Bolduc v. Courtemanche

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 90Ä145

                            DECEMBER TERM, 1991


Andre Bolduc                      }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Addison Superior Court
                                  }
                                  }
Laurie Courtemanche               }
                                  }          DOCKET NO. S155Ä88Af


             In the above entitled cause the Clerk will enter:

     The father appeals from an order by the presiding superior court judge
awarding custody of his two minor children to their mother following a
parentage action.  Because we cannot determine whether the presiding judge's
order rests on the findings of fact made by the assistant judges or on the
findings made by the presiding judge, we vacate the order and remand.

     Following a two-day hearing before the superior court, the two
assistant judges prepared an order awarding custody to the father.  The
presiding judge did not sign that order.  Two days later, the assistant
judges issued findings of fact and conclusions of law.  The presiding judge
disagreed with some of those findings and with the conclusion that custody
should be with the father.  She prepared her own findings and conclusions.
The two assistant judges were unavailable when she later signed a new order
awarding custody to the mother.  The record contains ambiguous and equivocal
statements by the presiding judge concerning whether she took the assistant
judges' factual findings into account when reaching her conclusion and
issuing her order.  She clearly ruled that the award of custody involved a
mixed question of law and fact.

     The first issue presented is whether the order prepared by the
assistant judges had any effect.  It did not.  Title 4 V.S.A. { 112 makes
clear that "questions of law shall be decided by the presiding judge" and
that "[m]ixed questions of law and fact shall be deemed to be questions of
law."  4 V.S.A. { 112(b).  Furthermore, "[t]he presiding judge alone shall
decide which are questions of law, questions of fact, and mixed questions of
law and fact."  Id.  The conclusions to be drawn from the facts found are
conclusions of law which are to be decided by the presiding judge.  Here,
the assistant judges lacked authority to award custody, and their order
awarding custody to the father is a nullity.

     The second issue is the effect of the order prepared by the mother's
attorney and signed by the presiding judge.  As the order required the
application of the law to the facts found, it was proper for the presiding
judge alone to prepare and sign the final order.  4 V.S.A. { 112(b).  The
presiding judge, however, must base conclusions of law on the factual
findings of the court.  V.R.C.P. 52(a).  The "court" consists of the
"majority of the judges of a superior court."  V.R.C.P. 83(1).

     Here, the assistant judges prepared factual findings.  The presiding
judge disagreed with some of those findings and prepared her own.  The
record reveals uncertainty about whether she based her conclusion and order
on the assistant judges' findings, her own findings, or both.  The assistant
judges' factual findings must be taken as the findings of the court in this
matter because they were made by a majority of the court.  The findings of
the presiding judge, to the extent that they are inconsistent with those of
the assistant judges, are without effect.  On remand, the presiding judge
must apply the law to the findings made by the assistant judges in awarding
custody.

     Order vacated and cause remanded.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice