Cloutier v. Blowers, 98-436.

• Decision Date: 31 August 2001
• Docket Number: No. 98-436.,98-436.
• Citation: 783 A.2d 961
• Parties: Suzanne CLOUTIER (Fletcher) v. John BLOWERS.
• Court: Vermont Supreme Court

783 A.2d 961

Suzanne CLOUTIER (Fletcher) v. John BLOWERS.

No. 98-436.

Supreme Court of Vermont.

August 31, 2001.

Matthew Colburn, Montpelier, for Plaintiff-Appellee.

John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

John Blowers (father) appeals from an Orleans Family Court order that awarded sole legal and physical parental rights and responsibilities to Suzanne Fletcher (mother) and visitation rights to father. According to father, the court erred because it (1) based its custody decision upon father's age, (2) applied a best-interests-of-the-mother standard in reaching its custody determination, (3) required the parties to file proposed findings of fact and conclusions of law at the close of mother's evidence but prior to father's presentation of evidence, and (4) met with the parties without their attorneys present. We reverse and remand for a new trial.

The family court found the following facts. Father and mother met in 1992, their son, Tarik, was born in 1993, and they separated in 1996. Father and mother were never married. Throughout the parties' relationship, they maintained separate households, although they often lived together. From Tarik's birth until the court's final order awarding mother sole parental rights and responsibilities, the parties shared equal responsibility for Tarik's care. During the parties' relationship, mother lived in Newport, Vermont; however, in 1997, she moved to Stowe. Father lives in West Glover, Vermont, where he has lived since 1971. Mother was previously married and had four children, one of whom died in an automobile accident in 1990.

In July 1996, mother petitioned the court for an order allocating parental rights and responsibilities. In August 1996, the court entered a temporary order of shared legal and physical parental rights and responsibilities pursuant to the parties' stipulation.

The hearing on the final order commenced in April 1998. On July 13, at the close of mother's evidence, the court instructed the parties to file proposed findings of fact and conclusions of law at the next hearing, prior to father's presentation of evidence. Father objected to providing mother with his proposed findings and conclusions, arguing that it would be unfair and prejudicial for mother to have his findings and conclusions prior to his presentation of the evidence. The court rejected father's argument, and the parties filed their findings and conclusions with the court and exchanged them with each other. Father presented evidence over the course of four days, and the hearings were completed on July 29, 1998.

On July 31, the parties appeared before the court without their attorneys and discussed the case and their respective positions.¹ At that time, the court gave the parties a proposed joint custody order and asked them to review it with their attorneys. The following week, both attorneys filed an objection to the proposed order. The court issued its final order on August 12, 1998, and subsequently issued findings of fact and conclusions of law. This appeal followed.

Where, as here, parents cannot agree to joint custody, the trial court "must award primary (or sole) parental rights and responsibilities to one parent." Cabot v. Cabot, 166 Vt. 485, 493, 697 A.2d 644, 649 (1997). The award must be based on the best interests of the child. Gilbert v. Gilbert, 163 Vt. 549, 553, 664 A.2d 239, 240-41 (1995). In determining the best interests of the child, the court must take into account all relevant evidence, including the factors set forth in 15 V.S.A. § 665(b). See id. at 553, 664 A.2d at 241. Trial courts have broad discretion in determining the best interests of the child. Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988). "[W]hen reviewing the factual findings of a trial court we view them in the light most favorable to the prevailing party below, disregarding the effect of any modifying evidence, and we will not set aside the findings unless they are clearly erroneous." Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230 (1999) (mem.). "We will uphold factual findings if supported by credible evidence, and the court's conclusions will stand if the factual findings support them." In re T.L., 169 Vt. 550, 551, 726 A.2d 496, 497 (1999) (mem.). We will, however, reverse if the court's findings are not supported by the evidence, Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995), or if its conclusions are not supported by the findings. Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998).

