DeGuise-Hendershot v. Hendershot

• Decision Date: 14 July 2022
• Docket Number: 22-AP-035
• Parties: Melissa DeGuise-Hendershot v. Charles Hendershot *
• Court: Vermont Supreme Court

Melissa DeGuise-Hendershot v. Charles Hendershot ^*

No. 22-AP-035

Supreme Court of Vermont

July 14, 2022

APPEALED FROM: Superior Court, Franklin Unit, Family Division CASE NO. 195-8-19 Frdm Trial Judge: Robert A. Mello

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

Father appeals from the trial court's order, on remand, amending the parties' final divorce order to provide guidance on modifying parent-child contact (PCC). Father argues that the court's amendment is overly restrictive and unsupported by the evidence. We agree and we therefore reverse and remand for additional proceedings.

In father's first appeal, we affirmed the parties' final divorce order, including the court's PCC decision, but remanded for the court to consider PCC issues raised by father in his motions to reconsider. See DeGuise-Hendershot v. Hendershot, No. 2021-041, 2021 WL 6049533 (Vt. Dec. 17, 2021) (unpub. mem.) https://www.vermontjudiciary.org/sites/default/files/documents/e o21-041.pdf [https://perma.cc/F9PP-LD49]. When the parties separated, they temporarily shared legal rights and responsibilities and agreed to continue sharing the marital residence. That arrangement did not work and, by the time of the divorce order, father had moved out of the marital home and was staying with his girlfriend and other friends. The trial court found that, although it was "in the children's best interests to have as much contact with father as possible," father's "proposed week-on/week-off schedule was not currently feasible due to his lack of stable housing." Id. at *2. The trial court indicated that father could move to modify PCC once he obtained suitable housing. Father expressed concern that, because it was anticipated that he would obtain stable housing, he could not make the necessary showing to modify PCC under 15 V.S.A. § 668. He thus asked the trial court to amend its order to require maximum contact with both parents once he obtained suitable housing. The trial court denied the request, reiterating that father could file a motion to modify once he obtained suitable housing. Id. at *3.

On appeal, we held that "the family division incorrectly concluded that [father] could rely on § 668 to modify parent-child contact once he obtained stable housing" because it was anticipated that he would obtain such housing. Id. at *4. At the same time, we held that it would be inappropriate to include "a provision that automatically shifted PCC at a future date." Id. Citing Terino v. Bleeks, 2018 VT 77, 208 Vt. 65, we held that "the court could have created a benchmark for the parties to understand when circumstances had changed sufficiently to modify parent-child contact." Id. It could, for example, "establish the expectation that the parties will revisit the schedule through their own negotiation or mediation if necessary, to ensure that it meets the children's best interests once the predictable event of [father]'s obtaining stable housing occurred." Id. (quotation omitted). We explained that while the trial court had expressed its expectation that the parties would work together to maximize PCC in the future, "it did not incorporate this expectation into its written order," which "left the parties without guidance as to whether the expectation was binding." Id. Because the court had mistakenly cited § 668 as providing a basis for father to seek relief, we "remand[ed] for the court to reconsider [father]'s request to amend the parent-child order to provide guidance about when modification would be appropriate, consistent with [our] decision and Terino." Id.

On remand, the parties submitted proposed amendments for the court's review. The court amended its order to include the following provision:

Within thirty (30) days after [father] files with the court and serves upon [wife] an affidavit demonstrating that he has secured long-term (e.g., minimum of one-year) leasehold or ownership interest in housing located within the school district in which the children currently attend school that provides each of the parties' two children his/her own bedroom, the parties shall revisit in good faith and in the best interests of the children [father's] request for an enlarged parent child contact. The parties' failure to reach an agreement at that time may constitute an unanticipated change of circumstances.

The court explained that the parties could not communicate with one another and needed objective benchmarks. It noted that father had testified at the final divorce hearing that he was looking for housing large enough for the children in the town where the children currently resided. Father appeals from this order.

Father argues on appeal that the court's modification is unduly restrictive, unworkable, and unsupported by the record. He questions why living in a neighboring town or having a room with bunkbeds would be considered unstable housing. He notes that pursuant to the final divorce order, mother must move out of the marital home and it is unknown where she will reside thereafter, which could leave him locked into a lengthy housing arrangement far away from the children. Father also explains that there is no history or pattern of homelessness or substandard housing in this case that would warrant such burdensome requirements; it was expected at the time of the final divorce order that he would obtain stable housing. Father also complains...