Chris Titchenal v. Diane Dexter
No. 96-188
Vermont Supreme Court
February 28, 1997
Motion for Reargument Denied April 23, 1997
693 A.2d 682
Prеsent: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
In Bissonnette I, we held that plaintiffs must use “reasonable care” to protect the sureties’ interests. 162 Vt. at 610, 654 A.2d at 341. We now hold that failure to obtain the sureties’ consent before disposing of the collateral was a breach of the standard of reasonable care, as a matter of law. This holding alone, however, is not determinative of the action. As we held in Bissonnette I, defendants also have the burden to shоw the extent of any impairment in order to offset that amount against their liability. Id. at 609, 654 A.2d at 340. The proper measure of such offset is the extent to which the collateral was discharged for consideration below its actual value. Although evidence was offered on this point, the trial court failed to make findings on the extent of impairment, if any. We remand for such determination.
Affirmed in part and reversed in part; remanded to determine the extent of impairment, if any, the release of plaintiffs’ security interest had on the collateral.
John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for Defendant-Appellee.
Mary L. Bonauto, Boston, Massachusetts, for Amicus Curiae Gay & Lesbian Advocates & Defenders.
Allen, C.J. The issue in this case is whether the superior court may apply its equitable powers to adjudicate a visitation dispute that cannot be brought in statutory proceedings within the family court‘s jurisdiction. We affirm the superior court‘s decision that it does not possess the authority to adjudicatе such matters.
The dispute arose after the breakup of a relationship between two women who had both participated in raising a child adopted by only one of them. Plaintiff alleges the following facts, which are disputed but accepted as true for purposes of reviewing the trial court‘s dismissal of the case. See Sabia v. State, 164 Vt. 293, 297, 669 A.2d 1187, 1190 (1995). In 1985, plaintiff Chris Titchenal and defendant Diane Dexter began an intimate relationship. They purchased a home together, held joint bank accounts, and jointly owned their automobiles. They both contributed financially to their household, and each regarded the other as a life partner.
At some point, the parties decided to have a child. When their attempts to conceive via a sperm donor failed, they decided to adopt a child. In July 1991, defendant adopted a newborn baby girl, who was named Sarah Ruth Dexter-Titchenal. The parties held themselves out to Sarah and all оthers as her parents. The child called one parent “Mama Chris” and the other parent “Mama Di.” For the first three and one-half years of Sarah‘s life, until the parties’ separation, plaintiff cared for the child approximately 65% of the time. Plaintiff did not seek to adopt Sarah because the parties believed that the then-current adoption statute would not allow both of them to do so.
Eventually, the parties’ relationship faltered, and by November 1994 defendant had moved out of the couple‘s home, taking Sarah with her. For the first five months following the parties’ separation, Sarah stayed with plaintiff between Wednesday afternoons and Friday evenings. By the spring of 1995, however, defendant had severely curtailed plaintiff‘s contact with Sarah and had refused plaintiff‘s offer of financial assistance.
