MacCormack v. MacCormack

• Decision Date: 17 April 2015
• Docket Number: No. 13–390.,13–390.
• Citation: 123 A.3d 383,2015 VT 64
• Court: Vermont Supreme Court
• Parties: Ruth H. MacCORMACK v. Mark S. MacCORMACK.

123 A.3d 383

2015 VT 64

Ruth H. MacCORMACK

v.Mark S. MacCORMACK.

No. 13–390.

Supreme Court of Vermont.

April 17, 2015.

Mary P. Kehoe of The Kehoe Law Firm, P.C., Burlington, for Plaintiff–Appellee/Cross–Appellant.

Lauren S. Kolitch, Waitsfield, for Defendant–Appellant/Cross–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and DURKIN, Supr. J., Specially Assigned.

Opinion

REIBER, C.J.

¶ 1. Father appeals the trial court's award of sole legal and physical parental rights and responsibilities to mother. Father also appeals the trial court's calculation and division of marital assets, challenging the application of a hypothetical real-estate commission in awarding father a portion of the marital home's equity as well as the trial court's division of the parties' retirement assets. Mother cross- appeals the trial court's parent-child contact order on the grounds that the order does not achieve its stated goal and is not in the best interests of the parties' child. We affirm the trial court's order except its application of the hypothetical real-estate commission in a scenario in which no sale is contemplated, which we reverse.

¶ 2. The parties agree that theirs was a short-term marriage. Father and mother met in June 2006, began dating, and married in July 2008. They had a child in December 2009. The marriage suffered a lack of intimacy throughout its duration. After the

parties attempted marriage counseling, mother filed for divorce in June 2011. In October 2011, the trial court issued a temporary order awarding father and mother shared legal parental rights and responsibilities but made no order relative to physical parental rights and responsibilities. The court ordered fifty-fifty parent-child contact. The contested hearing was held over four dates: on August 29 and November 9 in 2012, and January 14 and March 19 in 2013. The trial court issued its factual findings and legal conclusions in July 2013. It granted the divorce on the grounds that the parties had lived separately for more than six months and there was no reasonable probability of resuming the marital relationship.

¶ 3. In reviewing a judgment from the trial court in a divorce proceeding, we look to whether the trial judge has adequately “ ‘explain[ed] the underlying rationale for its decision, which we will not disturb absent a showing that the court abused its discretion.’ ” Billings. v. Billings, 2011 VT 116, ¶ 11, 190 Vt. 487, 35 A.3d 1030 (quoting Wade v. Wade, 2005 VT 72, ¶ 13, 178 Vt. 189, 878 A.2d 303 ). This standard of review applies both to awards of parental rights and responsibilities and to property division. LeBlanc v. LeBlanc, 2014 VT 65, ¶ 21, 197 Vt. 17, 100 A.3d 345 (“The family court has broad discretion in determining what allocation of parental rights and responsibilities is in a child's best interests.”); Atwood v. Atwood, 143 Vt. 298, 300, 465 A.2d 1354, 1355 (1983) (citing 15 V.S.A. § 751 ) (“Trial courts have wide discretion ... in formulating awards of property upon divorce.”).

I. Parental Rights and Responsibilities

¶ 4. We turn first to the trial court's determination that mother have sole parental rights and responsibilities regarding the parties' child. “The trial court has broad discretion in a custody matter, and we must affirm unless the discretion is ‘erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence.’ ” Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339–40 (1988) (citation omitted); see also Porcaro v. Drop, 175 Vt. 13, 15, 816 A.2d 1280, 1283 (2002) (“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.” (quotations and alterations omitted)).

¶ 5. In determining parental rights and responsibilities, “the Court shall be guided by the best interests of the child.” 15 V.S.A. § 665(b). In determining the best interests of the child, the trial judge “shall consider at least” the nine factors listed in § 665(b). In reviewing a determination of parental rights and responsibilities, we examine whether “ ‘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.’ ” Harris v. Harris, 149 Vt. 410, 414, 546 A.2d 208, 212 (1988) (quoting Rosenfeld v. Rosenfeld, 311 Minn. 76, 249 N.W.2d 168, 171–72 (1976) ). Although we have not required that the trial court make its findings in a specific form, we have observed “that it would be preferable for the trial court to structure its findings and conclusions to show the findings relevant to each factor together with a conclusion as to each factor.” Id. The trial court did so in this case.

