Billado v. Billado

• Decision Date: 13 May 2022
• Docket Number: 21-AP-277
• Parties: Holly Billado[*] v. Daniel Billado
• Court: Vermont Supreme Court

Holly Billado^[*]
v.
Daniel Billado

No. 21-AP-277

Supreme Court of Vermont

May 13, 2022

APPEALED FROM: Superior Court, Franklin Unit, Family Division CASE NO. 14-1-21 Frdm Trial Judge: Howard A. Kalfus

ENTRY ORDER

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

Mother appeals the family division's order awarding sole parental rights and responsibilities for the parties' two minor children to father. We conclude that the court did not provide reasonable notice to the parties of its intention to issue a final order, and therefore reverse and remand for the court to hold a final hearing on parental rights and responsibilities.

Mother filed a complaint for divorce in January 2021. The parties initially had an informal agreement to share custody of their two children equally. By the summer of 2021, however, mother and father were living in different towns, forty-five minutes away from each other, and they could not agree on where to enroll the children for school that fall. In May 2021, each moved for a hearing to establish temporary parental rights and responsibilities. Both motions clearly indicated that the parties were seeking temporary relief and not a final order.

The court scheduled a one-hour hearing for August 2, 2021. The hearing notice did not indicate that it would be a final hearing on parental rights and responsibilities. Both parties attended with counsel. At the beginning of the hearing, the court asked the attorneys whether they planned to call any witnesses other than mother and father. Father's attorney noted that with only one hour of time, they would not be able to call any other witnesses. The court informed the parties that the next hearing had been cancelled, so they would have an additional half hour. That meant each party would have forty-five minutes to present evidence. The court then asked mother's counsel to begin. Father's counsel asked if she should go first, since it was her client's motion. Mother's counsel responded, "Well, we both filed requests for a temporary hearing," but agreed that father had filed his request first. The court responded, "Okay." The

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parties agreed that father's counsel could go first. Father testified. He attempted to call his mother as a witness but was unable to proceed due to technological issues. Mother then testified.

At the close of the hearing, the court made findings on the record. Stating that it was "a close call," it awarded sole legal and physical custody to father because it found that he was slightly better disposed to foster a positive relationship between the children and the other parent. The court encouraged the parties to work out an equal parent-child contact schedule. At no point during the hearing did the court or the parties suggest that the hearing was final.

The court subsequently issued a written order on a standard court form awarding sole parental rights and responsibilities to father and directing the parties to work together to propose a parent-child contact order. It did not make any additional findings. A checked box on the form indicated that the order was final.

At the end of August 2021, the parties filed a stipulated final parent-child contact agreement that did not address parental rights and responsibilities. In October, the court notified the parties that a final dissolution hearing would be held in November 2021. Mother filed a motion asking the court to conduct a final hearing on parental rights and responsibilities as part of the November hearing. Mother argued that the purpose of the August hearing was to address the parties' requests for temporary relief and that the court erred in checking the box indicating that its order was final. She argued that she was afforded inadequate time to present her case at the August hearing and that she had additional evidence and testimony relevant to the issue of parental rights and responsibilities. Father opposed the motion. He conceded that he had only requested temporary relief but argued that mother had waited too long to object to the finality of the order. He...