Paine v. Buffa (2013-193)
[Filed 31-Jan-2014]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
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No. 2013-193 |
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Nathan Paine |
Supreme Court |
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On Appeal from |
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v. |
Superior Court, Windham Unit, |
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Family Division |
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Jaime Buffa |
November Term, 2013 |
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John P. Wesley, J. |
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Jean Anne Kiewel of Jean Anne Kiewel, PC, Brattleboro, for Plaintiff-Appellee.
Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.
¶ 1. CRAWFORD, J. Mother appeals the family division’s decision to place sole legal parental rights and responsibilities for the parties’ two daughters with father. She also appeals the family division’s award of a share of the equity in the marital home to father. We affirm.
¶ 2. The parties met in 2002 in Colorado, when father was twenty-two and mother was eighteen, and moved in together shortly afterward. After traveling for about a year, they moved to southern Vermont in 2003. In October 2003 mother’s parents, who live in the state of Georgia, financed their daughter’s purchase of a home on Paul’s Road in Brattleboro. The couple moved into the home and lived there until mother sold it in November 2007. During this time, father worked seasonally at an apple orchard and performed some carpentry work, and mother worked as a waitress and as a clerk at a farm stand. The couple was able to live beyond their limited means through continuing support from mother’s parents.
¶ 3. Mother and father grew dissatisfied with the Paul’s Road house, particularly due to its thermal inefficiency. In July 2005 mother approached her parents for money to purchase a thirty-two-acre parcel of land on Sunset Lake Road in Brattleboro. Over the next two years, mother and father worked to construct a house on the property, where they intended to live “off the grid” and become self-sufficient homesteaders. Father provided substantial labor, and mother’s parents provided money for materials and additional labor. The couple moved into the house in September 2006. Mother was less committed to the homesteading life than father and quickly abandoned her plan to raise sheep and create wool fabric products. After selling the house on Paul’s Road in 2007, she deposited the proceeds into her own bank account and used the money to support herself and her family.
¶ 4. Although by all accounts their relationship had been tumultuous and frequently unhappy, the parties decided to marry in June 2007. Shortly after the wedding, mother discovered she was pregnant with the couple’s first daughter, who was born in March 2008. Their second daughter was born in February 2011.
¶ 5. By September 2011, the parties had decided to separate. Father moved out of the marital home but cared for the children there for three to four days a week, including overnights, while mother attended community college in Massachusetts. Father filed for divorce in March 2012, and began to spend his time with the children at a cabin located on his employer’s orchard where he lived.
¶ 6. In April 2012, mother moved for an expedited hearing on parent-child contact because she had made plans to relocate with the children to North Carolina. The court denied immediate relief because no emergent circumstances had been demonstrated and the parties had not yet met with the case manager to attempt to develop a parenting plan. Mother then filed an emergency motion claiming that father’s insistence on having parent-child contact at his cabin put the children’s well-being at immediate risk. The court held an emergency hearing in May. It concluded that the evidence did not support mother’s assertions that father’s cabin was an unsuitable place to take the children or that the children were actively resisting going to the cabin. It stated that the motion appeared to be driven by mother’s desire to gain an early determination of custody so she could move to North Carolina with the children. The court stated that it would award temporary legal custody to father unless the parties stipulated to joint legal parental rights and responsibilities. Shortly thereafter, the court approved a temporary stipulated order under which the parties shared legal and physical responsibilities.
¶ 7. Although she had originally intended to move to North Carolina, by the time of trial mother planned to move to Georgia, where her parents lived. She submitted proposed parenting plans that were premised upon her residing in Georgia and having sole legal responsibilities and shared physical responsibilities for the children. She offered to send the children to visit father in Vermont during school vacation, or to have father move into one of her parents’ homes in Georgia so he could see the children more often.
¶ 8. The final hearing was held over several days in February 2013. On the first day of trial, mother and father were served with a complaint filed against them in Georgia by mother’s parents seeking to recover the funds allegedly loaned to the parties for the purchase and improvements of the Sunset Lake Road and Paul’s Road properties. The total amount sought was over $700,000.
