Gates v. Gates

• Decision Date: 27 March 1998
• Docket Number: No. 96-412,96-412
• Citation: 168 Vt. 64,716 A.2d 794
• Court: Vermont Supreme Court
• Parties: Ellen M. GATES v. Winfield P. GATES, Jr.

Page 794

716 A.2d 794

Ellen M. GATES v. Winfield P. GATES, Jr.

No. 96-412.

Supreme Court of Vermont.

March 27, 1998.

Motion for Reargument Denied June 11, 1998.

Lon T. McClintock of Jacobs, McClintock & Scanlon, Bennington, for Plaintiff-Appellant.

Winfield P. Gates, Jr., pro se, Bennington, Defendant-Appellee.

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

SKOGLUND, Justice.

Mother Ellen M. Gates appeals the decision of the Bennington Family Court, which denied her request for modification of a parental-rights-and-responsibilities order. Mother contends that the court erred when it (1) concluded that there was no basis to modify either the parties' shared-legal-responsibilities agreement or the visitation rights of father, Winfield P. Gates, Jr.; (2) The parties were divorced on February 12, 1993, after thirteen years of marriage. Pursuant to a stipulation developed by the parties with the help of two mediators, the court awarded mother physical rights and responsibilities for the parties' three children. Legal rights and responsibilities, however, were to be shared by the parties. In addition, father was awarded visitation with the children. The stipulation and resulting divorce order included a provision wherein the parties agreed to seek mediation, arbitration, or judicial remedy, in the event they could not resolve a disagreement themselves.

failed to bifurcate the modification hearing; and (3) ordered the parties to submit future disputes regarding shared-legal responsibility to mediation and binding arbitration before seeking judicial relief. Father cross-appeals a part of the decision that conditioned the resumption of his visitation rights with the children upon the payment of half of mother's attorney's fees and court costs and his completion, to the court's satisfaction, of a parenting-and-empathy-raising course. We affirm the court's denial of mother's motion to modify the parties' shared-legal-responsibilities agreement and the parent-child-contact agreement. We strike, however, the court's order that the parties first attempt mediation or arbitration before bringing future disputes to the court. In addition, we strike the court's requirement that father must first pay mother's attorney's fees and court costs before he can resume visiting with his children.

The parties soon experienced serious difficulty communicating with one another, and numerous conflicts arose between them. Less than a year after the divorce, mother was granted a relief-from-abuse order prohibiting father from communicating with her, except with regard to the children. In an attempt to facilitate communications, the parties began using a journal, which was mailed back and forth between them, to discuss issues involving the children.

The conflicts between the parties concerning the children, however, continued unabated. Over the next few years, both parties petitioned the court on numerous occasions, and the court twice amended the final divorce order. The first amended order, of January 1994, which was the result of a stipulation reached by the parties after the father sought a modification of parental rights, provided greater specificity regarding parent-child contact. It explicitly incorporated by reference the majority of the divorce order, including the section dealing with dispute resolution. Shortly after the issuance of the first amended order, mother was granted an extension of the relief-from-abuse order, which retained all of the terms of the original relief-from-abuse order.

Less than a year later, after mother filed a motion for modification of parental rights, the final order was amended again by stipulation of the parties. The second amended final order of November 1994 again added greater specificity regarding parent-child contact. Although quoting nearly verbatim the provisions of the first amended final order, this order did not include the section dealing with dispute resolution.

In addition to the motions to amend or extend the previous court orders, each party asked the court, on several occasions, to find the other party in contempt for violating one or another of the various court orders. For example, in May 1995, mother filed a motion to find father in contempt for failure to abide by visitation schedules. Two months later she amended the contempt motion and claimed that father failed to return their oldest son, then fifteen years old, on the day specified in the visitation schedule. Furthermore, mother reported this incident to the Bennington County State's Attorney and the police, and father was charged with custodial interference. ¹ In July 1995, concurrent with filing the amended contempt motion, mother also filed two motions--one for modification of parental rights, requesting that the court grant her sole legal responsibility for the children, and the other to modify father's visitation rights.

