Gates v. Gates

Annotate this Case

Gates v. Gates (96-412); 168 Vt. 64; 716 A.2d 794

[Opinion Filed 27-Mar-1998]
[Motion for Reargument Denied 11-Jun-1998]

ENTRY ORDER

SUPREME COURT DOCKET NO. 96-412

JUNE TERM, 1998

Ellen M. Gates } APPEALED FROM:
}
}
v. } Bennington Family Court
}
Winfield P. Gates, Jr. }
} DOCKET NO. 234-8-92Bndm

In the above-entitled cause, the Clerk will enter:

Plaintiff's motion to reargue, filed April 10, 1998, fails to identify
points of law or fact overlooked or misapprehended by this Court. The
motion is therefore denied. See V.R.A.P. 40.

Dooley, J., dissenting. The nucleus of plaintiff's motion for
reargument is contained in the following statement:

As precedent, the Supreme Court's holding stands for the proposition
that, as a jurisdictional matter, a course of willful, intentional and
deliberate parental conduct, warranting the finding of contempt, the
imposition of a $4,500.00 monetary sanction and the suspension of all
parent-child contact pending completion of a parenting course, in
conjunction with the complete cessation of all parent-to-parent
communication, does not constitute a real, substantial and unanticipated
change of material circumstances.

Appellant goes on to argue that if these facts do not show a change of
circumstances to meet the jurisdictional requirement, it is hard "to
imagine what does qualify."

Like many arguments of advocates, plaintiff's statement puts the facts
in the light that support her desired result. It is, however, a more
accurate portrayal of the facts and claims in this case than the
majority's statement that she claimed only that "the inability of the `log'
to facilitate communication between the parties caused a substantial
change in circumstances." I do not think it is fair to characterize
contemptuous misconduct as an example of poor communication.

Our rule indicates that reargument is appropriate when this Court has
"overlooked or misapprehended" a point raised by an appellant. V.R.A.P.
40. Neither the original opinion in this case, nor the one-sentence
denial of reargument, responds to the main appeal argument plaintiff has
made in the context of the facts of the case. At least, plaintiff deserves
an

explanation why contemptuous misconduct cannot be changed circumstances to
meet the applicable jurisdictional requirement. As a result, I conclude
that reargument is warranted under our rule and dissent from the refusal
to grant it. I am authorized to state that Justice Morse joins in this
dissent.

BY THE COURT:

Dissenting:

______________________________________
___________________________________ Jeffrey L. Amestoy, Chief Justice
John A. Dooley, Associate Justice

_______________________________________
___________________________________ Denise R. Johnson, Associate Justice
James L. Morse, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice

-------------------------------------------------------------------------------

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,
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.

No. 96-412

Ellen M. Gates Supreme Court

On Appeal from
v. Bennington Family Court

Winfield P. Gates, Jr. September Term, 1997

Paul F. Hudson, J.

Lon T. McClintock of Jacobs, McClintock & Scanlon, Bennington, for
Plaintiff-Appellant.

Winfield P. Gates, Jr., pro se, Bennington, Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund JJ.

SKOGLUND, J. Mother Ellen M. Gates appeals the decision of the
Bennington Family Court, which denied her request for modification of a
parental-rights-and-responsibilities order. Mother contends that the court
erred when it (1) concluded that there was no basis to modify either the
parties' shared-legal-responsibilities agreement or the visitation rights
of father, Winfield P. Gates, Jr.; (2) failed to bifurcate the modification
hearing; and (3) ordered the parties to submit future disputes regarding
shared-legal responsibility to mediation and binding arbitration before
seeking judicial relief. Father cross-appeals a part of the decision that
conditioned the resumption of his visitation rights with the children upon
the payment of half of mother's attorney's fees and court costs and his
completion, to the court's satisfaction, of a parenting-and-empathy-raising
course. We affirm the court's denial of mother's motion to modify the
parties' shared-legal-responsibilities agreement and the
parent-child-contact agreement. We strike, however, the court's order that
the parties first attempt mediation or arbitration before bringing future
disputes to the court. In addition, we strike the court's requirement that
father must first pay mother's attorney's fees and court costs before he
can

resume visiting with his children.
The parties were divorced on February 12, 1993, after thirteen years of
marriage. Pursuant to a stipulation developed by the parties with the help
of two mediators, the court awarded mother physical rights and
responsibilities for the parties' three children. Legal rights and
responsibilities, however, were to be shared by the parties. In addition,
father was awarded visitation with the children. The stipulation and
resulting divorce order included a provision wherein the parties agreed to
seek mediation, arbitration, or judicial remedy, in the event they could
not resolve a disagreement themselves.