¶ 9. The court issued its decree of divorce in March 2013. It determined that the parties were nearly equally situated with regard to the statutory factors set forth in 15 V.S.A. § 665(b). However, because mother was “adamant” in her desire to relocate and the court found that it would not be in the best interest of the children to move to Georgia, the court awarded sole legal responsibility to father and shared physical responsibility to both parties. The court found that the house on Sunset Lake Road was the sole significant asset of the marriage and had a fair market value of $350,000.. It awarded the home to mother subject to father’s equity share of $85,000, which would constitute a lien on the property. The court ordered mother to pay father his equity share within 120 days of the decree. It provided that after 120 days, interest would begin to accrue and father would have the choice of initiating a foreclosure action or moving to compel mother to list the property for sale. The court ordered mother to hold father harmless in the event that her parents secured a judgment against him in the civil action in Georgia. Mother appeals both the custody and property awards.
I.
¶ 10. We
first consider mother’s challenge to the court’s assignment of sole legal
rights and responsibilities to father. This Court applies a highly
deferential standard of review to decisions of the family court regarding
parental rights and responsibilities. Thompson v.
Pafundi,
¶ 11. Mother claims that the family court abused its discretion by assigning sole legal custody to father based on her proposed relocation to Georgia. She claims that the court focused on this factor to the exclusion of the statutory best-interests factors, and ignored her testimony that she would stay in Vermont if that was the only way she would get legal custody.
¶ 12. In
making an order of parental rights and responsibilities, the family court’s
paramount concern is the best interests of the child. Id.
¶ 19. Section 665(b) sets forth a nonexclusive list of factors that
the court must consider in awarding custody. 15 V.S.A.
§ 665(b). Although relocation is not specifically listed as a
factor, our case law makes clear that the family court should consider a
party’s proposed relocation when making a final order of parental rights and
responsibilities. See Gazo v. Gazo,
¶ 13. Here, mother repeatedly represented to the court prior to and during the trial that she intended to relocate after the divorce. Both of the proposed parenting plans she submitted prior to trial provided that she would live in Georgia with the children, with father living either in Vermont or in Georgia. At trial, mother testified that she had applied to a dental hygiene training program in Georgia, had an offer of a highly paid job through one of her father’s business associates, and could live in one of her parents’ homes there. She testified that if father moved to the same area, she could arrange for her parents to provide him with a residence at very favorable financial terms. Not until the last day of trial did she state that she would be willing to remain in Vermont if it meant retaining legal custody. Taken as a whole, mother’s representations to the court from the outset of the divorce proceeding until the last day of trial indicated that she intended to leave Vermont. Thus, the family court did not err in concluding that mother had made a firm decision to move and basing its custody decision in part on her anticipated relocation. Id.
¶ 14. Furthermore,
the family court’s decision to assign legal custody to father was supported by
its findings. Citing Hawkes v. Spence,
¶ 15. While mother’s proposed relocation was central to the court’s consideration, it explicitly considered other statutory factors in reaching its decision. The court determined that both parents were equally situated with regard to providing the children with love, affection, guidance, and material support, and were both reasonably sensitive to the children’s developmental needs. However, it found that father was better able and disposed than mother to foster a positive relationship and frequent and continuing contact with the other parent. Accordingly, it determined that sole legal responsibilities should be assigned to father and the parents should continue to share physical responsibilities equally.
¶ 16. Mother
argues that the court improperly applied the standard set forth in Hawkes v.
Spence in making its decision. In Hawkes, we adopted a
standard for courts to apply when considering a motion to modify parental
rights and responsibilities based on the custodial parent’s proposed relocation
out of state with the parties’ children.
¶ 17. Mother
correctly points out that the family court is not required to find that there
has been a change of circumstances in order to make a final determination of
parental rights and responsibilities that is different from the determination
in a temporary order. See Thompson,
¶ 18. The
trial court’s decision to assign legal rights and responsibilities to father is
supported by its findings, which in turn are supported by the record evidence.
Thus, we cannot say that the court’s decision was clearly erroneous.
See Hoover v. Hoover,
II.
¶ 19. Next, we consider mother’s challenge to the court’s property award. Mother argues that the court did not have the power to determine that the funds provided to the parties by mother’s parents were gifts because that issue was the subject of an unresolved lawsuit in Georgia. She further asserts that it was error to order her to pay $85,000 to father within 120 days of the judgment because it would force her to sell the house and an unresolved problem with the septic system would prevent her from doing so. Finally, she claims that the amount awarded to father was excessive.
