Fabiano v. Cotton

CourtUnited States State Supreme Court of Vermont
Citation2020 VT 85
Decision Date25 September 2020
Docket NumberNo. 2020-011,2020-011
PartiesJennifer Fabiano v. Mary B. Cotton

2020 VT 85

Jennifer Fabiano
Mary B. Cotton

No. 2020-011

Supreme Court of Vermont

May Term, 2020
September 25, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Chittenden Unit, Family Division

Thomas Carlson, J.

Claudine C. Safar and Christian S. Chorba of Monaghan Safar Ducham PLLC, Burlington, for Plaintiff-Appellant.

Cynthia L. Broadfoot and Deborah M. Ryan (On the Brief) of Broadfoot, Attorneys at Law, Burlington, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. ROBINSON, J. Plaintiff challenges the trial court's order granting defendant's motion to modify the parties' parenting schedule. She argues that the trial court abused its discretion by (1) holding a hearing on the motion to modify when a prior judge had determined that the case should proceed as a motion for relief from judgment, (2) finding that there was a real and unanticipated change in circumstances, and (3) assessing the best interests of the child. We affirm.

¶ 2. With respect to the events leading up to this motion to modify, the family division found the following facts. The parties were married in 2012. Plaintiff gave birth to their child in

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2015, and defendant adopted the child through a second-parent adoption that was final in October 2016.

¶ 3. The parties ended their sexual relationship in January 2017, but continued to live together and act as co-parents. Defendant changed the child's diapers, cooked, and played with her after work. She took the child swimming and skiing, and took her on visits to the library, defendant's parents' home, and elsewhere in the community. There were no limits to her contact with the child except for her full-time work. The parties communicated with each other daily and did not tell anyone they were separated.

¶ 4. In November 2017, the parties signed a "Marital Settlement Agreement" with the help of an application called "Wevorce." In negotiating the agreement, they did not consult with lawyers or third parties, except for one half-hour consultation with "a lawyer on Church Street." At the same time, they signed a court form titled "Agreement on Parental Rights and Responsibilities, Parent Child Contact and Provisions Relating to Children." Plaintiff filed for divorce in December 2017, and submitted the parties' stipulation to waive final hearing. The parties were still living together and sharing in the child's care when they commenced the divorce action.

¶ 5. The Wevorce Marital Settlement Agreement included the following language:

Decision-Making: We agree that decisions for our child's health, safety and welfare will be made by: [Plaintiff].

Day-to-Day Parenting:
? Our child will spend the following times with [plaintiff]: All nights.
? Our child will spend the following times with [defendant]: No nights.
? Exchanges: No neutral party necessary.

? Responsibility for choosing work-related childcare: [Plaintiff]

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? If child care over 3 hours is required, we agree to offer the other parent the opportunity to be with the child before seeking care from someone else.

? We agree that this parenting plan will become impractical if either of us were to move more than 170 miles from Burlington, Vermont. We agree that neither party will move the child outside of this area without a mutual, written agreement.

The agreement also called for plaintiff to provide health insurance for the child and for a "zero" child-support order.

¶ 6. Similarly, the Agreement on Parental Rights and Responsibilities provided that plaintiff would have primary legal and physical responsibility for the child and would make the day-to-day decisions. The parenting schedule indicated that the child would spend every night with plaintiff, and that this schedule would not change over holidays, birthdays, three-day weekends, or school vacations. The agreement required parents to give advance notice if they planned to increase the distance between the parents' homes by more than 170 miles. Several sections of the form were left blank, namely the sections regarding communication, information sharing, reviewing and adjusting the parenting plan, and resolving disputes. A magistrate approved the Agreement on Parental Rights and Responsibilities in February 2018 and approved a zero child-support order in March 2018.

¶ 7. The divorce was finalized in July 2018 at an uncontested hearing before the family division. Both parties represented themselves. At the time, they continued to live in the same house and to share care of the child. The assistant judge conducting the hearing had the following exchange with the parties:1

Trial court: Day-to-day parenting—well you seem to have a good relationship, you can share legal—

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Defendant: I've—basically I see her all the time, we're co-parents. . . . But [plaintiff] felt very strongly to keep legal and physical custody. . . . And I didn't want a court battle. . . . So in order to like keep it like amicable and we both are fine, I said fine.

