Hubbell (Gault) v. Hubbell, 96-192

• Decision Date: 19 September 1997
• Docket Number: No. 96-192,96-192
• Citation: 702 A.2d 129,167 Vt. 153
• Court: Vermont Supreme Court
• Parties: Deborah A. HUBBELL (GAULT) v. Steven R. HUBBELL.

Page 129

702 A.2d 129

167 Vt. 153

Deborah A. HUBBELL (GAULT) v. Steven R. HUBBELL.

No. 96-192.

Supreme Court of Vermont.

Sept. 19, 1997.

Richard V. Aborjaily, Norwich, and Joanne M. Ertel of Black Black & Davis, White River Junction, for plaintiff-appellant.

William C. Dagger, Woodstock, for defendant-appellee.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

ALLEN, Chief Justice (Ret.), Specially Assigned.

Mother appeals an order of the Windsor Family Court awarding parental rights and responsibilities of the parties' minor child to father. Mother argues that (1) the court erred in awarding custody to father because mother demonstrated a greater capacity to promote a positive relationship between the child and the other parent than did father; (2) the record does not support the court's finding that mother was responsible for the child's lack of stimulation; (3) the court did not give adequate weight to mother's role as the child's primary caregiver; (4) mother was prejudiced by the delay between the final hearing and the custody decision; and (5) the court erroneously applied a preference for father over mother because of the sex of the child. Father cross-appeals the award of attorney's fees. We agree that the court erred by considering the sex of the child and remand for reconsideration of parental rights and responsibilities without regard to this factor. In all other respects, the decision is affirmed.

Mother filed for divorce in 1994 and sought custody of the parties' son, who was two-and-a-half years old. About a month later father obtained an ex parte relief-from-abuse order, based on alleged acts of inappropriate discipline of the child. The order granted father temporary possession of the parties' residence and temporary custody of the child.

The parties agreed to a custodial evaluation by a child psychiatrist, who examined both the allegations of abuse and the respective parenting skills of the parties. The psychiatrist stated that he could not find clinical evidence of physical abuse, but recommended that custody be awarded to father. The court found that mother was the primary care provider prior to the separation and that father was the primary care provider thereafter. Based on the court's evaluation of the parties' skills as parents and the record of the child's progress in father's custody, the court ruled that "[t]he credible evidence preponderates in favor of maintenance of [the child's] custodial placement with [father], with liberal visitation opportunities for [mother]." The court awarded the marital residence to father, subject to its indebtedness, and ordered father to pay $5000 of mother's attorney's fees. Mother appeals, and father cross-appeals the award of attorney's fees.

Mother first argues that the court erred in awarding custody of the parties' son to father because she demonstrated the greater "ability and disposition ... to foster a positive relationship and frequent and continuing contact with the other parent." See 15 V.S.A. § 665(b)(5). Regarding § 665(b)(5), the court concluded "that neither party has demonstrated much ability or willingness to foster a positive relationship between the child and the other parent." In support of this conclusion the court found that the parties had maintained a "state of hypervigilance" that resulted in "a substantial negative influence upon the parties' abilities to even attempt to work together to address the child's needs" and that "the parties are unable to engage in even the most basic discussion, compromise, or agreement as to matters affecting the child." The findings include specific instances of conduct by each party supporting the position that neither is able to foster a positive relationship and continuing contact with the other parent. The psychiatrist noted that the parties clearly demonstrated an inability to communicate and make joint decisions about the child and thus an inability to collaborate in raising their son. The record supports the findings, and the findings support the conclusion that neither party appears able to foster a positive relationship between the child and the other parent.

Mother next argues that the court erred by finding that she was responsible for the child's lack of stimulation and that awarding her custody would result in under-stimulation. This contention mischaracterizes the court's findings. The court found that the child was under-stimulated while the parties lived together, with mother as the primary caretaker and father largely detached from parenting. It also found that awarding custody to mother might create "the possibility of a return to under-stimulation in the home." (Emphasis added.) Mother's contention also ignores the testimony of the psychiatrist. In his evaluation, the psychiatrist stated that mother was the primary caretaker while the parties lived together, that the child did not receive sufficient stimulation to overcome...