Kirby v. Wool

• Decision Date: 09 October 2020
• Docket Number: SUPREME COURT DOCKET NO. 2020-046
• Court: Vermont Supreme Court
• Parties: Michelle Kirby v. Jamie Wool*

Michelle Kirby v. Jamie Wool*

SUPREME COURT DOCKET NO. 2020-046

Supreme Court of Vermont

OCTOBER TERM, 2020

October 9, 2020

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

APPEALED FROM:

Superior Court, Chittenden Unit, Family Division

DOCKET NO. 329-5-04 Cndm

Trial Judge: Thomas Carlson

In the above-entitled cause, the Clerk will enter:

Father appeals the decision of the family court modifying parental rights and responsibilities to give sole legal and primary physical custody of the parties' minor son to mother. We affirm.

The following facts are drawn from the court's orders and are undisputed except where noted. The parties have one son, B.K., who was born in September 2003. After the parties divorced in 2005, mother was awarded sole legal and physical parental rights and responsibilities (PRR) for B.K., subject to parent-child contact (PCC) with father on alternating weekends. In 2014, the court transferred legal and physical PRR to father, with mother to have PCC with B.K. on alternating weekends. In 2015, the court denied the parties' cross-motions to modify this arrangement.

In August 2018, the parties again filed cross-motions to modify PCC, and mother filed a motion to modify PRR, after an incident that resulted in mother being cited for custodial interference and each party seeking a relief-from-abuse order against the other. In March 2019, the court issued an order modifying PCC because B.K. was having serious behavioral issues in his first year in high school that appeared to be related to the parties' custody dispute. Based on its assessment of the statutory factors, as well as the parties' agreement that B.K. did better in school when contact was shared equally, the court concluded that a 50/50 contact schedule was in B.K.'s best interests. However, it denied father's request to make mother's increased contact subject to conditions that she attend co-parenting classes and therapy.

In April 2019, B.K. transferred to an alternative program within Essex High School known as the Mill School. The Mill School has a high staff-to-student ratio and is designed to help students struggling with behavioral and academic issues. Mother was the primary contact with the school. After a slow start, B.K. began to make progress under the program. The program director described B.K. as a kind, sad young man with serious trust issues, and recommended that he be assessed for a language learning disability and an individualized education program (IEP).

In late July 2019, father and his girlfriend took B.K. to Florida for a visit. Father had been talking with B.K. for at least a year about moving to Florida. After the trip, B.K. stopped attending the Mill School during weeks when he was in father's care. When he did reappear at school during father's time in late August, he appeared to be under the influence of marijuana. Mother subsequently discovered that B.K. was staying with friends in Burlington instead of father, who had been evicted from his home in Williston in August and was staying with a friend in New Hampshire.

According to father, B.K. was hesitant to move to Florida even after their visit. Despite this, on September 9, 2019, father filed an emergency motion to modify PCC, stating that he was planning to move to Florida on September 11 and take B.K. with him. Father also told the Mill School that B.K. would be withdrawing from the school. Father then presented mother with a proposed agreement: B.K. would stay with her for ninety days and attend school in Essex, after which B.K. would move to Florida and mother would agree to give up any fight in court. Mother refused to sign. Father left in anger and sent mother numerous text messages blaming her for hurting B.K. B.K. witnessed the whole interaction, at father's insistence. Father subsequently relocated with B.K. to Florida. Mother then filed a motion asking the court to require father to stay in Vermont and continue 50/50 contact or to transfer legal rights and responsibilities to her.

After a hearing, the court issued a decision in September 2019 awarding temporary legal and physical rights and responsibilities to mother. The court found that father's abrupt relocation to Florida constituted a real, substantial, and unanticipated change in circumstances that warranted modification of the existing PRR and PCC orders. It ordered that father could continue to have 50/50 contact with B.K. if he were able to do so.

