Chickanosky v. Chickanosky

• Decision Date: 22 September 2011
• Docket Number: No. 10–385.,10–385.
• Citation: 2011 VT 110,35 A.3d 132
• Parties: Michael CHICKANOSKY v. Margaret CHICKANOSKY.
• Court: Vermont Supreme Court

2011 VT 110

35 A.3d 132

Michael CHICKANOSKY

v.Margaret CHICKANOSKY.

No. 10–385.

Supreme Court of Vermont.

Sept. 22, 2011.

James C. Foley, Jr. of Deppman & Foley, P.C., Middlebury, for Plaintiff–Appellee.

Lisa M. Werner of Clark, Werner & Flynn, P.C., Burlington, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. Mother appeals from a family court order granting father sole physical and legal rights and responsibilities of their child. She contends that: (1) the family court's findings and legal conclusions are inconsistent with the evidence presented at trial and are based on inadmissible evidence; (2) the family court erred in failing to consider her argument that father's reason for moving should be considered when deciding whether there has been a change in circumstance, such that the co-parent's rights to physical custody are reduced; and (3) the family court erred in failing to consider her argument that mother should maintain physical custody when father decided to move and mother had the majority of physical custody. We affirm.

¶ 2. Mother and father were divorced in 2005. Pursuant to the original divorce order, the parties shared legal and physical rights and responsibilities in their daughter, who was five years old at the time of the judgment. Following their divorce, mother and father generally shared time with daughter: she was with mother for four overnights per week and with father for three. During the school year, she was with father from Wednesday to Saturday and with mother from Saturday to Wednesday. During the summer, she was with father from Friday to Monday and with mother from Monday to Friday. They also co-parented daughter during this time. Nonetheless, mother and father have had an especially contentious post-divorce relationship. Both parents have new partners and children, and this has caused additional tension in their relationship. Daughter's participation in extracurricular activities caused particular difficulties.

¶ 3. As a result of the parties' disputes, father moved to modify parental rights and responsibilities in January 2008. Following a five-day hearing, the court issued a written order in January 2009 awarding primary legal responsibility to father. The court found that because parents could not agree, daughter was being denied the opportunity to participate in extracurricular activities she had previously enjoyed. In addition, the parties could not agree on a counselor or dentist for daughter, whether she should see an orthodontist, and how her religious upbringing should occur. Overall, the court found that daughter's welfare was negatively affected by the parties' inability to cooperate or reach agreements.

¶ 4. Based on its findings, the court concluded that it had become necessary to grant primary legal responsibility of daughter to one parent. It further concluded that it was in daughter's best interest that father be awarded primary responsibility with certain “caveats,” including that father not remove daughter from her current school unless the parties agreed, nor change her current church membership without mother's approval. The court specifically ordered that father would be the primary decision-maker for nonschool-related extracurricular activities. At the same time, the court denied father's request for primary physical responsibility of daughter, concluding that it would be traumatic for daughter if her residential schedule were altered. Given the parties' co-parenting arrangement, a change of custody was not necessary to solve the dispute before the court.

¶ 5. Nevertheless, mother appealed the family court order awarding father primary decision making responsibility over daughter's extracurricular activities, as well as a subsequent order denying her motion to modify, claiming that the orders impermissibly infringed on her shared physical rights and responsibilities. We affirmed both family court decisions in Chickanosky v. Chickanosky, Nos. 2009–094 & 2009–444, 2010 WL 7799902 (Vt. May 21, 2010) (unpub.mem.), http:// vermont judiciary. org/ d– upeo/ eo 09– 094. pdf.

¶ 6. In October 2009, while mother's appeals were pending before this Court, father again petitioned the family court for primary physical responsibility of daughter because of a planned relocation to Missouri. He asserted that the relocation was a real, substantial, and material change in circumstances warranting a change in the award of physical rights and responsibilities. Father further asserted that it would be in daughter's best interest that he be awarded primary physical responsibility so that she could move with him and his wife to Missouri and that mother be awarded reasonable parent-child contact. Mother contended that it would be in daughter's best interest to remain with her in Vermont.

¶ 7. Following a four-day hearing, the court issued a written decision in July 2010. The court made extensive findings, relying on a court-ordered forensic evaluation by Dr. Joseph Hasazi, its January 2009 order and related findings and conclusions of law, and the testimony of multiple witnesses. The court found that father's primary motivation for moving to Missouri was to be closer to his wife's family. Other factors influencing father's decision to move included Missouri's lower cost of living, the tense situation with mother and its impact on daughter, and the cost of the ongoing litigation regarding their daughter.

¶ 8. The court found that mother continued to make it “very difficult for [daughter] to be able to truly consider [father] as a co-parent,” and that mother's “tendency to fail to see [father] as an equal co-parent has continued since the time of the [January 2009] order, and she has directly, or indirectly, continued to instill this belief in [their daughter].” In particular, the court found that mother had criticized father's choices concerning daughter's extracurricular activities after the court granted him decision-making authority in this area. Similarly, the court found that mother had not set aside her anger towards father's wife, even though doing so would benefit daughter, who had bonded with father's wife. The court noted that things had not improved in this regard since its January 2009 decision. The court also found that mother had “a history of interfering” with the daughter's schooling. Indeed, the court found that mother was “not as good as [father] as far as giving [daughter] space to learn and develop on her own.”

¶ 9. In contrast, the court found that father was “much more likely to make decisions that [were] based on [daughter's] best interest [and] not influenced by his feelings for [mother].” Indeed, the court found that father was much better at keeping “adult issues” away from the child. The court also found that father had “a better understanding of the boundaries between adult and child and [could] provide [daughter] with better guidance.”

¶ 10. The court found, too, that daughter had strong ties to her community in Monkton, where mother lived, and that she was closer to her Vermont friends and relatives than to her relatives in Missouri. The court found in this regard that a move from her Monkton home would “cause [her] some emotional upset.”

¶ 11. Relying on our decision in Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, the court concluded that father met his burden of proving that his relocation was a substantial change in material circumstances, allowing modification of the parties' custody arrangement. The court highlighted the parties' co-parenting of daughter, the permanence and distance of father's relocation, and the lack of alternative visitation arrangements that could approximate their current schedule.

¶ 12. Having concluded that father met his threshold burden of proving changed circumstances, the court then granted father's motion to modify based on the best interests of the child and the factors outlined in 15 V.S.A. § 665(b). It determined that, based on its findings, the majority of the factors favored father and concluded that it was in daughter's best interest for father to be awarded primary legal and physical rights and responsibilities. Accordingly, the court granted father primary legal and physical responsibility of daughter subject to mother's right of parent-child contact. Mother subsequently filed a motion to correct findings of fact. Following a hearing, the court issued a written order addressing each challenged finding. The court did not substantively change any findings.

¶ 13. Mother argues on appeal that the family court erred by: (1) making findings that were inconsistent with the evidence presented at trial or based on inadmissible evidence; (2) applying an incorrect legal standard to determine if there had been a change in circumstances; and (3) applying an incorrect legal standard to determine what custody arrangement would be in daughter's best interests.

¶ 14. We address at the outset mother's argument that the family court's findings were inconsistent with the evidence presented at trial or were based on inadmissible evidence. In general, we defer to family court findings of fact. Miller–Jenkins v. Miller–Jenkins, 2010 VT 98, ¶ 11, 189 Vt. ––––, 12 A.3d 768 (mem.). Faced with a motion to modify parental rights and responsibilities, the family court has broad discretion to determine the child's best interests as required by the statute. Id. Because of its unique position as the trier of fact, the family court alone may evaluate the credibility of witnesses and the weight evidence should be afforded in making such an assessment. Id. In the highly fact-intensive context of a custody determination, we rely on the family court's determinations of fact and evaluations of credibility. Id. We will therefore uphold the court's findings of fact unless they are clearly erroneous, viewing them in the light most favorable to the prevailing...