The court made findings with respect to each of the nine factors in 15 V.S.A. § 665(b), and concluded that factors one, two, four, six, seven, and nine did not weigh in favor of either parent, and that factor eight did not apply because the court was not going to order shared parental rights and responsibilities. Thus, the court relied on factors three and five.

With respect to factor five — the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent — the court found as follows. Mother and father agreed to have a child in order to fill a void in mother's life that was created by the death of her child in 1990. Mother expected that father would not be involved in the child's life; thus, when father "became a solicitous and caring father who attempted to provide for both the child and for her," mother became frustrated. As a result, at the hearing on parental rights and responsibilities, mother alleged that father was verbally and physically abusive, a drug dealer, and unable to meet Tarik's needs. The court found no evidence to support these allegations; rather, according to the court, mother's allegations were motivated by and "consistent with her desire for [father] to play a small and secondary role in the child's life."

Based upon these findings, the court concluded that factor five weighed in favor of awarding custody to mother, stating:

With this level of poor communication between the parents, the court thinks it unwise to place the father in the role of primary caretaker. The [sic] faces too many costs, too many risks and receives few [sic] little benefits.

The costs include the further alienation the child would encounter between the mother and the father. The mother's substantial anguish with what she perceives as a loss of her child will further sour her strained relationship with the father. The negative emotional exchanges between the parents would increase and the child will endure further unnecessary and harmful emotional stress in relating to both of the parents.

The court's findings that mother was frustrated by father's desire to be involved in Tarik's life, and thus made unsubstantiated allegations against father, do not support a conclusion that mother has the "ability and disposition . . . to foster a positive relationship and frequent and continuing contact" with father.² 15 V.S.A. § 665(b)(5). Further, the court made no finding regarding father's ability and disposition to foster a positive relationship and contact with mother. Thus, the court's conclusion that factor five weighed in favor of awarding custody to mother was unsupported by the findings, and must be reversed.

With respect to factor three — the ability and disposition of each parent to meet the child's present and future development needs — the court found that both mother and father were equally able to meet Tarik's present and future development needs. According to the court, however:

The one negative factor against the father, arising from the evidence is his age. The court considers the youth of the child age 5 and the age of the father, 59 years as a negative.

The father would need at least 13 more years of vital, energetic life to successfully bring this child to maturity.

While, he may very well be able to do this, the mother, at age 47 years, seems the better choice as primary caretaker. This strikes the court as a narrow and somewhat weak reason. Yet, the abilities of each parent are so close on the other criteria litigated, that this seems the only factor that decides the issue.

Based upon these findings, the court concluded that factor three weighed in favor of awarding custody to mother, stating:

Thus the father's age and its companion an expected diminishing in his vitality take on an importance that ordinarily should concern the court as important [sic].

. . . .

While age may increase wisdom it diminishes physical stamina. It seems probable that this father under these circumstances will not maintain the long term physical and emotional stamina to discharge the onerous and demanding responsibilities of a single parent for a child of this young age.

The court made no findings, however, to support its assertion that, "under these circumstances," father will probably not maintain the physical or emotional stamina necessary to raise Tarik. Indeed, the court did not explain what "circumstances" it was referring to, beyond the mere fact that father was fifty-nine years old at the time of the hearing. Further, the parties presented no evidence that father's age may affect his ability to meet Tarik's future developmental needs. Thus, the court's finding that father's age was a negative factor was unsupported by the evidence, and its conclusion that factor three weighed in favor of awarding custody to mother was erroneous and must be reversed. See Payne v. Rozendaal, 147 Vt. 488, 494, 520 A.2d 586, 589 (1986) ("the discharge of an employee solely on the basis of age is a practice so contrary to our society's concern for providing equity and justice that there is a clear and compelling public policy against it"); Collins v. Collins, 115 A.D.2d 979, 497 N.Y.S.2d 544, 545-46 (N.Y.App.Div.1985) ("The age of plaintiff father in this case is irrelevant...