Frazer v. Olson, 14–205.

• Decision Date: 26 June 2015
• Docket Number: No. 14–205.,14–205.
• Citation: 127 A.3d 86
• Parties: Stacey FRAZER v. James OLSON.
• Court: Vermont Supreme Court

127 A.3d 86

Stacey FRAZER

v.James OLSON.

No. 14–205.

Supreme Court of Vermont.

June 26, 2015.

Motion for Reargument Denied July 21, 2015.

Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Plaintiff–Appellant.

James Olson, Pro Se, Brattleboro, Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

REIBER, C.J.

¶ 1 Mother appeals the parent-child contact and property division orders in a final divorce decree that assign her sole parental rights and responsibilities with regard to the parties' children. On appeal, mother argues that the trial court was bound to consider findings of fact made by the presiding magistrate at a temporary hearing and that the court's findings do not support its conclusions. We conclude that at the final hearing the trial court was not bound to consider the findings from the temporary hearing and that its decision regarding parent-child contact was clearly supported by the evidence. Mother's other arguments fail because there is no clear error in the court's findings, and the findings reasonably support the court's conclusions. We affirm.

¶ 2. The parties married in July 2000. During the marriage, mother worked part-time as a special educator at Guilford School. Father worked full-time as a clinician at Health Care & Rehabilitation Services of Vermont. In 2008, the parties bought land in Brattleboro and built a home where they lived until they separated in December 2011. On December 21, 2012, mother filed for divorce. The parties have two children that were born during the marriage.

¶ 3. After separation, the parties agreed to a parent-child contact schedule. Under this arrangement, father had only one overnight per week with the children. Father's schedule with the children was generally as follows: Mondays and Wednesdays from after school until early evening; Friday from after school until Saturday at noon; and Sunday during dinnertime. Both parents followed this schedule until April 2013.

¶ 4. By order dated April 16, 2013, after a hearing, a magistrate in the family court established temporary parental rights and responsibilities and issued a parent-child contact order in connection with mother's complaint for divorce. In her order, the magistrate looked to the nine statutory factors enumerated in 15 V.S.A. § 665(b) to determine the best interests of the children. As to the sixth statutory factor, the magistrate found mother to be the primary care provider before and after the parties' separation. See 15 V.S.A. § 665(b)(6). She further concluded that the seventh factor—the relationship of the children with any other person who may significantly affect them—favored father. See id. § 665(b)(7). The magistrate awarded temporary legal and physical responsibility to mother and put in place a temporary parent-child contact schedule.

¶ 5. The final hearings before a trial judge took place in December 2013 and January 2014. The trial court made the following findings. In raising their children, the parents shared time with them in different ways. Both parents encouraged the intellectual development of their children in a positive and loving manner and shared parental responsibilities. Mother's part-time work schedule enabled her to provide more direct care for the children than could father. The parties agreed that having one parent working part-time allowed the children to have "as much time as possible in the care of a parent, rather than in childcare."

¶ 6. Although both children are in good health, they have "anxious temperaments." The trial court found that mother and father have different approaches to their children's anxieties. Father is able to encourage the children to "take appropriate risks, to learn from mistakes, and to ask for help when it is needed." In contrast, mother believes that protecting the children "from feeling any anxiety, distress, or sadness ... will encourage them to develop and learn in a healthy way."

¶ 7. The court carefully considered the § 665(b) factors and found that some factors favored father, some favored mother, and others favored the parents equally. On balance, the court concluded that mother should continue to have primary legal and physical responsibilities for the children. The court crafted a detailed parent-child contact schedule for the parties addressing school year, overnight, summer and holiday visitations, and telephone and email communications.

¶ 8. Finally, the court addressed the property division. The factors enumerated in 15 V.S.A. § 751(b) guided the court in making the property settlement. The court divided the property, including the marital home, mother's 2009 Toyota Highlander, father's 2005 Toyota RAV4, mother's People's Bank IRA, mother's Vermont State Teacher's Retirement account, and father's Vermont State Teacher's Retirement account. The court awarded father sole ownership and possession of the marital residence, including all financial liability for all debt related to the residence. The court also awarded mother a sum of $13,350 "to compensate her share of the equity in the marital home."