Following a second evidentiary hearing in December 2019, the court issued a final order awarding sole legal PRR and primary physical PRR to mother. At the hearing, mother submitted a proposed contact schedule. The court asked father to file a proposed contact schedule by the end of December. Father did not do so. In January 2020, the court issued an order awarding father contact with B.K. during B.K.'s school breaks as well as the first two weeks of summer break and reasonable time whenever father came to Vermont for visits. This appeal followed.

Father's primary argument on appeal is that because he had sole legal rights and responsibilities, the family court should have deferred to his decision to relocate. He argues that the family court changed custody solely to assure that B.K. remained at the Mill School, which improperly interfered with father's right to make educational decisions for B.K. He also claims that his move to Florida was not unanticipated and challenges various findings made by the court. Finally, he argues that it was error for the court to award him only six weeks of PCC when it had previously determined that a 50/50 schedule was in the child's best interests.

To modify an order governing PRR or PCC, the moving party must first show that there has been a "real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668(a). If that threshold requirement is met, the court may modify the order if it is in the best interests of the child. Id. The family court has "broad discretion" in determining whether changed circumstances exist and what parenting arrangement is in the child's best interests. Quinones v. Bouffard, 2017 VT 103, ¶ 10, 206 Vt. 66. We will uphold the court's factual findings unless they are clearly erroneous and will affirm its legal conclusions if supported by the findings. Sochin v. Sochin, 2005 VT 36, ¶ 4, 178 Vt. 535.

The trial court did not abuse its discretion in finding a real, substantial, and unanticipated change of circumstances in this case. At the time that father relocated to Florida in September2019, father and mother had been exercising physical rights and responsibilities for approximately equal amounts of time pursuant to the court's April 2019 order. Although the record shows that father had mentioned a desire to move to Florida in the past, the April 2019 order did not contemplate that father would relocate. To the contrary, it was based on the agreement of father and mother that equal time with both parents was in B.K.'s best interests. Father then abruptly relocated hundreds of miles away from Vermont and indicated that he intended the move to be permanent. The distance of the move would make it difficult to create a contact schedule that did not substantially reduce or alter the nature of mother's PCC. It was therefore reasonable for the court to conclude that this move would substantially interfere with mother's ability to continue to exercise her right to 50/50 contact. See Quinones, 2017 VT 103, ¶ 21 (holding that custodial parent's proposed move to New York City with child constituted changed circumstances).

Father argues that as the parent with sole legal and physical responsibilities, the court should have deferred to his decision to relocate. "[W]hen a noncustodial parent seeks a change in custody based solely on the custodial parent's decision to relocate, the moving party faces a high hurdle in justifying the 'violent dislocation' of a change in custody from one parent to the other." Hoover (Letourneau) v. Hoover, 171 Vt. 256, 259 (2000) (emphasis omitted). However, "when childrearing and its concomitant decision-making are shared, relocation to a remote location by one parent requires at the very least a reassessment of the custodial arrangement and, because of the practicalities involved in shared parenting, will often necessitate a change in custody." Hawkes v. Spence, 2005 VT 57, ¶ 12, 178 Vt. 161 (quotation omitted). Here, although father nominally had sole physical rights and responsibilities, mother and father had been spending roughly equal amounts of time with B.K. Cf. deBeaumont v Goodrich, 162 Vt. 91, 96 (1994) (explaining that although final divorce order awarded mother physical responsibility, "time allocation for each parent was nearly equal so that a co-parenting arrangement was present"). Under these circumstances, it was not improper for the court to consider a change in custody.

We therefore turn to the family court's determination that a change of custody was in B.K.'s best interests. Although the family court has broad discretion in this area, it may not substitute its judgment for that of the custodial parent. Lane v. Schenck, 158 Vt. 489, 495 (1992). Rather, "the family court must determine, in light of the proposed move, which custodian and parent-child contact schedule will serve the child's best interests, not whether the move itself is in the child's best interests." Quinones, 2017 VT 103, ¶ 13. We have recognized that a "proposed move may be highly relevant to the best-interests analysis, and its negative impact on the child's best interests could outweigh the benefits of continuity with his primary caregiver." Id. ¶ 22.

In its final December 2019 decision, the family court relied on its previous findings in the April and September orders and also made new findings...