Nickerson v. Nickerson

605 A.2d 1331, 158 Vt. 85, 1992 Vt. LEXIS 33

• Court: Supreme Court of Vermont
• Decided: February 7, 1992
• Docket: 90-225
• Status: Published

Opinions

Morse, J.

Defendant wife appeals a divorce judgment awarding to plaintiff husband custody of their daughter. The court awarded custody of the couple’s son to wife. She also appeals that part of the judgment relating to visitation between husband and their son. We reverse and remand because the trial court did.not adequately explain application of the primary-care-provider criterion to the facts.

The parties were married in March 1979. During the course of the marriage wife became lonely, in part because husband worked long hours, and she began a relationship with a woman in 1988. Husband filed for divorce in April 1989, after a temporary separation. Following various unsuccessful attempts at reconciliation in 1988 and 1989, the couple separated permanently in October 1989, when wife moved to a nearby town to live with her lover. The couple’s son, Morgan, was five months old when wife left for the last time, and has resided with wife since her final departure. Wife left the couple’s seven-year-old daughter, Ashley, with husband. Before the final separation, wife had agreed in writing that husband would have custody of Ashley and she would have custody of Morgan, whom she was then carrying. She testified that she entered into this agreement only because she was “uninformed about parental rights [and] felt threatened by [husband].”

At trial, both husband and wife testified that husband worked from 50-70 hours per week in the summers and at least 40 hours per week in the winters at his job as director of marketing at a local inn. As of the date of trial, husband had Sundays and Mondays off. Husband retained the same schedule during the six months between separation and trial. Husband brought Ashley to work with him when she was not at school. She stayed in a vacant room, where she sometimes played with another child, and was supervised through a glass door by husband or other workers. She often ate meals at the inn restaurant. When Ashley was not at the inn with her father while he worked, she was in the care of a baby-sitter or in school.

As of the date of trial, wife was employed as a teacher, working from 8:00 a.m. to 12:30 p.m. during the school year. Both parties agreed that while the couple lived together, wife had primary responsibility for the shopping, laundering and meal preparation. Wife bathed, dressed and fed Ashley in the mornings, planned or prepared her noon meal at school, and prepared and ate the evening meal with her. She read to the child daily, although husband also did this “once in a while.” She took Ashley on educational excursions to museums and taught her about classical music, activities in which husband did not participate. Wife largely took responsibility for Ashley’s health needs and brought her to the dentist and doctor for regular examinations.

The court found that although wife had been Ashley’s primary-care-provider before the separation, husband had been Ashley’s primary-care-provider after that time. The court concluded it was in Ashley’s best interest to remain in husband’s custody. Morgan, however, had not left his mother’s primary care since he was born in May 1989, and the court concluded wife should have custody of him. Split custody, according to the court, was satisfactory because of the age difference between Ashley and Morgan and because they had not developed a relationship with one another.

Visitation was liberal. Wife was awarded parent-child contact with Ashley, with visitation from Friday through Sunday night every other weekend and Saturday on the intervening weekend. Visitation also included alternate holidays, the first two weeks of July and the first two weeks of August. Husband was awarded parent-child contact with Morgan on alternate Sundays and every Monday, as well as alternate holidays, until Morgan reached age two, after which visitation would include overnight stays and an additional four-week period in the summer. The court made additional accommodation for holiday contact between the two children once Morgan reached school age.

Wife claims that the trial court erred in granting husband sole legal and physical rights and responsibilities for Ashley based on its finding that he was the primary care provider. In addition, she argues that the court’s conclusions of law on this issue and the potential effect on Ashley of a change of custodian are not supported by the findings.

Analyzing the evidence on the primary-care-provider factor that wife’s counsel established through the testimony of various witnesses, the court found that “when the parties resided together, [wife] was the primary caretaker of Ashley. She took care of Ashley’s daily needs and was an attentive, loving mother towards her.” The court also found, however, that since Ashley was left in husband’s care when wife left six months earlier, husband had become the child’s primary-care-provider and wife no longer retained that status.

[Husband] has provided for [Ashley’s] physical and emotional needs and has become very involved in her daily activities and schooling. He insures she is fed, clothed, and has appropriate adult supervision. [Husband] has good parenting skills and a good sense of Ashley’s needs. [Husband] loves his daughter very much.

