Porcaro v. Drop

Porcaro v. Drop (2001-177); 175 Vt. 13; 816 A.2d 1280

[Filed 27-Dec-2002]


       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. 2001-177

  Melissa Porcaro	                         Supreme Court

                                                 On Appeal from
       v.	                                 Rutland Family Court

  Mark Francis Drop	                         January Term, 2002 


  William D. Cohen, J.

  David Putter and Cassandra Edson of Putter & Edson, LLP, Montpelier, and
    Thaddeus Lorentz of Lorentz, Lorentz & Harnett, Rutland, for 
    Plaintiff-Appellant.

  Eugene Rakow of Biederman & Rakow, P.C., Rutland, for Defendant-Appellee.


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


       ¶ 1.  SKOGLUND, J.    Mother appeals from a family court order
  awarding custody of the parties' minor child to father.  Mother's claims of
  error consist of two basic contentions: (1) the court erred in failing to
  find that mother was the child's primary care provider, and to accord that
  fact sufficient weight and deference in its decision; and (2) the court
  impermissibly relied on mother's relocation out of state in its decision. 
  We affirm.     
   
       ¶ 2.  Although never married, the parties lived together for
  several years in Rutland, and had a child, born in April 1996.  In May
  1999, the parties separated.  In October, they stipulated to a temporary
  court order awarding parental rights and responsibilities.  The order
  provided that mother would retain physical rights and responsibilities, and
  the parties would share legal custody.  

 

  Father was afforded substantial visitation, consisting of two weekdays, one
  overnight on weekends, and portions of holidays, vacations, and birthdays.    

       ¶ 3.  Although the parties reunited in December 1999, they separated
  again in March 2000, whereupon they reverted to the provisions of the
  temporary order.  Evidence showed, however, that father spent considerable
  time with the child beyond that specified in the order, including two days
  on weekends and other occasions when mother was unavailable.  Also at this
  time, mother became acquainted through the Internet with a man named Maco
  Stewart, who resides in Los Alamos, New Mexico.  In June, after two
  in-person meetings with Stewart in April and May, mother moved with the
  child to Stewart's residence in New Mexico.  Father thereupon filed a
  contempt motion for interference with visitation, and mother filed a motion
  to modify parent-child contact.
   
       ¶ 4.  Following an evidentiary hearing, the court issued a written
  decision in March 2001.  The court observed preliminarily that the October
  1999 order was designed to be temporary.  Therefore, the court defined its
  task as determining the custody placement that would serve the child's best
  interests, rather than whether there had been a substantial change of
  circumstances. (FN1)  The court proceeded to review the statutory factors set
  forth in 15 V.S.A. § 665(b).  The court found that both parties had the
  ability and disposition to provide the child with love, affection and
  guidance, to provide for the child's present and future developmental
  needs, and to foster a positive relationship with the non-custodial parent. 
  The court further found that mother "was the primary care giver during the
  child's first two years of life, although this has changed over time to
  become more equal."    As to the parties' ability to provide the child with
  a safe and stable environment, and the child's relationships with others
  who may affect him, the court found that the evidence favored 

 

  father.  The court noted that father had held the same job for over nine
  years, was well-settled in his life and home, and had a network of family
  and friends actively involved with the child.  The court further found that
  the child enjoyed good relationships with family and friends in the State
  of Vermont.  Mother, in contrast, had recently moved to New Mexico, without
  prior notice to father or to the child's school or friends, in order to
  pursue a relationship with a man she had met several months earlier on the
  Internet and with whom she had spent little time.  The man had recently
  moved out of his own marital home, and was in the process of obtaining a
  divorce.  Mother was not employed in her new home, had no family in New
  Mexico, and few friends.  The circumstances suggested, in the trial court's
  judgment, a lack of stability when compared with father, and supported the
  conclusion that father "can and will be better able to provide for [the
  child] on a daily basis in the future."  

       ¶ 5.  Based on these findings, the court concluded that the child's
  best interests would be served by awarding physical rights and
  responsibilities to father, and so ordered.  By agreement of the parties,
  the court ordered shared legal rights and responsibilities.  Mother was
  awarded substantial visitation, within the logistical limitations,
  including eight weeks during the summer, all of Christmas vacation, winter
  and spring vacations, and unlimited phone and e-mail contact.  This appeal
  followed.
   
       ¶ 6.  Mother's principal contention on appeal is that the trial
  court committed reversible error by failing to find that she was the
  primary care provider, and by further failing to accord that fact
  sufficient weight in its analysis.  Our review of the court's findings and
  conclusion is deferential.  "Given its unique position to assess the
  credibility of witnesses and weigh the evidence, we will not set aside the
  [family] court's findings if supported by the evidence, nor its conclusions
  if supported 

 

  by the findings.  In determining the best interests of the children in
  custody matters, the court may draw upon its own common sense and
  experience in reaching a reasoned judgment."  Payrits v. Payrits, 171 Vt.
  50, 53, 757 A.2d 469, 472 (2000) (internal quotation and citation omitted);
  see also Hoover v. Hoover, 171 Vt. 256, 258, 764 A.2d 1192, 1193 (2000)
  (trial court's findings must stand unless, viewing record in light most
  favorable to prevailing party, and disregarding modifying evidence, there
  is no credible evidence to support them).      

       ¶ 7.  Although mother asserts that the court made no finding
  identifying the primary care giver, the court, as noted, found that mother
  "was the primary care giver during the child's first two years of life,
  although, this has changed over time to become more equal" between the
  parties.  While open to some interpretation, the court's meaning is
  reasonably clear, to the effect that mother was initially the child's
  primary care provider but that over time father had assumed a substantial
  -- possibly equal -- role as caregiver.  The court did not state precisely
  whether mother remains the primary care provider or whether both parties
  are now entitled to that label.  See Payrtis. at 171 Vt. at 54, 757 A.2d  at
  473 ("We have never held . . . that a court may not find that both parents
  qualify as the primary care provider or that neither parent so qualifies"). 
  The finding, nevertheless, plainly addresses the issue and reasonably
  conveys the dynamic of the evolving family relationship as revealed through
  the  testimony and exhibits.  This is all that we require for purposes of
  appellate review.  See Harris v. Harris, 149 Vt. 410, 414, 546 A.2d 208,
  211 (1988) ("It is sufficient if the findings as a whole reflect that the
  trial court has taken the statutory factors into consideration, in so far
  as they are relevant, in reaching its decision.") (internal quotation and
  citation omitted). 
   
       ¶ 8.  Mother also contends the trial court erred because the
  evidence compelled an unequivocal finding that she was the primary care
  giver.  Again, as reflected in the court's finding, 

 

  the record reveals a more nuanced set of relationships.  To be sure,
  father's testimony finds him continually assenting to counsels' suggestions
  that mother was the primary care provider.  It is readily apparent,
  however, that the term did not have the same loaded meaning for father that
  it does for courts and lawyers.  Thus, while father agreed at trial that
  mother was "the larger caregiver," he went on to explain in the same answer
  that "as [the minor] has gotten older, he's - you know, he comes right
  along with me pretty much wherever I go. . . .  I mean, I've, I've done it
  all.  I've changed diapers, fed, bathed, cleaned, everything . . . ."  The
  same qualified response recurs in father's later testimony, where he again
  assents to counsel's suggestion that mother was the primary care provider,
  but further explained, "we cooked meals, we bathe him; she woke him up in
  the morning.  That's cause I was at work." (Emphasis added.) (FN2) 
   
