Pigeon v. Pigeon

782 A.2d 1236, 173 Vt. 464, 2001 Vt. LEXIS 291

• Court: Supreme Court of Vermont
• Decided: September 26, 2001
• Docket: 00-333
• Status: Published

Opinions

Father appeals from an order of the Franklin Family Court modifying parental rights and responsibilities by transferring sole legal custody to mother and reducing father’s weekend parent-child contact. Father contends: (1) the record does not support the court’s custody award; (2) there was no showing of a real, substantial and unanticipated change of circumstances warranting modification of father’s weekend contact with the child; and (3) reducing father’s weekend contact with the child was not in the child’s best interests. Because the court made no findings to support its decision to award mother sole legal parental rights and responsibilities, the court’s finding regarding changed circumstances warranting modification of the parent-child contact schedule was clearly erroneous. In addition, the court failed to indicate it considered the child’s best interests when modifying the award of parental rights and responsibilities or the contact schedule. We therefore reverse and remand.

Mother and father divorced in 1992 and shared joint legal rights and responsibilities for their one child, Zachary, born in 1990. In 1996, when the child was five years old, the parties stipulated to an amendment to the final order, “to minimize the disruption to Zachary’s schedule during the school year,” which increased father’s contact with the child. After the parties experienced some disagreements about the child’s medical treatment and a dispute about a holiday visit, father filed a motion to enforce the amended final order. On the day of the enforcement hearing, mother filed a motion to amend the final divorce order and amended order. In her motion, mother requested that the court choose one parent to be solely responsible for making medical decisions. Mother did not request any other change to the shared legal rights and responsibilities order. Mother also argued that the parent-child contact schedule should be clarified and modified “to minimize further problems in regard to parent-child contact schedule.” The court granted mother’s motion to modify and awarded her sole legal rights and responsibilities. Father appeals the modification decision.

Father first contends the court erred in transferring sole legal rights and responsibilities to mother. Father claims there were no findings regarding whether the transfer of sole legal rights and responsibilities to mother would be in the best interests of the child. He argues that, other than issues regarding the child’s medical condition, there was no evidence regarding the remaining bundle of legal rights and responsibilities included in 15 V.S.A. § 664(1)(A). Father also contends that there were no findings or evidence on whether or how the court’s award of medical decisionmaking authority to mother was in the child’s best interests.

Father is correct. Regarding legal rights and responsibilities, the court made the following findings: “The parties have had disputes concerning medical care for Zachary who suffers from allergies. The parties cannot cooperate in making decisions about Zachary’s medical care. Mediation between the parties is futile because they cannot deal with each other.” The court concluded that “[t]he parties are not able to share legal responsibility for the child.” The court made no reference to its consideration of the best interests factors or that its decision is in the child’s best interests. See Shea v. Metcalf, 167 Vt. 494, 499, 712 A.2d 887, 890 (1998) (the broad discretion of the family court to fashion parental rights and responsibilities orders is limited to those that serve the child’s best interests). The court also failed to explain what factors made mother the better parent to make medical decisions on behalf of Zachary. The family court has left us with no way to determine whether or how it applied the best interests factors, or how it reached its conclusion to award mother sole legal rights and responsibilities. See Nickerson v. Nickerson, 158 Vt. 85, 88-89, 605 A.2d 1331, 1333 (1992) (conclusions of law must be supported by findings of fact and an explanation of how the court reached its decision).

Father next claims that the court erred in concluding that there had been a real, substantial and unanticipated change of circumstances to justify a modification of his parent-child contact schedule. See 15 V.S.A §§ 664, 668. The court made the following findings on changed circumstances: the child “is now 10 years old, in school, involved in after-school activities, and not at home for most of the time on week days- during the school year” and “[ujnder the terms of the Final Order, the defendant never spends an entire weekend with [the child] during the school year.” The court concluded that there had been a real, substantial and unanticipated change of circumstances because the child’s school schedule did not permit him to spend substantial amounts of time with his mother on weekdays during the school year. It noted that the current order had been entered when the child was an infant and at home with his mother all the time on weekdays.

In deBeaumont v. Goodrich, 162 Vt. 91, 97, 644 A.2d 843, 847 (1994) (internal quotation marks and citation omitted), a change of custody case, we noted “[t]here are no fixed standards for determining what meets this threshold,” and that evaluation of “whether or not any given change is substantial must be determined in the context of the surrounding circumstances.” We also recognized that the threshold decision for a motion to modify is discretionary and that, as a result, this Court must affirm unless the discretion was erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence. Id. at 98, 644 A.2d at 848.

However, notwithstanding the great deference we afford the trial court in its exercise of discretion, the decision in this case is not supported by a “real, substantial and unanticipated change of circumstances.” The court relied on events that preceded the amended order in deciding whether there were changed circumstances to support a modification. The court examined the changes in the child’s schedule since the original divorce decree in 1992, when the child was an infant, rather than from the time of the amended order in 1996. Using this erroneous reference point, the court found that the main event triggering the change was the child’s attendance at school which resulted in his no longer spending all his time with his mother on weekdays as he did when he was an infant. The parties, however, amended the final order when the child began attending school. The court’s conclusion that an unanticipated change of circumstances permitted the requested modification, therefore, was erroneous.

Further, a child’s maturation from dependent infant to increasingly autonomous and active school-aged child, rather than being unanticipated, is a welcome and expected fact of life. The mere change in the after-school schedule of a child, without more, should not be sufficient to permit recourse to the courts to rearrange parent-child contact schedules. We note that mother, in her motion to amend the contact provisions, also raises the fact that she is no longer employed outside the home and is living in a different location. Perhaps there were grounds to support a finding of changed circumstances. Unfortunately, they do not appear in the court’s decision.

Finally, the court failed to make any findings or conclusions regarding the second part of the § 668 analysis, that the modified visitation schedule was in the best interests of the child. Absent any insight into the court’s analysis, we will not affirm the modified parent-child contact schedule. Nickerson, 158 Vt. at 88-89, 605 A.2d at 1333.

Reversed and remanded.