Based on these findings, and on the conclusion that a change would be disruptive to the child’s life, the court granted split custody, thereby maintaining the “status quo.” In so doing, the court stated that “great weight should be given to the child’s relationship with his or her primary caretaker.” This was a reference to 15 V.S.A. § 665(b)(6), the statutory factor that requires the court, in making a custody order, to consider, along with seven other factors, “the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development” (criterion six)!

I.

We recognize that the trial court has broad discretion in custody matters. Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988) (“trial court has broad discretion in a custody matter, and we must affirm unless the discretion is ‘erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence’”) (quoting Jensen v. Jensen, 141 Vt. 580, 581-82, 450 A.2d 1155, 1156 (1982)). Findings of fact, from which conclusions of law flow, will not be set aside unless clearly erroneous. V.R.C.P. 52(a). When the relevant legal criteria, among them the eight factors set out in 15 V.S.A. § 665(b), are applied to the facts, it is important for the appellate court to know how the trial court weighed the facts and blended the standards to arrive at the conclusion. In other words, we need to review the explanation as well as the found facts to determine if the application of the criteria to the facts is sound. If the explanation is equivocal, indicating that a misapplication of the law may have occurred, the trial court decision is insufficient. See Klein v. Klein, 153 Vt. 551, 558, 572 A.2d 900, 904 (1990) (findings must address reasoning and weight given various factors to support conclusions reached). We conclude in this case that the court did not adequately explain its application of criterion six.

We agree with the trial court that the factor relating to the primary-care-provider under criterion six “should be entitled to great weight unless the primary custodian is unfit.” Harris v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988). This does not create a presumption in favor of the primary-care-provider, but instead allows the court to give due consideration to the primary custodian in evaluating the child’s best interests. See id. at 418-19, 546 A.2d at 214 (presumption that the primary custodian will be awarded custody if fit would be inconsistent with the statutory scheme because the court must consider each factor). A person is entitled to this consideration, however, only if the primary-care-provider has been correctly identified.

The factor relating to the primary-care-provider is one consideration in a nonexhaustive list outlining the appropriate considerations in determining the best interests of the child. See 15 V.S.A. § 665(b) (“the court shall be guided by the best interests of the child, and shall consider at least [eight] factors”). We have not enunciated a definitive standard for determining the identity of the primary-care-provider under § 665(b)(6). Nevertheless, mere physical custody by one of two fit parents, during the time the estranged spouses live “apart” to satisfy the no-fault divorce requirements, should not in itself cause a former primary-care-provider to lose that status. See 15 V.S.A. § 551(7) (a divorce may be decreed “[w]hen a married person has lived apart from his or her spouse for six consecutive months and the court finds that the resumption of marital relations is not reasonably probable”); cf. Emmons v. Emmons, 141 Vt. 508, 511, 450 A.2d 1113, 1115 (1982) (“Merely leaving the homestead in and of itself is not sufficient to justify a finding of fault [relevant to distribution of marital property]. Such a result would substantially circumvent the no-fault divorce provision authorized by our statute.”).

A contrary holding may cause a primary-care-provider wishing to leave the home to uproot children from the marital residence solely to remain, in the view of the court, the primary-care-provider. See 15 V.S.A. § 551(7). This kind of parental strategizing is inimical to the best interests of children. Attention should be directed to the needs of the children rather than the actions of the parents. See Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 602 (1989) (“focus of the court’s decision must be the best interest of the child, not equity between the parties”); Lafko v. Lafko, 127 Vt. 609, 618, 256 A.2d 166, 172 (1969) (in custody dispute “opposing desires of hostile parents ... must yield to the paramount consideration of the children’s well-being”).

In Harris, we underscored the importance of balancing the best interests-of-the-child factors. Agreeing that the primary custodian factor, if that custodian is fit, is entitled to great weight, we stated that “[t]he exact weight cannot be determined unless there is evidence of the likely effect of the change of custodian on the child.” Harris, 149 Vt. at 418-19, 546 A.2d at 214. Presumably, the court followed this analysis. Citing Harris, the court stated, “Ordinarily, a child should not be removed from the care of a primary caretaker if that caretaker is fit.” Based on this statement, together with the rest of its analysis, it appears that the court in concluding that husband was the primary-care-provider may have given Ashley’s present living situation undue weight by not giving any weight to wife’s conceded primary care of Ashley for nearly seven years.

