Maurer v. Maurer, 03-572.

• Decision Date: 22 February 2005
• Docket Number: No. 03-572.,03-572.
• Citation: 872 A.2d 326
• Court: Vermont Supreme Court
• Parties: Lesli MAURER v. Niel MAURER.

872 A.2d 326

Lesli MAURER v. Niel MAURER.

No. 03-572.

Supreme Court of Vermont.

February 22, 2005.

Present: JOHNSON, SKOGLUND, REIBER, JJ., and ALLEN, C.J. (Ret.), and KATZ, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Father appeals from the family court's order modifying parental rights and responsibilities, and awarding sole legal and physical parental rights and responsibilities over the parties' minor child to mother. Mother is proceeding pro se.¹ Father argues that the family court erred because: (1) the evidence does not support a finding that there has been a material change in circumstances; (2) the court's findings are insufficient to show that a transfer of custody to mother is in the child's best interests; and (3) the mediation provision in the parties' final divorce decree must be enforced. We affirm the trial court's conclusion regarding changed circumstances, but we reverse the court's conclusion that a transfer of sole custody to mother was in the child's best interests.

¶ 2. Mother and father are the parents of Benjamin Mauer, born in May 1992. Parents separated in 1999, and were divorced in May 2002. At the time of their divorce, they agreed to share legal and physical rights and responsibilities over Ben. They also agreed to attempt to resolve any future disputes through mediation before returning to court. On September 26, 2003, mother, then with counsel, filed a motion to modify parental rights and responsibilities. Mother asserted that father had refused to allow Ben to engage in counseling, which she believed was in Ben's best interest. She also averred that father had discussed the issue of counseling with Ben, thereby putting him in the middle of the decisionmaking process. Mother acknowledged that the parties had agreed to mediate disputes, but stated that father had refused to participate in mediation.

¶ 3. The family court held a hearing on mother's motion on October 21, 2003; father appeared pro se, and mother was represented by counsel. Mother testified that, since October, the parties were no longer evenly sharing physical custody of Ben; instead, Ben was spending most of his time with her and every other weekend with father. Mother explained that in December 2002 father had remarried and moved to a new residence approximately twenty miles away, and recently it had become difficult for father to pick Ben up at mother's home. Mother also stated that Ben was spending less time at father's home because Ben did not feel that he had his own personal space there. Mother testified that, beginning in December 2002, Ben began to have difficulty sleeping and with his schoolwork, and he was suffering from low self-esteem. Mother introduced a recommendation from Ben's pediatrician, dated September 18, 2003, referring Ben for individual counseling. Mother testified that she had informed father of the doctor's recommendation, and father had responded that they should wait six months to see if the situation improved. Mother testified that father had discussed counseling with Ben against her wishes. Mother also stated that she and father disagreed about Ben's involvement in after-school activities. She indicated that her communication with father in this area had been "pretty acrimonious." She also asserted that father had acted unilaterally in making decisions regarding Ben's activities.

¶ 4. Father testified on his own behalf. He stated that he and mother had clear and steady communication about Ben. Father indicated that he was reluctant to engage a mediator over Ben's after-school schedule, instead finding it more appropriate to first attempt to work out the problem themselves. Father stated that mother had first informed him about Ben's self-esteem issues, and her desire that Ben engage in counseling, in late September 2003. Father was concerned that the recommending physician had not seen Ben directly, and felt that a better approach might be to first increase Ben's participation in outside activities to see if this helped boost his self-esteem. Father testified that he called Ben's pediatrician as well as the school guidance counselor to garner more information about Ben's condition. He stated that, while he preferred a different initial approach, he remained open to the use of therapy.

