Begins v. Begins, No. 97-334.

• Docket Nº: No. 97-334.
• Citation: 721 A.2d 469
• Case Date: September 11, 1998
• Court: United States State Supreme Court of Vermont

721 A.2d 469

Karen BEGINS
v.
David BEGINS

No. 97-334.

Supreme Court of Vermont.

September 11, 1998.

721 A.2d 470

Janet P. Shaw of Marsh & Associates, P.C., Middlebury, and Jeremy Dworkin, South Londonderry, for Plaintiff-Appellant

David Begins, Pro Se, Vergennes, Defendant-Appellee.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, J.

Mother appeals from a divorce judgment of the Addison Family Court. She contends the court abused its discretion by: (1) awarding father primary parental rights and responsibilities; (2) limiting her visitation with the children to twice a week; (3) failing to award adequate spousal maintenance; and (4) awarding substantially less in attorney's fees than she had requested. Father cross-appeals, contending the court erred by: (1) awarding mother limited legal rights and responsibilities to manage the children's mental health counseling; and (2) valuing mother's business property and annual business earnings. We affirm the court's findings concerning mother's business property and annual earnings, and its award of spousal maintenance; reverse the award of parental rights and responsibilities and the award of attorney's fees; and remand for further proceedings on the issues of parental rights and responsibilities, visitation, and attorney's fees.

The material facts are largely undisputed. The parties were married in 1974. Mother was eighteen and father was nineteen years old at the time. They had two sons, B.B. and J.B., who were fifteen and thirteen years old, respectively, at the time of trial. The parties' interests grew apart over the course of their twenty-year marriage. They attended marital counseling, but without success. Mother began an intimate relationship with another man in December 1995, and the parties separated the following year. The court found that mother's affair was not the cause of the marital breakdown, observing that the marriage "had already failed."

The court further found that mother had been the primary care provider for the children all their lives prior to the separation. Thereafter, the boys began to spend more time with father, and their relationship with mother deteriorated. Although the marital breakdown and mother's extramarital relationship had contributed to B.B.'s animosity toward mother, the court found that father had encouraged the son's animosity by unfairly blaming her for the parties' marital problems, and making disparaging remarks

721 A.2d 471

about her lifestyle. Concerning a letter the court had received from the younger boy expressing a preference to live with father, the court observed that it was not the product of an eighth grader. The boy's recriminations against mother, the court concluded, "clearly reflected discussions" with father, and further persuaded the court of father's nonconstructive role in corroding the boys' relationship with mother

The court concluded that while several factors had contributed to the estrangement between mother and sons, "the single most significant factor has been a constant poisoning of the relationship by the father."

In reaching its custody determination, the court noted that "on [the] two most important criteria for custody — continuation by the primary custodian and favoring the parent who is most likely to foster a healthy relationship between the boys and the noncustodial parent — the mother would seem to be the custodian of choice." Indeed, as to the younger boy, the court expressly found that mother was "more likely to provide suitable custodial guidance." Nevertheless, the court concluded that the boys' hostility toward mother, encouraged and fueled by father, precluded an award of custody to mother. The court explained: "The father may not deserve to win custody of the boys, but he has effectively done so." Accordingly, the court awarded father sole physical and legal rights for the children, and granted mother limited visitation. In response to mother's subsequent motion to amend, the court modified the decree by awarding mother "limited legal custody for the purpose of managing all family and mental health counseling of the two boys."

On the subject of spousal maintenance, the court noted that father was employed fulltime and that his earnings for 1996 were $53,170. Mother had worked primarily as a homemaker, and had been developing a small clothing design and manufacturing business. The business had been growing, but had never shown significant profits; mother's earnings in 1996 were between $7000 and $8000. Accordingly, the court awarded mother rehabilitative maintenance of $1600 per month for two years, and $1333 per month thereafter for an additional six years, based upon the expectation that her income would increase. Noting, however, that mother was forty-one years old, was not burdened by custody of the children or ill health, and could eventually obtain employment sufficient to maintain her previous lifestyle, the court expressly declined to award permanent maintenance. In addition, the court ordered father to pay $5000 toward mother's attorney's fees, substantially less than the $33,000 in fees she had incurred. This appeal followed.

I.

Mother first contends the court abused its discretion by awarding custody of the children to father based upon their estrangement from mother, notwithstanding the court's express finding that the most significant cause of the estrangement had been a constant poisoning of the relationship by father.

The family court is ordinarily accorded broad discretion in custody matters. Nickerson v. Nickerson, 158 Vt. 85, 88, 605 A.2d 1331, 1333 (1992). Given its unique position to assess the credibility of witnesses and weigh the evidence, we will not set aside the court's findings if supported by the evidence, nor its conclusions if supported by the findings. See Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995). Conclusions that are not supported by the court's findings, however, cannot be sustained. See Bisson v. Ward, 160 Vt. 343, 350, 628 A.2d 1256, 1261 (1993).

The court's paramount consideration in awarding parental rights and responsibilities is the best interests of the child. See Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 602 (1989); 15 V.S.A. § 665(b). A critical statutory factor guiding the court's determination is "the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent." 15 V.S.A. § 665(b)(5). Other statutory factors, including of course the child's relationship with the

721 A.2d 472

primary care provider, must be weighed in the balance, and may in certain cases be decisive. See Bissonette, 152 Vt. at 70, 564 A.2d at 601-02 (evidence that mother had rebuffed father's childcare efforts did not outweigh her primary-care provider relationship with child). "The focus of the court's decision must be the best interest of the child, not equity between the parties." Id.

As we observe in Renaud v. Renaud, 168 Vt. ___, ___, 721 A.2d 463, 466 (1998), "a child's best interests are plainly furthered by nurturing the child's relationship with both parents, and a sustained course of conduct by one parent designed to interfere in the child's relationship with the other casts serious...