Johnson v. Johnson, 94-146

• Decision Date: 14 April 1995
• Docket Number: No. 94-146,94-146
• Citation: 659 A.2d 1149,163 Vt. 491
• Parties: Ray R. JOHNSON v. Valerie J. JOHNSON.
• Court: Vermont Supreme Court

Page 1149

659 A.2d 1149

163 Vt. 491

Ray R. JOHNSON v. Valerie J. JOHNSON.

No. 94-146.

Supreme Court of Vermont.

April 14, 1995.

William G. Congleton, Essex Junction, for plaintiff-appellee.

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

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

Defendant Valerie Johnson appeals a divorce judgment, arguing that the family court abused its discretion by (1) giving plaintiff Ray Johnson sole parental rights and responsibilities of the parties' seven-year-old daughter, (2) allowing the child's guardian ad litem (GAL) to testify in violation of V.R.F.P. 7, and (3) awarding her one-half the equity in the marital home to be paid in twelve years without any provision for interest on account of the delay in payment. We reverse.

The parties had been married approximately six years when in July 1993 the father moved out of the marital home and into his parents' home. At the temporary hearing in September 1993, the court placed Caila in the care of her mother, who had been the child's primary caregiver during the marriage. Following the final hearing in February 1994, however, the court awarded the father parental rights and responsibilities and granted the mother liberal parent-child contact. The court also awarded the father the marital home, subject to a second mortgage held by the mother in the amount of $6000--one-half the equity that had accrued to that point--to be paid off when Caila turned eighteen or the house was sold, whichever occurred sooner. There was no provision for interest.

The mother argues that the court abused its discretion in awarding the father parental rights and responsibilities. She contends that instead of giving great weight to her role as the child's primary caregiver, the court improperly relied on the role of the father's mother, who provided much of Caila's day-to-day care when the child was with the father, and on a statement made by the GAL. She further contends that the court failed to make adequate findings on whether she was an unfit parent, and whether taking Caila away from her, the primary caregiver, would have a detrimental effect on the child.

For the most part, this case pitted the testimony of the father and his family against the testimony of the mother and her family. The father testified that the mother slapped him after the parties missed each other during an attempted visitation drop-off. The father's sister testified that three years earlier, shortly after the parties' first separation, the mother threw a plant stand at her after arguing with the father. The father's mother testified that on another occasion the mother had kicked Caila in the ankle after Caila kicked the mother to get her attention. The father's brother, who conceded on cross-examination that he had not been around the mother for some time, reported that he had seen the mother pinch Caila for pinching another child.

For her part, the mother suggested that some of her behavior could be attributed to her breakup with the father and to bouts of depression that had long since ended. She testified that she had been on medication for post-partum depression and anxiety between 1987 and 1990--due in part to a lack of support from the father--but that she had not needed the medication for several years. Two of the mother's family members testified that she was a good mother who handled her daughter well.

The "wild card" in this case was the father's testimony that the mother told him that members of her family, including a brother who had recently moved into the marital home with her and Caila, had sexually abused her as a child. The testimony regarding this potentially crucial issue was extremely limited. The father did not indicate when the mother had told him of the abuse or provide any specific information concerning the nature of the abuse or when it allegedly occurred. The mother denied that her father and brothers had abused her and denied ever having told the father such a thing. She stated that her brother was temporarily residing with her and Caila because he was out of work. The court's findings suggest that the judge was not sure the abuse actually occurred, but believed the father's testimony that the mother had told him she was abused.

Beyond the testimony noted above, there was no evidence that the mother was an unfit mother or that Caila's development was languishing. The witnesses generally agreed that both parents loved Caila. The father's mother testified that Caila was doing better in school. The mother testified that she had been in regular contact with school officials and had enrolled Caila in a program designed to help children of divorced parents cope with their loss. The father's family testified that the father spent much of his free time with Caila, but there was little evidence on his involvement in her schooling or other activities. There was no testimony from counselors or other independent sources regarding Caila's progress in school or her emotional attachment to either her father or her mother. In short, evidence on how Caila would be affected by a transfer of custody was sparse.

In making its decision regarding parental rights and responsibilities, the court was faced with accusations against the mother that were based, for the most part, on testimony concerning only a few isolated incidents. The court had to weigh this testimony, while keeping in mind the significance generally accorded to the role of the primary caregiver. See Harris v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988). The exact weight of the primary-caregiver factor depends on the quality of the relationship between the child and the custodian and on the likely effect the change of custodian would have on the child and the family. Id. at 418-19, 546 A.2d at 214; see Harris v. Harris, 162 Vt. 174, ----, 647 A.2d 309, 312 (1994). Absent evidence on the likely effect of the change of custodian, "the court should ordinarily find that the child should remain with the primary custodian if that parent is fit." Harris, 149 Vt. at 419, 546 A.2d at 214.

Of course, the court also had to consider evidence regarding the father's relationship with and ability to care for his daughter. A parent may not "claim the benefit of a statutory factor solely by showing that the other parent's actual or expected performance with respect to that factor is inadequate." Id. at 418, 546 A.2d at 214. Rather, parents must present evidence regarding their relationship with the child in light of the relevant statutory factors. Id. As indicated above, there was very little evidence regarding the father's relationship with his daughter, other than testimony from his family that he spent a lot of his free time with Caila and had not missed any parent-child contact days granted him under the temporary order.

Here, the court recognized that the mother had been Caila's primary caregiver, but stated that it had "some question as to the adequacy of the care she has provided and her fitness as a parent." The court explained, as follows:

She is violent and unstable and has used inappropriate punishment on Caila. The court is also concerned about the presence of Defendant's brother in her household. Either the [mother] lied to the [father] about the sexually abusive relationship she had with her brother and father or she lied to the Court about its non-existence. In either case, such duplicity is disturbing. It would be particularly disturbing if the brother had abused the [mother] and is now residing with her and Caila while the [mother] is in denial that such abuse occurred. Further, the [mother] is unable to communicate with the [father] about important events in Caila's life and is unable to refrain from violence against him.

The court's finding that the mother did not communicate with the father about important events in Caila's life is supported primarily by the mother's admission that shortly after the father left her she took Caila to Massachusetts for a week without informing the father of their...