The parties soon experienced serious difficulty communicating with one
another, and numerous conflicts arose between them. Less than a year after
the divorce, mother was granted a relief-from-abuse order prohibiting
father from communicating with her, except with regard to the children. In
an attempt to facilitate communications, the parties began using a journal,
which was mailed back and forth between them, to discuss issues involving
the children.

The conflicts between the parties concerning the children, however,
continued unabated. Over the next few years, both parties petitioned the
court on numerous occasions, and the court twice amended the final divorce
order. The first amended order, of January 1994, which was the result of a
stipulation reached by the parties after the father sought a modification
of parental rights, provided greater specificity regarding parent-child
contact. It explicitly incorporated by reference the majority of the
divorce order, including the section dealing with dispute resolution.
Shortly after the issuance of the first amended order, mother was granted
an extension of the relief-from-abuse order, which retained all of the
terms of the original relief-from-abuse order.

Less than a year later, after mother filed a motion for modification
of parental rights, the final order was amended again by stipulation of the
parties. The second amended final order of November 1994 again added
greater specificity regarding parent-child contact. Although quoting
nearly verbatim the provisions of the first amended final order, this order
did not include the section dealing with dispute resolution.

In addition to the motions to amend or extend the previous court
orders, each party asked the court, on several occasions, to find the other
party in contempt for violating one or another of the various court orders.
For example, in May 1995, mother filed a motion to find father in contempt
for failure to abide by visitation schedules. Two months later she amended
the contempt motion and claimed that father failed to return their oldest
son, then fifteen years old, on the day specified in the visitation
schedule. Furthermore, mother reported this incident to the Bennington
County State's Attorney and the police, and father was charged with
custodial interference.(FN1) In July 1995, concurrent with filing the
amended contempt motion, mother also filed two motions -- one for
modification of parental rights, requesting that the court grant her sole
legal responsibility for the children, and the other to modify father's
visitation rights.

The court subsequently notified both parties that it would hear both
mother's contempt petition and motions to modify in a bifurcated hearing.
The court indicated that it would first hear the contempt petition and the
"alleged basis for modification of the child custody order." If mother met
the required burden of proof concerning the modification order then, at a
later date, the court planned to hear evidence concerning the "best
interest of the children." After the initial hearing, the court found that
father had willfully, intentionally, and deliberately violated a court
order and, therefore, was in contempt of court. Because he was in contempt
of court, the court ordered that father's visitation rights be suspended
until he completed an approved parenting-and-empathy-raising course and
paid half of mother's reasonable attorney's fees and court costs.

In addition, the court found that no real, substantial, and
unanticipated change of circumstances had occurred and, therefore, the
court denied mother's motions to modify the shared-legal-responsibilities
agreement and to limit or extinguish father's visitation rights. The court
also found that the parties' original agreement failed to contain a
dispute-resolution plan

and, therefore, ordered that the parties attempt to resolve any future
disputes through mediation or binding arbitration before resorting to the
court system. These appeals followed.

Mother first contends the court abused its discretion by finding that
there was no substantial change in the circumstances to support a
modification of the parties' shared-legal-responsibility agreement or
father's visitation. Specifically, she claims that the inability of the
"log" to facilitate communication between the parties caused a substantial
change in circumstances. We conclude, however, that the court did not
abuse its discretion. The parties' allegations concerning the
circumstances existing from the time of the divorce, the evidence presented
at the modification hearing, and the court's findings, document a situation
that has not changed substantially.

This Court will uphold the trial court's decision concerning whether
there has been a substantial change in circumstances "unless `the
discretion of the lower court was exercised on grounds or for reasons
clearly untenable or to an extent clearly unreasonable.'" Hayes v. Hayes,
144 Vt. 332, 336, 476 A.2d 135, 138 (1984) (quoting Nichols v. Nichols, 134
Vt. 316, 318, 360 A.2d 85, 86 (1976)); accord deBeaumont v. Goodrich, 162
Vt. 91, 98, 644 A.2d 843, 847 (1994). A motion to modify a decision-making
arrangement "does not entail the violent dislocation realized by a change
in physical custody," Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677,
679-80 (1988), and, therefore, the threshold requirement of finding that a
substantial change has occurred is not as high. Still, there is a
threshold to be satisfied and the burden is heavy. See id. at 556, 554 A.2d at 680.

The parties initially agreed, after mediation, to the
shared-legal-custody arrangement, and they again agreed by stipulation to
continue this arrangement in the two amended divorce orders. From the time
the divorce was final, the parties were involved in an antagonistic and
contentious dispute concerning the children that was highlighted by the
dearth of constructive and effective communication. A breakdown in
communication between the parents may suffice as a

substantial and unanticipated change. See id at 555, 554 A.2d at 680. In
this case, however, it appears that communications were consistently poor.