Plaintiff urges us to grant “nontraditional” family members access to the courts by recognizing the legal rights of de facto parents.1 According to plaintiff, the state‘s parens patriae power to protect the best interests of children permits the superior court to adjudicate disputes over parent-child contact2 outside thе context of a statutory proceeding. Thus, under the scheme advocated by plaintiff and amicus curiae, the family court would adjudicate disputes concerning parental rights and responsibilities and parent-child contact within the parameters and criteria set forth in statutory divorce, parentage, dependency and neglect, nonsupport and separation, relief-from-abuse, and at times guardianship and adoption proceedings, see
We find no legal basis for plaintiff‘s proposal. Courts cannot exert equitable powers unless they first have jurisdiction over the subject matter and parties. In re Marriage of Ryall, 201 Cal. Rptr. 504, 512 (Ct. App. 1984); see Perry v. Superior Court of Kern County, 166 Cal. Rptr. 583, 584 (Ct. App. 1980) (visitation rights may be awarded to nonparents only in proceeding in which court otherwise has jurisdiction over issue of custody). Equity generally has nо jurisdiction over imperfect rights arising from moral rather than legal obligations; not every perceived injustice is actionable in equity — only those violating a recognized legal right. In re E.C., 387 N.W.2d 72, 77 (Wis. 1986). A court of equity does not create rights, but rather determines whether legal rights exist and, if so, whether it is proper and just to enforce those rights. City of St. Louis v. Golden Gate Corp., 421 S.W.2d 4, 7 (Mo. 1967); see Juaire v. Juaire, 128 Vt. 149, 152, 259 A.2d 786, 788 (1969) (equity affords relief whenever legal right exists without adequate remedy; by bringing action in equity, plaintiff did not seek to acquire new right, but rather sought new remedy for preexisting right). In short, a court may exert its equitable powers to grant appropriate relief only when a judicially cognizable right exists, and no adequate legal remedy is available. See Chapman v. Sheridan-Wyoming Coal Co., 338 U.S. 621, 630-31 (1950) (courts applying their equitable powers “can intervene only where legal rights are invaded or the law violated“).
The issue, then, is whether there is any underlying legal basis for plaintiff‘s cause of action that would allow the superior court to apply its equitable powers to adjudicate her claim. Courts may exert equitable powers based upon common-law, statutory, or constitutional rights, or upon judicial acknowledgement of public-policy considerations establishing an as-yet-unrecognized legal right. See Payne v. Rozendaal, 147 Vt. 488, 492-94, 520 A.2d 586, 588-89 (1986) (notwithstanding absence of statutory directive regarding age discrimination at time of alleged wrong, claim of age discrimination was sufficient basis for wrongful discharge action because termination of employee solely on basis of age is so contrary to society‘s concern for providing equity and justice that there is clear and compelling public policy against it).
Here, we find no legal basis from any of the above sources for plaintiff‘s claimed right to parent-child contact in her capacity as an
With one possible minor exception,3 the custody-related cases cited by plaintiff and amicus curiae involve decisions made within the
In 1984, the Legislature enacted both a parentage act that gave putative fathers the right to bring an action to establish paternity (and thus seek custody or visitation),
In 1990, the Legislature created the family court and gave it “all of the equitable and other powers of the superior court as to civil matters within its jurisdiction.”
Plaintiff acknowledges that no specific statutory or constitutional provisions require the superior court to assume jurisdiction over her claim, but she argues that public policy compels such a result, given her status as Sarah‘s de facto parent. We do not agree. The superior court‘s refusal to extend its jurisdiction here does not create circumstances “cruel or shocking to the average [person‘s] conception of justice.” Payne, 147 Vt. at 493, 520 A.2d at 588. Persons affected by this decision can protect their interests. Through marriage or adoption, heterosexual couples may assure that nonbiological partners will be able to petition the court regarding parental rights and responsibilities or parent-child contact in the event a relationship ends. Nonbiological partners in same-sex relationships can gain similar assurances through adoption.
In 1996, the Legislature enacted a new adoption statute embracing our holding in B.L.V.B. and allowing unmarried adoptive partners to petition the family court regarding parental rights and responsibilities or parent-child contact. See
Nor do other public-policy considerations compel the conclusion that courts should intervene to consider whether third parties claiming a parent-like relationship ought to be given parent-child contact with the children of fit parents. Indeed, many courts and commentators have noted the potential dangers of forcing parents to defend third-party visitation claims. See, e.g., In re Ash, 507 N.W.2d 400, 403 (Iowa 1993) (extending visitation rights to third parties would allow claims for visitation from various persons with special relatiоnships to children, possibly requiring courts to divide children‘s time among several parties); 2 Clark, supra, § 20.7, at 542-43 (movement for wider visitation is in large part based on desire to vindicate rights of those seeking parent-child contact rather than to further children‘s interests; visitation petitions impose serious psychological stresses on children and heavy financial burdens on custodians who often do not have adequate financial resources to defend against suits).
