Cameron v. Cameron, 91-78

• Decision Date: 06 February 1979
• Docket Number: No. 91-78,91-78
• Citation: 398 A.2d 294,137 Vt. 12
• Court: Vermont Supreme Court
• Parties: Kathryn L. CAMERON v. Robert Bruce CAMERON.

Page 294

398 A.2d 294

137 Vt. 12

Kathryn L. CAMERON v. Robert Bruce CAMERON.

No. 91-78.

Supreme Court of Vermont.

Feb. 6, 1979.

Garfield H. Miller of Black & Plante, White River Junction, for plaintiff.

Richard I. Burstein, Randolph, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

In a contested divorce action heard in the superior court, the plaintiff was granted a bill of divorce from the defendant. The custody of the parties' minor child was awarded to the plaintiff. The trial court directed that her care of the child be monitored once a month by the Department of Social Welfare during the period of time that she received aid from the department. The defendant was accorded visitation rights. The defendant appeals from so much of the final judgment order as relates to child custody and the denial of his motions to amend the findings of fact, V.R.C.P. 52(b), and to alter or amend the judgment, V.R.C.P. 59(e).

In his appeal the defendant has briefed and argued the following claims of error:

The refusal of the court to call as a witness or to examine in chambers, with or without counsel, the minor child, then six years of age, for the purpose of allowing her to state her preference as to parental custody; the court's directions as to monitoring by the Department of Social Welfare; and the use of statements, contained in the investigative report made to the court under the provisions of 15 V.S.A. § 557(b), in the findings of fact. We find no reversible error and affirm.

The trial court had before it conflicting evidence concerning the parties and their care of the minor child. We set forth the principles of review for cases of this nature in Senesac v. Senesac, 135 Vt. 24, 25, 370 A.2d 214, 214-215 (1976).

In awarding custody and in decreeing visitation rights, the trial court has wide discretion. Its decision will not be revised by this Court unless the discretion was erroneously exercised, Boone v. Boone, 133 Vt. 170, 174, 333 A.2d 98 (1975), or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence. Loeb v. Loeb, 120 Vt. 489, 492, 144 A.2d 825 (1958). The welfare of the children is determinative in the awarding of custody. McKinney v. Kelley, 120 Vt. 299, 302, 141 A.2d 660 (1957).

The opposing desires of hostile parents and the preferences of their offspring must yield to the paramount consideration of the children's well being. Loeb v. Loeb, supra, 120 Vt. at 490-93, 144 A.2d at 828; Lafko v. Lafko, 127 Vt. 609, 619, 256 A.2d 166, 172 (1969).

Although the appellant urges that it was error for the lower court to fail to examine the minor child as to her preferences in the matter of custody, we find no statutory requirement that would compel a trial court to call as its own witness a child of tender years for an inquiry as to his or her parental preferences. On the contrary, the child has, by statute, no right to choose his own guardian until he has reached the age of fourteen years. 14 V.S.A. § 2650. Until that time, as has been previously stated, the wishes or preferences of the child are not controlling factors in the court's decision upon the issue of custody, and the court is not bound by the child's preference. This is not to say that a trial court may not, in the exercise of its discretion, permit the testimony of a child upon the issue of custody if it feels that to do so would be in the best interest of the child. However, in the absence of a showing that the court clearly abused its discretion in refusing to hear the child, we will not place it in error. No such showing has been made here. Furthermore, the wishes of the child were stated in the Department of Social Welfare report furnished the court.

The second issue raised for our consideration is whether the trial court abandoned its judicial functions by delegating the authority to find facts and make decisions to the Department of Social Welfare. Prior to a hearing upon the merits, the court ordered the Department of Social Welfare to conduct an investigation and make a recommendation as to which of the parties should have custody of the minor child of the parties. This order was made upon stipulation and consent of the parties. See 15 V.S.A. § 557. The report was made available to the counsel for the parties, and they were given the opportunity to subpoena as witnesses the person who prepared the report and those persons who furnished information contained in the report. Neither party availed itself of...