Thus, the court did not err in holding the parties to their original
agreement, as modified by stipulation twice, by finding no substantial
change in the circumstances of their parenting situation. We recognize
that the parties' decision to share legal custody may have made their lives
as ex-spouses more difficult, but the ineffectiveness of the "log" as a
method of communication requires that they try something else, not that the
court alter the order establishing legal responsibility for the children's
lives.

Further, mother did not seek to modify the shared legal
responsibilities for the children based on a claimed inability of the
parents to decide religious, educational, medical or other issues included
in the scope of an award of legal responsibilities. See 15 V.S.A. § 664.
In fact, the court found just the opposite -- that the parties have been
able to effectively cooperate in such areas. For example, they have sought
counseling for all the children for emotional issues, have continued to
agree on a counselor and on the need for counseling for the eldest child,
have agreed to a transfer of schools for their oldest son, and are
supportive of his academic efforts. Mother's only complaint about the
exercise of a specific legal responsibility involved father's decision to
take his eldest son to get a driver's license without first notifying
mother of his intentions. This is not the basis for injecting the court
again into the lives of the children.

Because we find no support for mother's claim that a substantial
change in material circumstances has occurred, we conclude that the court
did not abuse its discretion in declining to modify the
shared-legal-responsibility agreement or father's visitation rights.

II.

Mother next contends that the court erred by failing to bifurcate the
hearing to determine whether to modify the parties'
shared-legal-responsibilities agreement and the father's visitation, as it
had declared it would do. Specifically, she claims that the court went
beyond consideration of issues of substantial change and included in its
decision a consideration of the children's best

interests. We find no reversible error, if any error at all.

Before a court can modify a custody or
parental-rights-and-responsibilities order, the moving party must first
prove that a "real, substantial and unanticipated change of circumstances"
has occurred. 15 V.S.A. § 668. Only after such a finding may the court
move on to the question of what arrangement is in the best interests of the
children. See id.; see also Kilduff, 150 Vt. at 553, 554 A.2d at 678;
Hayes, 144 Vt. at 335-36, 476 A.2d at 138. This two-step approach ensures
that the Legislature's intent to keep the best interests of the children
paramount is satisfied by precluding courts and opposing parties from
easily changing final orders and, thereby, causing disruption in the
children's lives. See Hayes, 144 Vt. at 336, 476 A.2d at 138.

Pursuant to V.R.F.P. 4(j), the court, ruling on a motion to modify,
may bifurcate the proceedings. During the first phase, the court should
"determine and make findings as to whether there has been a real,
substantial and unanticipated change of circumstances." V.R.F.P. 4(j). If
a substantial change is found, the court, during the second phase, may then
consider what is in the best interest of the children. See Hayes, 144 Vt.
at 335-336, 476 A.2d at 138. If no change is found, however, the court may
dismiss the motion without reaching the merits of the action. There is no
bright-line test for determining whether the required change in
circumstances has occurred. See deBeaumont, 162 Vt. at 97, 644 A.2d at 847
("There are no fixed standards for determining what meets this threshold.")
Without question, the distinction between evidence that the court is
proscribed from considering and evidence that it is permitted to assess
during the first phase is subtle. In anticipation of this potential
difficulty, we have warned the courts that they "must not confuse [their]
analysis of changed circumstances with [their] determination of the
children's best interests." Id. And yet, we have held that the court must
also determine whether the new circumstances have such an effect upon the
children that it renders the change substantial. See Wells v. Wells, 150
Vt. 1, 4, 549 A.2d 1039, 1041-42 (1988) ("`There can be no fixed standards
to determine what constitutes a substantial change in

material circumstances [and, therefore, the] court is guided by a rule of
very general application that the welfare and best interest of the children
are the primary concern in determining whether the order should be
changed.'" (quoting Gerety v. Gerety, 131 Vt. 396, 402, 306 A.2d 693, 695
(1973))). Thus, while the court is not permitted to decide what is in the
best interest of the children during the first phase of the hearing, it may
still consider the impact of the change upon the children in deciding
whether the circumstances have substantially changed.

In this case, the court issued an unambiguous pre-trial order
bifurcating the hearing. At the first phase of the bifurcated hearing, the
court considered mother's claimed change in circumstances -- the parties'
inability to communicate by use of the "log." The court found that while
the parties were not using the "log" to communicate candidly in the best
interests of the children, "the problems with the `log' cannot constitute a
substantial basis for modification." As was noted previously, this
conclusion was not an abuse of discretion.

In its analysis, the court made reference to 15 V.S.A. § 666, which
requires a court to presume that "any agreement between the parents which
divides or shares parental rights and responsibilities" is in the best
interests of the child. The gravamen of mother's complaint is that the
court considered the children's best interest during the first phase of the
hearing -- thus failing to bifurcate the hearing as the court initially
said it would. Specifically, mother points to the court's statement that:

Revisiting [§ 666], . . . , the Court cannot find it is in the
children's best interest to have the defendant excluded from `legal
responsibility' decisions. He is vitally interested in his children's
upbringing, even if misguided. Further, the children love him and
rely on his wisdom when he is providing it in a wholesome
manner.

