Brown v. Brown, 88-367

• Decision Date: 03 August 1990
• Docket Number: No. 88-367,88-367
• Citation: 154 Vt. 625,580 A.2d 975
• Parties: Francis E. BROWN v. Beatrice B. BROWN.
• Court: Vermont Supreme Court

Page 975

580 A.2d 975

154 Vt. 625

Francis E. BROWN v. Beatrice B. BROWN.

No. 88-367.

Supreme Court of Vermont.

Aug. 3, 1990.

Law Offices of Matt Harnett, P.C., Rutland, for plaintiff-appellant.

Pamela A. Marsh and Cynthia L. Rodgers, Law Clerk (on the brief), of Nuovo & Marsh, Middlebury, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY and MORSE, JJ.

DOOLEY, Justice.

This action began as a petition to enforce a child visitation provision of a divorce order and for contempt. The petition alleged that defendant Beatrice Brown had refused to allow plaintiff Francis Brown to visit their seven-year-old daughter, Julie Brown [the child]. Following a two-day hearing, the trial court denied the petition, refused to hold defendant in contempt and modified the underlying order to require that visitation by plaintiff be supervised by a third party. Plaintiff appeals, alleging that: (1) the court improperly modified the underlying visitation order without a request from defendant; (2) the court's conclusions are based on inadmissible testimony related to plaintiff's alleged sexual abuse of another daughter of defendant (plaintiff's stepdaughter); and (3) certain of the findings of fact are clearly erroneous and the conclusions are not supported by the findings. We affirm.

Plaintiff and defendant were divorced in 1983 when the child was three years of age. The final order awarded custody of the child to defendant and gave plaintiff "the right to visit said minor child at reasonable times and places upon twenty-four hours notification to defendant." Visitation occurred under the order until the summer of 1986 when defendant refused visitation because of a concern that plaintiff might be sexually abusing the child. The refusal of visitation led to this action and a temporary stipulation which allowed plaintiff supervised visitation in the presence of one of defendant's sons. This proved unsatisfactory to plaintiff because he did not get along with the son.

Defendant's refusal to permit visitation was based on her suspicion that plaintiff was engaging in inappropriate touching, supported in part by the fact that defendant was taking the child to the doctor for a "sore vagina" and she was having nightmares. There was, however, no direct evidence of sexual abuse, and, in fact, the child denied that such abuse had occurred.

The evidence at the hearing centered on plaintiff's alleged sexual abuse of an older daughter of defendant, along with testimony that he tried to teach his daughter from an earlier marriage to masturbate and was aroused by female masturbation. Defendant submitted the expert testimony of a psychologist who interviewed plaintiff, defendant, the child, other family members, and a woman who had lived with plaintiff. The psychologist testified that visitation should be supervised based in large part on plaintiff's inappropriate sexual behavior with his older daughter and his stepdaughter, his belief that it was proper to teach girls to masturbate and his arousal by female masturbation.

Plaintiff denied the main allegations against him. Specifically, he denied that he had sexually abused any of his daughters or his stepdaughter. He admitted that he had suggested masturbation to one of his daughters and to his stepdaughter, but he now believed that suggestion was improper. Plaintiff denied any inappropriate sexual conduct with the child.

In general, the trial court accepted the evidence offered by defendant and found that the child was "at risk to become part of the pattern of sexual abuse." The court concluded that unsupervised visitation would not be in the child's best interest and that modification of the divorce order was necessary based on a change of circumstances--that is, awareness of the past sexual abuse and the risk to the child. The court modified the divorce order to allow visitation only in the presence of a supervisor chosen by defendant with plaintiff's approval.

The first issue we consider is whether the court acted on a proper request to modify and whether the grounds for modification were present. As stated above, this proceeding began with a petition to enforce a visitation order and to hold defendant in contempt for failing to comply with the order. The petition, along with a notice of hearing, was served on defendant on August 13, 1987. On August 20, 1987, defendant responded with a memorandum in opposition to the petition and a request for appointment of counsel for the child and for a psychological evaluation of the child. The memorandum requested that pursuant to 15 V.S.A. § 665 visitation be denied or, if allowed, be supervised by an adult acceptable to defendant. The memorandum and requests were accompanied by an affidavit of defendant alleging that the child had a sore clitoris and nightmares after each visit and that plaintiff had sexually abused his stepdaughter in the past.

Plaintiff appears to be making three interrelated claims here. First, he argues that defendant did not make a proper motion for modification. Second, he claims that he did not have sufficient notice that modification was in issue to comply with due process requirements. Finally, he claims that plaintiff failed to allege a proper change of circumstances to comply with the law.

The controlling statute for modification of custody and visitation orders is 15 V.S.A. § 668. It allows for modification of an order concerning the parental rights and responsibilities of a minor child "[o]n motion of either parent ... and upon a showing of real, substantial and unanticipated change of circumstances" if the court finds that it is in the best interest of the child to do so. We accept, as plaintiff argues, that the statute, as well as V.R.C.P. 80(j), requires that the court act on a motion in modifying a visitation order. We find nothing in the statute or our rules that describes a motion so narrowly that the court could not consider defendant's memorandum, accompanied by a clear affidavit showing what was in issue, to be a motion. Further, we think if there had been any error, it would have been harmless. From the beginning of the proceeding, plaintiff was aware what was in issue. At the initial hearing in August of 1987, he agreed both to a temporary visitation order requiring supervision and to an evaluation by a specified psychologist "in relation to any child abuse allegations."

Our disposition of plaintiff's claim that there was not a proper motion also addresses his due process complaint. Plaintiff was entitled to reasonable notice of what was in issue and an opportunity to be heard on defendant's request. See In re H.A., 153 Vt. 504, ----, 572 A.2d 884, 887-88 (1990) (termination of parental rights proceeding). He received proper notice from defendant's memorandum in opposition to his petition and had the opportunity to put on evidence on whether modification was proper.

Finally, while we find no requirement in our law that a modification petition specifically allege a change of circumstances, there was no question that defendant did make such an allegation. ¹ The affidavit accompanying her memorandum and request for a psychological evaluation of the child alleged that visitation was having direct, negative consequences on the child and that plaintiff had abused his stepdaughter. No further allegations were required.

Plaintiff's second issue deals with the admission of the testimony of the stepdaughter to the effect that plaintiff had sexually abused her some ten years earlier. Plaintiff argues that the court should have excluded the evidence under V.R.E. 404(b) because it was used to show that he had a character trait to sexually abuse young girls and therefore was not fit to visit his daughter. We note at the outset that plaintiff failed at the evidentiary hearing in this matter to object to the evidence of the stepdaughter, as is required by V.R.E. 103(a)(1). Thus, even if the admission of the evidence was error, it is grounds for reversal only if we find it to be an error "affecting substantial rights." ² V.R.E. 103(d); see Deyo v. Kinley, 152 Vt. 196, 201, 565 A.2d 1286, 1289 (1989). The impact of the admission of this testimony was not such that we would reverse in the absence of an objection; indeed, we believe the court committed no error in admitting it.

As plaintiff argues, we have set some limits on the use of this kind of evidence in criminal cases because of its potential prejudicial effect. The considerations were discussed in State v. Hurley, 150 Vt. 165, 168, 552 A.2d 382, 384 (1988), as follows:

[W]e are confronted with competing interests. On the one hand, however strongly we may caution jurors, charges of sexual misbehavior with minors are of a nature that almost inevitably disposes jurors unfavorably toward the accused and burdens the fairness of the...