Miller v. Miller

• Decision Date: 22 August 2008
• Docket Number: No. 06-504.,06-504.
• Citation: 2008 VT 86,965 A.2d 524
• Court: Vermont Supreme Court
• Parties: Michelle M. MILLER v. Keith E. MILLER.

965 A.2d 524

2008 VT 86

Michelle M. MILLER v. Keith E. MILLER.

No. 06-504.

Supreme Court of Vermont.

August 22, 2008.

Maureen O'Reilly, Vermont Legal Aid, Inc., Rutland, and Sandra L. Paritz, Vermont Legal Aid, Inc., St. Johnsbury, for Plaintiff-Appellant.

Sigismund J. Wysolmerski of Wysolmerski Law Office P.C., Rutland, for Defendant-Appellee.

Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and TEACHOUT, Supr. J., Specially Assigned.

SKOGLUND, J.

¶ 1. Mother appeals from a family court order denying her request to recognize a Canadian child-custody judgment and to relieve her of an earlier contempt adjudication. We hold that the trial court erred in declining to recognize the foreign judgment, and that the contempt order has since become moot. Accordingly, we reverse.

¶ 2. Like many multi-jurisdictional custody disputes, this appeal arrives with a long and tangled factual and procedural history. The parties lived together in Vermont for a number of years before their child was born in March 1994. They were married in 1996 but separated one year later and were divorced in March 1999 pursuant to a final judgment of the Bennington Family Court. By agreement of the parties, the court awarded mother sole legal and physical rights and responsibilities for the child and granted father liberal visitation. By the time of the divorce, mother had moved with the child to Massachusetts. The record discloses that in May 2000 a Massachusetts family court issued a temporary ex parte abuse-prevention order at mother's request, prohibiting father from having any contact with the child. In June 2000, following a hearing at which father appeared, the court issued a final abuse-prevention order again prohibiting father from having any contact with the child. The order was scheduled to expire in one year.¹

¶ 3. Father subsequently moved to reinstate visitation in Massachusetts. Following a hearing, the Massachusetts family court issued an order granting father supervised visits with the child and providing for a further review in six months conditioned on father's successful completion of six supervised visits. Based on father's behavior during the first visit, however, the visitation supervisor cancelled the second visit and wrote a letter to the court, in July 2000, requesting that future visits occur in a different setting with a "high[er] degree of security (on-duty police officer, weapon check)." The letter cited concerns about father's "contained rage" and "emotional stability" and characterized him as a "high risk" client. Apparently, no further visits occurred thereafter. Nevertheless, in August 2000, the Massachusetts family court issued an order at the parties' request providing that "all further proceedings concerning the care, custody and visitation of the minor child" would be "conducted in Massachusetts and not in Vermont." At the same time, the Bennington Family Court granted the parties' joint motion to recognize Massachusetts's jurisdiction over the matter.

¶ 4. In early January 2001, mother and child began a series of moves which she claims were necessitated by father's harassment and threats. Mother states that she moved initially into a battered women's shelter in Pittsfield, Massachusetts, and thereafter fled to Florida when father discovered her location in Massachusetts. She further claims that she left Florida out of a concern that father had discovered her there, and ultimately moved to a shelter for battered women in the Province of Quebec, Canada, in May or June 2001. Father contends that he was unaware of mother's whereabouts during this period.

¶ 5. In June 2002, in response to father's motion, the Massachusetts family court issued an order providing that, in light of mother's "unknown" location and father's continued residence in Vermont, the latter represented the most appropriate venue to exercise jurisdiction. Father then filed successive motions in the Bennington Family Court to enforce the visitation provisions of the original Vermont divorce decree, to obtain temporary custody, and to hold mother in contempt. Mother was served by publication but did not appear at a scheduled hearing in August 2002, which resulted in a brief, emergency order transferring custody to father.

