Marsano v. Marsano
| Decision Date | 05 March 2021 |
| Docket Number | SUPREME COURT DOCKET NO. 2020-282 |
| Court | Vermont Supreme Court |
| Parties | Heidi Marsano* v. Adam A. Marsano |
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.
Superior Court, Chittenden Unit, Family Division
DOCKET NO. 185-4-19 Cndm
Trial Judge: Barry D. Peterson
In the above-entitled cause, the Clerk will enter:
Mother appeals the family court's order regarding parent-child contact. On appeal, mother argues that the trial court abused its discretion in assessing the child's best interest when setting father's parent-child contact, and in not finding that abuse had occurred under 15 V.S.A. § 665a. We affirm.
The parties were previously married and are the parents to a minor child, E.M. Following their divorce, under a 2014 order, they shared legal and physical rights and responsibilities and had approximately even parent-child contact. Father had contact with E.M. from Saturday evening to Tuesday morning. Father also has a daughter, G.M., with his second wife. In September 2018, E.M. began exhibiting behavioral problems in school, including being disrespectful and physically aggressive to teachers and other students, particularly girls. Father's second wife testified concerning an incident that occurred in March 2019. Father was drunk and the two had an argument. The argument escalated and father physically assaulted his second wife by choking her. She was able to push him off and to contact police. Father was arrested and charged with aggravated domestic assault. G.M. and E.M. were both present in the house during the assault. G.M. was crying during the incident. E.M. did not leave his room during the assault and it was not clear from the evidence if E.M. heard what transpired.
In March 2019, following father's arrest, mother moved to suspend father's parent-child contact with E.M. on an emergency basis and to modify parental rights and responsibilities and parent-child contact. The court initially suspended contact between father and E.M. The court subsequently approved the parties' agreement for supervised overnight visits with father. These orders were described by the court as temporary and each order indicated that it would be reviewed in a few months.
Mother filed a supplement to her motion to modify parental rights and responsibilities and parent-child contact, asserting that E.M.'s increased behavioral difficulties, including physical and verbal abuse of girls at school, amounted to a real, substantial, and unanticipated change of circumstances. The court held a hearing on the motion. At the hearing, father's second wife testified that father has a drinking problem, is an aggressive drunk, and is verbally abusive. She witnessed father drinking and driving drunk with the children in the car. The court found the testimony of father's second wife "very credible." Mother testified that during her marriage to father, he did not drink excessively. She stated that before their divorce, father became angry, verbally abusive, disrespectful, and called her derogatory names in front of E.M. She also stated that E.M.'s behavior became more angry, defiant, and physically aggressive after the incident in March 2019. She stated that father's behavior towards mother and his second wife had an impact on E.M.'s behavior at school. Mother testified that the first two supervised visits between E.M. and father went well and thereafter E.M. refused to have contact with father. Mother did not know why, and the court did not credit father's assertion that E.M.'s refusal was caused by mother or that mother attempted to alienate E.M. from him. The court found that father was not a good role model for E.M. and that E.M.'s poor behavior at school was likely related to father's behavior toward mother and his second wife.
In August 2019, the court issued a temporary order on parent-child contact. The court found that father's arrest, increased drinking, and E.M.'s behavior amounted to a real, substantial, and unanticipated change of circumstances. The court found that father's inability to control his anger, his increased drinking, and his treatment of women weighed in favor of modifying parent-child contact on a short-term basis but did not support a modification of parental rights and responsibilities. The court directed that E.M. continue individual counseling and commence family counseling to facilitate reunification between father and E.M. The court also directed father to continue alcohol counseling. The court indicated that it anticipated father would be able to resume his prior contact schedule in the future and set the matter to be reviewed in ninety days.
On review, in December 2019, following a hearing, the court continued the temporary order. The court again indicated that it anticipated that continued progress would be made.
In March 2020, the court clarified that its prior orders had modified parent-child contact, but that the parties continued to share physical rights and responsibilities as provided for in their 2014 order. The court found that the relationship between father and E.M. was improving and ordered that individual and family counseling continue. The court provided father with unsupervised and increased parent-child contact.
In August 2020, following another hearing, the court issued a final order. In the order, the court found that E.M.'s behavior and performance at school had improved. The court also found that visits between father and E.M. were going well. The court increased father's parent-child contact to unsupervised overnights with a return to the 2014 schedule after four overnight contacts. Mother then filed this appeal.
On appeal, mother first argues that the trial court abused its discretion in providing father with parent-child contact that he had under the 2014 schedule. "The family court has broad discretion in awarding, modifying, or denying parent-child contact, and we will not disturb its decisions unless its discretion was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented." Weaver v. Weaver, 2018 VT 38, ¶ 15, 207 Vt. 236 (quotation omitted). The court may modify parent-child contact when there is a "real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668(a). The burden to modify parent-child contact is not as high as the burden required to warrant a change in custody. Weaver, 2018 VT 38, ¶ 18. Once the threshold is met, "the court must then determine whether changes to the parent-child contact arrangement are in the best interests of the child." Id. ¶ 21; see 15 V.S.A. § 665(b) (listing best-interests factors).
Mother argues that the court erred in evaluating E.M.'s best interest related to parent-child contact, contending that the evidence and the family court's own findings do not support the decision. In support of her argument, mother cites findings made by the family court in August 2019 regarding father's arrest for domestic violence, his drinking, his verbal abuse, E.M.'s concerning behavior at school, and E.M.'s refusal to have contact with father. Mother argues that an analysis of the child's best interests under 15 V.S.A. § 665(b) warrants restricting father's contact.
We do not address mother's argument that the record does not support the court's decision. The appellate rules require an appellant to produce a transcript of all parts of the proceedings in the trial court that are relevant to the issues the appellant raises on appeal. V.R.A.P. 10(b)(1). Mother has not ordered a transcript of the hearings in the family court and therefore has waived the right to challenge the sufficiency of the court's findings. V.R.A.P. 10(b)(1); Evans v. Cote, 2014 VT 104, ¶ 7, 197 Vt. 523 ().
Mother's argument that the court's decision is not supported by the court's own findings fails...
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