Bonk v. Bonk

• Decision Date: 09 February 2018
• Docket Number: No. 2017-321,2017-321
• Citation: 2018 VT 15
• Court: Vermont Supreme Court
• Parties: Katie E. Churchill Bonk v. Landon Bonk

2018 VT 15

Katie E. Churchill Bonk v. Landon Bonk

No. 2017-321

Supreme Court of Vermont

January Term, 2018

February 9, 2018

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Franklin Unit, Family Division

Martin A. Maley, J.

Cynthia L. Broadfoot of Broadfoot, Attorneys at Law, Burlington, for Plaintiff-Appellant.

Julie A. Frame and Joshua Stern (Law Clerk) of Hoff Curtis, Burlington, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. This case considers whether a trial court can modify parental rights and responsibilities when one parent is relocating if that issue is not expressly raised by motion and the sole motion before the court is the relocating parent's motion to modify parent-child contact. Katie Churchill (mother) appeals a trial court decision that transferred the right to choose the children's residence and school from her to Landon Bonk (father) and that reconfigured the parties' existing contact schedule, reducing her time with her children from approximately 65% to 20%. We hold that mother's motion to modify parent-child contact and father's motion to dismiss in response did not raise the issue of the parties' parental rights and responsibilities. Therefore, the trial court abused its discretion by issuing an order modifying parental rights and responsibilities. We further hold that the proceedings below support finding a sufficient change of circumstances to grant mother's motion to modify parent-child contact. Accordingly, we reverse and remand for the trial court to set a new parent-child contact schedule.

¶ 2. The parties divorced in August 2016. They have two children, born in July 2011 and May 2013. The parties resided in Enosburg during their marriage, and their oldest child attended school in the Enosburg district. Father remained in the marital residence after the divorce, while mother moved in with a friend in St. Albans. Both children continued to attend the same care and educational programs they attended prior to the divorce. The final divorce order, which was based on the parties' stipulation, provided that the parties would share physical and legal rights and responsibilities. The order and underlying stipulation further provided that the children's primary residence would be with mother and that they would attend school in the town where mother resided, with the sole exception that the children would not be placed in the St. Albans town or city schools. Mother retained the sole right to decide where the children would attend school.

¶ 3. The parties' divorce order also included a biweekly parent-child contact schedule. According to this schedule, in the first week father exercised parent-child contact from Wednesday after school until the beginning of school on Thursday and on Friday after school until late Sunday afternoon. In the second week, father exercised parent-child contact from Wednesday after school until the start of school on Friday. At all other times, the children were with mother. The parties shifted the schedule by agreement so that father exercised parent-child contact Thursday through Sunday in week one, and Tuesday and Wednesday in week two. This alteration did not change the number of overnights that either party had with the children. The trial court found that father had the children for five nights over two weeks, or 35.7% of overnights, under both the original agreement and the agreement as followed by the parties.

¶ 4. In December 2016, mother notified father that she intended to purchase a home in Proctor. Mother suggested altering the parent-child contact schedule to reduce midweek travel and transitions. Father's attorney subsequently sent mother's attorney a letter objecting to bothmother's intended move and any change to the parties' current parent-child contact schedule. Mother purchased a home in Proctor in February 2017. The same month, she filed a motion to modify the parent-child contact schedule. Father filed a motion to dismiss mother's motion, arguing, in essence, that there was no change of circumstances to support altering the schedule because mother's move was avoidable, and, if mother's motion was denied, she would likely stay in Franklin County and any change to the parent-child contact schedule would be unnecessary. In this motion, father stated that he had "never consented to or approved of his children being moved away from Franklin County, the place where he lives and works; where the parties lived during the marriage; where the children have lived their whole lives; and where [mother] has lived her whole life."

¶ 5. The parties appeared before the trial court for a thirty-minute hearing in May 2017, at which they agreed upon an interim schedule that reduced midweek transitions and travel time for the children and allowed their oldest child to finish the school year in Enosburg. The parties returned to the court for a two-hour hearing in June. During both the June hearing and a subsequent hearing in July, father's attorney argued that a proposed change in parent-child contact necessarily invoked a review of parental rights and responsibilities. To that end, she elicited testimony regarding the best interests of the children for purposes of a parental rights and responsibilities analysis. Mother's attorney repeatedly objected on the ground that the matter before the court was mother's motion to modify parent-child contact and father's opposing motion to dismiss—neither party had filed a motion to modify parental rights and responsibilities. Mother's attorney further stated that the reason for the hearing was to determine an amendment to the parties' current parent-child contact schedule that would enable father to retain the same percentage of time with the children while also minimizing travel and transitions for the children. The court did not determine the scope of the issues before it at that time, though later in the same hearing and following another objection, the court stated that it would reserve on the issue of scope, allow the testimony to continue, and make a determination at the end regarding the facts and factors to be considered.Mother's attorney continued to object to testimony directed at the parental rights and responsibilities analysis rather than the modification of parent-child contact. The trial court overruled these objections. Mother's attorney did elicit testimony from mother about the impact a change of physical responsibility would have on the children.

¶ 6. Both parties submitted proposed findings of fact and conclusions of law after the July hearing. Father's proposed conclusions of law included two suggested alternatives. First, the court could deny mother's motion to modify parent-child contact in reliance on mother's testimony that she would remain in Franklin County if the court denied her motion.¹ Second, father argued, the court could modify the parent-child contact schedule so that the children would live primarily with him and mother would exercise parent-child contact and also change the divorce order's provision giving mother sole right to choose the children's residence and school. Father argued that the evidence presented included consideration of parental rights and responsibilities, not simply parent-child contact, and that under Vermont Rule of Civil Procedure 15(b) the court should consider father's initial motion to dismiss amended to conform to the evidence presented and to raise the issue of parental rights and responsibilities. Mother's proposed findings of fact and conclusions of law asked the court to modify the current parent-child contact schedule such that father retained the same percentage of time with the children, but his parent-child contact was not scheduled midweek.

¶ 7. The trial court issued a decision that modified parental rights and responsibilities, deciding initially that the court was not limited to considering a parent-child contact modificationonly. Instead, it could consider whether there had been a real, substantial, unanticipated change in circumstances and whether the best interests of the children required a change in the underlying order's disposition of parental rights and responsibilities. The court then found a real, substantial, and unanticipated change of circumstances and engaged in a best interest analysis under 15 V.S.A. § 665. The court subsequently transferred the portion of physical rights and responsibilities that allowed mother to choose the children's primary residence and to select their school to father but otherwise retained the parties' shared physical and legal rights and responsibilities. The court granted mother parent-child contact three weekends of each month from early Friday evening to late Sunday afternoon, with school vacations shared between the parties. This appeal followed.

¶ 8. In general, "[t]he family court has broad discretion both in assessing whether there has been a change in circumstances and in evaluating what parenting arrangement is in a child's best interests." Quinones v. Bouffard, 2017 VT 103, ¶ 10, ___ Vt. ___, ___ A.3d ___ (quotation omitted). This Court will uphold the lower court's factual findings unless, "viewing the record in the light most favorable to the prevailing party and excluding the effect of modifying evidence, there is no credible evidence to support the findings." Id. (quotation omitted). We will also uphold the court's legal conclusions if those conclusions are supported by the court's findings of fact. Id.

¶ 9. The family court concluded that a real,...