¶ 20. Section
751(a) of Title 15 gives the family court jurisdiction to settle divorcing
parties’ rights to their property. In crafting a property settlement, the
court must first define the marital estate, which includes “[a]ll property
owned by either or both of the parties, however and whenever acquired.” Id.
Then, the court must equitably divide and assign the property, taking into
account all relevant factors including “the value of all property interests,
liabilities, and needs of each party.” Id. § 751(a), (b)(6). The family court has broad discretion in
fashioning an equitable award of marital property, and its decision will not be
disturbed absent a showing that the court abused its discretion. Wade v. Wade,
¶ 21. Mother argues that the family court erred in the first step by treating the funds provided by her parents for the construction of the marital home and the purchase of the land upon which it was built as gifts rather than loans. As noted above, mother’s parents sued the parties in Georgia just prior to trial, seeking to collect the funds they had allegedly loaned to mother over the years. Mother claims that the family court therefore lacked the power to determine that the funds were gifts. Mother argues that when the parties’ debt to her parents is properly accounted for, they have zero equity in the marital home.
¶ 22. The
evidence supports the family court’s determination that the home on Sunset Lake
Road was a marital asset owned entirely by the parties. Title to the home
was solely in mother’s name. It is undisputed that mother’s parents provided
the funds to purchase the property as well as substantial additional funding
for improvements. However, mother’s parents did not require mother or
father to execute a promissory note or mortgage, nor did they require father to
subject his homestead interest to any repayment obligation. As the family
court found, there were none of the ordinary indicia associated with a typical
loan and mother’s parents never demanded repayment until the divorce was set
for a contested trial.[1]
Although mother’s parents and mother testified that everyone understood at the
time of each advance that the money was to be treated as a loan, father
disputed that testimony, stating that his attempts to discuss repayment
conditions were always brushed aside. The family court concluded that
there was no rational way to view the monetary contributions except as gifts,
and proceeded to treat the property as a marital asset unencumbered by the
claims of mother’s parents. The court acted within its discretion in
valuing the property in this way. See Nuse v. Nuse,
¶ 23. We do
not agree with mother’s argument that in dividing the equity in the marital
home, the family court impermissibly adjudicated the rights of nonparties to
the action. The family court examined the nature of the parties’
contributions to the marriage and their financial arrangements in order to
value the marital estate, a matter that is within its jurisdiction. 15 V.S.A. § 751(a). The court acknowledged that
mother’s parents had a pending collection action against the parties in
Georgia, and held that if a Georgia judgment were to issue mother would be
required to hold father harmless from its effect. In essence, the court
allocated any future judgment against the parties in favor of mother’s parents
as a debt owed by mother only. By so doing it fulfilled its statutory
duty to equitably divide and apportion marital assets and liabilities. Id.;
see also Wade,
¶ 24. This
case is unlike DeLeonardis v. Page,
¶
25.
Mother also claims that it was unfair for the family court to order her
to pay $85,000 to father within 120 days of the divorce decree or risk
foreclosure or sale of the house. The family court has the power to order
the sale of the marital home. Mansfield v. Mansfield,
¶ 26. In this case, the family court found that the marital home was the parties’ only valuable asset and that father was entitled to receive a share of the equity in order “to allow him a stake to continue” the task of parenting the parties’ children. It accordingly ordered mother to pay father $85,000 within 120 days, after which she would start to accrue interest at twelve percent per year and father could either initiate a foreclosure action or compel mother to list the property for sale. The court’s decision fell within its wide discretion to fashion a schedule for distribution of the marital property. Id.
¶ 27. Mother further claims that the trial court failed to consider that the leach field on the Sunset Lake Road property will require $6,000 in repairs before the home can be sold, and that she cannot pay this amount on her limited income. The record does not support mother’s claim. It was by no means clear from her brief testimony on the issue what the nature of the problem with the septic system was, and there is no evidence that it rendered the house unmarketable. Accordingly, this is not a basis for reversal.
¶ 28. Finally,
mother argues that $85,000 was an excessive award to father, because the value
of father’s labor in constructing the marital home was only $40,000. As
we have noted in the past, the division of marital property “is not an exact
science.” Plante v. Plante,
¶ 29. Here,
the court found that the marriage was a short-term marriage and that most of
the assets were acquired through mother’s parents. However, it noted that
mother would likely continue to be supported by her family and her prospects of
acquiring additional wealth through inheritance were substantially better than
father’s. See Billings v. Billings,
Affirmed.
