Thibodeau v. Thibodeau

Thibodeau v. Thibodeau (2003-558); 178 Vt. 457; 869 A.2d 142

2005 VT 14

[Filed 26-Jan-2005

                                 ENTRY ORDER

                                 2005 VT 14

                      SUPREME COURT DOCKET NO. 2003-558

                             DECEMBER TERM, 2004

  Timothy Thibodeau	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Windsor Family Court
                                       }	
  Patricia Thibodeau	               }
                                       }	DOCKET NOS. F501-11-95 WrDmd 
                                       }	and F341-10-95 WrFa

                                                Trial Judge: Amy M. Davenport

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

       ¶  1.  Plaintiff Timothy Thibodeau appeals a family court order that
  denied his motion to terminate a relief from abuse order protecting
  defendant, Patricia Thibodeau, and the parties' two children.  We affirm.

       ¶  2.  The parties were once married and have two minor children
  together.  Defendant has had legal and physical parental rights and
  responsibilities for the minor children since she obtained a relief from
  abuse order against plaintiff in October 1995.  After a contested hearing,
  the family court issued a final divorce order on June 11, 1997, and a final
  relief from abuse order on June 20, 1997.  The divorce order found that
  plaintiff had physically abused defendant, and the relief from abuse
  decision reiterated plaintiff's history of violent behavior towards
  defendant and found that plaintiff had also physically abused the children. 
  The relief from abuse decision suspended contact between plaintiff and the
  children until plaintiff engaged in "appropriate mental health counseling
  to include domestic violence counseling, anger management counseling and
  empathy counseling."  The court set the duration of this order as
  "permanent."  Plaintiff never appealed either order.
   
       ¶  3.  Shortly after the orders were issued, defendant moved with
  the children to a place in New York not disclosed to plaintiff.  Plaintiff
  had no contact with the children for five years, although they continued to
  have contact with members of plaintiff's family.  From June 2001 to August
  2002, plaintiff participated in a Batterers Intervention Program (BIP) in
  fulfillment of a probation condition.  In the BIP, "[p]articipants are
  challenged to identify their own thought patterns or belief systems which
  underlie the violent behavior, identify risk factors and develop cognitive
  and behavioral interventions that are non-controlling and non abusive."  In
  July 2002, plaintiff filed motions to restore parent-child contact and to
  review the final relief from abuse order.  Defendant supported plaintiff's
  request to see the children, and the parties entered an agreement for
  plaintiff to have contact with the children supervised by plaintiff's
  brother and father.  The first visit was in August 2002 and appeared to go
  well.  The children had two visits with their father in August 2003, the
  second of which was marked by anger and confrontation.  Plaintiff and his
  brother had an angry confrontation in front of the children during which
  plaintiff invited a physical fight.  Plaintiff also had an argument with
  his father that ended when plaintiff went to the police.  Additionally,
  plaintiff became very angry with the children's guardian ad litem, leaving
  abusive and threatening messages on his telephone.  Following the second
  August visit, the children insisted on sleeping in the same bed as their
  mother and exhibited violent behavior.  Defendant decided that contact with
  their father was detrimental to the children and would not agree to further
  visits.  As a result, the matter was presented to the family court.

       ¶  4.  The court found that plaintiff had not met the requisite
  conditions for renewed contact with his children.  The court was concerned
  with plaintiff's behavior during the second 2003 visit and set specific
  conditions he had to fulfill to restore parental contact.  Further, the
  court found that there was no basis to discontinue the final relief from
  abuse order, but modified it to expire on October 26, 2019. (FN1)  

       ¶  5.  On appeal, plaintiff challenges only the family court
  decision not to terminate the relief from abuse order and claims that the
  court abused its discretion.  Plaintiff characterizes the court's decision
  as an extension of the original relief from abuse order.  Under such
  circumstances,

    the court may extend any order, upon motion of the plaintiff, for
    such additional time as it deems necessary to protect the
    plaintiff, the children, or both, from abuse.  It is not necessary
    for the court to find that abuse has occurred during the pendency
    of the order to extend the terms of the order.