       ¶ 9.  Extensive additional testimony supports the court's finding
  that although mother was initially the primary parent, father had taken an
  increasingly substantial role in caring for the minor.  After the
  separation, as agreed by the parties, the minor spent Tuesday and Thursday,
  as well as Saturday through Sunday with father, and substantial additional
  time on outings, birthdays, vacations, and other occasions.  Although
  mother claimed that the division of time was approximately 65% to 35% - if
  not more - in her favor, other witnesses testified that the division was
  more equal.  It was also undisputed that mother had left the minor with
  father for four or five days in April 2000, when she went to New Mexico to
  meet the man with whom she had become acquainted on the Internet, and for
  another full week in May, when she went to Maine to meet the same man. 
  Additional testimony also established that father and son were extremely
  close; that 

 

  father was a loving, playful, and compassionate parent; and that the child
  was completely accustomed to having father care for him.  Although mother
  cites her own and others' testimony suggesting that she, and not father,
  remained the child's primary care giver, this does not compel reversal of
  the court's finding, which was otherwise supported by credible evidence. 
  Payrits, 171 Vt. at 52-53, 757 A.2d  at 472.  We thus discern no basis to
  disturb the court's finding that although mother was initially the primary
  care provider, the division of responsibilities had evolved over time to
  become more equal between the parties. 

       ¶ 10.  The additional weight to be accorded the primary caregiver
  relationship depends on "the likely effect of a change of custodian on the
  child."  Id. at 55, 757 A.2d  at 473.   The court's decision here satisfies
  this contingent standard.  Although mother - and the dissenting opinion -
  fault the trial court for failing to give additional weight to the finding
  that mother was, at one time, the primary care provider,  the record
  evidence of father's substantial involvement in all aspects of the child's
  life, and the mutual devotion of father and child, demonstrates that no
  additional weight was required in this case.   

       ¶ 11.  Mother also contends the court impermissibly awarded custody to
  father based on mother's relocation to New Mexico.  Although courts must
  generally defer to the custodial parent's decision to relocate, Lane v.
  Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992), the court's findings
  here indicate that the parties' circumstances since their separation had
  evolved to become more like the de facto shared custody arrangement we
  addressed in deBeaumont v. Goodrich, 162 Vt. 91, 96, 644 A.2d 843, 846
  (1992).  Therefore, the court was not required to defer to mother's
  custodial status under the temporary order in evaluating the impact of her
  move on the child's best interests.

 
     
       ¶ 12.  Finally, mother asserts that the court's ruling was motivated
  by its disapproval of her Internet relationship, and by a desire to
  "punish" her for moving in with Stewart after a relatively brief
  acquaintance.  We discern no such motives in the court's findings or the
  record, nor any basis to infer such improper bias.  See Ball v. Melsur
  Corp., 161 Vt. 35, 39, 633 A.2d 705, 709 (1993) (judge is accorded a
  presumption of honesty and impartiality, and burden is on moving party to
  show otherwise).    

       ¶ 13.  This was a close case.  We have repeatedly stated, however,
  that our review of custody matters is limited, and that we must defer to
  the judgment of the trial court applying its own common sense and
  experience.  Payrits, 171 Vt. at  52-53, 757 A.2d  at 472.  The family
  court's ruling awarding custody to father reflects its reasoned judgment in
  light of  the record evidence.  Therefore, we may not disturb its decision,
  even if we were inclined to reach a different result.  Hoover, 171 Vt. at
  261, 764 A.2d  at 1195 (we cannot set aside trial court judgment merely
  because we would have reached different conclusion).

       Affirmed.


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                                 Dissenting

        
       ¶ 14.  JOHNSON, J., dissenting.    The majority has failed to grasp
  the importance of the issue we confront in this case, that is, the
  appropriate legal structure for allocating parental rights and
  responsibilities between unmarried parents who live separately, when there
  is no family court order in effect and one party is indisputably the
  primary care giver.   I would reverse because the trial court erroneously
  failed to agree with the parties that mother was the primary care giver of
  a pre-school child; therefore it accorded no weight to that factor in
  determining the best interests of the child in a close case.  The primary
  care giver doctrine is particularly relevant when the parties are unmarried

 

  and have de facto arrangements of custody and visitation.  If it is
  applicable, as it is here, it is the only factor that acts as a cautionary
  barrier to a change in custody.  Because close scrutiny of requests to
  change custody has long been a mainstay of our family law jurisprudence, I
  respectfully dissent. 

