LaFlam v. LaFlam, 21-AP-301

Docket Nº21-AP-301
Citation2022 VT 57
Case DateNovember 04, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 57

Jody LaFlam
v.
Diana LaFlam

No. 21-AP-301

Supreme Court of Vermont

November 4, 2022


On Appeal from Superior Court, Rutland Unit, Family Division Helen M. Toor, J.

Jody LaFlam, Pro Se, West Rutland, Plaintiff-Appellee/Cross-Appellant.

Stacey Adamski of Adamski Law, PLLC, Castleton, for Defendant-Appellant/Cross-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

CARROLL, J.

¶ 1.Mother Diana LaFlam appeals from an order denying her motion to modify physical and legal rights and responsibilities. She argues that her relocation to Florida following a divorce from father Jody LaFlam was an unanticipated circumstance requiring modification of the physical rights and responsibilities of their two children, and that father's neglect of the children's health warranted a modification of legal rights and responsibilities. Father cross-appeals the portion of the order finding that his neglect of the children's health constituted changed circumstances under 15 V.S.A. § 668(a). We agree with the family division that mother's relocation was not a change in circumstances as to physical rights and responsibilities, that father's conduct was a change in circumstances with respect to legal rights and responsibilities, but reverse and remand as to its best-interests analysis.

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¶ 2. The family court found the following by a preponderance of the evidence. Mother and father divorced in May 2018 after seven years of marriage. Together, mother and father have a son, aged ten, and a daughter, aged seven. Mother has three daughters from a previous marriage, one of whom father adopted during the marriage. Adopted daughter was nineteen at the time of the divorce. The divorce court awarded father sole physical and legal rights and responsibilities and the family home, and established a fifty-fifty parent-child contact schedule. The divorce order required father to consult with mother on major decisions regarding son's and daughter's "health, welfare, education or medical needs."

¶ 3. Father has been inattentive to the children's medical and hygienic needs since the divorce. He once forgot to give son the correct asthma inhaler for a sleepover. Father stopped providing inhalers for son for a period of time without medical approval. Father failed to fill out a questionnaire required to complete an important evaluation based on a referral from son's pediatrician. After son was injured, father did not know if son's tetanus shot was up to date, which it was not. Father did not take son to an orthodontist despite a recommendation to do so. He failed to require the children to consistently attend mental-health counseling after mother moved to Florida. Father did not require the children to bathe for several days, after which son developed a bacterial infection. Father ignored a serious rash that daughter had developed related to a medication she was taking. Daughter developed a different rash for several days and cried when she went to the bathroom. She told the doctor that there was not enough toilet paper at home to properly wipe.

¶ 4. The children act differently depending on whether they are in Vermont or Florida. When in Florida, son, who arrives reserved, becomes more relaxed during the stay. Daughter is happy and excited to see everyone. Son and daughter are close to adopted daughter and mother's new husband in Florida. The children do not want to leave.

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¶ 5. When in Vermont, son is stiff and gives one-word answers on video calls with mother. Daughter also looks sad and whispers, appearing to be checking to see if anyone is listening to the conversation. Both children have told mother that "what happens at Dad's house stays at Dad's house." In Vermont, the children spend every other weekend with their grandparents. During the pandemic, the children completed their online schoolwork from their grandparents' home. Both children do well in school. Father gets them to school on time. The family division credited the testimony of a fellow coach at the children's school who stated that daughter is happy, neither son nor daughter showed any fear of father, and father is appropriate with his children. However, the marital home is in foreclosure proceedings following father's failure to pay the mortgage for three years.

¶ 6. In July 2021, shortly before moving to Florida, mother filed a motion seeking to modify parental rights and responsibilities and parent-child contact. Mother contended that her move to Florida was a real, substantial, and unanticipated change in circumstances requiring a modification of the physical custody of the children. Mother argued that father's inattention to the children's health was a real, substantial, and unanticipated change in circumstances sufficient to modify legal custody of the children. Mother alleged that she had come to realize that father had been sexually abusive toward her during the marriage. She maintained that she had first realized this while in therapy in the spring of 2021. In addition, mother attached an affidavit to the motion in which adopted daughter accused father of sexually inappropriate behavior with her prior to the divorce. Mother framed these allegations of pre-divorce sexual abuse as appropriate for the court to consider only under the best-interests factors in 15 V.S.A. § 665, and not as evidence of a real, substantial, and unanticipated change in circumstances since the divorce.

¶ 7. Following a two-day evidentiary hearing, during which mother, father, and adopted daughter testified, the family division denied mother's request to modify parental rights and responsibilities. The family division concluded that mother's move to Florida was not

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unanticipated because the May 2018 final divorce and custody order considered her potential move to Florida.[1] The court however concluded that father's neglect of the children's medical needs was a real, substantial, and unanticipated change regarding legal custody and proceeded to weigh the statutory best-interests factors in 15 V.S.A. § 665. The court found that mother was better able to provide medical care, that mother's housing situation was more stable than father's, and that father was not fostering the children's needs to speak freely without risking punishment or disapproval. On the other hand, it found that father was better able to serve the children's developmental needs, and that mother chose to move to Florida despite knowing she would see the children less. The court found that there was little evidence regarding the children's connections to school and community, which did not favor either parent. It found that neither parent interfered with the children's contact with the other parent, which favored neither parent, and that "no issue [was] raised as to who has been the primary care provider." The court therefore gave no weight to the primary-care-provider factor. It found that the children's relationships with family members in Vermont and Florida did not favor father or mother. It did not weigh mother's allegations regarding pre-divorce sexual abuse because father's alleged conduct took place before

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the divorce and because the court found mother's claim that she only realized the abuse after the divorce not credible. The court did not explicitly consider adopted daughter's allegations at all, apparently because it concluded that they only concerned events predating the divorce, a period the court concluded was inappropriate to raise in a custody-modification proceeding. Moreover, the court made no finding as to the timing of the report to mother even though adopted daughter testified that she did not make mother aware of the specifics of the allegations until after the divorce.

¶ 8. The court ultimately concluded that the § 665 factors did not favor either party, and therefore mother failed to meet her burden to demonstrate that modifying legal custody was in the children's best interests. It granted mother's motion to modify parent-child contact based on the parties' agreement that mother's relocation required a schedule change.[2]

¶ 9. Mother raises several questions on appeal. She renews her argument that relocating to Florida meets the changed-circumstances threshold under 15 V.S.A. § 668(a), to modify physical rights and responsibilities. She contends that the court erred when it did not modify legal custody, even though more § 665(b) best-interests factors favored her. She also argues that the court erred by refusing to consider her and adopted daughter's allegations of pre-divorce sexual abuse in its analysis of the best-interests factors regarding legal custody.

¶ 10. Father cross-appeals, arguing that the court abused its discretion when it concluded that his failure to sufficiently attend to the children's medical needs was a real, substantial, and unanticipated change in circumstance regarding legal custody. I.

¶ 11. Mother first argues that her move to Florida was unanticipated and meets the "heavy burden" of demonstrating the changed circumstances necessary to modify physical rights

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and responsibilities. Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273; see also id. ¶ 1 ("[W]hen one parent has parental rights and responsibilities for a significant majority of the time, the [non-custodial parent] bears a heavy burden of demonstrating that the severe measure of transferring primary rights and responsibilities from one parent to another is necessary to serve the children's best interests."). We disagree.

¶ 12. "We will uphold a family court's decision as to whether there has been a real, substantial, and unanticipated change in circumstances unless the discretion of the lower court was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Wener, 2016 VT 109, ¶ 17 (quotation omitted)....

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