Sundstrom v. Sundstrom

Sundstrom v. Sundstrom (2002-058); 174 Vt. 565; 816 A.2d 439

[Filed 28-OCT-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2002-058

                             OCTOBER TERM, 2002


  Richard Sundstrom	               }	APPEALED FROM:
                                       }	
       v.	                       }	Addison Family Court
                                       }	
                                       }
  Bobbi Jo Sundstrom	               }	DOCKET NO. 180-9-97 Andm
                                       }
                                                Trial Judge: Matthew I. Katz

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


       Appellant mother appeals from a retrial order of the Addison Family
  Court striking its earlier decision to deny father's motion to modify
  parental rights and responsibilities.  Mother argues on appeal that the
  court erred because the earlier decision of the family court was a valid,
  final order, and as such, father's failure to appeal that decision barred
  the court from issuing the order for retrial.  We agree, and therefore
  reverse and reinstate the earlier decision to deny father's motion.   

       On July 18, 2001, Judge Cashman, as the presiding judge of the Addison
  Family Court at that time, denied appellee father's motion to modify the
  custody provisions in the divorce order.  The family court decision stated
  as follows:  "The Court first denies the motion to modify as [a] matter of
  law.  The father has failed to show the requisite evidence to substantiate
  his claim of the threshold jurisdictional requirement. . . . The Court
  additionally concludes, as a mixed question of law and fact, that the
  father has failed to provide credible factual evidence to support his
  arguments."  The order was signed by the presiding judge only and not the
  two assistant judges.  Father never appealed the decision to deny his
  motion for modification.  The assistant judges later entered a notice,
  dated October 23, 2001, in which they disagreed with "a number of the
  findings of fact purported to be therein stated."  Then, on November 9,
  2001, Judge Katz, as presiding judge, sua sponte issued a decision in which
  the court declared the July 18, 2001 decision "stricken as being of no
  legal force and effect" without the signatures of the two assistant judges
  and ordered a retrial on the motion. 
          
       Section 457(b) of Title 4 states, "In all proceedings, questions of
  law shall be decided by the presiding judge.  Mixed questions of law and
  fact shall be deemed to be questions of law. . . . Neither the decision of
  the presiding judge under this subsection nor participation by an assistant
  judge in a ruling of law shall be grounds for reversal unless a party makes
  a timely objection and raises the issue on appeal."  4 V.S.A. § 457(b).  We
  have previously held that a custody determination is a classic question of
  mixed law and fact.  Woodbury v. Woodbury, 161 Vt. 628, 629, 641 A.2d 367, 368 (1994) (mem.).  Father waived any objection to the July 18, 2001
  decision by his failure to 

 

  appeal.  The family court decision of November 9, 2001, which ordered a
  retrial, was in error.  Thus, we reverse the November 9, 2001 decision and
  reinstate the family court decision dated July 18, 2001.      

       Reversed.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice