Paine v. Buffa

• Decision Date: 31 January 2014
• Docket Number: No. 13–193.,13–193.
• Court: Vermont Supreme Court
• Parties: Nathan PAINE v. Jaime BUFFA.

93 A.3d 90

2014 VT 10

Nathan PAINE

v.Jaime BUFFA.

No. 13–193.

Supreme Court of Vermont.

Jan. 31, 2014.

Jean Anne Kiewel of Jean Anne Kiewel, PC, Brattleboro, for Plaintiff–Appellee.

Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

CRAWFORD, J.

¶ 1. Mother appeals the family division's decision to place sole legal parental rights and responsibilities for the parties' two daughters with father. She also appeals the family division's award of a share of the equity in the marital home to father. We affirm.

¶ 2. The parties met in 2002 in Colorado, when father was twenty-two and mother was eighteen, and moved in together shortly afterward. After traveling for about a year, they moved to southern Vermont in 2003. In October 2003 mother's parents, who live in the state of Georgia, financed their daughter's purchase of a home on Paul's Road in Brattleboro. The couple moved into the home and lived there until mother sold it in November 2007. During this time, father worked seasonally at an apple orchard and performed some carpentry work, and mother worked as a waitress and as a clerk at a farm stand. The couple was able to live beyond their limited means through continuing support from mother's parents.

¶ 3. Mother and father grew dissatisfied with the Paul's Road house, particularly due to its thermal inefficiency. In July 2005 mother approached her parents for money to purchase a thirty-two-acre parcel of land on Sunset Lake Road in Brattleboro. Over the next two years, mother and father worked to construct a house on the property, where they intended to live “off the grid” and become self-sufficient homesteaders. Father provided substantial labor, and mother's parents provided money for materials and additional labor. The couple moved into the house in September 2006. Mother was less committed to the homesteading life than father and quickly abandoned her plan to raise sheep and create wool fabric products. After selling the house on Paul's Road in 2007, she deposited the proceeds into her own bank account and used the money to support herself and her family.

¶ 4. Although by all accounts their relationship had been tumultuous and frequently unhappy, the parties decided to marry in June 2007. Shortly after the wedding, mother discovered she was pregnant with the couple's first daughter, who was born in March 2008. Their second daughter was born in February 2011.

¶ 5. By September 2011, the parties had decided to separate. Father moved out of the marital home but cared for the children there for three to four days a week, including overnights, while mother attended community college in Massachusetts. Father filed for divorce in March 2012, and began to spend his time with the children at a cabin located on his employer's orchard where he lived.

¶ 6. In April 2012, mother moved for an expedited hearing on parent-child contact because she had made plans to relocate with the children to North Carolina. The court denied immediate relief because no emergent circumstances had been demonstrated and the parties had not yet met with the case manager to attempt to develop a parenting plan. Mother then filed an emergency motion claiming that father's insistence on having parent-child contact at his cabin put the children's well-being at immediate risk. The court held an emergency hearing in May. It concluded that the evidence did not support mother's assertions that father's cabin was an unsuitable place to take the children or that the children were actively resisting going to the cabin. It stated that the motion appeared to be driven by mother's desire to gain an early determination of custody so she could move to North Carolina with the children. The court stated that it would award temporary legal custody to father unless the parties stipulated to joint legal parental rights and responsibilities. Shortly thereafter, the court approved a temporary stipulated order under which the parties shared legal and physical responsibilities.

¶ 7. Although she had originally intended to move to North Carolina, by the time of trial mother planned to move to Georgia, where her parents lived. She submitted proposed parenting plans that were premised upon her residing in Georgia and having sole legal responsibilities and shared physical responsibilities for the children. She offered to send the children to visit father in Vermont during school vacation, or to have father move into one of her parents' homes in Georgia so he could see the children more often.

¶ 8. The final hearing was held over several days in February 2013. On the first day of trial, mother and father were served with a complaint filed against them in Georgia by mother's parents seeking to recover the funds allegedly loaned to the parties for the purchase and improvements of the Sunset Lake Road and Paul's Road properties. The total amount sought was over $700,000.