Plaintiff insists that tests could be created to assure that only those third parties who have developed an intended and shared de facto-parent relationship with a child could petition for visitation. See In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis.), cert. denied, Knott v. Holtzman, 516 U.S. 975, 116 S. Ct. 475 (1995) (devising test for those seeking visitation to demonstrate parent-like relationship). We are not persuaded by this argument. Although we might recognize new legal rights that would permit the superior court to extend its equitable jurisdiction, jurisdiction should not rest upon a test that in effect would examine the merits of visitation or custody petitions on a case-by-case basis. In reality, such a fact-based test would not be a threshold jurisdictional test, but rather would require a full-blown evidentiary hearing in most cases. Thus, any such test would not prevent parents from having to defend themselves against the merits of petitions brought by a potentially wide range of third parties claiming a parent-like relationship with their child. See Nancy S. v. Michele G., 279 Cal. Rptr. 212, 219 (Ct. App. 1991) (no matter how narrowly court defined “parent,” allowing persons claiming parent-like relationship to seek visitation rights could expose legal parents to
Plaintiff scoffs at the notion that various relatives, foster parents, and even day-care providers could seek visitation through court intervention, but the cases we have reviewed suggest that the possibilities are virtuаlly limitless. See In re Hood, 847 P.2d 1300, 1301 (Kan. 1993) (day-care provider claiming right to visitation based on best interest of child and existence of substantial relationship between herself and child); L. v. G., 497 A.2d 215, 219, 222 (N.J. Super. Ct. Ch. Div. 1985) (applying its inherent equitable powers, court concluded that adult siblings have right to visit minor siblings, subject to best interests of minors); Bessette v. Saratoga County Comm‘r, 619 N.Y.S.2d 359, 359 (App. Div. 1994) (petition for visitation by former foster parents). Further, as some courts have noted, third parties could abuse the process by seeking visitation to continue an unwanted relationship or otherwise harass the legal parents. See Hood, 847 P.2d at 1304 (danger of parents being harassed by third-party visitation petitions is policy consideration that weighs against expanding classes of persons who may seek visitation).
In an effort to allay these concerns while still providing relief to this particular plaintiff, the dissent suggests that we employ the doctrine of equitable adoption. The dissent would have the family court determine on remand whether plaintiff would have adоpted Sarah except for the perceived legal impediment; if so, plaintiff would be deemed the equitable adoptive mother, and the court presumably could accord her all the rights of a legal adoptive parent. Even if we ignore its inherent jurisdictional problems, the dissent‘s position does not withstand scrutiny.
Though the dissent disavows extending the doctrine of equitable adoption into the realm of equitable parentage, that is precisely what it is doing. As we stated in Whitchurch v. Perry, 137 Vt. 464, 470-71, 408 A.2d 627, 631 (1979):
Courts generally apply the doctrine of equitable adoption in cases of intestate succession to permit participation in the estate by a foster child who was never legally, i.e., statutorily, adopted by the decedent. Typically the decedent obtained custody by expressly or implicitly promising the child, the child‘s natural parents, or someone in loco parentis that an adoption would occur. Custody is transferred and the child lives with the foster parent as would a natural child, but, for one reason or another (usually the promisor‘s
neglect), an adoption never occurs. Upon the foster parent‘s death, a court, applying the maxim that “equity regards that as done which ought to be done,” declares that the child is entitled to share in the estate as if he were a legally adopted child.
