Palmer v. Palmer, 229-79

• Decision Date: 03 June 1980
• Docket Number: No. 229-79,229-79
• Citation: 416 A.2d 143,138 Vt. 412
• Parties: Judy S. PALMER v. Walter F. PALMER.
• Court: Vermont Supreme Court

Page 143

416 A.2d 143

138 Vt. 412

Judy S. PALMER v. Walter F. PALMER.

No. 229-79.

Supreme Court of Vermont.

June 3, 1980.

Wool & Murdoch, Burlington, for plaintiff.

Paul, Frank & Collins, Inc., Burlington, for defendant.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and BRISTOW, District Judge, Specially Assigned.

BILLINGS, Justice.

Plaintiff-appellee, Judy S. Palmer, was awarded a decree of divorce on March 27, 1979, by the Chittenden Superior Court on the ground that she and her husband, Walter F. Palmer, had lived separate and apart for six consecutive months, and the resumption of marital relations was not reasonably probable. The parties were married on February 11, 1961, and had five children ranging in age from six to fifteen at the time of the divorce. The decree granted care and custody of the parties' children to plaintiff, gave defendant visitation rights with certain limitations, provided for a disposition of the equity in the dwelling house, and ordered defendant to pay weekly child support. Defendant appeals from this decree and alleges error by the trial court in each of these orders. We disagree and affirm.

Defendant's first claim of error alleges that the trial court erred when it refused to consider the desires of the children, particularly the fourteen and fifteen year olds, in regard to their custody. At the final hearing, the children's custody was contested, and defendant, for the first time, requested that the court talk privately with one or more of the older children to gain additional insight into what custody arrangement would best serve their interests. It is noteworthy that defendant, until this request, had presented no witnesses, other than himself, nor introduced other evidence indicating his desire and fitness for custody of the children.

In support of his position, defendant cites Cameron v. Cameron, 137 Vt. 12, 398 A.2d 294 (1979), and posits that it explicitly allows children, fourteen or over, to voice their preferences regarding custody and visitation since the legislature, by virtue of 14 V.S.A. § 2650, allows them to select their guardians. We are not inclined to agree with this reading.

In Cameron, we held that a trial court did not abuse its discretion in refusing to allow a six-year old to testify to his or her parental preference. Id. at 14, 398 A.2d at 295-96. The decision to allow a child to testify as to custody preference is in the trial court's discretion, and, absent a showing that it clearly abused its discretion, will not be placed in error. Id. This is not to say that a trial court may not, in the exercise of discretion, allow a child to testify if it finds this to be in the child's best interests. Id. See 15 V.S.A. § 292.

In the instant case, defendant has not shown that the trial court's discretion, in awarding plaintiff custody, was erroneously exercised, Boone v. Boone, 133 Vt. 170, 174 333 A.2d 98, 101 (1975), or exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence. Loeb v. Loeb, 120 Vt. 489, 495-96, 144 A.2d 825, 829 (1958).

On the contrary, the evidence introduced regarding custody indicated that both parents equally loved the children, but that defendant, employed as a funeral director, was preoccupied with his job, sometimes working twenty-four hours a day and, often, seven days a week, and was unable therefore to spend a great deal of time with them. Because of this, plaintiff has had the principal responsibility for the children's upbringing, and has done, with a few exceptions, a creditable job.

Moreover, defendant, although having ample time to prepare for a custody dispute, took no preliminary steps. He did not request that an attorney be appointed pursuant to 15 V.S.A. § 594 to represent the children's interest, cf. Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139 (1978), or request that the Department of Social Welfare investigate, or even obtain and offer witnesses, other than himself, at trial to testify as to his fitness for custody and as to the children's best interests.

Defendant's second claim of error attacks the court's visitation order, which granted defendant visitation rights on alternate weekends and holidays, and for one month during the summer, with the specific limitation that defendant shall not have the "children overnight with him at any time when he is spending the night with a woman who is not his wife." It is primarily this quoted language that defendant excepts to.

This limitation placed on defendant's visitation rights is, again, a matter for the trial court's discretion, as it has before it "the freshest revelations of family relations." Boone v. Boone, supra, 133 Vt. at 174, 333 A.2d at 101. Unless the exercise of this discretion is shown to be clearly unreasonable or untenable, the trial court's decision will be upheld, Wetmore v. Wetmore, 129 Vt. 583, 586, 285 A.2d 711, 713 (1971), as we cannot, in place of the trial court, weigh facts and reach our own conclusions. Davidson v. Davidson, 111 Vt. 24, 28, 9 A.2d 114, 116 (1939).

In the instant case, neither plaintiff nor defendant was puritanical, both had extra-marital affairs, and since the divorce both are seeing other persons. The court found, however, that defendant spends a great deal of time with his girl friend, often staying overnight, while plaintiff's relationship is more discreet and, apparently, less involved. Exposure to defendant's living arrangement would not, according to the trial court, be in the best interests of the children. While courts should not base their decisions solely on moralistic values, the record here convinces us that the limitations placed on defendant's visitation rights were in the children's best interest, and not an abuse of discretion. The trial court, which had freshest revelations before it, Boone v. Boone, supra, 133 Vt. at 174, 333 A.2d at 101, obviously felt that defendant's open relationship would have a more detrimental effect on the children than plaintiff's more discreet one.

Nor are we swayed by defendant's contention that this order, taken literally would prohibit defendant from having the children if their grandmother stays with them overnight (as she is a woman who is not defendant's wife). This argument borders on specious, and requires such a narrow reading of the decree as to defeat its clear intent.

The third claim of error defendant asserts is that the trial court abused its discretion in its disposition of the equity in the dwelling house. In its findings, the court concluded that the home, at the time of the hearing, had a net equity of $42,110, and ordered the property held by the parties as tenants in common, with plaintiff having exclusive use and occupancy until all the minor children were emancipated. At this time, plaintiff would have the option to buy defendant's one-half interest for $21,055 (one-half of the net equity at the time of the divorce), plus interest at a rate of five percent per annum from the date of the judgment order.

Defendant avers that this property division is unconscionable as it prevents him from using his share of the equity until all the children are emancipated, and gives him only a five percent annual return on it, while plaintiff, at the same time, receives the use of the house, and, according to defendant's calculations, obtains an annual "conservative appreciation" of ten percent on the house.

This Court has repeatedly held that the disposition of property pursuant to a divorce is a matter of broad discretion for the trial court. Whitcomb v. Whitcomb, 137 Vt. 11, 398 A.2d 305 (1979); Sweeney v. Sweeney, 136 Vt. 199, 388 A.2d 388 (1978); Peisch v. Peisch, 132 Vt. 514, 321 A.2d 67 (1974). The court may decree the property in a...