Harris v. Harris

• Decision Date: 03 June 1994
• Docket Number: No. 93-077,93-077
• Citation: 647 A.2d 309,162 Vt. 174
• Court: Vermont Supreme Court
• Parties: Gina HARRIS v. Frank HARRIS.

Page 309

647 A.2d 309

162 Vt. 174

Gina HARRIS v. Frank HARRIS.

No. 93-077.

Supreme Court of Vermont.

June 3, 1994.

Paul D. Jarvis of Jarvis and Kaplan, Burlington, for plaintiff-appellant.

Stephen S. Blodgett of Blodgett, Watts & Volk, P.C., Burlington, for defendant-appellee.

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

MORSE, Justice.

Plaintiff wife appeals a divorce judgment, arguing that the court abused its discretion by awarding custody of the parties' son to defendant father, thereby separating their two children; by awarding her only $10,000 of the marital property; and by declining to award her maintenance. We affirm the custody determination, but reverse and remand the property division and maintenance rulings.

The parties had been married seven years when they separated in January 1992. Under temporary orders, the mother lived in the marital home in Grand Isle with both children from January to May 1992, and the husband lived in the marital home with the parties' son, Cole, from May to the final divorce hearing, four months later. The parties' daughter, Marissa, moved from the home with her mother in May 1992, eventually to a condominium in Williston. At the time of trial on September 11, 1992, Cole was just over five-and-one-half years old and Marissa was one day shy of her second birthday.

Following the hearing, the family court ordered that Cole remain in his father's custody and that Marissa remain in her mother's custody, with visitation by both children on alternate weekends. The father was awarded the marital home. The court ordered the father to pay the mother, within one year of the judgment, $10,000 as her share of the marital assets, and it denied the mother's request for maintenance.

I.

The mother first argues that the court abused its discretion by awarding custody of Cole to the father, thereby separating the children. She contends the evidence does not support the court's finding that neither party was Cole's primary care giver. In her view, the court erroneously gave the father custody of Cole based on the paternal grandmother's prior and continuing care for the boy. She argues the evidence showed that she was the primary care giver, which required the court to award her custody of both children. Finally, she contends that the court's findings failed to provide an adequate rationale for its custody award.

We agree with the mother that the court's findings and conclusions regarding who was the primary care provider are equivocal. At one point, the court found that it was unable to determine who Cole's primary care giver was because his care had been "split" between the mother, the father, and the paternal grandmother. At another point, the court found that the father "participated in the care of the children but the care of Cole was usually divided between [his mother] and [his father's] mother," and at yet another point it concludes that "Cole's child care was divided between his mother and his grandmother."

Our review of the record indicates that the latter statement is the most accurate one. Before the separation, the mother cared for the children from the time they got up until noon and again from late afternoon until bedtime; the grandmother often cared for the children from noon until four o'clock in the afternoon, when the father came home from work. Thus, this was a "traditional" marriage, in which the father worked and the mother stayed home and took care of the children. After the mother moved from the marital home with Marissa, most of Cole's basic physical needs were provided by the paternal grandmother, who conducts a registered day care facility in her house, which is located only seventy-five yards from the marital home. She dressed Cole and fed him breakfast after the father went to work. She cared for him during the day until the father got home. More often than not, she served the dinner for both the father and Cole. Frequently, Cole slept at her house. In short, although the testimony indicated the father was very close to his son--evidenced for the most part by their shared interest in fishing, hunting, and softball--the father had only a limited role in providing for Cole's basic needs, even after the mother left the marital home.

Although the grandmother played a significant role in caring for both children during the parties' marriage, and for Cole after the parties' separation, we conclude, focusing on all periods of the children's lives, Nickerson v. Nickerson, 158 Vt. 85, 90-91, 605 A.2d 1331, 1334 (1992), that the court erred in finding that it was unable to determine who was the primary care giver for Cole. The evidence leaves no doubt that the mother was his primary care provider for his entire life until the last four months before the final divorce hearing.