(Emphasis added.) For the doctrine to apply, there must either be an agreement to adopt or an undertaking to effect a statutory adoption, id. at 471, 408 A.2d at 631, neither of which took place here. In Whitchurch, we declined to expand the doctrine to confer on the plaintiffs a “next of kin” status to provide standing for them to bring a wrongful death action, stating that the doctrine of equitable adoption “permits enforcement of the promise of inheritance implied from the agreement to adopt, but it does not alter the status of the parties.” Id. at 472, 408 A.2d at 632. Rather, we noted, it “merely confers а right of inheritance.” Id. It is obvious from the discussion in Whitchurch that in this case the dissent would not be employing the doctrine of equitable adoption, but rather a much more expansive variant thereof aimed at allowing “equitable parents” to interfere with the custodial rights of legal parents. See Pierce v. Pierce, 645 P.2d 1353, 1355 (Mont. 1982) (doctrine of equitable adoption had no application to proceeding where stepfather was seeking to establish custodial rights over his former stepchild against wishes of biological mother).
Ironically, after stretching the doctrine of equitable adoption beyond recognition in an effort to provide relief to this particular plaintiff, the dissent would then let it snap back into place to prevent any future plaintiffs from taking advantage of its expanded form. But there is no principled way to adopt the equitable-parent doctrine for this one case. Indeed, the dissent‘s avowed purpose for affording plaintiff relief — tо achieve an equitable and just result — contradicts its desire to limit the application of that doctrine. If achieving an equitable result is the goal, then a wide variety of reasons for failing to adopt — lack of funds or fear of discrimination by the adopting agency, for example — could form the basis for the family court‘s jurisdiction to resolve factual disputes concerning whether a nonparent equitably adopted a legal parent‘s child. We decline to join the dissent‘s expansion of a judicial doctrine for the sole purpose of creating jurisdiction in the family court to benefit this particular plaintiff, only to foreclose all others having legitimate reasons for failing to adopt from seeking such equitable relief. Very few jurisdictions have embraced the equitable-parent doctrine adopted in
We recognize that, in this age of the disintegrating nuclear family, there are public-policy considerations that favor allowing third parties claiming a parent-like relationship to seek court-compelled parent-child contact. In our view, however, these considerations are not so clear and compelling that they require us to acknowledge that de facto parents have a legally cognizable right to parent-child contact, thereby allowing the superior court to employ its equitable powers to adjudicate their claims. Given the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped to deal with the problem. See Nancy S., 279 Cal. Rptr. at 219; O‘Dell v. O‘Dell, 629 So. 2d 891, 891 (Fla. Dist. Ct. App. 1993) (raging debate that exists concerning wisdom of granting child visitation to substitute parents is matter best left for legislature), appeal dismissed, 637 So. 2d 236 (Fla. 1994); Hood, 847 P.2d at 1303-04 (legislature must decide if and when intrusion into family unit in form of third-party visitation is justified by legitimate state interest; legislature is forum to entertain sociological and policy considerations bearing on well-being of children). Deference to the Legislature is particularly aрpropriate in this arena because the laws pertaining to parental rights and responsibilities and parent-child contact have been developed over time solely through legislative enactment or judicial construction of legislative enactments. See Finck v. O‘Toole, 880 P.2d 624, 627 (Ariz. 1994) (legislative scheme naming specific classes of parties to whom visitation may be granted, and imposing substantial limitations on statutorily granted visitation rights, suggests that legislature did not intend to award visitation to unspecified third parties).
Obviously, our opinion should not be read as impeding same-sex partners from child-rearing or as minimizing the importance of maintaining relationships between children and third parties with whom the children have formed significant bonds. But absent statutory authority extending the family court‘s jurisdiction to adjudicate third-party visitation requests, cf.
Affirmed.
Morse, J., dissenting. I respectfully dissent. The Court rejects plaintiff‘s effort to establish visitation with the minor child on the ground that there is no legal right by which the cоurt might fashion
As explained more fully below, the doctrine of “equitable adoption” provides an alternative, well-established remedy that is well suited to the factual circumstances of this case. Based on the law as it was reasonably understood at the time, plaintiff was compelled to forego the opportunity, together with her partner, to adopt the minor child as any other married couple could have done. That law subsequently changed, and so, unfortunately, did plaintiff‘s domestic circumstances. It is too late apparently for the parties to cooperate, but not for the law to provide a just remedy, by permitting plaintiff to establish an intent to adopt and thus preserve the critically important parent-child relationship.
