Loeb v. Loeb

• Decision Date: 02 September 1958
• Docket Number: No. 1136,1136
• Citation: 120 Vt. 489,144 A.2d 825
• Court: Vermont Supreme Court
• Parties: Eleanor M. LOEB v. William LOEB.

Page 825

144 A.2d 825

120 Vt. 489

Eleanor M. LOEB v. William LOEB.

No. 1136.

Supreme Court of Vermont.

Sept. 2, 1958.

Gannett & Oakes, Brattleboro, Lawrence & O'Brien, Rutland, for plaintiff.

Fayette & Deschenes, Burlington, for defendant.

Before CLEARY, C. J., ADAMS, HULBURD and HOLDEN, JJ., and KEYSER, Superior Judge.

HOLDEN, Justice.

This appeal concerns an order for support of a minor child of the parties, visitation of the child, and a provision for counsel fees and expenses. The order that is brought to this Court for review resulted from a petition of the defendant William Loeb and the cross-petition of the plaintiff Eleanor M. Loeb to modify a prior order between the parties in Loeb v. Loeb, reported in 118 Vt. 472, 114 A.2d 518. The original cause and this proceeding to modify were instituted under the provisions of V.S. 47, § 3253.

This section provides: 'When parents of minor children are living separately, on the petition of either parent, the county court may make such decree concerning the care, custody, maintenance and education of the children, as in cases where the court grants a divorce. Thereafter, on the petition of either of the parents, such court may annul, vary or modify such decrees'.

Katherine Penelope Loeb is the child of the plaintiff and the defendant by a marriage that has terminated by divorce. The judgment order that is here for review modifies 'the Judgment Order of the Windham County Court dated March 20, 1954 as amended, and as further amended on remand from the Supreme Court and as now on file, * * *'. As to custody and visitation, it provided in paragraph one: 'Petitioner Eleanor M. Loeb, be and hereby is awarded the care, custody and control of the minor child, Katherine Penelope Loeb, during the remainder of the minority of said child, the libellee, however, to be permitted to see and visit said child at reasonable times and places in New York or any other state in which said child may be with Petitioner, while said child is in the presence of the Petitioner, Eleanor M. Loeb, or someone selected by Petitioner'.

The defendant's first exception is directed to that provision of the order that restircts his right to visit his child to occasions when the child is in the presence of her mother or someone selected by her. The exception protests this restriction as unreasonable and an abuse of discretion, unsupported by the facts found by the trial court.

It appears from the findings that at the time of the order, Katherine Penelope was a child of nine, shy and gifted. Her mental development had advanced beyond her actual age in years to that of a child nearly thirteen. She has a medical history of having been hypertonic. The defendant has visited the child twice since January 20, 1953 at the home of his mother at Oyster Bay, N. Y.

The defendant has remarried. The court found 'there was no evidence but that the petitionee and his present wife maintain a cordial, hospitable household with adequate physical facilities, both in Reno, Nevada, and Prides Crossing, Massachusetts, attend church regularly, conduct themselves with decency and respectability, and are raising the children, Naxie, Petitionee's stepdaughter, and Elizabeth, his own daughter, properly and happily'.

The court also determined 'that it is for the best interest of Katherine Penelope that she not be deprived of paternal influence and association. That in the light of the age of the child and the lapse of time since the last visit of the petitionee (defendant) it is in the best interests of the child that the petitionee re-establish his acquaintanceship with the child carefully and in a familiar home environment. That as matters now stand, the child is not prepared mentally and emotionally to spend nights away from home out of the company of her mother. That the petitionee, when visiting Katherine Penelope at her home and in her home environment, should be able to visit with her in private unless she objects. That it is for the best interest of Katherine Penelope that the visitation rights of the petitionee and custodial rights of the petitioner (plaintiff) be adjusted to her age and circumstances so as to give her all the paternal and maternal associations, love and affection, care and supervision possible and desirable in view of all the circumstances. That it is for the best interests of Katherine Penelope that the visitations of the (defendant) petitionee be conducted with a view to re-establishing their acquaintance in a manner looking to the time when her age, maturity, physical and mental condition allow that ripened acquaintanceship to justify more lengthy visits with her father away from her own home environment'.

