Fournier v. Fournier

• Decision Date: 12 July 1999
• Docket Number: No. 97-529.,97-529.
• Citation: 738 A.2d 98
• Parties: Vickie L. FOURNIER v. Janus FOURNIER.
• Court: Vermont Supreme Court

738 A.2d 98

Vickie L. FOURNIER v. Janus FOURNIER.

No. 97-529.

Supreme Court of Vermont.

July 12, 1999.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

Mother appeals from a decree entered in the Orleans Family Court vesting her with sole parental rights and responsibilities for the parties' two minor children, but subject to father's visitation rights. At issue is mother's allegation that father sexually abused the children and thus should be forbidden from having any contact with them. On appeal, mother contends that (1) she is entitled to a new trial because the record of the previously concluded proceedings is inadequate to permit this Court to conduct the requisite appellate review, (2) given the trial court's finding that the children were the victims of sexual abuse, it was reversible error to determine that mother had failed to present clear and convincing evidence that father was the perpetrator, and (3) even assuming that the relevant findings were not erroneously made, the trial court failed to give due consideration to the best interests of the children in fashioning the visitation order. We affirm.

Before reaching the merits, we must first consider father's contention that mother's appeal is untimely, thus depriving us of jurisdiction. See City Bank & Trust v. Lyndonville Savings Bank & Trust Co., 157 Vt. 666, 666, 599 A.2d 1051, 1052 (1991) (noting jurisdictional nature of timeliness issue). The family court judge signed a partial final order and divorce decree on September 8, 1997, dividing the marital estate but deferring the issue of parental rights and responsibilities. This decree was entered on the family court's docket on September 23, 1997. Meanwhile, on September 17, 1997, the court entered the supplemental final order that is presently on appeal, making extensive findings of fact on the allegations of sexual abuse and resolving the issues of parental responsibilities and visitation. On October 2, 1997, other filed a document captioned "Motion for Reconsideration" bearing the date of October 1, 1997 and the signature of the attorney who then represented her. After a hearing, the court denied this motion by order entered on November 14, 1997. Mother filed her notice of appeal with the family court on December 15, 1997.

Father first argues that the appeal is untimely because the notice of appeal was not filed within thirty days of the supplemental final order. Rule 4 of the Vermont Rules of Appellate Procedure explicitly provides that the running of time for the filing of a notice of appeal is terminated by the "timely" making of certain post-judgment motions in the trial court, among them a motion to alter or amend the judgment pursuant to V.R.C.P. 59(e). See V.R.F.P. 4(a)(1)(Rules of Civil Procedure apply to divorce proceedings unless otherwise provided). Although the post-judgment motion filed by mother was denominated a motion to reconsider rather than a motion to alter or amend the judgment, it was substantively indistinguishable from such a motion. The caption is not determinative to the application of V.R.C.P. 59(e) and V.R.A.P. 4. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 122 & n. 8 (1995 and Supp.1999) (construing analogous F.R.C.P. 59(e)) (citations omitted).

Father also contends that mother's Rule 59(e) motion was not timely because it was filed with the family court eleven days after entry of judgment, excluding weekends as provided by V.R.C.P. 6(a). We disagree. "[T]he language of Rule 59 is clear and only requires service within 10 days and filing a reasonable time thereafter." Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 181 n. 1, 583 A.2d 881, 883 n. 1 (1990) (emphasis added).¹

Under V.R.C.P. 5(b) service by mail, the method properly used in this case, is complete upon mailing. Mother alleges that she mailed the motion to father and the court on October 1, 1997, within the time allowed. Father has not effectively contested this representation, relying only on the erroneous position that the time limit relates to filing rather than to service. Father failed to contest the timeliness of the motion in the family court, and, therefore, there has been no factual development of the issue. Under the circumstances, we must accept mother's representation and proceed to the merits of the appeal.

