deBeaumont v. Goodrich, 92-586

Citation644 A.2d 843,162 Vt. 91
Decision Date27 May 1994
Docket NumberNo. 92-586,92-586
PartiesGail (Goodrich) deBEAUMONT v. Mark D. GOODRICH.
CourtUnited States State Supreme Court of Vermont

Norman R. Blais, Burlington, for plaintiff-appellant.

Peter F. Welch of Welch Graham & Manby, White River Junction, for defendant-appellee.

Charlene R. Bohl, Chelsea, for children.

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

DOOLEY, Justice.

This is an appeal taken by plaintiff-mother Gail deBeaumont from a modification order of the Orange Family Court that shifted parental rights and responsibilities of the parties' children from Ms. deBeaumont to the defendant-father, Mark Goodrich. We affirm.

The parties were married for eight years before separating in 1990 and divorcing in August 1991. They had two children during their years together: Stephen, born in December 1985, and Molly, born in May 1988. Prior to separation, the mother provided care during the day for the children while the father worked, and both parents shared caregiving responsibilities during evening and weekend hours. After the separation, the mother returned to culinary school and worked periodically, with the parties splitting care. The children also continued to visit their paternal grandparents two to three times a week as they had been doing since birth.

Upon divorce, the mother was granted sole legal and physical responsibility for the children. The father was granted parent-child contact that allowed him to have the children for three days each week. This arrangement permitted continuation of the parties' practice of coparenting. As part of the final decree, the court included a paragraph drafted by the parties stating: "If either party moves more than fifty (50) miles from their current homes in Thetford and Norwich, it shall constitute a change in circumstances so the Court may reconsider existing parental responsibilities and visitation."

On January 25, 1992, the mother chose to leave her home in Thetford and move to Milford, Pennsylvania, to join her companion, John Diefenbach. She consulted her attorney before doing so and was told that a move with the children would lead only to a reopening of parental-child contact issues, not a redetermination of all parental rights and responsibilities matters. Thereafter, the mother picked the children up from the father's home, and informed him for the first time that she and the children were leaving the state. She had not told the children they were moving to Pennsylvania, nor did she tell her son's school that she was taking him out of state. The mother refused to give the father the children's mail address or telephone number for a week after the move and continued to refuse to give him her street address.

In response to a February 5 order of the family court, the children were returned to Vermont in early March. On March 25, the family court awarded the father temporary parental rights and responsibilities and gave the mother parent-child contact every weekend and Easter vacation. For purposes of assessing parental care, the court required a family evaluation. This evaluation was performed in May by Dr. Donald Hillman, who found that the children did not perceive either parent as the primary caretaker; rather, they considered both equally caring and committed. On August 24, 1992, the family court modified its earlier order and granted sole legal and physical responsibility to the father, subject to parent-child contact with the mother.

On appeal, the mother argues that the family court's decision to modify should be reversed because the court's findings were insufficient to warrant the modification, that the modification violated the teachings of Lane v. Schenck, 158 Vt. 489, 614 A.2d 786 (1992), and that it was error for the court to adopt many of the findings of the family evaluator but reach a conclusion contrary to the evaluator's recommendation.

In order to modify a custody determination, a moving party must traverse two hurdles. First, the moving party must make "a showing of real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668. Once that threshold is met, the moving party must then show that annulling, varying or modifying a prior parental rights and responsibilities determination is in the best interests of the child. 1 Id.; see Kilduff v. Willey, 150 Vt. 552, 553, 554 A.2d 677, 678 (1988) (only if court finds substantial change of circumstances may it consider best interests of child).

In this case, the father argued that his burden to overcome the first hurdle was met by a provision of the divorce order, based on a stipulation of the parties, concerning the impact of either parent moving more than fifty miles from their respective homes in Vermont. The provision stated specifically that such a move "shall constitute a change in circumstances so the [family] Court may reconsider existing parental responsibilities and visitation." We agree that the provision provided the family court with a reasonable basis to find changed circumstances.

