Barbour v. Barbour, 83-555

• Decision Date: 24 January 1986
• Docket Number: No. 83-555,83-555
• Citation: 146 Vt. 506,505 A.2d 1217
• Parties: P. Kay BARBOUR v. James R. BARBOUR.
• Court: Vermont Supreme Court

Page 1217

505 A.2d 1217

146 Vt. 506

P. Kay BARBOUR v. James R. BARBOUR.

No. 83-555.

Supreme Court of Vermont.

Jan. 24, 1986.

Donald E. O'Brien, Burlington, upon appeal; and Ronald Schmucker, South Burlington, at hearing, for defendant-appellant.

Before ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

HILL, Justice.

Defendant, James Barbour, appeals an order of the trial court claiming that the court abused its discretion in refusing to incorporate the terms of the parties' stipulation into the final divorce decree. We affirm in part, reverse in part and remand the case for further proceedings.

The parties to the divorce, Kay and James Barbour, entered into a stipulation which they asked the court to incorporate into the final order. The stipulation provided that the Barbours would have joint custody of their two children, then aged 14 and 13. The children were to spend alternate weeks living with each parent, except during summers and vacation periods, when the schedule would be more flexible. The stipulation contained detailed provisions for the sharing of expenses relating to the children. The parties also agreed that if either of them should leave the Burlington area, the departing parent would relinquish joint custody in favor of the remaining parent. At the time of the agreement the parties lived three miles apart.

At final hearing the parents testified in detail concerning the shared custody arrangement under which they had operated prior to the hearing. The testimony indicated that the arrangement had worked to the satisfaction of both the children and the parents. A psychologist testified that the arrangement was the most beneficial custodial scheme for the children, and a guidance counselor testified that both children had adjusted well to the custodial arrangement.

Following the hearing, the court, acting through a majority consisting of the two assistant judges, disapproved the stipulation and awarded custody to the mother, with visitation rights at all reasonable times and places in the father. The presiding judge dissented.

I.

In Lumbra v. Lumbra, 136 Vt. 529, 532, 394 A.2d 1139, 1142 (1978), this Court expressed its view that "[j]oint custody is rarely the best solution to a custody dispute" and held that "joint custody should only be decreed in cases where there is a finding of extraordinary circumstances." It did not, however, intend to discourage judges from incorporating joint custody agreements into final orders in appropriate cases where, as here, custody is not in dispute. As was stated in Berlin v. Berlin, 139 Vt. 339, 340, 428 A.2d 1113, 1114 (1981):

The court does not stand in opposition to joint custody; it merely recognizes that the same lack of agreement that requires that the courts be asked to settle domestic difficulty also indicates that the possibility of a cooperative custody solution is usually remote.

We do not suggest that the court in this case was bound to accept the terms of the stipulation submitted by the parties. "Agreements between the litigating parties in divorce actions are not conclusive or binding upon the courts where the interests of the children are concerned." Korshak v. Korshak, 140 Vt. 547, 550, 442 A.2d 464, 466 (1982). Courts involved in divorce litigation are bound to "make an order concerning the custody of any minor child of the marriage"; in fulfilling this duty they are to be "guided by the best interest of the child...." 15 V.S.A. § 652(a).

In Lumbra, supra, 136 Vt. at 532, 394 A.2d at 1142, we noted that the fitness of the parents, their ability to cooperate, the age of the child and the distance between the houses were some of the key concerns that should be reviewed by trial courts considering joint custody awards. In light of these factors, the total inadequacy of the majority's findings of fact below is apparent. There were no findings as to the fitness of the parents; their ability to cooperate in the raising of their children; the relationship of the ages of the children to the proposed joint custody arrangement; or the appropriateness of the arrangement in general. The court simply laid out the basic terms of the custody agreement and then summarily rejected them. Since facts essential to the disposition of the custody issue have not been stated, that portion of the court's order dealing with custody is reversed and the matter is remanded for further proceedings on this issue. ^* See Mayer v. Mayer, 144 Vt. 214, 216-17, 475 A.2d 238, 240 (1984) (facts essential to the disposition of the case must be stated to enable this Court, on appeal, to determine how the trial court's decision was rendered.)

The defendant also contests the trial court's refusal to incorporate into the final order the provisions of the stipulation dealing with termination of maintenance in terms of time, remarriage, death or change in relative income of the parties; medical and dental insurance for the children; the sharing of post-high school educational expenses of the children; the naming of the children as life insurance and pension benefit beneficiaries; and the sharing of the expenses of raising the children. Defendant maintains that all these provisions should have been incorporated into the final order as they were just and reasonable.

In White v. White, 141 Vt. 499, 502-03, 450 A.2d 1108, 1110 (1982), we noted that there was a difference between stipulations concerning property division and alimony and stipulations concerning child support: "In the case of property division and alimony the resulting contract between [the parties] is a presumptively fair, formal, and binding promise to perform, which our courts will not lightly overturn since the parties may have bargained away rights or positions of advantage in exchange for other consideration." See also Strope v. Strope, 131 Vt. 210, 216, 303 A.2d 805, 809 (1973).

On the other hand, "[a] stipulation between husband and wife on matters pertaining to child support merely reflects what the parties have settled on as an arrangement agreeable to them." White, supra, 141 Vt. at 503, 450 A.2d at 1110. While it will generally be incorporated into the divorce decree if the trial court finds that the stipulation is just and reasonable, the court must have broad discretionary judgment in deciding whether to accept or reject the parties' child support arrangement to promote society's interest in the care and maintenance of children. See id.

Since the court in this case rejected the proposed joint custody arrangement, the provisions of the stipulation pertaining to child support appeared inapposite. This explains why the court found "no evidence of the amount needed to provide properly for the children within the parties' means" and ordered the defendant to make regular contributions to the plaintiff. Because we believe that the issues of child support and custody are inextricably intertwined, we refuse to simply adopt the terms of the stipulation without a further hearing. Consequently, the matter must be reversed and remanded to the trial court for further proceedings on this issue.

The parties' agreement with respect to maintenance poses a...