Fenoff v. Fenoff, 89-334

• Decision Date: 15 June 1990
• Docket Number: No. 89-334,89-334
• Parties: Connie Ella FENOFF v. William Clyde FENOFF.
• Court: Vermont Supreme Court

Page 119

578 A.2d 119

154 Vt. 450

Connie Ella FENOFF v. William Clyde FENOFF.

No. 89-334.

Supreme Court of Vermont.

June 15, 1990.

John Morale, Wells River, for plaintiff-appellant.

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

ALLEN, Chief Justice.

Plaintiff was awarded custody of the parties' son in a 1985 decree of the Orange Superior Court and appeals an order of that court enforcing defendant's visitation rights. We affirm.

The 1985 decree provided as follows:

11) The care, custody and control of the minor child of the parties, to wit, Roy Scott Fenoff, is decreed to the Plaintiff subject, however, to the rights of the Defendant to visit and have the child with him every other weekend from 6:00 P.M. Friday to 6:00 P.M. Sunday, and also the right to have the minor child with him at least two weeks during the summer vacation. Both parties shall have the right to take the minor child with them to New Hampshire for shopping and visits with relatives.

Visitations never occurred as contemplated in the 1985 decree, and defendant filed a motion to enforce his rights in October, 1988.

At the hearing on the motion, the trial court found that the child, who was nine when the 1985 decree was entered, refused to join his father for the prescribed visitations, even though defendant attempted visitations six times in that year. Nevertheless, Roy still "held his father in positive regard" as late as early 1985. After the child's repeated refusal to visit with his father, defendant stopped his attempts in order to give his son time to change his mind. Defendant attempted to see his son three times in 1988, but plaintiff did not allow him into her home, though there were meetings on the front steps which the court found were not satisfactory.

The court made specific findings about Roy Fenoff's state of mind in refusing to visit with his father, noting that he "is suffering a great deal of pain and anger over issues of the divorce, divided loyalties, and the role of his father in his life." The court found that Roy's reasons for not visiting his father had to do with his "early recollection of treatment of his mother and dog by his father during the marriage, and certain behaviors and eccentricities of his father of which he disapproves." The court also found that the son's "animosity toward his father has steadily increased, to the point that he professes hatred of Mr. Fenoff." Roy, according to the court, "seems to harbor the unrealistic notion that if he steadfastly refuses to visit with his father, Mr. Fenoff will somehow disappear as a factor in his life."

The court ordered that visitation take place at a community mental health facility in the presence of a counsellor "with whom Roy has established a therapeutic relationship." The court allowed the counsellor to set the date when the child "is emotionally capable of dealing with this visit." The court directed plaintiff to arrange previsitation counseling "to assist him in dealing with his anger and pain regarding his parents' divorce, and to assist him in developing an adequate relationship with his father." Defendant was ordered to meet with his son's counsellor. Plaintiff was ordered to require her son to comply with the provisions of the order, to make the necessary appointments, and to arrange for transportation. The court invited the parties to seek further judicial intervention in the event either of the parties believed that the counseling was not effectuating the purposes of its order. Plaintiff appealed the order to this Court.

On appeal, plaintiff's first contention is that it is not in the best interests of the parties' son for him to resume visitation with his father. She cites cases from other jurisdictions holding that the welfare of the child is a more important consideration than visitation with the non-custodial parent. Hagler v. Hagler, 460 So.2d 187, 189 (Ala.Civ.App.1984); Foster v. Foster, 40 Ohio App.2d 257, 266-67, 319 N.E.2d 395, 401 (1974). While we have not had occasion to weigh visitation rights as an interest in conflict with the best interests of the child, our cases are consistent with the results in the cases cited by plaintiff.

It is conceivable that a court could find visitation so inimical to the interests of a child that visitation would be greatly circumscribed or even denied. Indeed, our own cases provide that visitation may be denied upon a showing of good cause. See, e.g., Cleverly v. Cleverly, 147 Vt. 154, 157-58, 513 A.2d 612, 614 (1986). But in the present case the trial court heard the evidence on the impact of lack of visitation, including detailed testimony about the possible reasons why the parties' son is so averse to meeting with his father. It found that Roy's feelings were damaging and destructive. That testimony undoubtedly was the basis for the court's careful and gradual approach to facilitating visitation. In the end, the court found that visitation would be in Roy's best long-term interest despite his present animosity toward his father.

Plaintiff offers a different view of the evidence presented but does not indicate why the trial judge's contrary findings were in error. Findings of fact can be overturned only if they are clearly erroneous. McCormick v. McCormick, 150 Vt. 431, 434, 553 A.2d 1098, 1101 (1988); Sutton v. Sutton, 147 Vt. 639, 640, 523 A.2d 1249, 1250 (1987). In the present case the essential facts were not contested. The court clearly set forth in its findings the shortcomings of the parties and the vulnerability of their child. The court's...