Harris v. Harris

• Citation: 149 Vt. 410,546 A.2d 208
• Decision Date: 11 March 1988
• Docket Number: No. 87-210,87-210
• Parties: Peter Q. HARRIS v. Bonnie L. HARRIS.
• Court: United States State Supreme Court of Vermont

Page 208

546 A.2d 208

149 Vt. 410

Peter Q. HARRIS v. Bonnie L. HARRIS.

No. 87-210.

Supreme Court of Vermont.

March 11, 1988.

Jeremy Dworkin, South Londonderry, for plaintiff-appellee.

Cheney, Brock & Saudek, P.C., Montpelier, and Susan L. Boyle of Bech and Associates, Hartland, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

DOOLEY, Justice.

The main issue in this divorce proceeding is whether the father [plaintiff] or mother [defendant] of the three minor children of the marriage--two boys, ages 8 and 10 at the time of the trial court order and one girl, age 3 at that time--will be awarded custody. ¹ The trial court awarded custody to the plaintiff with liberal visitation to the defendant. The defendant appeals, raising a scattershot of objections to the custody award, with the primary focus placed on whether the trial court findings and order are consistent with our new child custody statute--15 V.S.A. § 665(b). In addition, the defendant alleges that the trial court improperly failed to consider a partial stipulation between the parties and did not fully divide the property of the parties. We reverse and remand on the custody and property issues.

The plaintiff in this case is a psychiatrist who now practices on a hospital staff in Massachusetts. He resided in the family home in Thetford, Vermont, up until April, 1984--and temporarily in 1986 during an attempt at reconciliation. The defendant continues to reside at the Thetford home where she raises sheep, earning only a small amount from that venture. She is a teacher by profession but has not taught school since the parties first came to Vermont in the early 1970s.

The parties adopted a relatively traditional division of responsibilities. The defendant did not work outside of the home, at least until she began raising sheep as a business, and was primarily responsible for care of the children, cooking and cleaning. At various stages of his career, the husband worked long hours. He also did a lot of work around the home, including each year taking a week off from work to cut and split wood for the winter. He spent much of his free time with his family.

During the early 1980s, the marriage developed major strains. Plaintiff commenced an affair with another woman. Defendant's discovery of the affair led to a separation, which despite attempts at reconciliation became permanent.

By the time of the divorce hearing, the parties had agreed to share legal responsibility for the children but strongly disputed custody. Based on the evidence, the defendant's position was that: she was the primary custodian, she was a fit and loving parent, the children were developing well in her custody, and a change of custody would not be in the best interest of the children. She also pointed out that the plaintiff's infidelity broke up the marriage and that he had physically abused her in the past.

Based on his evidence, the primary claims of the plaintiff were: defendant was inadequate as a wife and mother; she abused alcohol, left the children unattended, failed to provide proper meals and medical care to the children and encouraged the children to lie to the plaintiff; and the defendant had taken in a 17-year-old lover who was a poor role model for the children. Plaintiff offered general statements of his capacity to meet the needs of the children.

Following the hearing, both parties filed extensive requests for findings. Approximately two weeks after the hearing, the parties filed a pretrial stipulation that detailed their agreement on sharing legal responsibility and required that disputes arising out of this joint responsibility would go to arbitration.

Thereafter the court filed extensive findings and conclusions, awarding custody of all three children to the plaintiff and giving defendant liberal visitation rights. The order also dealt with rehabilitative maintenance and division of the real property but did not divide the personal property of the parties. The findings did not specifically rule on the requests filed by the parties. The court did not refer to the partial stipulation or adopt any of its terms in its order.

In attacking the custody award, the defendant makes five major claims: (1) the findings are not sufficient to comply with 15 V.S.A. § 665(b); (2) the court misapplied some of the criteria in § 665(b) and failed to apply others; (3) the findings are insufficient to demonstrate the reasons for the court's conclusions; (4) certain key findings are unsupported by the evidence; (5) the custody award is against the clear weight of the evidence. We consider the first two of these issues and, in view of the disposition of the second, do not reach the remainder.

The first issue relates to the requirements of 15 V.S.A. § 665(b). This statute, adopted in 1986 and effective for this case, requires the court to determine custody in "the best interests of the child" and to "consider" at least eight statutorily listed factors. The defendant argues that the trial court was required by the statute to make specific findings on each of the factors and failed to do so.