The court's erroneous finding does not require reversal of the custody award, however. The court's error lies more in its failure to attach the appropriate label than to comprehend the relevant circumstances. Indeed, the court's specific assessment of who provided what care for the children during particular times of the day was accurate. The court acknowledged that the mother and paternal grandmother shared the child-care duties, and that the father's role in that regard was minimal. We must determine, then, whether the mother's role in caring for the children entitled her to custody of Cole.

"[T]he quality of the child's relationship with the primary care provider, if appropriate given the child's age and development," is one of the nonexclusive statutory factors the court must consider in making a custody award. 15 V.S.A. § 665(b)(6). While we have recognized that this factor is entitled to great weight, we have declined to adopt "a rule that the primary custodian will be awarded custody as long as the parent is fit." Harris v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988); see Peckham v. Peckham, 149 Vt. 388, 390, 543 A.2d 267, 268 (1988) ("fact that one party acted as primary caretaker is not determinative"). Rather, § 665(b)(6) "directs the court to give some weight to continuation of the primary custodian with the weight to be determined by the quality of the relationship." Harris, 149 Vt. at 418, 546 A.2d at 214. The court must consider whether breaking, or even loosening, the bond with the primary parent will be detrimental to the child's physical and mental well-being or to the child's need for a stable and secure environment. See 15 V.S.A. § 665 (court shall make custody award that serves best interests of child); Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn.1990) (best-interest analysis examines bond between young child and primary parent as it bears on desirability of maintaining continuity). Thus, the weight to be accorded to the primary-custodian factor depends on "the likely effect of the change of custodian on the child." Harris, 149 Vt. at 418-19, 546 A.2d at 214.

This is precisely the type of evidence the court relied on in determining that Cole should remain with his father. The court questioned the quality of the time Cole spent with his mother, noting that he was usually inside the house watching television, and, at times, when he was outside, he was left alone. The court also noted that when Cole resided with his mother between January and May 1992, he frequently expressed a longing to be with this father, and it concluded, based on the testimony of several witnesses, that the boy's emotional state had significantly improved since he resumed living with his father. The court emphasized the close relationship Cole and his father had, noting that they both enjoyed being outside playing ball or scouting for deer. The court also pointed out that, to a greater extent than Marissa because of his sister's age, Cole had a network of friends and family in the Grand Isle area, and that he was attached to the community and the marital home. Given these findings, which have support in the record, we conclude that the court's failure to identify the mother as the primary care provider does not require reversal.

The court also made several findings concerning the paternal grandmother, stating that Cole was extremely close to her and that she played a significant role in his life and development. The mother argues that the court, in effect, chose the grandmother rather than her as Cole's custodial parent. We disagree with that assessment. Though many of Cole's basic physical needs had been provided by the grandmother, the court found that the father spent a significant amount of time with Cole, and that the two engaged in a variety of activities constructive to Cole's emotional development. The father should not be disadvantaged for his fortune in having a mother who operates a day care facility nearby and who is willing and eager to care for his son while he is at work.

With little discussion, the mother argues that the court erred by separating the children. Neither statutory nor case law in Vermont has ever directly addressed the appropriateness of separating siblings in custody cases. In general, most courts have concluded that public policy favors keeping siblings together in the same home. E.g., Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn.1988); Andersen v. Andersen, 399 N.W.2d 363, 365 (S.D.1987); see Annotation, Child Custody: Separating Children by Custody Awards to Different Parents--Post-1975 Cases, 67 A.L.R.4th 354, 360 (1989). The fundamental reason behind this policy is the assumption that separation of the children from each other will further weaken familial ties that have already been damaged by the parent's divorce, and thus will endanger the children's emotional well-being. See Annotation, supra, at 360; Pennington v. Pennington, 711 P.2d 254, 256 (Utah 1985) (suggesting that where bonding between siblings had occurred, siblings should not be forced to face "double emotional trauma" caused by cutting bonds with each...