Patnode v. Urette

• Decision Date: 02 May 2014
• Docket Number: No. 13–179.,13–179.
• Citation: 2014 VT 46,98 A.3d 787
• Court: Vermont Supreme Court
• Parties: Lisa PATNODE v. Garrison URETTE.

98 A.3d 787

2014 VT 46

Lisa PATNODE

v.Garrison URETTE.

No. 13–179.

Supreme Court of Vermont.

May 2, 2014.

Mary G. Kirkpatrick of Kirkpatrick & Goldsborough, PLLC, South Burlington, for Plaintiff–Appellant.

Cynthia L. Broadfoot, Broadfoot, Attorneys at Law, Burlington, for Defendant–Appellee.

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

SKOGLUND, J.

¶ 1. This appeal is the latest iteration of a long and difficult dispute between two parents formerly in a relationship. Following the superior court's amendment of a parent-child contact order, and in response to a child support order remanded to the magistrate by the superior court, appellant mother seeks to overturn the superior court's amendment and raises a number of issues with both the superior court and the magistrate's treatment of father's income for child support purposes. We affirm the superior court's amended parent-child contact order and dismiss mother's appeal of issues regarding the child support order.

¶ 2. Mother and father were in a long-distance relationship for several years, throughout which mother lived in Vermont and father in Florida, where they continue to reside at the time of this appeal. In 2006, the parties had a child together. Although they never lived together as a family, parents continued taking regular trips with the child to visit each other until 2010, when they ended their relationship and mother filed a parentage action.

¶ 3. The superior court issued parental rights and responsibilities (PRR) and parent-child contact (PCC) orders in 2011, awarding mother sole physical and legal parental rights and responsibilities, and father significant parent-child contact. During the school year, father was entitled to ten days with the child each month, all long weekends, and every other two-week block in the summer. All school vacations and holidays were to be shared on an alternating basis, and the combination of long weekends, ten-day periods and vacations were capped so as not to exceed fourteen days with father at a time. Mother appealed the PCC order to this Court, and we affirmed.

¶ 4. In the wake of that affirmance, several issues arose between the parties regarding the child's school vacations and travel with father. Following a flurry of motions from both parties to modify, clarify, or enforce the PCC order, the superior court issued an amended order in April of 2013, which mother now appeals. The amendment was in direct response to a motion to clarify and enforce filed by father, which raised two particular issues: (1) whether father could take the child out-of-state with him on travel, and (2) whetherthe child's school vacation break in April superseded father's regular monthly allotment of parent-child contact. In response to these issues, the amended PCC order instituted two changes: first, that father provide mother two-weeks' notice of his plans to travel outside of Vermont with the child; and second, that during months where mother has the child during a school holiday, father may alter the beginning and end date of his ten-day contact period so as not to overlap with mother's holiday. Mother now contends that these changes are modifications to the PCC order, which the superior court erred in granting without first finding that a substantial and unanticipated change in circumstances had occurred.

¶ 5. When reviewing the family division's ruling on parent-child contact, we afford substantial deference to the court's decision. Chickanosky v. Chickanosky, 2012 VT 52, ¶ 17, 192 Vt. 627, 54 A.3d 162 (mem.). “Granting, modifying, or denying visitation is within the discretion of the trial court and will not be reversed unless its discretion was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented.” Gabriel v. Pritchard, 173 Vt. 452, 454, 788 A.2d 1, 5 (2001) (mem.) (quotation omitted). Our substantial reliance on the trial court's determinations is a result of the court's unique position as the trier of fact to evaluate the credibility of witnesses and weigh evidence in the “highly fact-intensive” context of parental custody and visitation rights. Miller–Jenkins v. Miller–Jenkins, 2010 VT 98, ¶ 11, 189 Vt. 518, 12 A.3d 768 (mem.).

