Cabot v. Cabot

• Decision Date: 23 May 1997
• Docket Number: No. 96-087,96-087
• Parties: Ellen Adams CABOT v. Thomas D. CABOT, III.
• Court: Vermont Supreme Court

Page 644

697 A.2d 644

166 Vt. 485

Ellen Adams CABOT v. Thomas D. CABOT, III.

No. 96-087.

Supreme Court of Vermont.

May 23, 1997.

Motion for Reargument Denied

July 2, 1997.

Debra R. Schoenberg, Burlington, Nicholas E. Tishler, Niskayuna, New York, and Robert P. Davison, Jr. (On the Brief), Stowe, for plaintiff-appellant.

Susan M. Murray and Peter F. Langrock of Langrock Sperry & Wool, Middlebury, for defendant-appellee/cross-appellant.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and SKOGLUND, District Judge, Specially Assigned.

JOHNSON, Justice.

In this decision we address a number of issues arising out of a lengthy and complicated divorce proceeding. Both parties appeal the family court's parental rights and responsibilities order; the husband, Tom, claims that he should have been awarded sole parental rights, while the wife, Ellen, argues that the court lacked authority to award joint legal parental rights and responsibilities absent agreement of the parties. Ellen also appeals a number of financial issues, including the court's valuation and division of the marital estate and its failure to award maintenance. We agree that the court lacked authority to award joint legal parental rights and responsibilities and therefore reverse and remand the parental rights and responsibilities order; in all other respects, we affirm the decision below.

The parties were married in 1984 and have lived in Vermont throughout their marriage. They have one child. Ellen has worked as a registered nurse and has operated her own nutrition business, but has not worked outside the home since the child's birth. Tom has his own business as architect and real estate developer, but has not had much financial success. Although neither party earned any substantial income during the marriage, the family lived very well, supported by income derived from Tom's family inheritance. The parties began to live apart in late 1991, and the divorce was filed in April 1992. Over the next three-and-a-half years, the parties litigated every aspect of this divorce, culminating in the separate parental-rights-and-responsibilities and property-distribution orders that are the subject of this appeal. As we address each of the arguments raised by the parties, we explain the relevant factual and procedural background in more detail.

I. Parental Rights and Responsibilities

The parties' only child, a daughter, was born in 1988. For the first three-and-a-half years of the child's life, the family lived together in the marital home in Shelburne, Vermont. In the fall of 1991, however, the marriage began to disintegrate. Ellen asked Tom first to spend four nights a week at a nearby house owned by Tom and his sister; two months later, she asked him to move out of the house altogether. For several months, the parties remained in couples therapy and Tom continued to see the child. In March of 1992, Ellen insisted that Tom reduce his time with the child from daily contact to three visits per week. Ellen also stopped attending couples therapy. In April 1992, Ellen filed for divorce. On the same day that she began the divorce proceedings, she took her daughter to her parents' house in Maine without telling Tom.

Shortly thereafter, the parties entered into a stipulation giving Ellen temporary, primary physical rights and responsibilities subject to Tom's right to certain parent-child contact. The trial court incorporated that agreement into a temporary order. In June 1992, less than two months after the court issued its order, Ellen refused to allow Tom to see the child. Ellen testified that she believed Tom was removing items of personal property from the marital home during the visits, and claimed that her then-attorney advised her to stop the visits. The court noted that Ellen's explanation "seem[ed] questionable" and found it more likely that Ellen's conduct was a deliberate attempt to reduce or sever Tom's contact with the child. As a result of Ellen's actions, Tom had no contact with his child for nearly four months. In October 1992, the court ordered Ellen to allow contact between Tom and the child, but on the advice of the child's psychiatrist, that contact was limited at first to a few hours twice a week in the presence of a third-party observer.

In July of 1993, Ellen told Tom that she had accepted a nursing job in Charlottesville, Virginia, and had placed a deposit on a house and enrolled the child in school there. Ellen planned to move in September of that year. Tom requested that the trial court enjoin Ellen from taking the child with her to Virginia. The court granted the motion, and Ellen decided not to move to Virginia. Ellen testified, however, that she planned to move to Virginia after the divorce was final.

