus, in and never lost that status. view, this factor should majority’s very important weigh heavily in defendant’s favor.
I find the majority’s analysis of both the facts and the law to inbe error. The determination of parent primary- which is the care-provider subject one of fact er- primarily clearly See Bissonette v. roneous for setting test it aside on appeal. Gambrel, (1989). 152 Vt. major- 564 A.2d As the ity we have not recognizes, accorded a custodial presumption Instead, favor of the primary-care-provider. we accord great to this factor with the weight weight exact to be determined based on the effect of a likely change of custodian on the child. Harris, See Harris v. 410, 418-19, (1988).
Both the plaintiff and defendant used a child psychologist as an Each expert witness. respective psychologist interviewed the child and the parent who hired the psychologist, ob- served the interaction between the and child. parent Only plain- however, tiff’s expert, directly responded primary-care- provider issue. He found a “mutual bond” between plaintiff the child and that plaintiff “is real He psychological parent.” care, went on to find that the child flourishing plaintiff’s circumstance, and that in the absence of a he compelling would not recommend changing custodian. He found no compelling circumstance for a change of custodian. In addition to the ex- pert’s testimony, plaintiff testified that he performed day- to-day functions of the care provider. Other witnesses who ob- served plaintiff and the child together provided similar testi- mony. ways comparable. evidence was some expert
Defendant’s fit with a parent good found defendant to be a psychologist no how- opinion, to the child. The offered expert on the effect of ever, should have and no opinion who custodian at the time of trial. change of majority’s It is clear that much of the criticism of the of the evidence majority’s court is based on the reevaluation on the evi- separate fact-finding. Relying primarily expert dence, the pri- the trial court found that had become plaintiff *10 that factor the recom- mary-care-provider gave weight by plaintiff’s expert mended witness. of majority giving weight testimony
The is different to 92 of the plaintiff’s expert, page as shown its comments is, course, It that majority weight of settled law opinion.* court, be to evidence is for the trial not this Court. The assigned expert testimony evaluation of the is not the area where has the evidence. Another critical ex majority reweighed majority is the statement of the the child “was ample from the care of to the transferred almost full-time her mother co-workers, full-time care of and hus baby-sitters, husband’s band, wildly who often took her to work.” This statement is It fails to take exaggerated. plaintiff’s into account work full days availability, Sunday schedule allowed for two of Monday, that the child separate day, Saturday, is with It defendant. further that defendant works time ignores part and while plaintiff together, and defendant were the child was Thus, often with the baby-sitter same she is with now. the “full- of baby-sitters” actually time care is three or four afternoons a week, at least part separation. which also occurred before the Obviously, forty-hour the trial court did not see a flexible work schedule as the same as the ma impediment good parenting it. jority sees
* majority opinion, criticizing expert If I understand the it is he because appellant prior did not examine the between the child and separation. expert inquiry The considered the additional irrelevant be- appellee cause he had concluded that the child had bonded to the and cus- tody compelling changed not without a interest. This not an should be is performance parent.” It a in- issue of “the one is instead child-focused custodian, quiry change exactly giving on the effect of a the reason for weight in the first instance. The three interrelated criticisms majority opinion presents of the trial court’s law. None are warranted. application the trial “apparently per The first is that court se accepted time of physical custody rule that the at the parent is the heart divorce hearing primary-care-provider.” analysis court’s was: point Both Plaintiff and Defendant to minor shortcomings However, parenting party one another’s skills. neither has to alter custodial given compelling reason the present Plaintiff and Defendant are fit who arrangement. parents can for their needs. have provide children’s The children their adjusted separation parents’ change more their would be disruptive. Ashley, lives has particular, to the area in which she resides. strong presently ties above, As noted reason” “compelling analysis urged by plaintiff’s witness. There of a se rule in expert nothing per analysis. If there had been no the trial expert testimony court, seriously or defendant had contested the primary-care- here, in the provider issue terms it is raised one could under- stand the of a rule. In it is per context, se a mis- appearance characterization of the trial court conclusion. error,
The second asserted and the one that the majority *11 ground reversal, identifies as the for is its that the court failed to analysis indicate whether the used proper was and thus “we left to as to speculate are the reasons the court favored over wife to respect placement.” husband with Ashley’s occasionally We have used this rationale where we cannot dis cern court why the trial rendered its there is decision or an See, internal in inconsistency e.g., the Klein v. explanation. Klein, 466, 472, (1988); 555 A.2d McCormick v. McCormick, (1988). 1098, 1103 150 Vt. A.2d It is a misuse of rationale this to to a case the trial apply where decided, court is clear crystal why, on what but was the majority with the we disagrees decision. are left thing to speculate on in this case is the trial why court didn’t antici pate majority’s the view of the law.