¶ 6. Here, mother objects to the amended PCC order on the grounds that it effected three significant modifications to the standing PCC order for which the trial court failed to find that a substantial and unanticipated change of circumstances had occurred that justified modifying the order. According to mother, the amended order allows father out-of-state travel with the child where it was not permitted before—thereby increasing mother's contribution to travel costs—and institutes a modified schedule for father's visitations. We disagree with mother's characterization of the contents of the amended order as modifications; rather, we view them as clarifications to the order which the superior court was authorized to make. DeSantis v. Pegues, 2011 VT 114, ¶ 26, 190 Vt. 457, 35 A.3d 152 (reiterating that “[d]ecisions regarding the granting, modifying or denying of parent-child contact lie within the discretion of the family court”); Cleverly v. Cleverly, 151 Vt. 351, 355, 561 A.2d 99, 102 (1989) (“The pattern of [parental] visitation adopted is within the discretion of the trial court ....”).

¶ 7. The first purported change mother takes issue with is father's ability to travel with the child outside of Vermont during the school year. Mother argues that father never possessed this right before the amended order based on a “universal understanding” that father's contact with child must take place within Vermont. Mother's foundation for this understanding is one line from one day of the PCC hearing where the superior court judge was describing father's visitation rights and stated that “as far as monthly, one week in Vermont or in Vermont each month during school, September, October, November, December, and so on.” The judge clarified her words at a later hearing, stating that she “would have no reason to say, ‘[b]e in Vermont on a long weekend,’ ” and “wouldn't have said that long weekends [during the school year] need to be in Vermont, because it would seem to be pointless.” In light of these clarifying statements, there is no question that during the hearing the court did not intend to confine father's visitation rights to Vermont.

¶ 8. In furtherance of her argument that father was never allowed to take the child out-of-state, mother also points to a special order father obtained from the superior court in 2012, allowing him to take the child to Florida over a long weekend. However, while the superior court did in fact grant father permission to take the child to Florida “for this special occasion/event,” it was in response to a motion for a protective order and emergency hearing filed by mother in an attempt to bar father from traveling outside of Vermont with the child. Considering the particular circumstances under which permission to travel was granted—in response to mother's preemptive attempt to bar out-of-state travel—the special order bears little weight on whether the original PCC order allowed for out-of-state travel with the child.

¶ 9. The amended order itself contains the following directive: “[t]he notice requirement of Paragraph 8 shall be amended to require [father] to provide two weeks' advance notice to [mother] of the travel plans whenever he plans to travel outside of Vermont on long weekends with [child].” In turn, paragraph 8 of the original PCC order states that:

Both parties shall give the other notice of all travel plans with the child and shall provide contact information before taking any trips with the child. Both parents shall cooperate with obtaining a passport for the child and then the child's passport shall travel with the child so that she can easily [ ] travel with her parents.

Considering this provision of the original PCC order and the language used by the superior court in the amended order, the only alteration to the order was to give a specific notice timeframe of fourteen days.

¶ 10. This is a clarification; it does not change the terms of the PCC order in any way as father was mandated to give notice in the original order and is likewise mandated to give notice by the amended order. Only the amount of notice has changed, and the difference is from no specified timeframe to a clearly delineated one—which is, in essence, a clarification of the previously ordered timeframe. Likewise, we see no modification present in the amended order's mention of father “travel[ing] outside of Vermont on long weekends with [child].” The PCC order explicitly anticipated father traveling with the child outside of Vermont by ordering parents to cooperate in obtaining a passport by which the child could easily travel “with her parents,” and it contains no mention of father's visits with the child during the school year being confined to Vermont state lines. Mother's argument that father has been awarded a visitation right he did not have under the original PCC mischaracterizes the amended order.

¶ 11. Similarly, mother's assertions that the amended order modifies the terms of both her obligation to pay for part of father's travel with the child and of father's visitation schedule are without merit. First, the amended order makes no mention whatsoever of the requirement that mother pay for father's out-of-state travel with the child. Mother's argument is entirely based on the effect of father's ability to travel out-of-state, which mother presumes to be increased travel and therefore increased travel costs to her. However, as explained above, the amended order did not award father any such right; his ability to travel out-of-state with the child on long weekends was initially established in the language of the original PCC order. As there was no modification...