The Court dismisses this approach out of hand. Apart from a rather unrestrained accusation of unprincipled special pleading on behalf of plaintiff, the actual reasons offered by the Court unravel upon detached analysis. This is not a particularly difficult case. Although the context is novel, the legal principle is settled and the facts are compelling.
As we observed in Whitchurch v. Perry, 137 Vt. 464, 470-71, 408 A.2d 627, 631 (1979) (emphasis added):
Courts generally apply the doctrine of equitable adoption in cases of intestate succession to permit participation in the еstate by a foster child who was never legally, i.e., statutorily, adopted by the decedent. . . . Custody is transferred and the child lives with the foster parent as would a natural child, but, for one reason or another . . . an adoption never occurs. Upon the foster parent‘s death, a court, applying the maxim that “equity regards that as done which ought to be done,” declares that the child is entitled to share in the estate as if he were a legally adopted child.
Although courts have traditionally characterized the concept as an equitable remedy for an unperformed “contract” to adopt, in reality
While equitable adoption most commonly involves a child‘s effort to share in the intestate estate of a foster parent who had intended to adopt, it has been applied in a variety of other contexts. It has been invоked, for example, to entitle a child to maintain an action for the wrongful death of a foster parent where the evidence disclosed an unconsummated intent to adopt. See Holt v. Burlington Northern RR., 685 S.W.2d 851, 857 (Mo. Ct. App. 1984); Bower v. Landa, 371 P.2d 657, 661 (Nev. 1962). It has also been extended to allow a parent to obtain the death benefits of a child under a workers’ compensation statute where the evidence disclosed an unfulfilled intent to adopt the deceased child. Jones v. Loving, 363 P.2d 512, 515 (Okla. 1961). And in a recent Michigan case, the doctrine was invoked to support the parental rights of a nonbiological father to the daughter born while he was married to the mother. Atkinson, 408 N.W.2d at 520.
We need not go as far as the Michigan court, which adopted the broader doctrine of equitable parentage, id. at 519, to recognize that the principle of equitable adoption has valid applications outside the context of inheritance law. Here I propose an application much closer to the original equitable-adoption concept. The purpose of the doctrine, as noted, is to allow a court to find, in retrospect, an intent to adopt by a person who had never formally done so, for the purpose of achieving a just result. Plaintiff in this matter contends that she would have adopted the minor child when she was born in 1991, but
Given these subsequent rule changes, plaintiff, in my view, should be accorded the opportunity to demonstrate on remand that, except for the perceived legal impediment in light of her personal circumstances at that time, she would have adopted the minor child as did defendant. Plaintiff should be allowed to prove, in other words, an intent to establish an adoptive relationship with the child that was never formally consummated because of the then current state of the law. All that this amounts to, in effect, is application of the principle of equitable adoption in a novel factual context — a retrospective inquiry by the court into whether plaintiff intended, but because of the then-current adoption statute failed, to effectuate an adoption of the minor child, to the end of achieving a fair result.
In such a proceeding, plaintiff would be allowed to adduce evidence identical to that generally considered to be material in the equitable-adoption context — reciprocal love and affection between parent and child, holding-out as the parent, “parental” designation on official forms, and the like. Indeed, without purporting to prejudge the issue, I would note in this regard that plaintiff alleges she was the minor child‘s primary caretaker: she dressed and fed the minor every morning before driving her to daycare, spent extensive time with the minor playing, talking and reading, and exercised primary responsibility for the minor during the evening. Plaintiff also allegedly shares a surname with the minor (“Dexter-Titchenal“) and is listed as the minor‘s parent on her daycаre enrollment form, probate records, and baptismal papers. Defendant‘s last will and testament further states that plaintiff has “shared in the parenting of [the minor] since the day [she] came into [their] lives.” Should plaintiff establish these allegations at trial and persuade the court of her intent to adopt, she would
In adopting this approach, the court would not be “creating” any new legal rights; adoptive parents have all of the rights and responsibilities of a natural parent, including the right, upon termination of the parents’ relationship, to seek visitation.