If we this, use the rationale in a like “anti-speculation” case we will inevitably be left to on what law is speculate the after this one opinion. point, At the that it majority opinion is clear is irrelevant spouse one becomes primary-care-provider primary-care-provider, who was the spouse,
after the other is directed the trial court in the opinion, home. Later leaves the balancing pre- weighing process, sort of some engage care-giving post-separation against care-giving separation I doubt that “overall primary-care-provider.” determine to award points out how figure be able trial courts would will not be ob- certainly It process. this legalistic implement interest the best determining is better how this process vious in this the trial court by used approach child than the of the weight giving special rule justifications None of the case. this See process. are advanced primary-care-provider Reex- Best Interests Child: Stumbling Beyond Crippen, of Min- Standard-Setting in Wake Custody amining Child Primary with the Caretaker Experiment Four Year nesota’s (1990) 427, 440-52 (purpose pri- 75 Minn. L. Rev. Preference, bonding, protect parent-child is to mary preference caretaker custody adjudication preserve gen- certainty promote child). best interests of der-neutrality general and the a rule that ignores post-separa- I with strongly disagree While weigh- I it far to the mire of preferable care find provision, tion carefully the risk that considered things unlike ing the legalistic equa- be overturned because determinations will I real result of this opinion, tion not accurate. fear explain that the trial court failed to and its determination our decision, explain to make us plethora appeals will be caretaker Min- preference id. at 452 (primary decision. See action, nesota, explo- “caused an by legislative since abandoned litigation”). sion of legal controlling error involves the principles
The third in a like this. case determination case is that a who leaves the holding parent The real of this continuing primary- to be the home without notice and without law, is, entitled to primary-care- as a matter care-provider I custody analysis. position in the believe status provider rigid inappropriate. custody to only voluntarily relinquished plain-
Defendant not shortly until before the di- tiff, failed to contest she *12 no reason for to take hearing. gave failing vorce She result, primary-care-pro- to home. As a the with her her new to that situ- adjusted and the child plaintiff, vider role shifted
99 further ation to the that it would be traumatic to make a point change. reason continue majority gives why important one it is
the parent status the with the legal primary-care-provider It who the in the in fact. leaves home the status despite change In determining should the cus controlling not be consideration. the best of the child and must tody, governed by we are interest look at from child’s custody perspective. the determination the Price, (1987). See Price v. In a 83 fit is in loving parents, battle between and the child’s interest stability continuity surroundings. Any and relationships child, rule that allows a of one having custody been left parent, at will other parent be reclaimed despite that has to the bonding psychological occurred damage child is a bad rule.
Ironically, “rigid,” case that criticizes as majority (W. v. 1990), Efaw, S.E.2d 599 Va. is an example Efaw kind of approach flexible that is far to the preferable majority’s approach. Although Virginia West is now state gives preference custodial who is fit, factors, irrespective of other in determining is flexible whether either parent achieves the facts in preference. The are similar to those here that the primary-care-pro- Efaw vider, mother, who was the left the children when she moved in man. another The father then primary-care- became the provider and until remained so the divorce The court hearing. found that parent neither the preference entitled to under the primary-care-provider rule and that custody must be deter- mined based interest best of the children. It awarded father, in large part because children have “[t]he a stable developed relationship with their father grand- parents .... To remove the children such an established environment . would their emotional . . .” jeopardize stability Gorrick, Id. at (W. 603. See also Mills v. 381 S.E.2d 276-77 1989) (trial Va. court has discretion to award to father where evidence conclusion wife supports intentionally re- linquished custody to him order to maintain a relationship v. man); with another Dempsey Dempsey, S.E.2d 231- (W. 1983) (where relinquished Va. mother had care to father *13 that no action, primary- court could find before divorce shortly to husband custody arose and award presumption care-provider child). interest of the on the best based handled a shift other courts have with how is consistent Efaw Davis, P.2d See, v. Davis e.g., primary-care-provider. 1988). (Utah the trial court handled It is also how 647, 648-49 decision shows of the trial court’s A fair evaluation this case. the primary-care- rigid application that it is not based on Instead, testimony on the expert is based rule. provider the court chose to believe which psychologist, plaintiff’s that basis. be affirmed on The decision should follow. trial court that the emphasize all decisions Virtually custody custody award cases and has broad discretion ex- erroneously unless its “discretion cannot be overturned considerations, or to an ercised, unfounded upon or exercised Peckham of the evidence.” clearly light extent unreasonable (1988). ma- Peckham, 149 v. emphasizes of review on but appeal, states the standard jority justify what is essen- they all where exceptions point major- If the the facts and the law. de novo review of both tially review, it would standard of followed the well-established ity case as within the affirm the award have to I dissent. Accordingly, broad discretion. court’s dissent, except I Allen, J., join Dooley’s Justice dissenting. C adequately I issue was believe preserved. County Raymond, et al. v. Chittenden
Francis Highway Circumferential A.2d [604 1281] No. 90-189 Allen, C.J., Gibson, Dooley, Johnson, Morse and JJ. Present: February
Opinion Filed