       ¶ 15.  Ms. Porcaro and Mr. Drop met at a plastics factory in Rutland,
  Vermont, where they both worked.  They have one child, who was born in
  April 1996.  At the time, the parties were in an ongoing relationship and
  lived together in father's parents' home.  Mother initially took an eight
  week leave from work to care for the infant.  When she returned to work,
  the child went to day care.  In the spring of 1997, the parties moved into
  an apartment of their own in Rutland.  During this period, mother cared for
  the child during the day and worked the third shift at the factory.  Father
  would care for the child at night, while mother worked.  In May 1999, the
  parties moved out of the apartment they were sharing and the relationship
  ended.  Mother moved with the child into her mother's home and father
  returned to his parents' home.

       ¶ 16.  In October of that year, the Rutland Family Court issued a
  temporary order regarding parental rights and responsibilities, based on
  the parties' stipulation.  That order called for the parents to have joint
  legal custody, while mother would have sole physical custody of the child. 
  Father would have contact with the child two weekday evenings and one
  overnight on the weekends, and time on holidays would be split
  approximately equally.  The order explicitly stated that it was temporary
  and would remain in force until further order of the court.
   
       ¶ 17.  In the winter of 1999-2000, the parties attempted a
  reconciliation.  Father moved in with mother in her apartment in Rutland. 
  By March 2000, that attempt failed and father moved out, and the parties
  reverted to the parent-child contact schedule of the temporary order.  In
  the spring of 2000, mother met Maco Stewart over the Internet.  Mr. Stewart
  resides in Los Alamos, 

 

  New Mexico, where he is employed by the federal government.  After  two
  meetings and extensive contact on the Internet with Mr. Stewart, mother
  moved to Los Alamos with the child in June 2000.  Shortly thereafter,
  mother was engaged to Mr. Stewart, whom she has since married.  Because of
  the move, father was unable to see the child on the weekly schedule the
  parties had adopted. 

       ¶ 18.  In response to several motions filed by father in an attempt to
  resume contact with the child, the family court held several days of
  hearings on the issue of parental rights and responsibilities.  After
  hearing testimony from both parents, as well as several witnesses for each,
  the court issued findings and conclusions.  The court's findings,
  twenty-three short sentences, were extremely sparse and do not begin to
  reflect the character of the relationships as revealed by the transcripts
  of two full days of testimony.  In its conclusions, the court determined
  that because the order of October 1999 was temporary, parental rights and
  responsibilities for the parties had never been conclusively determined. 
  The court, therefore, set out to determine the parental rights and
  responsibilities based on 15 V.S.A. § 665(b), which directs a court to
  determine the best interests of the child based on nine factors.  The court
  determined that it is in the best interests of the child for father to have
  sole physical custody with mother entitled to parent-child contact. 
   
       ¶ 19.   With respect to the primary care giver, the court concluded
  without discussion that, "[t]hough Ms. Porcaro was initially the primary
  care giver, this has changed over time to become more equal between the
  parties."  The trial court's findings of fact are entitled to deference and
  will not be set aside unless clearly erroneous.  V.R.C.P. 52(a)(2);
  Nickerson v. Nickerson, 158 Vt. 85, 88-89; 605 A.2d 1331, 1333 (1992). 
  Indeed, the majority opinion is based on the acceptance of the court's
  finding that neither parent was the primary care giver.  But, I cannot
  agree with the majority that this finding has any support in the record. 
  Moreover, the finding is contradicted directly by the 

 

  testimony of the parties, including father, and was conceded by father's
  counsel on oral argument before this Court.  

       ¶ 20.  At trial, father acknowledged that mother was the child's
  primary care giver.  For instance, on direct examination father was asked:

    Q:  There's been a question as to who was the primary care giver
    of [the child] during his life.  Um, do you have any opinions in
    that regard?
    A:  Um, I agree that Melissa was strongly the larger care giver
    than I was. 