(Emphasis added.)

Admittedly, the court's reference to the children's best interest is
confusing and, at first glance, may appear to impermissibly expand the
limited scope of the initial phase of the bifurcated modification hearing.
Because the evidence and the findings support the court's

conclusion that the alleged change was not substantial in nature, the
court's subsequent discussion of what is in the best interest of the
children is superfluous and, therefore, does not render the court's initial
finding that there was no substantial change in the circumstances
invalid.(FN2)

The court also denied mother's motion to modify father's visitation,
finding no change of circumstances sufficient to grant her request. It
did, however, find father in contempt for his violation of earlier
child-contact orders. The court punished father's contempt by suspending
his parent-child contact until he completed a parenting-and-empathy-raising
course. Thus, the court chose to require further education of father
rather than abridge his parent-child-contact rights. This was within the
court's discretion and we find no error.

III.

Mother also contends the court exceeded its authority when it ordered
that, in the future, if the parties experienced difficulties in
communicating about their legal responsibilities that they seek mediation
and, should mediation fail, that they submit the matter to binding
arbitration before resorting to the court for relief. We agree.

The court noted that the parties' agreement on shared rights and
responsibilities, as reflected in the second amended order of divorce,
failed to contain a dispute-resolution provision and opined that 15 V.S.A.
§ 666 requires inclusion of a dispute-resolution mechanism in all

parental-rights-and-responsibility agreements. Mother faults the court
with failure to refer to the original divorce order which contained an
alternative-dispute-resolution (ADR) provision. While we agree with the
court's conclusion that the second amended order contains no method to
settle disputes, notwithstanding the original agreement of the parties to
submit disputes to mediation, arbitration, or the court, we reject the
court's solution to resolve future disputes.

Two of the main goals of ADR are to (1) allow the parties to settle
their dispute and (2) "avoid the courts," Thorgaard Plumbing & Heating Co.
v. County of King, 426 P.2d 828, 833 (Wash. 1967) (noting that avoidance of
court is the purpose of arbitration), and, thus, potentially avoid the
stricter formalities, higher costs, and longer delays associated with
litigation. See State v. P.G. Miron Constr. Co., 512 N.W.2d 499, 504 (Wis.
1994). For the same reasons, we acknowledge the crucial role that ADR
processes play in settling disputes in Vermont. See generally, The
Governor's Commission on Dispute Resolution, Dispute Resolution in Vermont
(1994) (summarizing ADR processes available in Vermont and recommending
improvements). Furthermore, we note that Vermont has a long history of
relying on ADR mechanisms, see id. at 6, and therefore conclude that ADR is
a welcome, necessary, and complementary part of an integrated and healthy
Vermont community.

In this case, however, the court's order can not stand. First, the
order permits the parties to return to court after mediation has failed,
but only after submitting the matter to binding arbitration. A court may
not order the parties to submit their future disputes to arbitration
without a voluntary agreement of the parties concerned, or a statute or
rule authorizing such an order. See e.g., Tracer Research Corp. v.
National Envtl. Servs. Co., 42 F.3d 1292, 1294 (9th Cir. 1994)
("Notwithstanding the federal policy favoring it, `arbitration is a matter
of contract and a party cannot be required to submit to arbitration any
dispute which he has not agreed so to submit.'" (quoting United
Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)));
Allred v. Educators Mut. Ins. Ass'n, 909 P.2d 1263, 1265 (Utah 1996)
(statute permits court to order parties to submit future disputes to
arbitration if both

parties agree in writing); Employers Ins. of Wausau v. Jackson, 527 N.W.2d 681, 687 (Wis. 1995) (statute authorizes court to order parties to
arbitration if one party fails, neglects, or refuses to perform under a
written arbitration agreement); Kelm v. Kelm, 623 N.E.2d 39, 42 (Ohio 1993)
(court required to order ADR based on written antenuptial agreement to
arbitrate future disputes regarding domestic relations matters); New Motor
Vehicle Arbitration, 9 V.S.A. §§ 4170-81 (requires disputes concerning
automobile warranty problems to be heard by an arbitration board).

Further, the order contains no flexibility to accommodate emergency
situations where time may be of the essence. It is certainly
understandable that the court would seek to divert the parties' hostilities
to another forum. As written, however, this provision exceeds the court's
authority.

Therefore, we strike that portion of the court's order that states:

[I]n the future should difficulties in communication arise with
regard to "legal responsibility" the parties will first seek to mediate
the matter within 30 days and should that fail they shall submit the
matter to binding arbitration. They shall bear all costs of such
processes equally and only failing binding arbitration shall the
matter be returned to Court with regard to necessary
communication about the children's "legal responsibility."

