Gazo v. Gazo

Citation166 Vt. 434,697 A.2d 342
Decision Date23 May 1997
Docket NumberNo. 95-339,95-339
PartiesSally GAZO v. John GAZO.
CourtUnited States State Supreme Court of Vermont

Marsha Smith Meekins of Roesler, Whittlesey, Meekins & Amidon, Burlington, for plaintiff-appellant.

John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for defendant-appellee.

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

DOOLEY, Justice.

This action for child custody and support requires us to grapple again with the difficult issue of a proposed relocation in the midst of a divorce. We hold that the family court exceeded its authority in defining a relocation as a change of circumstances for the purpose of retaining jurisdiction under 15 V.S.A. § 668, and that other provisions of its order dealing with parental decision-making and visitation are overbroad or unnecessary or both. We affirm the trial court's property settlement and child support order.

Plaintiff Sally Gazo and defendant John Gazo were married in 1983. During their marriage, the parties had two children, both girls, one born in 1984 and the other in 1985. Prior to the parties' separation in March 1990, the parties were equally involved in all aspects of the daily care of their children. Both parties are experienced teachers in the same school system, both have master's degrees, and both earned identical salaries of $49,661.82 at the time of their divorce. The parties commingled assets and made equal contributions to their mortgage debt and car loans, and to the child support payments that defendant was obligated to pay on behalf of his children by a prior marriage.

Plaintiff first filed for divorce in February 1990, and in a March order, was awarded temporary legal and physical rights and responsibilities for the parties' two children, then aged five and four. Defendant was ordered to pay child support and maintenance, and was granted parent-child contact at all reasonable times with advance notice. Plaintiff was awarded temporary exclusive possession of the parties' home in Waterbury Center, and was responsible for all expenses associated with the home.

Plaintiff discontinued the first divorce action and eventually filed two others that were interspersed with attempts at reconciliation. Plaintiff filed her third and final divorce action in December 1993. On March 21, 1994, the parties stipulated to a temporary order, pursuant to which plaintiff had legal and physical rights and responsibilities for the children and defendant had parent-child contact on alternating weekends and holidays, and for several weeks during the summer. In an order dated March 29, 1994, the magistrate set defendant's child support obligation at an amount below that specified in the guidelines. In June 1994, the parties listed their marital residence in Waterbury Center for sale.

In July 1994, plaintiff travelled to Michigan, where her parents live, and interviewed for a teaching job. She was offered a position on August 15, 1994 and informed defendant of her intention to accept the offer two days later. In response, defendant immediately sought temporary legal and physical rights and responsibilities for the parties' children and an expedited hearing to be held before plaintiff moved to Michigan. The next day, plaintiff moved to amend the schedule of parent-child contact, and sought permission to remove the children from Vermont so they could accompany her to Michigan. The court held an expedited hearing on August 31, and at the conclusion of the hearing granted defendant's motion to prevent the removal of the children from Vermont. Because plaintiff testified that she would stay in Vermont if she were not able to take the children to Michigan, the court denied defendant's motion to modify the preexisting custody order. The court's action left the location issue in status quo.

The family court held further hearings and, at the conclusion of the December 13 hearing, orally announced its findings of fact and conclusions of law with respect to parental rights and responsibilities. In the resulting order issued in May 1995, the court awarded legal and physical rights and responsibilities of the parties' children to plaintiff, with extensive visitation granted to defendant according to a schedule that contemplated that the parties would be living close to one another. The order provided that any move by plaintiff from the Waterbury area "shall confer jurisdiction on this Court to review parental rights and responsibilities for the children and to determine what their best interests will be in the event of the Plaintiff making such a move." The order also provided that (1) plaintiff could not make any "major decisions" pursuant to the award of parental rights and responsibilities to her without first conferring with defendant, in good faith, in an attempt to reach a mutual decision and (2) plaintiff could not impose any limitations on whom the children see or what the children do when they are with defendant, and could not exercise any control over defendant's parent-child contact.

On March 24, 1995, the court issued written findings of fact and conclusions of law with respect to marital assets and child support. The court determined that the marital residence was worth $155,000, the outstanding mortgage on the house was $18,728, and the net equity was $136,272. Taking into account each party's initial contribution towards the purchase of the house, the court determined that plaintiff's interest in the net equity was $62,636 and defendant's interest was $73,636.

In the May order, the court required plaintiff to refinance the marital home so that she could pay defendant $37,636, or approximately half of his equity interest, immediately. The court permitted plaintiff to defer paying defendant the remaining $36,000 of his equity interest in the home until either the house was sold or the children completed high school, whichever came first. During the deferment period, the court ordered plaintiff to pay monthly interest to defendant at an annual rate of 7.5%, or $225 each month. The court also awarded defendant a right of first refusal should plaintiff choose to sell the marital residence, and a tax deduction for one of the parties' minor children. Finally, the court granted defendant a downward deviation from the child support guidelines for the period March 28, 1994 to March 24, 1995.

