Gabriel v. Pritchard

Decision Date26 September 2001
Docket NumberNo. 00-250.,00-250.
Citation788 A.2d 1
PartiesTracy R. GABRIEL v. Brian J. PRITCHARD
CourtVermont Supreme Court

Present AMESTOY, C.J., MORSE, JOHNSON and SKOGLUND, JJ., and ALLEN, Chief Justice (Ret.), Specially Assigned.

ENTRY ORDER

Father, Brian Pritchard, appeals the order of the family court suspending indefinitely visitation with his daughter, Briana, and granting sole legal parental rights and responsibilities (PRR) to Briana's mother. Father argues that (1) the court's rulings are not supported by the record, (2) he was not properly noticed for the hearing on mother's motion to modify legal PRR, (3) the court improperly admitted a "past recorded recollection" of mother, and (4) the court abused its discretion when it appointed mother's uncle to supervise father's past visits. We affirm. Mother and father were living together in Florida at the time of Briana's birth on January 1, 1993. Shortly thereafter, mother moved to Vermont with Briana to live with mother's family, and father remained in Florida. A Florida paternity decree awarded physical custody to mother, granted father visitation, and awarded joint legal PRR.1 Father did not exercise visitation regularly at first under the Florida order. Father then moved to Massachusetts in August or September of 1994, at which time he began visiting with Briana regularly for a period of several months. A pattern developed, however, in which father would schedule visitation and then would make changes when the visit approached. Briana then began resisting his visitation.

Father's last visit during this period occurred in March 1995 when he absconded with Briana following an argument with mother, forcing mother to call the police. Father then returned to Florida in August 1995, but mother did not become aware of this until December of that year. Between March 1995 and July 1996, father did not have any contact with Briana, with the exception of a Halloween card he sent. Mother sought to modify the portion of the Florida decree governing parent-child contact. While the action was pending, the family court entered a temporary order setting up supervised visitation. In a final order dated July 18, 1996, the court modified father's contact schedule with Briana, gradually increasing visitation to allow Briana to readjust to contact with her father and ultimately reestablishing the schedule set forth in the Florida court order.

Only one day of visitation took place under the court's July 1996 order. Because of the prior incident involving the police, mother's uncle was present at the drop-off following this visit. Mother's uncle is a former police officer and volunteers as a guardian ad litem with the Windham Family Court. According to uncle, father would not at first bring Briana inside, and when he did finally, he stood at the end of the hallway with the crying child in his arms, goading mother with questions about whether she really wanted Briana back. Briana was having trouble breathing because father was squeezing her so hard, and he did not let go until uncle approached him, at which time Briana ran to her mother. Mother did not bring Briana back the next day for visitation because of this incident.

Mother testified that in the months following this isolated visit father called her several times and left messages, but he did not leave a phone number where he could be reached and did not mention that he was interested in visitation. Mother also indicated that father did not make any contact during Christmas or on Briana's birthdays. They did receive a box of toys before Christmas of 1996, but there was no note or return address with the package. Mother sent two certified letters to father regarding visitation, both of which went unclaimed. Mother indicated that Briana did not ask about her father during this period of no contact.

Following this period of two and a half years, father contacted mother's attorney on April 5, 1999, indicating that he would be coming to Vermont to collect Briana for seven days of overnight visitation starting on April 12. In response, mother filed a motion on April 7 for an emergency, ex parte order modifying visitation. The family court granted the motion, ordering that father have only supervised visitation for several hours a day for the seven-day period. The court subsequently held a hearing on April 13 at which both parties were present.

After the hearing, the court established a temporary schedule for monthly supervised visitation and weekly telephone contact for Briana and her father, and appointed mother's uncle to supervise visits. The court noted both at the hearing and in its order that father's failure to maintain contact with Briana as established by the court's temporary order could result in suspension of his parent-child contact.

Another hearing took place on December 13, 1999. Father was now living in Cheyenne, Wyoming.2 Mother stated that Briana had developed behavioral problems leading up to and following the monthly visitation with her father, including having bathroom accidents, becoming withdrawn and at other times becoming violent. Mother also testified that father did not use all of his available visitation days, including not showing up for three days of visitation he had scheduled in October without calling ahead to cancel and canceling his July and November visitation. With respect to the telephone contact, mother testified that father called only seven times. Briana spoke with him the first time he called, but thereafter refused to speak with him. Mother indicated that the phone calls were sporadic and did not always come on time.

Mother also testified that she had made all decisions regarding Briana's health and welfare since she left Florida with her in 1993. She and father could not converse constructively about Briana because father continually, and inappropriately, would turn the conversation to mother and father's previous relationship; therefore, she stopped discussing matters concerning Brianna with him.

