Gerety v. Gerety, 85-72

• Decision Date: 05 June 1973
• Docket Number: No. 85-72,85-72
• Citation: 306 A.2d 693,131 Vt. 396
• Court: Vermont Supreme Court
• Parties: Philip F. GERETY v. Dawn V. GERETY.

Page 693

306 A.2d 693

131 Vt. 396

Philip F. GERETY v. Dawn V. GERETY.

No. 85-72.

Supreme Court of Vermont.

June 5, 1973.

Parker & Lamb, Springfield, for plaintiff.

Paul A. Bourdon, Woodstock, for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

DALEY, Justice.

The plaintiff obtained a decree of divorce from the defendant in the Windsor County Court on February 13, 1969, on the ground of intolerable severity. By order contained in the decree, the custody of the three minor children of the parties was awarded to the plaintiff subject to the right of reasonable visitation by the defendant. On February 3, 1972, the defendant petitioned the same court for a change of custody. After hearing, the court filed findings of fact, conclusions of law, and judgment was entered awarding custody of the children to the defendant subject to the right of visitation by the plaintiff at all reasonable times and places and the further right to have said children with him at reasonable times and places. The plaintiff has appealed challenging the findings of fact as being unsupported by the evidence; he also contends that the trial court lacked jurisdiction because, although it found change of circumstances, it failed to find that the change of circumstances was of a substantial nature.

It is the settled law of this Court that to warrant the modification of a custody order, the petitioner must show a substantial change in the material circumstances since the date of the decree. Thus the petitioner must prove a substantial change in the material circumstances and that under the new conditions a change of custody is in the best interests of the child or children. Gokey v. Gokey, 127 Vt. 334, 335, 248 A.2d 738 (1968); McKinney (1957). It is equally well settled that it is (1957). It is equally well settled that it is the welfare of the child which in the last analysis is determinative in a custody matter. Gokey v. Gokey, supra.

The evidence discloses and the court found that at the divorce hearing the defendant was not present nor was she represented by counsel. At the time of the divorce and subsequent thereto, the children, two boys now 9 1/2 and 11 years of age and a girl now 7 1/2 years of age were living with the plaintiff in the former home of the parties in Weathersfield, Vermont, which was decreed to the plaintiff. The defendant at the time of the divorce was distraught and had left the children although she knew they would be well cared for by the plaintiff, his parents and her parents.

In her petition for modification the defendant appellee alleged that her ability to care for the children had changed, and that the present existing arrangements as to the care of the children have vastly changed. She further elleged that the children were being unnecessarily disciplined, and the present home environment is one lacking in love and affection for the children.

The following changes, which are not challenged by the plaintiff, were found by the trial court: After a passage of approximately ten months from the time the defendant left the plaintiff with the children, she reestablished contact with the children and has visited them every three or four weeks. She has remarried and now lives with her husband in Rhinebeck, New York. They live in a large mobile home with adequate space for the children. The defendant's present husband is a chef who earns approximately fifteen thousand dollars a year. If awarded custody, the couple will sell the trailer and purchase a home in New York or in Vermont. The relationship between the children and the husband of the defendant is a satisfactory one. The natural mother has shown love and affection toward her children who have reciprocated on the occasions of her visitations. This has also been the case when they have been with her on occasions at her home in New York and at a summer cottage in Vermont owned by her parents.

The plaintiff has not remarried. Since June of 1971, the children, who were formerly cared for by the plaintiff with the aid of persons employed by him when he was working, have been cared for by a married woman who lives in the common household. She occupies a common bedroom with the plaintiff; they intend to marry if and when she obtains a divorce from her husband. She has a child who also lives in the common household. The home is neat and clean; the children are furnished good meals and are well clothed. The court found that Mrs. Lawson, however, does not and cannot substitute for the children's true mother.

The discipline of the children is exercised by their father, but left primarily to Mrs. Lawson to whom the plaintiff has entrusted such authority. In this respect, the court in its findings of fact, found in Finding No. 31:

'(T)he plaintiff and Mrs. Donna Lawson have repeatedly used excessive corporal punishment on the children out of proportion to the gravity of the disobedience and that if such paractice is continued, it cannot help but affect the physical, spiritual and mental well-being of the children. Neither the plaintiff nor Mrs. Donna Lawson have convinced the Court that they would change their method of chastising the...