Paquette v. Paquette

Decision Date21 June 1985
Docket NumberNo. 83-193,83-193
CourtVermont Supreme Court
PartiesRoger L. PAQUETTE, Jr. v. Judith Ann PAQUETTE.

Olin R. McGill Jr., of Kelley & Meub, Ltd., Middlebury, for plaintiff-appellant.

Peter F. Langrock and Emily J. Joselson, of Langrock Sperry Parker & Wool, Middlebury, for defendant-appellee.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Plaintiff appeals from a final judgment that (1) dismissed his petition for custody of his stepson, brought under 15 V.S.A. §§ 291 and 293, and (2) denied his motion to amend the divorce complaint to ask for custody of the stepson. Although there has not yet been a final hearing on the divorce complaint, the trial court found there was no just reason for delay and expressly directed the entry of a final judgment in these matters. Accordingly, the matter is properly before us. V.R.C.P. 54(b).

Plaintiff and defendant were married in December, 1977. One child, Nathan, now age 6, was born of the marriage. Following hearing, the court awarded temporary custody of Nathan to plaintiff, pending final hearing in the divorce action. Defendant also has a child, Gary Dion, now 12, born of a previous marriage. His custody is the focus of this appeal. Plaintiff's attempts to obtain custody of Gary Dion, through the two separate routes recited above, were rebuffed by the trial court on the ground that it lacked jurisdiction to award custody of a child to its stepparent. We reverse.

I.

First, we consider the separate petition brought by plaintiff under 15 V.S.A. §§ 291 and 293. Section 291(b) provides that in cases of desertion or nonsupport, the court may make "such orders as it deems expedient concerning ... the care, custody, education and maintenance of the minor children of the parties. It may determine with which of the parents the children, or any of them, shall remain ...." The statute further provides, "[f]or the purposes of this section 'children' shall include stepchildren." Id. § 291(g).

Section 293 states that "[w]hen parents of minor children, or parents and stepparents of minor children, are living separately, on the petition of either parent or stepparent ... the [superior] court may make such decree concerning the care, custody, maintenance and education of the children" as it would in cases of desertion or nonsupport.

Thus, on their face §§ 291 and 293 both clearly empower the superior court to award custody of a minor child to a stepparent while the parties are still married and when circumstances warrant (i.e., desertion, nonsupport, living separately). The fact that a divorce complaint may be pending, or brought at a subsequent time, does not deprive the court of jurisdiction over a § 291 or § 293 proceeding. As integral parts of the statutory scheme, §§ 291 and 293 must be construed in pari materia with other sections of the domestic relations law. Beaudry v. Beaudry, 132 Vt. 53, 56, 312 A.2d 922, 924 (1973). Although it is somewhat unusual to file a separate petition when a divorce complaint is already pending, the statutes do not prohibit the procedure, and the court was in error in dismissing the petition.

II.

Plaintiff's second argument presents a more difficult issue. In denying plaintiff's motion to amend the complaint to request custody of the stepchild, the trial court held that it had no jurisdiction to grant the relief requested because plaintiff's stepchild is not a "child of the marriage." 15 V.S.A. § 652, which sets forth the guidelines governing the award of child custody in a divorce proceeding, contains the following language:

In an action under this chapter, the court shall make an order concerning the custody of any minor child of the marriage. The court shall be guided by the best interest of the child....

Id. § 652(a). (Emphasis added.)

The term "child of the marriage" is new to Vermont. It is not defined in the statutes and first appeared when § 652 became law on July 1, 1982. Prior to that date, the applicable statute spoke in terms of the "children of the parties," id. § 292, a term neither defined by the legislature nor construed by this Court. Except for the statements contained in §§ 291 and 293, previously discussed, one looks in vain for any statutory guidance concerning the standing of a stepparent to petition for custody of a stepchild in a divorce proceeding.