Uncle also testified, relating his observations made while supervising father's visits with Briana. He chronicled a series of bizarre behaviors by father during the visits, including father incessantly taking pictures of Briana. He described father and Briana's interaction as that of "pursuit and avoidance," with Briana trying to hide from father and often crying when father was pursuing her. Uncle said that he had also witnessed Briana cry and throw tantrums about having to go to visitation.

At the conclusion of the hearing, the family court issued an oral decision in which it determined by clear and convincing evidence that it was not in Briana's best interest that she have continuing contact with father. The court suspended any further parent-child contact and granted mother sole legal PRR. It subsequently issued a written order setting forth in more detail its reasons for doing so. Father now appeals.

Father argues that the court's findings and conclusions resulting in the suspension of his visitation rights are not supported in the record. We will not disturb findings of fact unless they are clearly erroneous. Nickerson v. Nickerson, 158 Vt. 85, 88-89, 605 A.2d 1331, 1333 (1992). Therefore, on appeal "our role is limited to determining whether they are supported by credible evidence." In re D.C., 168 Vt. 1, 4, 712 A.2d 902, 904 (1998) (internal quotation marks omitted). Furthermore, "[g]ranting, modifying, or denying visitation is within the discretion of the trial court and will not be reversed unless its discretion was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented."3Gates v. Gates, 168 Vt. 64, 74, 716 A.2d 794, 801 (1998) (internal quotation marks and citations omitted).

We have noted "[i]t 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." Fenoff v. Fenoff, 154 Vt. 450, 452, 578 A.2d 119, 120 (1990); see also Lane v. Schenck, 158 Vt. 489, 499, 614 A.2d 786, 791 (1992) ("In contrast to custody cases ... visitation cases involve only the question of the maintenance of associational ties.") (internal quotation marks and citation omitted). On the other hand, "the suspension or rescission of a noncustodial parent's visitation rights is a grave matter and one not to be entered into lightly." Gates, 168 Vt. at 74, 716 A.2d at 801; see also 15 V.S.A. § 650 (declaring public policy that children be afforded maximum contact with both parents unless "direct physical harm or significant emotional harm to the child ... is likely to result from such contact"). When a court seeks to suspend indefinitely a parent's right to visitation, due process requires that the court find that it is in the child's best interest by clear and convincing evidence. Mullin v. Phelps, 162 Vt. 250, 267, 647 A.2d 714, 724 (1994).

The court based its decision to suspend father's visitation on its findings that father repeatedly failed to establish consistent and sustained contact with Briana, that he failed to demonstrate genuine concern for Briana's emotional development, and that he has never made efforts to provide appropriate parental support or establish a meaningful relationship with Briana. In so doing, it determined that father's proffered explanations and excuses for his behavior were neither satisfactory nor credible. See In re A.F., 160 Vt. 175, 178, 624 A.2d 867, 869 (1993) ("We leave it to the sound discretion of the family court to determine the credibility of the witnesses and to weigh the evidence."). Contrary to father's contentions, however, the court did not base its decision to suspend visitation on its determinations of father's credibility, but rather on his conduct and his unsatisfactory explanations for it. The court also determined that f...

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4 cases
  • DeSantis v. Pegues
    • United States
    • Vermont Supreme Court
    • October 7, 2011
    ...was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented.” Gabriel v. Pritchard, 173 Vt. 452, 454, 788 A.2d 1, 5 (2001) (mem.) (quotation omitted). Because the family court is in a unique position to assess the credibility of witnesses and we......
  • Wright v. Kemp, 18-210
    • United States
    • Vermont Supreme Court
    • February 15, 2019
    ...best interests.8 207 A.3d 1029 DeSantis v. Pegues, 2011 VT 114, ¶ 35, 190 Vt. 457, 35 A.3d 152 ; Gabriel v. Pritchard, 173 Vt. 452, 455, 788 A.2d 1, 5 (2001) (mem.); Mullin v. Phelps, 162 Vt. 250, 267, 647 A.2d 714, 724 (1994).¶ 23. We first recognized the above rule in Mullin v. Phelps, an......
  • Wright v. Kemp
    • United States
    • Vermont Supreme Court
    • February 15, 2019
    ...would be against the child's best interests.8 DeSantis v. Pegues, 2011 VT 114, ¶ 35, 190 Vt. 457, 35 A.3d 152; Gabriel v.Pritchard, 173 Vt. 452, 455, 788 A.2d 1, 5 (2001) (mem.); Mullin v. Phelps, 162 Vt. 250, 267, 647 A.2d 714, 724 (1994). ¶ 23. We first recognized the above rule in Mullin......
  • Patnode v. Urette
    • United States
    • Vermont Supreme Court
    • May 2, 2014
    ...was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented.” Gabriel v. Pritchard, 173 Vt. 452, 454, 788 A.2d 1, 5 (2001) (mem.) (quotation omitted). Our substantial reliance on the trial court's determinations is a result of the court's unique......

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