We addressed the obligation of the court to make findings on the statutory custody factors in Poulin v. Upham, 149 Vt. 24, 538 A.2d 181 (1987). There, we stated:

Thus, 15 V.S.A. § 665(b) directs that a court must consider, at a minimum, eight specific factors when making a determination of parental rights and responsibilities.* Consequently, in order for a trial judge to state in its written findings, pursuant to V.R.C.P. 52(a), the facts essential to the disposition of parental rights and responsibilities, the trial court must at least address each of these statutorily created factors.

Id. at 26, 538 A.2d at 182. See also Price v. Price, 149 Vt. 118, 123-24, 541 A.2d 79, 83 (1987) (where parties put in evidence relating to a statutory factor, court must make findings and conclusions on the issue; decided under prior statutory law).

Defendant urges in this case that we require "specific findings on pertinent criteria" in a format that groups findings under the criteria and shows clearly how the court weighed each factor. Citing cases from other states, defendant argues that clear compliance with the statute must be shown if we are to enforce the legislative mandate that custody decisions be determined in the best interests of the child.

We have reviewed carefully the decisions from other states, particularly those that have adopted variations of § 402 of the Uniform Marriage and Divorce Act, which was a partial model for our statute. See 9A Uniform Laws Annotated 156, 561 (Master ed. 1987). None of the states have gone further than Poulin in requiring consideration of the statutory factors. See, e.g., In re Dickman, 670 P.2d 20, 22 (Colo.App.1983); In re Slavenas, 139 Ill.App.3d 581, 585, 93 Ill.Dec. 914, 916, 487 N.E.2d 739, 741 (1985); Stafford v. Stafford, 618 S.W.2d 578, 580-81 (Ky.Ct.App.1981); MacCormick v. MacCormick, 513 A.2d 266, 268 (Me.1986); Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-72 (1976); In re Cole, 729 P.2d 1276, 1279 (Mont.1986); In re Croley, 91 Wash.2d 288, 292, 588 P.2d 738, 741 (1978). In fact, the most common standard used in the cases is that the record must show that statutory factors were considered but there is no requirement of specific findings on each factor. See, e.g., MacCormick v. MacCormick, 513 A.2d at 268 ("We do not expect ... detailed findings on each factor," only " 'some indication in the record that the [judge] considered those factors....' ") (quoting Cyr v. Cyr, 432 A.2d 793, 797 (Me.1981)); In re Croley, 91 Wash.2d at 292, 588 P.2d at 741 ("Where ... the record indicates substantial evidence was presented on the statutory factors thus making them available for consideration by the trial court and for review by an appellate court, specific findings are not required on each factor."). The best exposition of trial court responsibility to address statutory factors appears in Rosenfeld v. Rosenfeld, 311 Minn. at 83, 249 N.W.2d at 171-72. The court stressed the benefits of findings on the statutory factors to assure consideration of the factors, facilitate appellate review and satisfy the parties that the case was fully and fairly evaluated. However, it declined to require specific findings on each factor:

We do not hold that the trial court must make a specific finding on each of the statutory factors, nor do we hold that each factor must be specifically addressed by the trial court. It is sufficient if the findings as a whole reflect that the trial court has taken the statutory factors into consideration, in so far as they are relevant, in reaching its decision.

Id. We adopt the Rosenfeld statement as a further explanation of our holding in Poulin.

When judged by the above standard, it is clear that the findings are sufficient in this case. The trial court cited to the relevant statutory sections and made extensive findings that show consideration of the statutory factors. While we agree with defendant that it would be preferable for the trial court to structure its findings and conclusions to show the findings relevant to each factor together with a conclusion as to each factor, we are unwilling to require this specific form. The statute requires only that the trial court "consider" each factor--it imposes no specific requirement on how this consideration is to be manifested in the court's findings and conclusions.

Defendant's second issue is a more difficult one. Defendant alleges that the trial court failed to fully implement the statute, 15 V.S.A. § 665(b), as intended by the legislature. Although she has numerous overlapping arguments, two are at the center of her position: the court gave inappropriate consideration to the defendant's male companion; and the custody order is based on factors for which there is no information about the effect of plaintiff's custody.

The...