¶ 6. In September 2002, the court issued a written decision. The court acknowledged that a review of the child's best interests was difficult because of his absence from the state for the last three years and the lack of information about his present physical and emotional health. Nevertheless, the court expressed concern as to whether the child was receiving adequate medical attention for a seizure disorder that had come to the court's attention during an earlier abuse-prevention hearing. The court also noted that mother had been found to suffer from depression in the final divorce judgment, that her petition for relief from abuse in Vermont had been denied, and that she "may be of unstable personality ... [and] in the throes of some mental illness ... which would make her an unfit guardian for the child." Accordingly, pending "a full [e]videntiary [h]earing to consider the child's best interest" the court ordered that custody be transferred to father "until further [h]earing of the [c]ourt." The court also found mother to be in contempt for her "willful failure to provide [father] with his right to parent child contact" as provided by the court's earlier orders.

¶ 7. After the hearing before the Bennington Family Court on August 21, 2002, but before the court issued its decision in September, mother filed a motion to terminate father's right to visitation and for child support in the family court of the Province of Quebec, Canada, where she had taken up residence after fleeing from Florida. An expert psychological evaluation of mother and the child was submitted to the Canadian court in October 2002. The psychologist's report states that it was based on interviews with mother and the child as well as a review of a number of documents, including the Bennington Family Court decision of September 2002, notes from the child's former teacher in Massachusetts and current teacher in Quebec, and reports filed with the Massachusetts family court by the visitation supervisor. The psychologist's report recounts in detail mother's allegations of father's physical and psychological abuse, harassment, and stalking, some of which allegedly occurred in the child's presence. The expert described mother as "sad but always in control of her emotions," coherent and well organized, and without any signs of psychosis, mood disorders, or other personality disorders. She was, in the expert's opinion, "in good mental health," appeared to function well, and despite the recent instability in her life "had been able to take good care of" the minor. As to the child, then eight years old, the expert noted that he was "successful" in school and "well integrated into his class group," was obviously "bright," expressed himself well, and established an easy relationship with the expert. Although mother reported that the child had an epileptic condition which required him to take a daily medication, he remained physically vigorous. As for the child's views toward father, the expert concluded from the child's remarks that he had witnessed father make numerous threats and denigrating comments against mother and himself, and as a result had developed a strongly negative perception of father, stating in categorical terms that he did not wish to resume parent-child contact. The expert concluded that an abrupt resumption of visitation with father would have a traumatic and destabilizing impact on the child.

¶ 8. Father was served with mother's Canadian petition by mail, and subsequently moved to dismiss the petition and transfer jurisdiction to Vermont. In May 2003, the Canadian court entered an order granting temporary custody to mother. The following month, it issued a nine-page decision denying father's motion to dismiss. The court explained that under Canadian law it had the discretion to decline jurisdiction if it determined that the courts of another jurisdiction were better positioned to resolve the dispute, and that any decision must "be taken in [the child's] interest and with respect to his rights." These interests should include, according to the court, "the moral needs, intellectual, affective and physical needs of the child, his age, his character, his family circumstances and the other aspects of the situation." Based upon its review of several exhibits, including the expert psychological evaluation and the materials on which it relied, the court found that father's "attitude and comportment" toward mother and the child and the risks of reunification with father militated against a transfer of jurisdiction.

¶ 9. In July 2004, father filed a motion with the Canadian family court to have his own expert psychologist evaluate mother and the child, and thereafter to grant custody to father. For reasons unclear from the record, however, father subsequently withdrew the motion. In February 2005, the Canadian court issued a final judgment awarding custody of the eleven-year-old child to mother and reserving the issue of visitation with father. Father appealed the ruling, which the Canadian appellate court affirmed in October 2005.

¶ 10. In January 2006, mother returned to Vermont and was arrested by federal marshals, based on federal charges of international parental kidnapping.² Mother was transferred to state custody on the outstanding contempt adjudication, and a show-cause hearing was held in which mother was given the opportunity to purge herself of the contempt by disclosing the child's whereabouts; she refused, and consequently remained incarcerated. In February 2006, mother moved to dismiss the contempt proceeding on the ground that the court lacked subject-matter jurisdiction to issue the August and September 2002 orders...