Luce v. Cushing, 2004 VT 117 (VT 12/2/2004)

• Decision Date: 02 December 2004
• Docket Number: No. 2003-344, September Term, 2004,2003-344, September Term, 2004
• Court: Vermont Supreme Court
• Parties: Denise E. Luce v. Jeffrey E. Cushing

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2004 VT 117

Denise E. Luce v. Jeffrey E. Cushing

No. 2003-344, September Term, 2004

Supreme Court of Vermont

December 2, 2004

APPEALED FROM: Chittenden Family Court, DOCKET NO. 495-6-00 CnDm, Trial Judge: Linda Levitt.

ENTRY ORDER

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

¶ 1. Father appeals from a family court judgment awarding mother sole parental rights and responsibilities for the parties' two minor children and granting father visitation. Father contends: (1) the court abused its discretion by awarding parental rights and responsibilities without making the requisite findings concerning the best interests of the children; (2) the court improperly refused to allow father to present evidence and cross-examine witnesses; and (3) the administrative judge erroneously denied father's motion to disqualify the trial judge. We affirm.

¶ 2. This case presents a long and tortured factual and procedural history. Events material to the resolution of the instant appeal may be summarized as follows. Although never married, the parties are the parents of two minor children, born in March 1996 and December 1997. Mother filed a parentage action in June 2000, seeking parental rights and responsibilities and child support. The following month, attorney Karen Shingler filed an appearance on behalf of father. Based on a personal friendship with attorney Shingler, Judge Levitt — who had previously heard several relief-from-abuse motions filed by the parties — recused herself.

¶ 3. The parties eventually stipulated to a temporary shared custody arrangement, and agreed to postpone the parentage hearing while they continued to mediate the matter. In January 2001, however, mother filed a petition for relief from abuse, alleging that father had sexually abused the children. Following a hearing, the court found that father had inappropriately touched the private parts of one of the children, and granted a final relief-from-abuse order, awarding mother sole parental rights and responsibilities and limiting father's parent-child contact to supervised visitation. In March, attorney Karen Villemaire of Schoenberg & Associates entered an appearance on behalf of father, and the court granted attorney Shingler's motion to withdraw.

¶ 4. In late March, father filed a V.R.C.P. 60(b) motion for relief from the abuse-prevention order. At a hearing in May, the parties stipulated to an order in which father agreed to withdraw the Rule 60(b) motion, and the parties agreed that mother be awarded parental rights and responsibilities, that the parties submit to a forensic evaluation by Dr. Joseph E. Hasazi, and that "the award of parental rights and responsibilities to [mother] shall remain in effect unless Dr. Hasazi's report recommends that parental rights and responsibilities should switch to [father] or unless such report recommends that there be a significant change in the parental rights and responsibilities order," in which event the report would "be considered a material and unanticipated change in circumstances."

¶ 5. A docket entry in late October 2001 indicates that the family court clerk asked the current presiding judge, Judge Kupersmith, whether Judge Levitt could preside over the case in light of attorney Shingler's withdrawal. Judge Kupersmith directed the clerk to schedule a status conference with Judge Levitt to see if the parties objected. There is no indication in the record that the status conference took place. The record is clear, however, that Judge Levitt explained at the next scheduled hearing in November that, in light of attorney Shingler's withdrawal, "the reason that I wasn't on this case is no longer in effect" and thus there was "no reason that I couldn't handle the case as part of . . . regular Family Court business." Neither party objected to Judge Levitt's participation at that time, or at any point during the numerous subsequent proceedings over which she presided until January 2003 — some fourteen months later — when father filed a motion to disqualify Judge Levitt. The basis of the motion and the administrative judge's ruling denying it will be discussed more fully below.

¶ 6. Dr. Hasazi filed his report with the court in April 2002. He did not conclude that father had sexually abused the children, but found rather that he had engaged in certain interactions with the children that were "developmentally inappropriate." Based on his review of the case history, testing, and interviews, Dr. Hasazi recommended that mother retain parental rights and responsibilities and that father have parent-child contact for three to five days during each two week period, transitioning from supervised to unsupervised overnight visits.