¶ 5. The court rendered its decision on the record at the close of the hearing. The court stated that, although the parties' final divorce order provided that they would have joint legal and physical responsibilities, the parties had modified that agreement through their behavior. The court found that the parties had substantially different parenting styles and methods, and they had demonstrated an inability to share parental rights. The court explained that the parties were unable to agree on transportation and counseling, and both parties were setting up activities for Ben without consulting one another. The court thus concluded that parents' inability to share joint legal and physical responsibilities constituted a substantial and unanticipated change of circumstances. The court found that Ben was suffering as a result of being caught between two different parenting styles, and although it found value in both parenting styles, "somebody's got to make the decision, and you've got to consider the best interest of the child." The court stated that children benefited from being exposed to different activities, including sports, and while mother could consult with father in this regard, "[n]ow mother can make the decisions." A final judgment order was issued transferring sole legal physical rights and responsibilities to mother, and father appealed.

¶ 6. Father first argues that the evidence presented at the hearing was insufficient to support a finding of changed circumstances. Relying on Gates v. Gates, 168 Vt. 64, 716 A.2d 794 (1998), father maintains that the communication problems that arose between mother and father were insufficient to satisfy this threshold requirement. He asserts that this is particularly true where, as here, the parties did not mediate the issues between them before proceeding to court.

¶ 7. The court may modify a parental rights and responsibilities order upon a showing of a real, substantial and unanticipated change of circumstances where the modification is in the children's best interests. 15 V.S.A. § 668. There are no "fixed standards to determine what constitutes a substantial change in material circumstances"; instead, the court should be "guided by a rule of very general application that the welfare and best interests of the children are the primary concern in determining whether the order should be changed." Wells v. Wells, 150 Vt. 1, 4, 549 A.2d 1039, 1041-42 (1988) (citation omitted). The trial court has discretion in making this determination, and we will not disturb the court's determination unless it exercised its discretion on grounds or for reasons clearly untenable, or if it exercised its discretion to a clearly unreasonable extent. Meyer v. Meyer, 173 Vt. 195, 197, 789 A.2d 921, 923 (2001).

¶ 8. Father relies on Gates to support his assertion that a breakdown in communication is insufficient to establish changed circumstances. In Gates, however, our conclusion rested on a finding that communication between parents had been consistently poor since their divorce. 168 Vt. at 68, 716 A.2d at 797. Thus, their ongoing communication difficulties did not constitute an unanticipated and substantial change in circumstances. We recognized that, under different circumstances, a breakdown in communication between parents could suffice as a substantial and unanticipated change. Id. In this case, the record reflects that the parties' inability to share parental rights and responsibilities was a new development. As the court found, parents were unable to agree on transportation or counseling. They were setting up activities for Ben without consulting one another, and they had different parenting styles. Ben was suffering as a result. Additionally, as of October 2003, Ben was spending substantially more time at mother's home than at father's home. The court's findings in this case are supported by the evidence, and they support its conclusion that a substantial and material change of circumstances had occurred since the parties' divorce. See Meyer, 173 Vt. at 197-98, 789 A.2d at 923 (upholding finding of changed circumstances where parties disagreed on major issues involving the children, there had been a significant change in parties' dealings with one another since the divorce, and children were suffering the effects of parties' disagreements).

¶ 9. Moreover, we reject father's assertion that because the parties did not engage in mediation, the family court erred in finding changed circumstances. Father offers no legal support for this assertion, and as discussed above, the court's findings indicate that a substantial change in circumstances had occurred since the parties' divorce. In any event, mother presented evidence that father refused to engage in mediation. Father cannot take advantage of his own refusal to prevent the court from acting. To hold otherwise would permit one parent unilaterally to divest the family court of jurisdiction. For this reason, we also reject father's argument that this case must be remanded to allow the parties to mediate their disputes.

¶ 10. When the family court finds that there has been a real, substantial and unanticipated change of circumstances, it must consider if a change in parental responsibilities is in a child's best interests. 15 V.S.A. § 668. In conducting its analysis, the court must consider the statutory factors set forth in 15 V.S.A. § 665(b). We recognize the trial court's broad discretion in determining a child's best interests. Spaulding v. Butler, 172 Vt. 467, 475, 782 A.2d 1167, 1174 (2001). We will uphold the family court's factual findings if they are supported by credible evidence, and we...