541 A.2d 79 (Vt. 1987), 86-122, Price v. Price

Docket Nº:86-122.
Citation:541 A.2d 79, 149 Vt. 118
Opinion Judge:DOOLEY, Justice.
Party Name:Elise PRICE v. Stephen PRICE.
Attorney:Edwin H. Amidon, Jr. and Heather R. Wishik of Langrock Sperry Parker & Wool, Burlington, for plaintiff-appellant. Valerie White, Morrisville, for defendant-appellee.
Case Date:December 24, 1987
Court:Supreme Court of Vermont
 
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541 A.2d 79 (Vt. 1987)

149 Vt. 118

Elise PRICE

v.

Stephen PRICE.

No. 86-122.

Supreme Court of Vermont.

December 24, 1987

Edwin H. Amidon, Jr. and Heather R. Wishik of Langrock Sperry Parker & Wool, Burlington, for plaintiff-appellant.

Valerie White, Morrisville, for defendant-appellee.

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Before ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Plaintiff, Elise Price, appeals from an order of the superior court granting custody of the minor daughter of the parties to appellee, Stephen Price. Both parties sought a divorce in the superior court and contested the disposition of the property of the marriage, child support, custody and visitation. Only the court's order with respect to custody has been appealed. However, [149 Vt. 119] as noted below, the appeal necessarily involves the orders of the court with respect to visitation and child support.

The parties lived together until January of 1985, when plaintiff went for a visit to her parents' house in Connecticut, taking her two-year-old daughter with her. During this visit, plaintiff decided not to return to Vermont. Thereafter, attempts at reconciliation failed. The conflict between the parties grew as they were unable to work out the details of their separation, particularly with respect to custody and visitation. Plaintiff would allow the defendant to visit their daughter only at her parents' house in Connecticut and only when she or her parents were present.

Plaintiff filed for divorce in April seeking custody of the minor child. Defendant cross-filed for divorce, also seeking custody. A temporary custody and visitation order was entered in July awarding temporary custody to plaintiff, with visitation set forth for defendant on a month by month basis. The temporary order was constructed to allow limited visitation contact in the beginning leading up to a more general visitation scheme to allow defendant to take the child every other weekend.

The custody and visitation scheme continued to create conflicts. Defendant's job as a hotel manager made it difficult for him to make long-term commitments, or exercise visitation rights on a particular day. Plaintiff expressed frustration over deviations from the agreed upon schedule and, in general, would not agree to such deviations. As a result, defendant had less time with the minor child than originally contemplated.

The hearing on the merits was relatively brief in view of the issues separating the parties. Plaintiff's testimony centered on the reasons why she should be the primary custodian for the child. She also testified that defendant lacked judgment in caring for the child and that, as a result, she had been forced to restrict visitation. She detailed her frustrations about defendant's inability or unwillingness to visit the child as the order allowed.

Defendant's testimony covered why he would be a proper custodian of the child. He emphasized what he believed to be unreasonable conduct of the plaintiff in withholding unrestricted visitation. He explained how plaintiff's requirement of a very specific long-term visitation plan was inconsistent with his work responsibilities and made it impossible for him to engage in visitation.

The trial court awarded custody to defendant, concluding that this award was in the child's best interest. While the award is [149 Vt. 120] based on some forty findings, the major emphasis of the court's discussion appears to be the issue of visitation rights. The court concluded that the plaintiff had intentionally left the State of Vermont to frustrate any court order on visitation and custody. It further found that plaintiff had deliberately attempted to prevent visitation and that she would continue to prohibit visitation despite a court order. Thus, the trial court found that custody in defendant would provide "the best opportunity for fruitful and positive relation with both parents."

Plaintiff appeals from the order with respect to custody on five grounds: (1) the trial court erred in basing its custody award on plaintiff's decision to end the marriage; (2) trial court erred in basing its custody award on difficulties with visitation without finding that the difficulties impacted on the child's best interests; (3) the trial court failed to make findings on the best interests of the child generally and failed to make them on the specific factors

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listed in 15 V.S.A. § 652; (4) the findings and conclusions of the court are unsupported by the evidence; and (5) the trial court erred in failing to make findings on issues raised by plaintiff's requests for findings...

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