When construing a statute, the function of the court is to ascertain and give effect to the intention of the legislature. Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232, 233 (1983); Loeb v. Loeb, 118 Vt. 472, 483, 114 A.2d 518, 526 (1955). If the meaning of a statute is plain on its face, it must be enforced according to its terms and there is no need for construction, Hill, supra, 143 Vt. at 93, 463 A.2d at 233; however, if doubts exist or if the statute is ambiguous, the legislative intent "should be gathered from 'a consideration of the whole and every part of the statute, the subject matter, the effects and consequences, and the reason and spirit of the law.' " Langrock v. Department of Taxes, 139 Vt. 108, 110, 423 A.2d 838, 839 (1980) (quoting Holbrook Grocery Co. v. Commissioner of Taxes, 115 Vt. 275, 278-79, 57 A.2d 118, 120 (1948)).

In this instance, § 652 not only requires the court to make an award of custody of any minor child of the marriage, it also provides that "[o]n petition of either parent or any other person to whom custody has previously been granted, ... the court may annul, vary, or modify an order made under this section if it is in the best interest of the child...." 15 V.S.A. § 652(d). (Emphasis added.) By its language, the statute recognizes the possibility of an award of custody to a third person, without specifying or limiting who that third person might be. In light of this ambiguity, we are unable to determine the legislative intent from the plain meaning of the words and must, therefore, look beyond the language of the statute itself to determine that intent. Langrock v. Department of Taxes, supra. The statute leaves no doubt that, in making any custody award, the court must be guided by what will be in "the best interest of the child." Id. § 652(a) and (d).

Few courts have had occasion to construe the phrase "child of the marriage." In an early case, State v. Taylor, 125 Kan. 594, 264 P. 1069 (1928), the Supreme Court of Kansas held that a divorce order awarding custody of a child to her stepmother was not void under a statute directing that provision be made "for the ... custody ... of the minor children of the marriage," where the stepmother stood "in loco parentis" toward the child. It was the opinion of the court that the term " 'minor children of the marriage,' fairly interpreted, included the infant in question." Id. at 596, 264 P. at 1070.

The Kansas court later reaffirmed its position, when, under a statute identical in pertinent part to that in the earlier case, it affirmed the award of custody of a child to her stepmother, relying upon the holding in State v. Taylor, supra. Anderson v. Anderson, 191 Kan. 76, 379 P.2d 348 (1963). In both Anderson and Taylor, the court found the natural father to be an unfit parent and that it would be in the best interest of the child to live with the stepmother.

More recently, two other courts have been called upon to construe language similar to that of the Kansas statute. The Alaska Supreme Court, in considering a visitation request by a stepfather, adopted an approach similar to that of Kansas, holding that "where a stepparent has assumed the status of in loco parentis, a stepchild is a 'child of the marriage' " within the meaning of the statute; the court then remanded the case to the trial court for a determination of whether the stepfather actually stood in loco parentis to the child and, if so, whether visitation would be in the child's best interest. Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982).

In California, the Court of Appeal, Fifth District, in a three-to-two decision, held that the statutory language "minor children of the marriage" did not give the court jurisdiction to award visitation privileges to the stepfather, and left the resolution of "this thorny problem" to the legislature, noting in passing that it did not find the result "particularly palatable." Perry v. Superior Court of Kern County, 108 Cal.App.3d 480, 485, 166 Cal.Rptr. 583, 586 (Ct.App.1980). A concurring associate justice suggested that, if the stepfather had alleged that there were children of the marriage because he stood in loco parentis, the court might have had jurisdiction, but that the issue could not be determined because it had not been briefed or argued. Id. at 486, 166 Cal.Rptr. at 586-87. But see Phillips v. Phillips, 176 Or. 159, 172, 156 P.2d 199, 203 (1945) (refusing to grant custody of 15-year-old girl to stepfather on ground that girl was not a child "of the marriage").

Thus, where a statute has been silent about the relationship of stepchild and stepparent in a domestic relations custody or visitation dispute, courts have looked to the common law doctrine of in loco parentis for guidance. The term "in loco parentis" has been defined by this Court in the following manner:

"In the place of a parent: ... charged, factitiously, with a parent's rights, duties, and responsibilities." For such a relationship to come about as between stepparent and stepchild depends upon the intent of the stepparent "to be determined in the light of the circumstances peculiar to each case."

In re Fowler, 130 Vt. 176, 179, 288 A.2d 463, 465 (1972) (citations omitted). Thus, whether a stepparent has assumed the status of a person in loco parentis is a factual determination that depends upon the intent of the stepparent to assume that status. Where one stands in loco parentis to another, the rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.

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