¶ 6. In its conclusions of law regarding the parties' parental rights and responsibilities, the trial court discussed each factor in turn, restating relevant findings and making conclusions based upon them. The trial court concluded that most of the statutory factors favored neither parent. While acknowledging that the parties disagreed over appropriate medical treatment, the trial court found that both father and mother were able to meet the child's material needs and provide a safe environment for her. See 15 V.S.A. § 665(b)(2). The trial court found that a change in either parent's residence would not be a factor in its decision and concluded that the child's adjustment to her housing, school, and community did not favor one parent or the other. See id. § 665(b)(4). With regard to the parties' abilities to foster positive relationships and ongoing contact between the child and one another, the trial court acknowledged the difficulty that mother and father have communicating with each other and concluded that this factor also favored neither parent. See id. § 665(b)(5). The trial court concluded that the child's relationships with other people who might significantly affect her, such as her extended family, also favored neither father nor mother. See id. § 665(b)(7). The trial court explained why the parties' ability to communicate, cooperate, and make joint decisions was not a relevant factor in its decision, as they could not agree to share custody. See id. § 665(b)(8). Likewise, as there was no evidence of abuse, the trial court explained that this was not a relevant factor in determining

who should have sole parental rights and responsibility. See id. § 665(b)(9). When considered together, these determinations reflect that the case was a close one.

¶ 7. Ultimately, the trial court's findings regarding the parents' ability and disposition to provide guidance to the child and to meet her developmental needs tipped the balance in favor of a determination that mother should have sole parental rights and responsibilities. See id. § 665(b)(1), (3). Prior to meeting mother, father successfully completed a four-year law-office clerkship that qualified him to seek admission to the Vermont bar. He never sat for the Vermont bar exam, however, and so never became qualified to practice law. The trial court found that father allowed mother to mistakenly believe he was a fully-qualified “attorney,” and that in the five years that elapsed between their meeting and divorce, father never corrected mother's mistaken impression. The trial court rooted this finding in evidence pertaining to father's lack of candor and the failure to correct mother's impression of his professional status during their marriage. Thus, his actual professional status remained undisclosed until after divorce proceedings began.

¶ 8. In making these findings, the trial court referred to evidence that father misrepresented his professional status to mother. The trial court noted that whether father misrepresented his professional status to mother during the marriage gave rise to “substantial conflicting testimony.” Nevertheless, the trial court found that testimony from father's witness offered to rebut mother's lack of knowledge regarding his actual professional status was not credible. We defer to the trial court's credibility assessment that favored mother's version of events.

Hanson–Metayer v. Hanson–Metayer, 2013 VT 29, ¶ 12, 193 Vt. 490, 70 A.3d 1036 ; see also Porcaro, 175 Vt. at 15, 816 A.2d at 1283 (acknowledging trial court's “unique position to assess the credibility of witnesses”). Mother supported her testimony by offering as an exhibit her and father's wedding announcement, which reads: “[Father] is a tax attorney. He received ... his law degree from Western New England College, School of Law.” Neither statement is true. Father testified that he did not take steps to correct the impression because he is not from the town where the announcement was published and lives far away from it. Absent any credible evidence that mother knew father was not a fully-qualified attorney, it is uncontroverted that father never corrected mother's mistaken impression during their marriage.

¶ 9. Father has challenged the trial court's findings by arguing that he did not misrepresent his professional status to mother because, in his view, while he may not be a fully-qualified “attorney,” he may nonetheless still call himself a “lawyer.” He maintains that it was appropriate for him to refer to himself as a “lawyer” throughout the marriage and suggests that he did not need to correct the impression he gave mother that he was something other than a fully-accredited attorney.¹ The trial court's determination does not rely upon father's semantic assertions, however, but rather upon its findings regarding the child's best interests—one of which was that he allowed mother to believe things about himself that were not true.

¶ 10. The critical issue is not whether father can accurately call himself an “attorney”; it is whether he deceived mother both with overt misrepresentations and with...