 On cross-examination on the same point father was asked:

    Q:  Now, I believe you stated that, um, Melissa was the primary
    care giver during . . . the entire relationship up through to the
    time she left in June; is that correct?
    A: Okay.

  In fact, the transcript reveals that for each relevant period in the
  couple's history, both when they lived together and apart, father admitted
  that mother was the primary care giver.  Additionally, the temporary order
  gave sole physical custody to mother, with father to have visitation.  That
  order was the basis for the parties' parent-child contact at all times when
  the parties were not living together, and it was entered into by
  stipulation of the parties.  Based on the uncontroverted record evidence,
  there is no basis to uphold the trial court's determination that there was
  no primary care giver. 
   
       ¶ 21.  The question presented, then, is whether the failure to find
  that mother was the primary care giver makes a difference in this case. 
  Section 293 of Title 15 allows the family court to determine parental
  rights and responsibilities and parent-child contact "[w]hen parents of
  minor children . . . whether said parents are married or unmarried, are
  living separately [and] on the complaint of either parent."  15 V.S.A. §
  293(a).  When the court's jurisdiction is based on § 293, 

 

  the court applies the statutory framework of § 665(b), even though the best
  interests determination of § 665 was designed to determine the parental
  rights and responsibilities for married parents who are separated or
  divorced.  See Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601
  (1989) (upholding trial court's use of § 665(b) factors to determine
  custody of child).  Section 293 places no limitation, other than
  establishing parentage, on when or under what circumstances an unmarried
  parent may involve the family court in the custody of the child, regardless
  of any de facto custody arrangement the parties may have.  In other words,
  § 293 sets no bar or threshold determination for the court to make before
  it applies the multi-factored analysis of § 665.  

       ¶ 22.  In contrast, in other settings where a more formal custody
  arrangement already exists (i.e., a final court order), a parent must show
  a "real, substantial, and unanticipated change of circumstances" before a
  court will reexamine the allocation of parental rights and responsibilities
  according to § 665.  15 V.S.A. § 668.  This prevents a court from getting
  involved in a family where there already is a parenting arrangement, and
  potentially disrupting that arrangement, without requiring the person
  seeking the change to identify some event or circumstance that requires
  altering the status quo.  See Kilduff v. Willey, 150 Vt. 552, 553, 554 A.2d 677, 679 (1988) (noting, in relation to the predecessor statute to § 668,
  that "custody ought not to be modified without critical justification"
  because of the importance of stability in a child's life). 
   
       ¶ 23.  Most of the factors of § 665 require the court to compare the
  two parents relative to each other with no one factor weighing more heavily
  than another.  The one exception is § 665(b)(6), which calls on the court
  to evaluate "the quality of the child's relationship with the primary care
  provider, if appropriate given the child's age and development."  15 V.S.A.
  § 665(b)(6).  For this factor, we have consistently held that if there is a
  primary care giver, that factor must be given 

 

  greater weight, and the burden on the non-primary care giver is higher to
  establish a basis for switching the child's physical custody.  In Harris v.
  Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988), we established that the
  primary care giver factor "should be entitled to great weight unless the
  primary custodian is unfit."  Although we declined to create a per se rule
  in favor of the primary care giver, the result in Harris requires "the
  court to look carefully at the desirability and impact of changing the
  primary custodian."  Id.  Thus, once one parent has been identified as the
  primary care giver, the court may no longer consider the parties to be on
  the equal footing they were on when the § 665(b) inquiry began.  See
  Nickerson, 158 Vt. at  89, 605 A.2d  at 1333 (1992) (court must give due
  consideration to primary custodian in evaluating child's best interests);
  Bissonette, 152 Vt. at 69, 564 A.2d  at 601 (affirming award of custody of
  child born out of wedlock to mother because her role as primary custodian
  outweighed other factors that were unfavorable to her).
   
