Demers v. Johnston

• Docket Number: 23-AP-062
• Decision Date: 15 December 2023
• Parties: Shaina Demers v. Daniel Johnston*
• Court: Vermont Supreme Court

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Shaina Demers
v.
Daniel Johnston*

No. 23-AP-062

Supreme Court of Vermont

December 15, 2023

In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a crossappellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

APPEALED FROM: Superior Court, Windsor Unit, Family Division CASE NO. 20-DM-00172 Trial Judge: Robert P. Gerety, Jr.

ENTRY ORDER

Paul L. Reiber, Chief Justice

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

In this parentage action, father challenges the trial court's decision awarding mother primary legal and physical parental rights and responsibilities (PRR) in the parties' son and its parent-child contact (PCC) schedule. We affirm the PRR award and reverse and remand the PCC award for additional findings.

The trial court made the following findings. The parties' son was born in September 2018. The parties had a poor relationship and separated before son was bom. Their relationship ended in March 2020. At that time, father was drinking heavily. The court also found that father had used unprescribed Suboxone as well as fake urine to pass drug tests. Father emotionally abused mother, including in front of the parties' son, and frequently treated her disrespectfully. He also physically abused mother. Mother applied for a relief-from-abuse order against father and father was denied access to son during the pendency of the petition. While mother later withdrew her complaint, the court was persuaded that father physically and emotionally abused mother. Father had difficulty monitoring and controlling his anger, which interfered with his ability to co-parent effectively. Both parties wanted son to have a positive relationship with the other parent. Yet father occasionally took unreasonable positions about minor requested changes in the PCC schedule. His communications with mother were often angry and sarcastic.

Mother has been son's primary care provider since birth and son has an excellent relationship with her. Mother has good parenting skills and is a positive factor in son's life. Son also has a good relationship with father. Father similarly has good parenting skills, he engaged in various activities with son, and provided son with emotional support. Son got along with the individuals involved in both parents' lives. Mother had been awarded temporary primary legal and physical PRR during the pendency of these proceedings and son thrived during this time.

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Son sometimes exhibited emotional dysregulation after visiting father. Both parents loved son and had suitable living spaces for him.

The court indicated that it considered the relevant factors set forth in 15 V.S.A. § 665 and it made findings with respect to the factors. It found the fact that son had lived with mother since birth and had an excellent relationship with her weighed heavily in favor of awarding PRR solely to mother. The court considered the remaining factors material but less important. On balance, the court was persuaded that awarding mother primary PRR served son's best interests. The court also set forth a PCC schedule for father. Father appeals.

Father asserts that several of the court's findings are unsupported by the evidence and that the court ignored other evidence.^[*] More specifically, father contends that there was no evidence to show that he physically abused mother or that son exhibited emotional dysregulation following contact with him or engaged in hitting and biting behavior. He suggests that the court could not credit, without corroboration, mother's testimony about father's demonstration of anger in son's presence, and that it further erred in finding that he had used unprescribed Suboxone and fake urine to pass drug tests. As to the statutory factors, father essentially challenges the trial court's assessment of the weight of the evidence and the credibility of witnesses. He complains that the court did not sufficiently explain how it weighed the statutory factors and he urges this Court to weigh the evidence differently. Father also argues that the court's findings are insufficient to support its conclusions. Finally, father asserts that the court did not award him sufficient PCC and he raises general allegations of bias by the trial judge.

The trial court has broad discretion in determining a child's best interests. See Myott v. Myott, 149 Vt. 573, 578 (1988). In reaching its conclusion, the trial court is not required to make a specific...