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FOR THE COURT: |
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Associate Justice |
¶ 30. ROBINSON, J., concurring. The
majority addresses the questions presented as framed by the parties, as did the
trial court. I have no objection to doing so, see, e.g., Demarest v.
Town of Underhill,
¶ 31. The main issue in this case with respect to parental rights and responsibilities was whether, if mother relocated to Georgia, the children would be moving with her subject to father’s rights of parent-child contact or whether, alternatively, they would remain in Vermont with father subject to mother’s right to parent-child contact. The proposed parenting plans mother submitted prior to the hearing contemplated an award of physical and legal rights and responsibilities to mother, with considerable parent-child contact for father.[2] Father, in contrast, proposed that physical and legal rights and responsibilities be awarded to him if mother moved to Georgia, or alternatively that physical rights and responsibilities be shared if she stayed in Vermont. Differences in the parties’ views about medical care and educational matters were also in the mix, although these were not the dominant issues in the case. The trial court ordered shared physical rights and responsibilities, and assigned legal rights and responsibilities to father.
¶ 32. The focus of the parties’ briefing to this Court is the trial court’s analysis of the relocation issue. The parties situate this issue under the rubric of legal rights and responsibilities. Like the majority, I believe the trial court’s analysis of the impact of mother’s proposed relocation was well within its discretion. However, I also believe that the trial court’s resolution of that issue lies within its unappealed order for shared physical rights and responsibilities with a fifty-fifty percent division of the children’s time. As the trial court recognized in its decision, in the face of such an order, if mother chose to relocate to Georgia, the order concerning the children’s schedule would need to be modified “to address the logistics imposed by [mother’s] relocation.” The court made it clear that its order was predicated on the expectation that both parents would reside in Vermont, and that it was skeptical that a relocation of the children with mother to Georgia, if mother proposed to move, would be in the children’s best interests. This conclusion, rather than the award of primary legal rights and responsibilities to father, settled the relocation issue.
¶ 33. “Legal
responsibility,” as opposed to “physical responsibility,” means “the rights and
responsibilities to determine and control various matters affecting a child’s
welfare and upbringing, other than routine daily care and control of the
child. These matters include but are not limited to education, medical
and dental care, religion and travel arrangements.” 15 V.S.A.
§ 664(1)(A). As a consequence, we have
considered issues involving specific conflicts relating to
many of the major categories of parental decisionmaking within the framework of
legal rights and responsibilities. See, e.g., Shea v. Metcalf, 167
Vt. 494, 497-500,
¶ 34. The
reason it is important that we not conflate legal rights and responsibilities
with disputes about where, and with whom, children live and spend their time is
that courts can and often do award physical rights and responsibilities to the
custodial parent, while awarding shared legal rights and responsibilities
pursuant to the parties’ agreement, or even primary legal rights and
responsibilities to the parent who is not assigned physical rights and
responsibilities. See, e.g., Shea,
¶ 35. The kind of shared decisionmaking contemplated by an award of shared legal rights and responsibilities is not incompatible with an award of primary physical rights and responsibilities to one parent or the other. Moreover, cooperating parties can readily engage in that kind of shared decisionmaking across great distances. And, although it would be an unusual case, a noncustodial parent can exercise the decisionmaking authority that accompanies an award of primary legal rights and responsibilities from a distance. Any inference from this decision that an agreement to share legal rights and responsibilities compromises a custodial parent’s ability to relocate with the children would be incorrect and unfortunate.
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Associate Justice |
[1] Further, mother had deposited the proceeds from the sale of the Paul’s Road house into her own bank account and never repaid her parents. The lack of any action by her parents to recover that money until the parties decided to divorce supports the family court’s conclusion that the funds were viewed as gifts rather than loans.
[2] In her requests to find, as opposed to the parenting plans she submitted, mother proposed that she be awarded legal rights and responsibilities, that the court expressly recognize the expectation that she would be relocating to Georgia, and that physical rights and responsibility be shared “as it relates to [father’s] ability to spend a majority of the time with the children during the summer months and school vacations in the State of Vermont as well as additional contact time with them in Georgia as set forth in the proposed parenting plan.” Although mother framed her request as one for shared physical rights and responsibilities, she essentially proposed that the children live with her during the school year, subject to substantial parent-child contact with father.