The respective petitions of both parents have called upon the courts to solve a difficult and delicate human problem. Obviously, it is a problem which the child's mother and father are unwilling or unable to resolve. Thereupon, they have entrusted the solution to a sound judicial discretion. As in cases where the principal custody of a child is at stake, it is not our province to supplant or revise the discretionary decision of the trial court unless its discretion was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented. McKinney v. Kelley, 120 Vt. ----, 141 A.2d 660.

Visitation of the parent who does not have custody of the child, directly concerns the issue of custody itself. Judicial authority in matters affecting custody has as its paramount objective, the welfare of the child. McKinney v. Kelley, supra; Raymond v. Raymond, 120 Vt. 87, 95, 132 A.2d 427. In re Cooke, 114 Vt. 177, 183, 41 A.2d 177; Deyette v. Deyette, 92 Vt. 305, 309, 104 A. 232, 4 A.L.R. 1115. The opposing desires of hostile parents and the predisposed wishes of the child, if any, insofar as they are in conflict with the child's welfare, must yield. Raymond v. Raymond, supra, 120 Vt. at page 95, 132 A.2d 427. See also, 27 C.J.S. Divorce § 309 a, pp. 1170-1172; 27 Am.Jur., Infants, § 108, p. 829.

The findings reflect a thoughtful consideration of the child's welfare. They express the conclusion that the child's well-being demands paternal association and supervision above that provided by the child's mother alone. It appears that the relationship now existing between the child and the defendant should be corrected to strengthen the association between the child and her father.

The need for this reunion has arisen in the first instance because the parents have become alienated, separated and then divorced. Their marital estrangement has deprived this child of a home shared by both parents. Without attempting to attribute fault to either parent, the findings report the need for restoring to the child, paternal association and guidance. To accomplish this result, the court resorted to the only implement available, that of reasonable visitation at such place as the child may have her home with her mother. The provision, thus far, is entirely reasonable and consistent with the facts stated in the findings.

To these visits, other conditions are attached. The defendant's visitation is restricted to the presence of the plaintiff or a person of the plaintiff's selection. No reason appears from the court's findings to justify the additional restriction upon the defendant's access to his association with the child to occasions when the plaintiff is standing by. Nor is there reason shown why the visit should be made in the presence of some third person to be selected by the plaintiff. The findings express no concern that the defendant will not faithfully observe the spirit and letter of the visitation granted.

By the terms of the order, should the plaintiff elect to remove her presence from the visit, the accomplishment of the reunion between the child and her father is left to the plaintiff's right of selecting a delegate to stand watch in the plaintiff's place.

A provision, recognizing the right of visition between a child and one of the parents, should not be conditioned upon the physical presence of the other parent who might be, and frequently is, hostile to the visit. Reed v. Hunze, 233 Mo.App. 845, 109 S.W.2d 908. See also, Willis v. Willis, N.J.Ch., 118 A. 333, 334. Nor should the restoration of the needed relationship between the defendant and the child be left to the convenience and discretion of the plaintiff. McCourtney v. McCourtney, 205 Ark. 111, 168 S.W.2d 200, 202; McQueary v. McQueary, 181 Ky. 667, 205 S.W. 769, 770; 2 Nelson, Divorce and Annulment, 2d Ed. § 15, 26, pp. 208-209. This is especially true in the instant case where the briefs of both parties, in effect, concede that strong feelings of ill will exist between the parties.

The facts determined by the trial court do not justify the drastic restraint imposed upon the visitation. To the extent that the defendant's visits to Katherine Penelope are limited to the presence of the plaintiff or her delegate, the limits of the court's discretion have been exceeded. The defendant's first exception to this part of the order is sustained.

Paragraph two of the judgment order provides for an increase in the monthly payments required of the defendant for the support of Katherine Penelope. This provision increases the former order for the child's support from $450 to $650 monthly commencing September 1, 1957. The defendant excepts to this part of the order as an abuse of the court's discretion. He contends the provision is unsupported by any credible evidence and is unjustified in law or fact.

The trial court found: '10. That $200.00 per month in addition to the payment called for in the order presently outstanding is required to provide the additional support and maintenance required under the present circumstances of Katherine Penelope. 11. The petitionee's financial circumstances are such that he is well able to afford the increased payment'.

The determination of a just and proper...