Korshak v. Korshak, 296-80

• Decision Date: 02 February 1982
• Docket Number: No. 296-80,296-80
• Citation: 140 Vt. 547,442 A.2d 464
• Court: Vermont Supreme Court
• Parties: Steven A. KORSHAK v. Catha A. KORSHAK.

Page 464

442 A.2d 464

140 Vt. 547

Steven A. KORSHAK v. Catha A. KORSHAK.

No. 296-80.

Supreme Court of Vermont.

Feb. 2, 1982.

Richard I. Rubin, Barre, for plaintiff.

Dorsch & Hertz, Brattleboro, for children.

Weber, Perra & Gibson, Brattleboro, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and PECK, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

PECK, Justice.

Defendant, Catha A. Korshak, and plaintiff, Steven A. Korshak, were divorced by an order of the Washington Superior Court dated October 10, 1978. The order, prepared in accordance with a stipulation of the parties, provided, inter alia, that each party in turn would have alternating custody of the three minor children for two year periods. During the initial period, to expire with the commencement of the school year in September of 1980, the children were to make their home with their mother, with specified school holidays and vacations to be spent with the father.

In the summer of 1979, during the first two year period, defendant advised plaintiff of her intent to move from Vermont to New York City and seek employment there. She asked plaintiff if he would take the children while she looked for work. Plaintiff agreed provided they remain with him for a period of two years. Notwithstanding there was never any formal modification of the court's order, this proposal was accepted by defendant and the children came to live with their father in Vermont on or about August 1, 1979, and were placed in local schools.

The children joined their mother for the Christmas vacation of 1979, with plaintiff's consent, but upon the former's agreement to return them to their father on January 5, 1980. Once under her control in New York, however, and contrary to this understanding, defendant advised plaintiff that she would not return the children, but planned to move with them to California and seek employment there. She apparently believed she could repudiate the agreement arbitrarily and reinstitute the provisions of the court order any time she saw fit to do so. She had made no definite plans for the housing or education of the children in California, nor did she have any employment there waiting for her. The plaintiff on the other hand was gainfully employed in Vermont and the children well settled in the school year.

The plaintiff took no legal action to prevent the move; instead he went to New York, and in an incident that involved some actual physical violence against the defendant, he removed the children forceably from her apartment and returned with them to Vermont. However unfortunate this precipitous action by plaintiff, there is little doubt it was motivated by defendant's decision not to honor the agreement between them.

On March 6, 1980, plaintiff filed a motion in Washington Superior Court to modify the original divorce order; he requested full custody of the children, subject to reasonable visitation rights in the mother. Defendant countered with a contempt petition based on plaintiff's removal of the children from New York to Vermont, and a petition to modify the original order in which she, too, sought full custody of the children.

The lower court heard all of these matters together, made findings of fact and conclusions of law, and issued its order granting full custody to the plaintiff-father. Both petitions of the mother were denied; she thereupon appealed to this Court.

It is clear from the findings the court was satisfied that both parties are fit and competent parents, but that, as of the date of the proceedings, plaintiff was in a better position to provide the children with the stability and emotional security that they need. Finding that the best interests of the children would be served by awarding custody to the father, the court concluded:

(T)he children are in need of stability in their lives at this time which can best be provided by STEVEN KORSHAK. CATHA has no specific plans for education, employment or place of residence. An award of custody to CATHA would uproot the children from an environment where they have established good peer relationships and is contributed (sic) to their present emotional security.

This cause illustrates again the problems inherent in joint custody arrangements in divorce proceedings. Lumbra v. Lumbra, 136 Vt. 529, 531-33, 394 A.2d 1139, 1141-42 (1978). It is true that in the original proceedings here, joint custody was decreed as a result of an agreement between the parties. Courts are reminded however of the grave obligation placed upon them to resolve custody questions with the best interests and welfare of the children always in mind. This above all is the paramount concern. Boone v. Boone, 133 Vt. 170, 174, 333 A.2d 98, 101 (1975). Agreements between the litigating parties in divorce actions are not conclusive or binding upon the courts where the interests of the children are concerned. Frink v. Frink, 128 Vt. 531, 533, 266 A.2d 820, 822 (1970); Martin v. Martin, 127 Vt. 313, 314, 248 A.2d 723, 724 (1968). Joint custody, more often than not, creates more problems that it resolves regardless of the initial good intentions of the parties. It should be decreed only where there is a finding of extraordinary circumstances; rarely is it in the best interests of the innocent victims of divorce, the children. Lumbra v. Lumbra, supra. The same inability of the parties to resolve...