IV.

Finally, father, in his cross appeal, contends that the court abused
its discretion by conditioning visitation with his children upon his
payment of half of mother's attorney's fees and court costs.(FN3) We agree.

In Vermont, the legislative intent behind granting non-custodial
parents the right to visit

with their children is clearly established. Section 650 of Title 15 states
that: The legislature finds and declares as public policy that after
parents have separated or dissolved their marriage it is in the best
interests of their minor child to have the opportunity for maximum
continuing physical and emotional contact with both parents, unless direct
physical harm or significant emotional harm to the child or a parent is
likely to result from such contact.

Because of this mandate, the suspension or rescission of a
non-custodial parent's visitation rights is a grave matter and one not to
be entered into lightly. See Breznick v. Breznick, 127 Vt. 80, 82-3, 238 A.2d 643, 645-46 (1968) ("[T]he law attempts to preserve . . . the
relationship between each parent and child, in spite of legal separation
[and, therefore, unless] some sufficient opposing cause, relating to the
welfare of the child, is shown, a visitation privilege of some sort is the
right of a parent as a matter of course."); Cleverly v. Cleverly, 147 Vt.
154, 157, 513 A.2d 612, 614 (1986) ("A visitation privilege of some sort is
the right of a parent unless good cause exists to deny visitation."); see
also In re Duckworth, 146 A.2d 365, 367 (Pa. Super. Ct. 1958) ("It is
against public policy to destroy or to limit the relation of a parent and
child [and, therefore, as] a general rule, both parents should see their
children and the estrangement of parent and child should be avoided
wherever possible.").

Granting, modifying, or denying visitation "is within the discretion
of the trial court and will not be reversed `unless its discretion was
exercised upon unfounded considerations or to an extent clearly
unreasonable upon the facts presented.'" Cleverly v. Cleverly, 151 Vt.
351, 355-56, 561 A.2d 99, 102 (1989) (quoting Loeb v. Loeb, 120 Vt. 489,
492, 144 A.2d 825, 827 (1958)). We conclude, however, that conditioning
father's visitation upon his payment of half of mother's attorneys' fees
and court costs is unreasonable. While we have not had the opportunity to
address this issue before, it is analogous to prior cases where we have
struck down conditioning visitation upon the payment of outstanding child
support and alimony payments. See Boone v. Boone, 133 Vt. 322, 323-24, 340 A.2d 53, 54 (1975) ("Denial of visitation rights where the record indicates
the primary purpose to be punishment of the father

for failure to pay support money for his child is not justifiable."); see
also Block v. Block, 112 N.W.2d 923, 927 (Wis. 1961) ("The paramount reason
for visitation is the benefit to be derived by the child from associating
with its parents and its welfare should not be jeopardized by an order
conditioned upon payment of support money or alimony even though such order
might prove effective as a collection device."). The court's order was an
effective method of ensuring that father would pay mother's bills and was
also imposed as a punishment for father's contempt of the court's earlier
order; however, the restriction goes too far and we can find no
justification for its imposition.

Further, taking away visitation from a parent necessarily takes it
away from a child as well. Although father was in contempt of the court's
order, his failure to pay the attorney's fees as ordered does not make him
an unfit parent. Finally, the payment of mother's attorney's fees and
court costs does not have any rational relationship to the best interests
of the children. See Breznick, 127 Vt. at 82-3, 238 A.2d at 645-46.
Unless there is a finding that the payment of attorney's fees and court
costs is related to the party's fitness as a parent or that it directly
affects the welfare of the children, we will strike such an order as being
arbitrary, unreasonable, and impermissible.

To be clear, the contempt-of-court fine stands; however, payment of
the fine is not required before the father may resume visitation. Once he
successfully completes a parenting-and-empathy-raising course to the
court's satisfaction, his visitation should be reestablished.

At oral argument, father raised for the first time his request that we
reverse the court's finding of contempt based on the fact that the eldest
son was now residing with him, apparently with the acquiescence of the
mother. This subsequent turn of events does not alter the facts as found
by the court that the father, at the time of the hearing on the contempt
motion, was in contempt of the court's order. Therefore, father's request
is denied. See Hall v. Department of Social Welfare, 153 Vt. 479, 487, 572
2d 1342, 1347 (1990) (failure to raise issue at earliest opportunity
precludes Court from considering it on appeal).

The denial of the motion to modify parental rights and
responsibilities is affirmed; the provisions requiring the use of
alternative-dispute-resolution methods before the parties may resort to the
court and father's payment of his contempt fine prior to reestablishment of
his visitation rights are stricken.

FOR THE COURT:

_______________________________________
Associate Justice

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Footnotes

FN1. This charge was still pending on June 24, 1996, when the court
issued the order that is the basis of this appeal.

FN2. We recognize that escalating warfare between parties may, in
certain circumstances, justify modification of a parenting agreement. In
this case, however, after six pages of docket entries and twenty-two
motions on various matters filed by both parties, the majority recognizes
that no court order will ever remove the antagonistic bitterness that these
parents choose to bring to their interactions or give these children
parents who will respond to one another with dignity and respect. The
court has to work with the family as presented.

Furthermore, the dissent asserts that, in order to modify the divorce
order to require dispute resolution, the court had to have found a real,
substantial, and unanticipated change of circumstances. While we find that
portion of the court's order requiring ADR to be error as discussed in
Section III of this opinion, we do not give the provision the significance
bestowed upon it by the dissent. The appearance of an ADR requirement in
this court's order should not be interpreted as a finding of a real,
substantial, and unanticipated change of circumstances but, rather, the
court's interpretation that such a provision was required by 15 V.S.A. §
666.

FN3. Father, appearing pro-se, noted in his brief that "[t]he other
condition of this decision, that the [father] pay one half of the
[mother's] $9,000 attorney's fees, before he can resume visitations with
his children is ludicrous and ridiculous given the fact that the Defendant
has an annual income of less than $11,000." While the statement does not
clearly indicate that father is appealing the court's order, we will treat
it as an appeal. See Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138
(1983) (we will consider issues raised by pro-se litigant even though he
failed to properly or clearly brief issue in his appeal).

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Dissenting

No. 96-412

Ellen M. Gates Supreme Court

On Appeal from
v. Bennington Family Court

Winfield P. Gates, Jr. September Term, 1997

Paul F. Hudson, J.

Lon T. McClintock of Jacobs, McClintock & Scanlon, Bennington, for
Plaintiff-Appellant.

Winfield P. Gates, Jr., pro se, Bennington, Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund JJ.

DOOLEY, J., dissenting. The majority recognizes that "at first
glance" the family court's reliance on the best interest of the child to
determine whether a change of circumstances in the custody situation
existed "may appear to impermissibly expand the limited scope of the
initial phase of the bifurcated modification hearing." It fails to
recognize that the court's action was also not proper at any other glance.
Unfortunately, the majority's action leaves this litigation, and the
parties, in status quo, the worst outcome possible. Accordingly, I dissent
from the affirmance of the denial of the motions to modify.

Although the majority summarizes the facts and the proceedings below,
I think some amplification is necessary. As the majority notes, these
parties have been in continuous conflict and litigation since their
February, 1993 divorce. Even after the initial modification of the divorce
order, and the abuse prevention orders, the parties continued to return to
court. Indeed, it is difficult to find any time when some request for
court intervention was not pending. The docket entries before us, covering
the period between September 21, 1994 and July 24, 1996, go on for most of
six pages. They show twenty-two motions filed during that period,
including

eight for contempt or enforcement or both. This does not include the
criminal litigation arising out of defendant's prosecution for custodial
interference.

On July 1, 1995, plaintiff moved to modify the order establishing
joint parental rights and responsibilities for the three children and
defendant's visitation order. She requested that defendant's role in the
children's lives be reduced to limited, supervised visitation. On the same
day, she moved to hold defendant in contempt because, among other things,
he used telephone contact to disparage plaintiff as a custodian and refused
to return the oldest child from visitation. The motion to modify was
amended in September to provide more specificity.

On October 10, 1995, the family court judge sent the parties a letter
which stated in part:

As I indicated earlier, I intend to bifurcate this hearing. The first
segment will deal only with the contempt and the alleged basis for
modification of the child custody order. If as to the latter motion
the burden of proof is carried, the court would then schedule the
best interests phase of the hearing and seek the report and
evaluation by Dr. Halikias.

Dr. Halikias is a psychologist who the family court judge apparently
selected for a family evaluation.

Plaintiff's motions were heard on December 8, 1995, March 26, 1996 and
April 22, 1996. On June 27, 1996, the court issued its order holding
defendant in contempt and denying the motions to modify. The entire court
s rationale for denying the motion to modify the
parental-rights-and-responsibilities order was:

Revisiting that statute, and at present, the court cannot find it is in
the children's best interest to have the defendant excluded from
"legal responsibility" decisions. He is vitally interested in his
children's upbringing, even if misguided. Further, the children
love him and rely on his wisdom when he is providing it in a
wholesome manner. In short, the problems with the "log" cannot
constitute a substantial basis for modification and the plaintiff's
motion is DENIED.

The rationale for the decision to deny the motion to modify the
visitation order is spread over the modification section of the decision.
It appears to be in the following sentences:

However, the children love the defendant and will benefit from
wholesome and appropriate contact with him once he is able to
participate in the same.
. . .

