Pigeon v. Pigeon
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Pigeon v. Pigeon (2000-333); 173 Vt. 464; 782 A.2d 1236
[Filed 26-Sept-2001]
ENTRY ORDER
SUPREME COURT DOCKET NO. 2000-333
MARCH TERM, 2001
Allen E. Pigeon } APPEALED FROM:
}
}
v. } Franklin Family Court
}
}
Jill M. Pigeon } DOCKET NO. 246-8-91 Frdm
Trial Judge: Ben W. Joseph
In the above entitled cause, the Clerk will enter:
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 "[u]nder 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 "[w]hether 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.
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Dissenting
MORSE, J., dissenting. Because the record supports the award of sole
legal parental rights and responsibilities concerning medical care to the
mother, I would affirm on the understanding that the court ordered "legal
parental rights and responsibilities" modified by granting medical care
decision-making solely to mother. I would also affirm because the changes
in the child's schedule since the modified order support the court's
finding of changed circumstances regarding parent-child contact, and the
court did not abuse its discretion in reducing father's weekend schedule.
Mother and father divorced in 1992 and shared joint legal rights and
responsibilities for their one child Zachary, born in 1990. Mother was
awarded sole physical rights and responsibilities. In 1996, based on a
stipulation of the parties, the court amended the final order to allow
father more parent-child contact during the summer and holidays. The
amended order also awarded father parent-child contact during the school
year every weekend, alternating one and two-day weekends. In March 2000,
father filed a motion to enforce parent-child contact, and to amend the
1996 order to incorporate modifications to which the parties had agreed.
Mother moved to modify the final order based on the parties' inability to
cooperate regarding medical decisions and to minimize problems regarding
parent-child contact. After hearing testimony from mother and father, the
court granted mother's motion and modified the 1996 order as follows: the
court modified father's school year parent-child contact schedule,
eliminating his Friday overnight and Saturday contact during the
alternate week, but awarding father one overnight every Wednesday. The
summer schedule was also modified to allow the child to spend alternate
weeks with each parent.
On appeal, father first contends the court erred in transferring sole
legal custody 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. Father also claims that
mother's motion was based solely on medical decision-making and that there
was no evidence or findings to support a transfer of all legal rights and
responsibilities to mother. Modification of a parental rights and
responsibilities order is governed by 15 V.S.A. § 668. A court can modify
a parental rights and responsibilities order upon a showing of real,
substantial and unanticipated change of circumstances and if a
modification is in the best interests of the child. Id. Read in context -
that mother asked merely that medical care decision-making be transferred
to her - the order is not so broad as the majority reads it. It is
apparent from the wording of the order that the court was not awarding all
parental rights and responsibilities solely to mother. If it did so
intend, the language, "[s]he will make all routine decisions about his
medical treatment" would have been unnecessary.
The court made specific findings regarding the parties' inability to
make joint medical decisions. The court found that "[m]ediation between
the parties is futile because they cannot deal with each other." Because
the parties could no longer agree or communicate regarding issues
affecting their child's medical care, the court was required to award sole
legal rights and responsibilities to one parent. See Shea v. Metcalf,
167 Vt. 494, 499, 712 A.2d 887, 890 (1998) (where parties cannot agree or
communicate, joint decision-making is not in the best interests of the
child). The family court did not abuse its discretion in awarding sole
legal rights and responsibilities regarding medical decisions to the
custodial parent, mother. Accordingly, I would affirm.
Father next claims no real, substantial and unanticipated change of
circumstances occurred since the 1996 order that justified modification of
his weekend parent-child contact. Father argues the court measured the
change of circumstances from the original 1992 order, instead of the 1996
amended order. The family court supported its modification decision with
the fact that the child's school schedule, including after school
activities, did not permit him to spend substantial amounts of time with
his mother, that the child had previously spent his weekdays home with the
mother, and that the current order was entered when the child was an
infant. Although the last finding was incorrect, the change in the child's
after-school schedule and decreased amount of time spent with mother are
changed circumstances sufficient to warrant modification of the
parent-child contact schedule. See Circus Studios, Ltd. v. Tufo, 145 Vt.
219, 222, 485 A.2d 1261, 1263 (1984) (court may affirm trial court
judgment upon grounds different from grounds stated by trial court).
The majority holds, however, that a child's maturation and resulting
rise in activity level does not warrant a change in circumstances
sufficient to modify parent-child contact. Under the majority's approach,
a court cannot modify a visitation schedule to adapt to the child's
changing activity level and needs. Instead, a court, the parties, and
more importantly the child, must endure a schedule that although
appropriate when the child was five, no longer works or serves the child's
best interests. In this case, mother testified that she wanted a full
weekend with her child in which to share family time. Mother testified
that she has had little opportunity for such bonding time in
the years she has been denied a full weekend with her child. The child's
after-school schedule further limits mother's time and opportunity to bond
with the child. I see no error in the court finding a change of
circumstances sufficient to modify a change in the visitation schedule.
Not to so find on this record would mean that visitation schedules that do
not match a child's development would remain outmoded and unworkable.
Father's final argument is that there was no evidence that reducing
his weekend schedule was in the child's best interests. Modification of a
visitation order is within the discretion of the family court "and will
not be reversed unless its discretion was exercised upon unfounded
considerations or to an extent clearly unreasonable upon the facts
presented." Gates v. Gates, 168 Vt. 64, 74, 716 A.2d 794, 801 (1998)
(internal quotations and citations omitted). The family court modified the
contact schedule so that each parent had a full weekend with the child.
In addition, the court awarded father an additional weekday overnight. I
see no abuse of discretion in allowing the child uninterrupted weekends
with each parent, and thereby, eliminating transitions and opportunities
for discord.
For the aforementioned reasons, I would affirm.
Dissenting: BY THE COURT:
___________________________________ ______________________________________
James L. Morse, Associate Justice Jeffrey L. Amestoy, Chief Justice
______________________________________
John A. Dooley, Associate Justice
______________________________________
Denise R. Johnson, Associate Justice
______________________________________
Marilyn S. Skoglund, Associate Justice
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