¶ 9. On April 25, 2014, mother filed a motion to reconsider the final order, challenging the trial court's findings and the parent-child contact schedule. She argued that the court misconstrued or misheard evidence, and that its conclusions that mother was not the primary caregiver of the parties' daughter and that father was better able to foster a positive relationship were not supported by the evidence. She also argued that the court's findings were at odds with findings made by the magistrate.

Mother further argued that those errors contaminated the final order.

¶ 10. The trial court denied mother's motion, reasoning that the parent-child contact schedule minimized the number of transitions and that the evidence supported the court's primary caregiver determination. The court noted that "the family division presiding judge is not bound by the findings of the magistrate" or even the court's own findings at the time of a temporary order. This appeal followed.

¶ 11. First, we address mother's argument that the trial court is bound to consider the findings and conclusions made by a magistrate. Mother argues that the lower court erred when it made new findings of fact as a part of its final order, suggesting the court should have treated the findings of the temporary order as binding.

¶ 12. We have previously concluded that once all outstanding issues are resolved and a court issues a final order, the final order replaces the temporary order. Camara v. Camara, 2010 VT 53, ¶ 18, 188 Vt. 566, 998 A.2d 1058 (mem.). The purpose of the temporary order is "consistent with the general law that temporary maintenance orders merge into, and are superseded by, the final order." Id. (emphasis added) (quotation omitted); see Thompson v. Pafundi, 2010 VT 80, ¶ 17, 188 Vt. 605, 8 A.3d 476 (mem.) ("[T]he temporary order ... was just that: temporary." (citing Porcaro v. Drop, 175 Vt. 13, 14, 816 A.2d 1280, 1282 (2002) )). Thus, a temporary order is part of an ongoing divorce case, and not a discrete legal proceeding.

¶ 13. Mother bases her argument on a distinction between 15 V.S.A. § 594a and 4 V.S.A. § 462. Comparing these two statutes, mother suggests that findings of fact are binding in the final hearing when a magistrate presides because § 462(a) explicitly requires a magistrate to issue findings, whereas findings of fact are not binding when a judge presides over a temporary hearing because § 594a does not explicitly require a judge to make findings in a temporary order.

¶ 14. Section 462(a) states that "[t]he magistrate shall make findings of fact, conclusions, and a decision and shall issue an order." 4 V.S.A. § 462(a). Section 594a states that "[t]he court ... may make such [temporary] orders pending final hearing.... A prompt hearing will be held, and the evidence shall be recorded by a court reporter." 15 V.S.A. § 594a. Section 594a merely sets out minimal requirements of the procedure for temporary relief.

¶ 15. We "presume the Legislature intended the plain, ordinary meaning of the language," and employ the plain-meaning canon of statutory interpretation. Ketchum v. Town of Dorset, 2011 VT 49, ¶ 10, 190 Vt. 507, 22 A.3d 500 (mem.) (quotation omitted). We will read language into the statute only when "necessary." Id. (quotation omitted). Nothing in the language of these statutes suggests that findings or conclusions of a magistrate in a temporary order are binding upon the family court when it makes a final determination. Thus, the language of § 594a and § 462 does not support mother's argument.

¶ 16. A temporary order is designed to provide quick, temporary relief to the parties in between the initiation of the divorce proceeding and the final decree. Importantly, the findings of fact, if any, in a temporary order reflect one point in time concerning the children's situation. The temporary order simply maintains a particular status quo. Camara, 2010 VT 53, ¶ 18, 998 A.2d 1058. Therefore, in making a divorce decree, the trial court may consider, but is not bound by, the findings of fact from a temporary hearing.

¶ 17. Next, mother argues that the findings do not support the trial court's conclusions regarding two of the statutory factors enumerated in 15 V.S.A. § 665(b). We will not question the credibility and weight that the trial court accords such evidence in these matters. Chickanosky v. Chickanosky, 2011 VT 110, ¶ 14, 190 Vt. 435, 35 A.3d 132. "On review, we will uphold the family court's findings of fact unless clearly erroneous, and we will uphold its conclusions where supported by the findings." Camara, 2010 VT 53, ¶ 10, 998 A.2d 1058. "We view the findings in the light most favorable to the prevailing party, and only reverse if the court exercised its discretion upon unfounded considerations or to an extent clearly unreasonable upon the facts presented." Paine v. Buffa, 2014 VT 10, ¶ 10, 195 Vt. 596, 93 A.3d 90 ...