  15 V.S.A. § 1103(d).  Under this language, plaintiff argues that the trial
  court had to find that continuing the order was necessary and the evidence
  did not support such a finding.  
 
       ¶  6.  Defendant responds that plaintiff misconstrues the procedural
  posture of the family court proceeding and resulting order.  Specifically,
  defendant argues that the family court was not extending the original
  relief from abuse order, rather plaintiff was arguing for a modification of
  that order.  Defendant points out that the original order was permanent,
  without an expiration date, and the court did not need to extend it.  Thus,
  defendant claims that plaintiff had to show a substantial change in
  circumstances to modify the order and the court correctly determined that
  plaintiff failed to make any such showing.  We agree with defendant and
  further hold that the court's findings are supported by the evidence, and
  the conclusions were supported by the findings and within the court's
  discretion.

       ¶  7.  The family court is given broad discretion in determining
  questions of fact and we review its findings for clear error.  Begins v.
  Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998).  Further, we will
  uphold the court's conclusions if supported by the findings.  Id.

       ¶  8.  Although plaintiff correctly notes that relief from abuse
  orders must contain a termination date, plaintiff never appealed this error
  in the 1997 order.  See 15 V.S.A. § 1103(d) ("Relief shall be granted for a
  fixed period . . . ."); Benson v. Muscari, 172 Vt. 1, 9, 769 A.2d 1291,
  1298 (2001).  Instead, plaintiff chose to file a motion five years later,
  asking the court to revise the existing order by terminating it.  Under
  such circumstances, we find that plaintiff was requesting that the court
  modify the existing relief from abuse order and therefore had the burden of
  showing a substantial change of circumstances.  15 V.S.A. § 1103(d) ("The
  court may modify its order at any subsequent time upon motion by either
  party and a showing of a substantial change in circumstance.").  

       ¶  9.  The court found that plaintiff had not complied with the
  conditions in the 1997 order to reinstate visitation despite many years to
  do so, more important, the court found that there was no change in
  plaintiff's angry attitude and violent behavior.  Specifically, the court
  found that plaintiff's behavior during the second August 2003 visit, and
  later towards the guardian ad litem, demonstrated that the BIP program
  failed to help plaintiff control his anger.  Particularly regarding the
  verbally abusive messages left with the guardian ad litem, the court noted
  that plaintiff had 

    time for forethought, time to think through what he was about to
    do, time to use the tools he had learned at BIP to break the
    thought pattern, time to call on one of the circle of people he
    had identified to help him understand what he was doing.  He
    clearly failed to access any of the tools he learned at BIP in an
    effort to prevent himself from giving full verbal vent to his
    anger.

  The court also noted that "while Timothy loves [his children], the court
  has no confidence that his love for them is powerful enough to deter him
  from engaging in angry and threatening behavior whenever he happens to feel
  that such behavior is warranted," and concluded that the risk that
  plaintiff would lose his temper with the children outweighed the benefit of
  contact. 
   
       ¶  10.  The court also found that plaintiff exhibited no remorse for
  his violent and abusive actions towards defendant and instead blamed her
  for lack of contact with the children.  Again, the court reiterated that
  plaintiff failed to demonstrate that he can control his anger, even when
  his actions were detrimental to his relationship with his children.  The
  court therefore declined to terminate the relief from abuse order, but did
  set a termination date to coincide with time when the younger child will
  reach the age of majority.  The court also indicated that it would
  reconsider the termination date if plaintiff complied with the visitation
  conditions.  In view of the procedural posture of the case, these actions
  were unnecessary, but inured to plaintiff's benefit.

       The relief from abuse order dated November 12, 2003 is amended to
  terminate on October 26, 2009.  In all other respects, the court's order is
  affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.),
                                       Specially Assigned

                                       _______________________________________
                                       Ernest W. Gibson III, Associate Justice 
                                       (Ret.), Specially Assigned


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


FN1.  As defendant points out, the court's order is internally inconsistent. 
  It states that the order will remain "in place until [the younger child's]
  eighteenth birthday, October 26, 2019."  We note that the child's
  eighteenth birthday is October 26, 2009, not October 26, 2019, and
  accordingly, amend the order to reflect the correct date.