In so far as the plaintiff seeks to limit or extinguish the
defendant's right to contact with his children, that is DENIED. It
is appropriate that at present his right be suspended for contact
with his children until he has complied with this court's contempt
order. . . . Until he prepares himself to do so, without reservation,
the visits will neither be productive for him or for the children.

The contempt order required defendant to complete a parenting and
empathy-raising course and to pay plaintiff's attorney's fees and the court
costs associated with the proceeding.

I have no difference with the majority over the applicable law. The
governing statute requires that the court engage in a two-step inquiry in
determining a motion to modify. See 15 V.S.A. § 668. The moving party
must first show that there has been a "real, substantial and unanticipated
change of circumstances," id., and then that modification is in the best
interest of the child. See deBeaumont v. Goodrich, 162 Vt. 91, 95, 644 A.2d 843, 845-46 (1994). Only if the court finds a change of circumstances
may it move on to consider the best interests of the child. See Kilduff v.
Willey, 150 Vt. 552, 553, 554 A.2d 677, 678 (1988). Although the burden of
showing a change of circumstances to warrant a shift of physical custodian
is "heavy," see id., the burden of showing such a change to modify a legal
responsibility order is easier. See id. at 555, 554 A.2d at 679-80; Pill v.
Pill, 154 Vt. 455, 460, 578 A.2d 642, 645 (1990).

Because the analysis involves two distinct steps, our rules authorize
the court to bifurcate the presentation of evidence:

If a hearing is to be held on a motion to modify, the court may
bifurcate the hearing and first determine and make findings as to
whether there has been a real, substantial and unanticipated change
of circumstances; if no such change is found, the court may
dismiss the motion without reaching the merits of the action.

V.R.F.P. 4(j). The point of the rule is to allow the court to require the
change of circumstances showing "before the court entertains evidence on
the merits of the ruling which the moving party seeks to change." Reporter
s Note to 1991 Amendment to V.R.F.P. 4(j). It is undisputed that the court
was operating under Rule 4(j) in this case.

The court's decisions on the motions to modify are clearly based on
whether modification

is in the best interest of the children and resolve the merits of the
motion rather than the threshold question of change of circumstances. The
modification of the legal responsibility order was denied because the
children love defendant and rely on his wisdom. The modification of the
visitation order was denied because the children will benefit from
appropriate contact with defendant.

In the ordinary case, both of these decisions would be sustainable,
and they may ultimately be the correct decision in this case. They are not
sustainable, however, when the court has bifurcated the proceeding and is
specifically required to make findings on whether there was a real,
substantial and unanticipated change of circumstances and has failed to do
so. See Pill, 154 Vt. at 460, 578 A.2d at 645 ("court must make findings
sufficient to satisfy the threshold requirement"); Kilduff, 150 Vt. at 555,
554 A.2d at 680 ("court must make specific findings" on issue of whether
breakdown of communication is a change of circumstances). Nor can we
sustain the result when plaintiff relies on the bifurcation order to hold
back evidence on the best interest of the children, only to find that the
court's decision is based on its view of the children's interests.

As I read the majority decision, it has four answers to the above
analysis: (1) the family court found that plaintiff failed to show a real,
substantial and unanticipated change of circumstances with respect to both
motions to modify; (2) because the evidence supports the court's decision
that there was no change of circumstances, the court's findings about the
best interest of the children are harmless and superfluous; (3) there never
was a change of circumstances with respect to the legal responsibilities
order because the parties never could communicate; and (4) the family court
found that the parties could cooperate on decisions within the scope of
their legal responsibilities.

My first disagreement with the majority decision is that its rationale
relates solely to the motion to modify the legal responsibilities order.
Contrary to the majority decision, the motion to modify visitation was not
based on the parties' failure to communicate, but instead on defendant's
constant undermining of plaintiff's custody and his refusal to return the
oldest child

to plaintiff. We have recognized that violations of custody and visitation
orders can be a change of circumstances. See Kilduff, 150 Vt. at 556, 554 A.2d at 680; Wells v. Wells, 150 Vt. 1, 4, 549 A.2d 1039, 1042 (1988).
Indeed, in this case, in light of the family court's conclusion that
defendant was in "knowing, willful violation" of the court's order on
numerous occasions, I would hold that there are changed circumstances as a
matter of law. In any event, despite the bifurcation, the court clearly
rendered its decision based on the best interests of the children in
violation of the rule.