Following the final order, plaintiff sought to reopen the evidence on the value of the house to offer an appraisal showing the value as $110,000. The family court denied the motion.

In this Court, plaintiff challenges the restrictions on her physical and legal rights and responsibilities, the distribution of the parties' marital residence, the award to defendant of a right of first refusal on the sale of the house, the award of a tax deduction for one minor child, and the grant of a temporary deviation from the child support guidelines.

I.
A.

We begin by addressing plaintiff's challenges to the restrictions placed on her legal and physical rights and responsibilities over the parties' children. Plaintiff's primary challenge is to the provision that confers jurisdiction on the family court to review the parental rights and responsibilities order should she move from the Waterbury area.

A moving party must cross two hurdles in order to modify a custody determination. First, the moving party must make "a showing of real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668. Once that threshold is met, the moving party must then show that annulling, varying or modifying a prior parental rights and responsibilities determination is in the best interests of the child. Id.; see deBeaumont v. Goodrich, 162 Vt. 91, 95, 644 A.2d 843, 845-46 (1994).

We have not decided whether as a general matter a divorce order can define a "change of circumstances" for the purpose of assuming jurisdiction in a future modification proceeding. deBeaumont, 162 Vt. at 96, 644 A.2d at 846. In deBeaumont, we did enforce a provision that specified that if either party moved more than fifty miles from their preexisting home, it would be considered a change of circumstances. We did so for two reasons: (1) the order set a reasonable benchmark to determine changed circumstances, consistent with our case law, and (2) the order was based on a stipulation of the parties that established their expectations about their living arrangements and the effect of a change of these arrangements on a co-parenting situation. Id.

Neither of the deBeaumont circumstances is present here. In this case, the court attempted to confer jurisdiction upon itself in the event plaintiff relocates outside of the Waterbury area. The provision does not set a reasonable benchmark to determine changed circumstances, since any move out of the Waterbury area, of any distance, would be considered a substantial change. Thus, it is not consistent with our ruling that "relocation without more is not per se a substantial change of circumstances." Id. at 97, 644 A.2d at 847; see also Dunning v. Meaney, 161 Vt. 287, 290, 640 A.2d 3, 5 (1993) (relocation alone "does not amount to a real, substantial or unanticipated change in circumstances justifying modification of the physical rights and responsibilities"). Nor is the relocation provision based on an agreement between the parties. We do not believe the court can define a substantial change of circumstances with a preexisting court order that does not meet either of the criteria set forth in deBeaumont.

At the same time, we recognize that the court was placed in the difficult position of dealing with plaintiff's desire to relocate to Michigan. Consistent with our precedents, see deBeaumont, 162 Vt. at 97, 644 A.2d at 847 (where father had parent-child contact for three days each week, mother's relocation to Pennsylvania with children was change of circumstances); Lane v. Schenck, 158 Vt. 489, 496, 614 A.2d 786, 790 (1992) (relocation,...

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  • Knutsen v. Cegalis
    • United States
    • Vermont Supreme Court
    • December 10, 2009
    ...and their consequences are properly evaluated in determining parental rights and responsibilities. See Gazo v. Gazo, 166 Vt. 434, 441-42, 697 A.2d 342, 346 (1997) (explaining that mother must choose and either tell the trial court she plans to move so that the court can factor this into the......
  • Hoover (Letourneau) v. Hoover
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    • Vermont Supreme Court
    • October 20, 2000
    ...further acknowledged in our cases, that "some sharing of responsibilities, short of joint custody" may exist. See Gazo v. Gazo, 166 Vt. 434, 443, 697 A.2d 342, 347 (1997). That is the situation evident here; the children lived with mother, saw her before and after school and were put to bed......
  • Wener v. Wener, 15-316
    • United States
    • Vermont Supreme Court
    • September 16, 2016
    ...responsibilities.¶ 46. I am authorized to state that Justice Robinson joins in this concurrence and dissent.1 In Gazo v. Gazo , 166 Vt. 434, 442–44, 697 A.2d 342, 346–47 (1997), a case in which legal rights and responsibilities with respect to the children were awarded to the mother, the co......
  • Fabiano v. Cotton
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    • September 25, 2020
    ...it would still be in the child's best interests to spend time with defendant, who has parented her since birth. See Gazo v. Gazo, 166 Vt. 434, 444, 697 A.2d 342, 348 (1997) ("The parent without physical responsibility for thechildren has a right to some measure of parent-child contact unles......
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