There is no specific statutory authority for the divorce order to define changed circumstances for purposes of a future modification, nor have we considered such a provision. Without deciding whether such provisions will always be effective, we conclude that this provision was effective in this case for two main reasons. 2 First, it was based on a stipulation of the parties. The Legislature has provided that an agreement between parents concerning the division or sharing of parental rights and responsibilities is presumed to be in the best interests of the children. See 15 V.S.A. § 666. The changed circumstances provision was part of such an agreement and is entitled to that presumption. There is no reason to overcome such a presumption in this case.

Second, the provision established a reasonable benchmark to determine changed circumstances. Although physical responsibility for the children was awarded in the divorce decree to the mother, the time allocation for each parent was nearly equal so that a co-parenting arrangement was present. 3 Through the stipulation, the parties specified the limit to which their residences could be separated and still make the co-parenting relationship work. They agreed that if the distance limits were exceeded, the arrangement would break down so it would be necessary to reconsider the custody and visitation provisions in the divorce order. The specific distance standard enabled the parents to plan their lives with a clear understanding of the expectation of the other and the possible consequences of a decision to relocate.

In reaching the conclusion that the provision provided a basis to determine changed circumstances, we want to distinguish the provision from one that would automatically change custody because of a relocation by the physical custodian. We would not give effect to an "automatic change" provision "because it is premised on a mere speculation of what the best interests of the children may be at a future date." Hovater v. Hovater, 577 So.2d 461, 463 (Ala.Ct.Civ.App.1990); see also Wilson v. Wilson, 12 Va.App. 1251, 408 S.E.2d 576, 579 (1991) ("predetermined" change of custody based on future move is an abuse of discretion). Here, the provision dealt only with the threshold; any changed custody had to be based on an independent assessment of the best interests of the children.

The mother argues that even if the provision is valid, it does not authorize a change of physical responsibility, as opposed to a change in visitation. The language of the provision covers both "visitation" and "parental responsibilities." Compare Dunning v. Meaney, 161 Vt. 287, ----, 640 A.2d 3, 5-6 (1993) (agreement that change in circumstances could necessitate change to "the visitation schedule" was not applicable to modification of parental rights and responsibilities). The changed circumstances determination applied to custody as well as visitation.

Even if there had not been a provision in the divorce order, we would uphold the family court's conclusion that the mother's move of the children from Thetford to Milford, Pennsylvania, was a real, substantial and unanticipated change of circumstances. There are no fixed standards for determining what meets this threshold. Kilduff, 150 Vt. at 553, 554 A.2d at 678. We have emphasized, however, that in order to ensure stability in the lives of the children, the burden of showing changed circumstances is "heavy." Id. Although relocation "often triggers jurisdiction under the modification statute," Lane, 158 Vt. at 496, 614 A.2d at 790, the physical custodian has a right to determine the child's residence, and relocation without more is not per se a substantial change of circumstances. See Lenders v. Durham, 564 So.2d 1186, 1188 (Fla.Dist.Ct.App.1990); Smith v. Mobley, 561 N.E.2d 504, 506 (Ind.Ct.App.1990); VanName v. VanName, 308 S.C. 516, 419 S.E.2d 373, 374-75 (Ct.App.1992). Any relocation will, as a matter of course, involve disruption and change in children's lives, but a court must not confuse its analysis of changed circumstances with its determination of the children's best interests. Rather, " '[w]hether or not any given change is substantial must be determined in the context of the surrounding circumstances.' " Smith, 561 N.E.2d at 507 (quoting Poret v. Martin, 434 N.E.2d 885, 890 (Ind.1982)). Further, "it is the effect upon the child which renders a change substantial." Ohman v. Ohman, 557 N.E.2d 694, 696 (Ind.Ct.App.1990).

We also emphasize that the "threshold decision for a motion to modify is discretionary," Lane, 158 Vt. at 494, 614 A.2d at 788, just as the initial parental rights determination is within the court's discretion, see Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988). As a result, whether an initial determination or a modification, this Court "must affirm unless the discretion [was] 'erroneously exercised, or was exercised upon...

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    ...and contravene policies behind the child custody statutes. ¶ 8. We discussed automatic changes of custody in deBeaumont v. Goodrich, 162 Vt. 91, 96-97, 644 A.2d 843, 846 (1994). There, we upheld a final custody decree that included a provision naming the occurrence of a particular event as ......
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