In October of the same year, Ellen filed a motion asking the trial court to reduce Tom's contact with the child. After a discussion between the attorneys and the court, the hearing on Ellen's motion was transformed into a final hearing on parental rights and responsibilities. The court decided to adjudicate that issue before considering the property and maintenance issues, in part because of Ellen's plan to move to Virginia with the child.

After making extensive findings, ¹ and evaluating each of the factors listed in 15 V.S.A § 665(b), the court awarded sole physical parental rights and responsibilities to Ellen, but ordered joint legal parental rights and responsibilities. The court also granted Tom substantial parent-child contact, including every other weekend, shared or alternated school vacations, and forty-five days during the summer. The court drew up an alternate visitation schedule, should Ellen move to Virginia or another distant state; under that plan, the child would be with Tom for every school vacation and almost all of the summer. ² Each parent challenges some part of the court's parental-rights-and-responsibilities order. Tom argues that he should have been awarded sole parental rights and responsibilities, while Ellen maintains that the court erred by ordering joint legal parental rights and responsibilities.

A. Tom's Claim

We first address Tom's claim that the trial court abused its discretion by failing to award him sole legal and physical parental rights and responsibilities. Tom does not challenge any of the court's findings, but instead argues that those findings do not support its decision to award physical rights and responsibilities to Ellen. Specifically, Tom points to several findings regarding Ellen's attempts to limit or eliminate Tom's contact with the child and to interfere with the father-child relationship. Based on these findings, the court concluded that, if awarded primary legal rights and responsibilities, Tom would be much more likely to support and foster the child's relationship with Ellen than Ellen would be to encourage the child's relationship with Tom. See 15 V.S.A. § 665(b)(5) (one factor court must examine is "ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent"). The court also concluded that Tom is able and willing to provide the child with love, affection, and guidance; to ensure that her basic physical needs are met; and to meet her present and future developmental needs. See 15 V.S.A. § 665(b)(1)-(3) (court must consider these factors in making custody determination). In Tom's view, these findings and conclusions by the court mandated an award of sole parental rights and responsibilities to him.

The court based its decision to award physical parental rights and responsibilities to Ellen on its conclusion that Ellen has been the child's primary care provider, "clearly fulfill[ing] this role more than Tom," both before and after the separation. See 15 V.S.A. § 665(b)(6) (court shall consider quality of child's relationship with primary care provider, if appropriate, given child's age and development); Johnson v. Johnson, 163 Vt. 491, 494, 659 A.2d 1149, 1151 (1995) (absent evidence on likely effect of change of custodian, court should ordinarily find that child should remain with primary custodian if that parent is fit). The court found that Ellen "was the central figure in [the child's] life," and that "the depth of the emotional relationship between Tom and [the child] does not equal that between [the child] and Ellen." Despite Ellen's unfortunate efforts to disrupt the child's relationship with her father, the court was reluctant to break the close mother-daughter bond.

We do not agree with Tom that, based on the court's findings, the court abused its discretion by failing to award sole parental rights and responsibilities to him. See deBeaumont v. Goodrich, 162 Vt. 91, 103, 644 A.2d 843, 850 (1994) (trial court has broad discretion in custody matter; Supreme Court cannot set aside its decision because it would have reached different conclusion from facts); Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988) (Supreme Court must affirm trial court's decision in custody matter unless that court's discretion was erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of evidence). The court recognized and considered Ellen's attempts to exclude Tom from the child's life, but on balance concluded that Ellen's role as primary care provider and the need to preserve the resulting "close, warm, nurturing, and consistent relationship" between Ellen and her daughter outweighed the other concerns. Overall, the evidence supports the court's decision to grant sole physical parental rights and responsibilities to Ellen rather than Tom. See Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 601-02 (1989) (court did not err by awarding custody to mother, who was primary care provider, despite evidence that mother's animosity and rebuff of father made it difficult for father to participate in child's care).

Tom also argues that, by...