We decline to follow the unyielding approach of some courts which bifurcate the pre- and post-separation periods in determining the primary-care-provider. See, e.g., Efaw v. Efaw, 400 S.E.2d 599, 602 (W. Va. 1990) (“‘[t]he primary caretaker is that natural or adoptive parent who, until the initiation of the divorce proceedings, has been primarily responsible for the caring and nurturing of the child’”) (quoting Garska v. McCoy, 167 W. Va. 59, 278 S.E.2d 357 (1981)) (emphasis added). Instead, the inquiry should focus on all relevant periods of the child’s life, rather than exclusively on the period immediately preceding trial. See Draper v. Draper, 556 So. 2d 210, 214 (La. Ct. App. 1990) (child’s residence with mother for approximately one year prior to custody trial had been unstable and thus did not mandate a finding that his best interest required him to remain with her where stability and continuity had not played a significant role in his life while he lived with her); In re Thompson, 103 Or. App. 458, 460-61, 797 P.2d 1077, 1078 (1990) (wife, who moved out of family home and left eighteen-month-old child to minimize emotional impact of separation, was properly deemed primary parent; fact that husband provided primary care for year since separation was not determinative). We decline to excerpt any period from the child’s life in determining who, out of two competing parents, has provided the nurturing that would make the parent the primary-care-provider. The trial court, on the other hand, apparently accepted a per se rule that the parent with physical custody at the time of the divorce hearing is the primary-care-provider.

In sum, we cannot afford meaningful review because we cannot tell from the court’s decision if husband was the overall primary-care-provider under criterion six in light of all the circumstances, including the fact that wife had provided the primary care before the separation. On this record, we are left to speculate as to the reasons the court favored husband over wife with respect to Ashley’s placement. This is especially so because post-separation “primary care” of Ashley was relatively minimal in comparison to that before separation. At the time of trial, husband worked a schedule which allowed him to spend at most one full day — Sunday—with Ashley. Although husband could spend Mondays with Ashley during the summer, her school schedule made this impossible during the months school was in session. Upon separation, Ashley was transferred from the almost full-time care of her mother to the full-time care of baby-sitters, husband’s co-workers, and husband, who often took her to work. Ashley’s school, extracurricular activities and community would not have changed had wife been granted custody. When Ashley lived with husband, much of the care provided to her by others replaced care she had formerly received from a parent.

We realize that a parent should not be penalized for time at work spent away from a child, but consideration of the child’s best interests “requires comparison of the attributes of each parent.” Bissonette, 152 Vt. at 69, 564 A.2d at 601. Concededly, husband provided care after wife left the family home, but this was a function of wife’s absence, which made him the only parent at home. The issue cannot be decided solely on the performance of one parent. Id. The husband’s expert, who testified that husband was a good father and custody of Ashley should remain with him absent “compelling reason,” had investigated only husband’s relationship with Ashley. The court failed to justify its conclusion by an analysis of the facts over the entire relevant time period.

II.

If a different custody disposition is ordered on remand, the court may be required to alter the visitation order. Still, wife’s challenge to the original visitation arrangement is unfounded. Wife argues that the trial court’s order respecting visitation between husband and Morgan allowed for excessive parent-child contact. Even though the testimony indicated that husband worked more during the summer, the trial court did not abuse its discretion in awarding husband four weeks of visitation with Morgan during the summer. See Palmer v. Palmer, 138 Vt. 412, 414-15, 416 A.2d 143, 144 (1980) (visitation arrangement is for trial court’s discretion). Considering the facts as they existed at the time of trial, the court’s order was appropriate.

Wife’s contention that she was denied a fair trial based on remarks by the trial judge is also without merit.

On remand, the court is to apply the factors of § 665(b) to the situation at the time of hearing on remand, not solely to the situation as it existed at the time of the final divorce hearing. Cf. Klein, 153 Vt. at 557, 572 A.2d at 904 (court must rely on “most recent information available” in fashioning maintenance on remand).

Reversed in part and affirmed in part.