Mother first argues that she is entitled to a new trial because no transcript is available for parts of the testimony in the original trial. Apparently, the court reporter died before the transcript could be completed, and parts of his notes cannot be found. Without attempting to obtain a stipulation to their accuracy, or resolution of their accuracy in the family court, mother has presented us with letters from trial counsel for mother and the children containing representations as to at least part of the testimony for which we have no transcript.

V.R.C.P. 59(f) directly covers the relief mother seeks, providing that if a part of the evidence cannot be transcribed because of "the reporter's death," or other reasons, the trial court may grant a new trial "if it is satisfied that the lack of such transcript prevents a party from effectively prosecuting an appeal." See V.R.F.P. 4(a)(1)(Rules of Civil Procedure apply in divorce proceedings except as otherwise provided). Mother failed to file a Rule 59(f) motion, arguing as a justification that the rule requires that the motion be filed within ten days, an impossibility in this case. In fact, the rule contains no time limit, and her demand to us for a new trial is unpreserved.

Moreover, V.R.A.P. 10(c) and (e) provide procedures for correcting a deficient record of trial court proceedings through reconstruction of those proceedings by the trial court. Although mother took initial steps to determine the substance of the missing testimony by obtaining the recollection of trial counsel, she failed to follow through to a trial court determination of that substance, and father had no opportunity to participate in reconstructing the evidence. Under the circumstances, mother has waived any claim of error based on the deficient transcript. We recognize that Appellate Rule 10(e) gives us the power to correct the record, irrespective of the action of the trial court, but mother has not sought that relief. Moreover, even if mother's claim were properly preserved, she has made no showing of prejudice from the missing transcript section. See Gionet v. Town of Goshen, 152 Vt. 451, 455-56, 566 A.2d 1349, 1351 (1989) (no relief available under V.R.A.P. 10(e) because appellant failed to "demonstrat[e] that the total record . . . was deficient, or how any such deficiency prejudiced [appellant]"). If anything, the lack of a transcript appears to prejudice father because many of mother's arguments are based on her assertion that key findings have no support in the evidence.

Finally, we reject the argument, as we did in the case of In re S.B.L., 150 Vt. 294, 297, 553 A.2d 1078, 1081 (1988), that reversal of the judgment is appropriate because appellate counsel is deprived of the ability to comb the record to look for errors to present on appeal. Intervention is appropriate where the lack of a complete record adversely affects the ability of a party to fully present an identified appeal issue. We will not intervene to help appellate counsel determine whether such issues exist.

Mother's other arguments center on allegations that father sexually abused the parties' two children. At the time the family court adjudicated parental rights and responsibilities, the parties' son was 11 years old and their daughter 6. The court found, in relevant part, that (1) after mother filed for divorce, the older child was discovered engaging in sexual activity with his sister and thereafter stated that father had sexually abused both of them, (2) a babysitter had physically abused the older child and "access for abuse" to the child had not been "limited to [father]," (3) the older child testified that father sexually abused both children, and (4) the children's therapists believed that father is the perpetrator of the sexual abuse. The court determined that the children had been the victims of sexual abuse, but explicitly declined to find by clear and convincing evidence that father was the perpetrator. See Mullin v. Phelps, 162 Vt. 250, 263, 267, 647 A.2d 714, 721, 724 (1994) (requiring proof by clear and convincing evidence before terminating all parent-child contact based on allegations of sexual abuse).² In so ruling, the court noted that the only admissible evidence of father having committed sexual abuse was the "uncorroborated and inconsistent testimony" of the older child. Mother contends that the family court erred because the child's statements, made both in and out of court, were consistent on the issue of who perpetrated the sexual abuse — father — wavering only on other issues, such as details about what kind of abuse occurred. Mother points out that the older child's identification of father as the abuser was corroborated by testimony of his sister's therapists, who stated that the younger child had also identified father as the perpetrator. Finally, mother contends that there is insufficient evidentiary support for two specific findings that underlie the court's overall determination about the identity of the abuser.

For the reasons set out by mother in her brief, relating to the manner in which sexually abused children cope with such experiences and recall them to...