As for the proper court in which to adjudicate plaintiff‘s claim, the Legislature has recently made it clear that family court is the appropriate venue. As expressly provided in
The family court shall have jurisdiction to hear and dispose of issues pertaining to parental rights and responsibilities, parent-child contact and child support . . . under the following circumstances:
(1) If two unmarried persons, who have adopted a minor child, terminate their domestic relationship;
(Emphasis added.) Furthermore, the family court has “all of the equitable . . . powers of the superior court as to civil matters within its jurisdiction.”
A decision along these lines would present none of the drawbacks of a broader holding recognizing the rights of “equitable parents.” It would apply only to this case, and any other in which a party allegedly failed to adopt because it was not a reasonable legal option. It is safe to assume that the courts will not be flooded with similar claims. Indeed, the number of potential claimants is finite by definition, since the holding would apply only to those who, like plaintiff, allegedly failed to adopt prior to the 1996 statutory changes in the adoption law. This approach also shields the family courts from the most common and problematic situation in which a cohabitant lives with the natural parent and child for some period of time, separates, and then seeks parental rights. Since the parties could have married and the
The Court, nevertheless, rejects this approach on three grounds. First, it claims the family court lacks jurisdiction to adjudicate such a matter. As explained above, however, the family court is expressly empowered to “hear and dispose of issues pertaining to parental rights and responsibilities [of] . . . two unmarried persons, who have adopted a minor child,”
Second, the Court rather colorfully chides the dissent for “stretching the doctrine . . . beyond recognition in an effort to provide relief to this particular plaintiff” while providing no “principled” justification or limitation. 166 Vt. at 384, 693 A.2d at 689. These are the same old stalе and discredited charges that “law” has brought against “equity” since the days of Henry II. The principle in this case is indeed suited to this plaintiff, but that makes it no more “unprincipled” than any other equitable doctrine, unless the Court also considers equitable estoppel, equitable servitudes, constructive trusts, specific performance, and every other equitable remedy to be unprincipled. Furthermore, there is a plain and principled basis for extending the equitable-adoption doctrine to this plaintiff (and anyone similarly situated) and no further, that the Court simply ignores. Plaintiff was effectively barred from adopting the minor by the law in effect when she and defendant were together. This unique fact justifies an extension of equitable relief to this plaintiff, and establishes a principled basis to exclude others who might wish to take advantage of the doctrine.
Finally, the Court advances the remarkable proposition that plaintiff somehow could, and should, have attempted to adopt the minor child prior to the couple‘s separation in 1994. The Court observes that one probate court in 1991 had allowed an adoption in similar circumstances, and that in 1993 we issued our decision in B.L.V.B. broadening the right of nonmarried cohabitants to adopt. It is one thing to presume that parties are aware of, and bound by, general enactments of the Legislature that amend the law; it is quite another, however, to impute to a nonattorney specific knowledge of one probate decision and a later, confirming appellate court decision. The
It is especially unfair in this case to assert, as the Court does, that plaintiff somehow “slumbered” and was less than vigilant. Plaintiff and defendant wanted a child to raise together as their own. They were not seeking to become a “test case” for the rights of gay and lesbian parents, nor should they have been expected to do so. They obeyed the law as it was then reasonably understood, and they had no cause to challenge it. They could not anticipate that the law would change, any more than they could anticipate that their relationship would change. But change they did, and by then it was too late to obtain the cooperation from defendant that would have avoided this dispute. It is wrong to suggest that plaintiff somehow brought this problem upon herself.
For all of the foregoing reasons, I would remand the matter to the family court for further proceedings consistent with the views expressed herein. Justice Johnson joins in the dissent.