¶ 7. The court (Judge Levitt) presided over a three-day evidentiary hearing on the parentage action from March through May 2003. In light of the parties' earlier stipulation and Dr. Hasazi's recommendation that mother retain custody, the court ruled that the only salient issue was parent-child contact. The court denied father's several requests to introduce evidence allegedly showing that mother was unfit to serve as the custodial parent because she had coached the children to make false accusations of abuse. The court also sustained objections to attempts to cross-examine mother on the same issue. The court issued a written decision in June. Its key findings, which father has not challenged on appeal, include findings that, while father enjoys a close and loving relationship with the children, he has difficulty acting as a parent, setting limits and putting the interests of the children ahead of his own. The court further found that the alleged inappropriate touching was not sexual in nature, but instead the result of father's lack of boundaries, and that father had benefitted from counseling in this regard.

¶ 8. The court also found that father had been hypercritical of mother's parenting skills and unduly obsessive about the children's care, resulting in mother's feelings of anger toward father and her efforts to thwart his contact with the children. The court found that mother is a good and adequate parent, provides the children with guidance, support and protection, and understands and meets their developmental, emotional, and physical needs. While mindful of mother's previously obstructionist actions toward father, the court found that the children's interests were best served by spending more time with mother than father. Accordingly, the court awarded mother parental rights and responsibilities, and ordered parent-child contact with father every other Wednesday afternoon through Monday morning, and alternating holidays. This appeal followed.

¶ 9. Father contends the court abused its discretion and abrogated its responsibility by basing the award of parental rights and responsibilities on the parties' stipulation and Dr. Hasazi's report, rather than on detailed findings concerning the best interests of the children under 15 V.S.A. § 665(b). Father's argument is essentially twofold. First, he asserts that the stipulation and order were not intended to serve as a final determination of parental rights and responsibilities. As noted, the stipulation and order provided that the agreed upon award of parental rights and responsibilities to mother would "remain in effect" unless Dr. Hasazi recommended otherwise. Father observes that the order incorporating the stipulation specifically provided that mother "is awarded temporary rights and responsibilities." (Emphasis added.) The trial court acknowledged the temporary nature of the order pending the completion of Dr. Hasazi's evaluation, but also found that the parties plainly intended the award to become permanent and final absent a contrary recommendation by Dr. Hasazi. As the court succinctly explained, "it was a temporary award to become final if the Hasazi report suggested that [mother] should . . . retain parental rights." The plain language of the stipulation and order amply supports the court's interpretation. See Lussier v. Lussier, 174 Vt. 454, 455, 807 A.2d 374, 376 (2002) (mem.) ("[a]greements must be interpreted according to the parties' intent as expressed in the writing").

¶ 10. Father's second argument is more compelling. He asserts that the court abrogated its judicial responsibility to determine the best interests of the children by effectively delegating that responsibility to the parties' chosen expert. In addressing the claim, we note that the order in question implicates two competing policies. On the one hand, the Legislature has expressly determined that an agreement between the parties on the issue of parental rights and responsibilities is presumptively in the best interests of the child. See 15 V.S.A. § 666(a) ("Any agreement between the parents which divides or shares parental rights and responsibilities shall be presumed to be in the best interests of the child."); see also Harris v. Harris, 149 Vt. 410, 420, 546 A.2d 208, 215 (1988) ("We have a strong policy in favor of voluntary settlement of contested custody matters."). We have held, in light of that policy, that such agreements cannot be "lightly overturned." Damone v. Damone, 172 Vt. 504, 511, 782 A.2d 1208, 1214 (2001). On the other hand, we have recognized that the parties cannot conclusively bind the trial court's custody decision when the facts and circumstances establish that their agreement is not in the best interests of the child or was not reached voluntarily. Harris, 149 Vt. at 420, 546 A.2d at 215. Together, these policies suggest that while the parties may agree to follow the custody recommendation of a jointly selected mental health expert, the court cannot be bound by that agreement or the by expert's recommendation when the evidence demonstrates that the best interests of the child requires a different result. See, e.g., In re J.M.D., 857 P.2d 708, 712 (Mont. 1993) (noting that court "is free to consider the parties'...