¶ 9. The court issued its decree of divorce in March 2013. It determined that the parties were nearly equally situated with regard to the statutory factors set forth in 15 V.S.A. § 665(b). However, because mother was “adamant” in her desire to relocate and the court found that it would not be in the best interest of the children to move to Georgia, the court awarded sole legal responsibility to father and shared physical responsibility to both parties. The court found that the house on Sunset Lake Road was the sole significant asset of the marriage and had a fair market value of $350,000. It awarded the home to mother subject to father's equity share of $85,000, which would constitute a lien on the property. The court ordered mother to pay father his equity share within 120 days of the decree. It provided that after 120 days, interest would begin to accrue and father would have the choice of initiating a foreclosure action or moving to compel mother to list the property for sale. The court ordered mother to hold father harmless in the event that her parents secured a judgment against him in the civil action in Georgia. Mother appeals both the custody and property awards.

I.

¶ 10. We first consider mother's challenge to the court's assignment of sole legal rights and responsibilities to father. This Court applies a highly deferential standard of review to decisions of the familycourt regarding parental rights and responsibilities. Thompson v. Pafundi, 2010 VT 80, ¶ 11, 188 Vt. 605, 8 A.3d 476 (mem.). “[W]e do not disturb findings of fact unless they are clearly erroneous, and we uphold the court's legal conclusions if they are supported by the findings.” DeSantis v. Pegues, 2011 VT 114, ¶ 26, 190 Vt. 457, 35 A.3d 152. “We view the findings in the light most favorable to the prevailing party, and only reverse if the court exercised its discretion upon unfounded considerations or to an extent clearly unreasonable upon the facts presented.” Chickanosky v. Chickanosky, 2012 VT 52, ¶ 17, 192 Vt. 627, 54 A.3d 162 (mem.) (quotation omitted).

¶ 11. Mother claims that the family court abused its discretion by assigning sole legal custody to father based on her proposed relocation to Georgia. She claims that the court focused on this factor to the exclusion of the statutory best-interests factors, and ignored her testimony that she would stay in Vermont if that was the only way she would get legal custody.

¶ 12. In making an order of parental rights and responsibilities, the family court's paramount concern is the best interests of the child. Id. ¶ 19. Section 665(b) sets forth a nonexclusive list of factors that the court must consider in awarding custody. 15 V.S.A. § 665(b). Although relocation is not specifically listed as a factor, our case law makes clear that the family court should consider a party's proposed relocation when making a final order of parental rights and responsibilities. See Gazo v. Gazo, 166 Vt. 434, 441, 697 A.2d 342, 346 (1997) (“In general, we encourage courts to award parental rights and responsibilities in light of a parent's proposed relocation.”). In Gazo we recognized that where parents are almost equally situated with respect to the statutory factors set forth in § 665(b), the parties' proposed residences can become a dominant factor in the court's decision. Id. We held that in such circumstances it was appropriate to give the party who proposes to relocate the choice of specifying the facts upon which the court should base its custody decision. Id. at 441–42, 697 A.2d at 346. The party “has the option of telling the court either that (1) she will move, so that any later relocation by [her] consistent with the proposed relocation will not be unanticipated, or (2) she has made no firm decision to move, so that any later relocation by [her] will be unanticipated.” Id. at 442, 697 A.2d at 346.

¶ 13. Here, mother repeatedly represented to the court prior to and during the trial that she intended to relocate after the divorce. Both of the proposed parenting plans she submitted prior to trial provided that she would live in Georgia with the children, with father living either in Vermont or in Georgia. At trial, mother testified that she had applied to a dental hygiene training program in Georgia, had an offer of a highly paid job through one of her father's business associates, and could live in one of her parents' homes there. She testified that if father moved to the same area, she could arrange for her parents to provide him with a residence at very favorable financial terms. Not until the last day of trial did she state that she would be willing to remain in Vermont if it meant retaining legal custody. Taken as a whole, mother's representations to the court from the outset of the divorce proceeding until the last day of trial indicated that she intended to leave Vermont. Thus, the family court did not err in concluding that mother had made a firm decision to move and basing its...