       ¶ 24.  In cases such as this, when an unmarried parent's desire to
  have custody over a child would replace a long standing de facto custody
  arrangement, (FN3) the added weight accorded the primary care giver is the
  crucial element that ensures that courts do not disrupt existing custody
  relationships simply by comparing one parent to the other, without special
  reference to the custodial history.  The primary care giver doctrine
  recognizes the need for stability in a child's life, and that it is likely
  to be in the child's best interest to remain with his or her primary care
  giver.  Because § 293 gives virtually unrestricted access to family court
  for unmarried, separated parents, the primary care giver inquiry functions
  as an important gate keeper, much the way § 668 does, to require some added
  burden on the one seeking to change the existing arrangement.  "Otherwise,
  if moved on the basis 

 

  of only momentary changes of advantage or benefit, children might be
  rendered totally insecure by frequent switches in home and custody." 
  Kilduff, 150 Vt. at 553-54, 554 A.2d  at 679.

       ¶ 25.  As a consequence, the trial court erred when it balanced the
  nine factors of § 665 because it did not accord any added weight to the
  primary care giver inquiry. (FN4)  Although we have stated that it is
  difficult to determine exactly how much weight this factor ought to be
  accorded, "the court should ordinarily find that the child should remain
  with the primary custodian if that parent is fit."  Harris, 149 Vt. at 419,
  546 A.2d  at 214.  Certainly, there is no evidence that mother is unfit. 
  Cf. Rutherford v. Best, 139 Vt. 56, 61, 421 A.2d 1303, 1306 (1980) (under
  guardianship statutes, to find a parent "unsuitable," there must be a
  showing "that the child has been abandoned or abused by the parent, or that
  the child is without proper parental care or subsistence, education,
  medical, or other care necessary for his well-being").  The trial court
  acknowledged that this was a very close case, stating at the end of the
  first day of testimony that "it's very apparent . . . that both parents are
  good parents and both parents care very deeply about their child. . . .
  [B]oth have the ability to . . . raise the child."  The court's decision,
  therefore, was the result of a simple balancing of evidence in a close
  case.  Because the court found to the contrary, there is no mention of
  according a primary care giver greater consideration.
   
       ¶ 26.  Although the trial court is accorded wide deference on review
  of custody determinations, Nickerson, 158 Vt. at 88, 605 A.2d  at 1333, when
  the court found both parties to be loving parents who could provide a
  suitable home for the child, the added weight that ought to have been
  accorded to the primary care giver could have altered the result.  Father
  was chosen only 

 

  because the court perceived that mother's relationship with Mr. Stewart
  "indicate[s] the lack of stability in her life."  The court did not
  identify any other reasons, based on the § 665(b) factors, for its result. 
  This narrow finding, without more, may have been enough to justify giving
  father custody in an equal determination.  This rationale, however, is not
  sufficient to warrant a determination in father's favor when mother should
  have been given the extra consideration due her.  

       ¶ 27.  In my view, the majority's holding jeopardizes the importance
  of our well-established primary care giver doctrine.  If the doctrine does
  not have an impact in a case with these findings, then I can imagine no
  case where the status of primary care giver would ever have influence over
  the ultimate outcome.  That is contrary to our law, and I respectfully
  dissent.


                                       FOR THE COURT:


                                       ______________________________________
                                       Associate Justice


                                       Dissenting:


                                       ______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  Neither party has challenged this conclusion on appeal.

FN2.  At oral argument before this Court, father's counsel acknowledged that
  the evidence supported the court's finding that mother was initially the
  primary care provider, but that father had taken an increasingly
  substantial role in caring for the child.

FN3.  Indeed, this custody arrangement is to some degree a de jure one
  because of the temporary order, which gave mother sole physical custody and
  joint legal custody to both parties.

FN4.  Even if the court's finding could be interpreted to mean that mother
  was the primary care giver, the court still failed to accord this finding
  added weight as required by Harris.