I also disagree with the majority's four reasons for affirmance of the
legal rights and responsibilities order. They rest on the fiction that the
family court concluded that no real, substantial and unanticipated change
of circumstances existed and the rest of its findings and conclusions can
be ignored. In fact, there is no finding or conclusion on whether a change
of circumstances has occurred. All of the relevant statements are quoted
above. The only statement that comes close to the majority's
characterization is the family court conclusion that the problems with the
log "can not constitute a substantial basis for modification." That
statement says nothing about change of circumstances. Cf. Pill, 154 Vt. at
459, 578 A.2d at 644 (subsidiary findings are not equivalent of finding
that there was a real, substantial and unanticipated change of
circumstances). More important, it follows immediately after the
discussion of what is in the best interest of the children and starts "In
short" to indicate that it is a summary of that discussion. We cannot
fairly find from the court's statement that it concluded that no real,
substantial and unanticipated change of circumstances existed.

There is a more fundamental reason why the majority cannot be correct.
The family court modified the divorce order, albeit on dispute resolution,
and had to find a real, substantial and unanticipated change of
circumstances to do so. That modification is based on the inability of the
parties to resolve their differences, exactly the grounds asserted for the
motion to modify the legal responsibilities order.

Nor can I agree with the majority's other characterizations of the
record, as used to support its decision. Nowhere did the family court find
that the parties are able to effectively

cooperate with respect to "religious, educational, medical or other issues
included in the scope of an award of legal responsibilities." Nor is there
any finding that the parties never could communicate by way of the log.
The court's finding is "that the 'log' has now impaired their ability to
communicate" (emphasis supplied), a choice of words that at least implies
that the breakdown did not always exist. Moreover, even if we had the
power to supply findings where they are missing, we cannot do so in this
case because we have only a partial transcript of the evidence.(FN1)

Although I agree with the majority that we cannot affirm the family
court's requirement of binding arbitration or its denial of visitation
until defendant paid plaintiff's attorney's fees, the situation in which we
are leaving these parties heightens the concerns behind this dissent. These
parties are locked in a destructive pattern of intense conflict and
continuous litigation that is consuming them and all their economic
resources and alienating their children. In a disturbing demonstration
that the present situation is not working, one of the children has filed in
this Court an "emergency" motion to modify the custody order.(FN2) The
family court recognized that the status quo was unacceptable and fashioned
an order to improve the situation. I doubt that it believed that the
second choice was to do nothing, but that is exactly the result of today's
decision.

To the extent that the majority opinion addresses the merits of this
dispute, its view appears to be that when parties are in open warfare, more
warfare can never be a change of circumstances to allow the court to
intervene and try to bring order, especially to protect the interests of
the children. This is a very disappointing message to the parties and
children in this case, and a particularly disappointing message to the many
parents who come to our family

courts seeking stability in the lives of their children. I dissent.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. The parties could not afford a transcript and did not order
one. However, a transcript of the first three days of the evidentiary
hearing was produced by mistake and is before us.

FN2. The motion was treated as a request for extraordinary relief
which was referred back to the family court.

------------------------------------------------------------------------------
Dissenting

No. 96-412

Ellen M. Gates Supreme Court

On Appeal from
v. Bennington Family Court

Winfield P. Gates, Jr. September Term, 1997

Paul F. Hudson, J.

Lon T. McClintock of Jacobs, McClintock & Scanlon, Bennington, for
Plaintiff-Appellant.

Winfield P. Gates, Jr., pro se, Bennington, Defendant-Appellee.

PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J., dissenting. I agree with Justice Dooley that the parents
existing legal relationship to the children is the "worst outcome possible."
On this record, I cannot imagine any good coming from continued shared
legal rights and responsibilities.

I am dismayed also that we are creating a rule of law that there
cannot be a "significant change of circumstances" if the custodial
arrangement was bad from the start. If these parents made a mistake -- a
colossal one it seems from the facts -- by agreeing to shared legal
custody, we ought not fall victim to the illusion that perpetuating the
wrong will somehow make it right.

In a related area of juvenile law, the concept of "stagnation,"
denoting a continuation of the status quo, is deemed a "change of
circumstances" to allow termination of parental rights. See In re J.R., 164
Vt. 267, 271, 668 A.2d 670, 673 (1995) (continuing risk supports finding of
material change of circumstances).

In truth, stagnation is not a change in the facts, but the failure of
anticipated improvement in the parent-child relationship. See In re D.B.,
161 Vt. 217, 219, 635 A.2d 1207, 1209 (1993) (change of circumstances is
"failure of . . . expectation"). Should not the failure of the

expectation that parents with shared custody will cooperate in the future
likewise be a change in circumstances?

This case, it seems to me, is evidence that my dissent in Gazo v.
Gazo, ___ Vt. ___, ___, 697 A.2d 342, 351-52 (1997), proposing that the
present two-pronged test required to modify custody should become an
integrated standard, makes sense. Had this Court allowed the circumstances
to be considered together with the their effect on the children s best
interests, this case would be in an entirely different, and I venture
brighter, light.

I would reverse.

_______________________________________
Associate Justice

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