Trial court: Well, that's the best thing for your child I would think. I don't know. . . . But you're an important part of her life. . . . And you'll be reasonable with keeping her informed of things. And you—if—you know that you can get any kind of doctor's thing. . . . because you're the co-parent. . . .

And you are going to communicate monthly anything pertinent to [the child]. I would think maybe even more than that.

Plaintiff: Yeah.

Defendant: It's pretty much daily at this point.

The final divorce order incorporated the terms of the parties' stipulation.2 Following the divorce, the parties continued to live and co-parent together.

¶ 8. In November 2018, plaintiff moved out and became reluctant to allow defendant time with the child. She first informed defendant that she had found another place to live. A week later, while defendant was out of the house, plaintiff packed up the child's possessions and moved out. Plaintiff had not discussed this "total move" with defendant beforehand. When defendant raised the issue, she replied, "let me get settled, and we'll figure it out." After her move, plaintiff allowed defendant some time with the child, but refused to establish a plan or a schedule of parenting time with defendant, stating that any time with the child was solely in plaintiff's discretion. She told defendant over text: "The plan is that I have her. I don't mind all the times

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you've been with her as long as you don't pester me constantly. I know a schedule might be easiest for you but that's not easiest for us."

¶ 9. In January 2019, defendant filed a motion to modify parent-child contact on the ground that "[t]here has been a real, substantial and unanticipated change of circumstances in that the parent and child are no longer all living in the same household and there is no schedule for any parent child contact for Defendant." Plaintiff opposed the motion to modify. At this stage and onward, both parties were represented by counsel.

¶ 10. The procedural path of defendant's motion was somewhat unusual. The family division, Judge Nancy Waples, held a hearing on the motion in March 2019. The court wanted to determine whether the parties' agreement was enforceable before considering whether there was a change in circumstances warranting modification under 15 V.S.A. § 668.3 Defendant's attorney offered to file a motion to set aside the underlying judgment that was based on the marital settlement agreement. The court approved that plan, indicating that it would first address the enforceability of the parties' agreement. Pending an evidentiary hearing, the court ordered an interim parent-child contact schedule, which it subsequently modified in July.

¶ 11. Defendant accordingly filed a motion to set aside the final decree and order pursuant to Vermont Rule of Civil Procedure 60(b), applicable in the family division through Vermont Rule of Family Procedure 4.0(a)(2). She also renewed her motion to modify or clarify. Defendant's arguments in support of her Rule 60(b) motion were based in part on her own learning disability. Plaintiff issued subpoenas to defendant's employer and medical health providers, which defendant moved to quash. The discovery motions were considered by Judge Thomas Carlson, who had newly rotated to the county. He issued a decision in which he stated that his decision on the motion to quash depended on whether defendant wanted to pursue the Rule 60(b) motion:

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The question in the court's mind at present is as to the scope of relief actually sought by Defendant. If it is merely to establish a schedule of parent child contact that was omitted from the final agreement and order, it is this court's view that the final order need not be set aside in its entirety. . . . If, on the other hand, Defendant wants to set the entire final order aside and start from scratch, on grounds of duress and unconscionability arising from some learning/emotional disability, then the court sees the issue as to Defendant's mental health has been raised . . . .

¶ 12. The court held a hearing in September 2019 to resolve this uncertainty. Defendant's counsel stated that she filed the Rule 60(b) motion at Judge Waples' instruction, but indicated that defendant was only seeking a parent-child contact schedule, and was not seeking to set aside the entire agreement. Over plaintiff's objection, the court deemed defendant's motion to set aside the underlying judgment withdrawn and indicated that it would proceed to adjudicate the motion to modify. In light of that ruling, it also granted...

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1 cases
  • Gray v. Gray, 2021-161
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 11, 2022
    ...discretion was exercised upon unfounded considerations or to an extent clearly 2 unreasonable upon the facts presented." Fabiano v. Cotton, 2020 VT 85, ¶ 17 (quotation omitted). A party moving to modify a parent-child contact order must demonstrate a "real, substantial, and unanticipated ch......

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