The court subsequently notified both parties that it would hear both mother's contempt petition and motions to modify in a bifurcated hearing. The court indicated that it would first hear the contempt petition and the "alleged basis for modification of the child custody order." If mother met the required burden of proof concerning the modification order then, at a later date, the court planned to hear evidence concerning the "best interest of the children." After the initial hearing, the court found that father had willfully, intentionally, and deliberately violated a court order and, therefore, was in contempt of court. Because he was in contempt of court, the court ordered that father's visitation rights be suspended until he completed an approved parenting-and-empathy-raising course and paid half of mother's reasonable attorney's fees and court costs.

In addition, the court found that no real, substantial, and unanticipated change of circumstances had occurred and, therefore, the court denied mother's motions to modify the shared-legal-responsibilities agreement and to limit or extinguish father's visitation rights. The court also found that the parties' original agreement failed to contain a dispute-resolution plan and, therefore, ordered that the parties attempt to resolve any future disputes through mediation or binding arbitration before resorting to the court system. These appeals followed.

I.

Mother first contends the court abused its discretion by finding that there was no substantial change in the circumstances to support a modification of the parties' shared-legal-responsibility agreement or father's visitation. Specifically, she claims that the inability of the "log" to facilitate communication between the parties caused a substantial change in circumstances. We conclude, however, that the court did not abuse its discretion. The parties' allegations concerning the circumstances existing from the time of the divorce, the evidence presented at the modification hearing, and the court's findings, document a situation that has not changed substantially.

This Court will uphold the trial court's decision concerning whether there has been a substantial change in circumstances "unless 'the discretion of the lower court was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.' " Hayes v. Hayes, 144 Vt. 332, 336, 476 A.2d 135, 138 (1984) (quoting Nichols v. Nichols, 134 Vt. 316, 318, 360 A.2d 85, 86 (1976)); accord deBeaumont v. Goodrich, 162 Vt. 91, 98, 644 A.2d 843, 847 (1994). A motion to modify a decision-making arrangement "does not entail the violent dislocation realized by a change in physical custody," Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677, 679-80 (1988), and, therefore, the threshold requirement of finding that a substantial change has occurred is not as high. Still, there is a threshold to be satisfied and the burden is heavy. See id. at 556, 554 A.2d at 680.

The parties initially agreed, after mediation, to the shared-legal-custody arrangement, and they again agreed by stipulation to continue this arrangement in the two amended divorce orders. From the time the divorce was final, the parties were involved in an antagonistic and contentious dispute concerning the children that was highlighted by the dearth of constructive and effective communication. A breakdown in communication between the parents may suffice as a substantial and unanticipated change. See id. at 555, 554 A.2d at 680. In this case, however, it appears that communications were consistently poor.

Thus, the court did not err in holding the parties to their original agreement, as modified by stipulation twice, by finding no substantial change in the circumstances of their parenting situation. We recognize that the parties' decision to share legal custody may have made their lives as ex-spouses more difficult, but the ineffectiveness of the "log" as a method of communication requires that they try something else, not that the court alter the order establishing legal responsibility for the children's lives.

Further, mother did not seek to modify the shared legal responsibilities for the children based on a claimed inability of the parents to decide religious, educational, medical or other Because we find no support for mother's claim that a substantial change in material circumstances has occurred, we conclude that the court did not abuse its discretion in declining to modify the shared-legal-responsibility agreement or father's visitation rights.

issues included in the scope of an award of legal responsibilities. See 15 V.S.A. § 664. In fact, the court found just the opposite--that the parties have been able to effectively cooperate in such areas. For example, they have sought counseling for all the children for emotional issues, have continued to agree on a counselor and on the need for counseling for the eldest child, have agreed to a transfer of schools for their oldest son, and are supportive of his academic efforts. Mother's only...