Peachey v. Peachey

• Decision Date: 08 October 2021
• Docket Number: 2020-291
• Citation: 2021 VT 78
• Court: Vermont Supreme Court
• Parties: Sarahann Peachey v. Mahlon Peachey

2021 VT 78

Sarahann Peachey v. Mahlon Peachey

No. 2020-291

Supreme Court of Vermont

October 8, 2021

On Appeal from Superior Court, Windham Unit, Family Division Michael R. Kainen, J.

Cielo M. Mendoza, Legal Services Vermont, Burlington, for Plaintiff-Appellee.

Mahlon Peachey, Pro Se, Penn Yan, New York, Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen JJ.

COHEN J.

¶ 1. Defendant father appeals a final relief-from-abuse order issued by the family division of the superior court, which prohibits father from contacting mother or the parties' children except during one weekly telephone call with the children. Father argues that his right to due process was violated because the court conducted the evidentiary hearing remotely and he missed a portion of the hearing due to technical issues. He further argues that the restrictions on parent-child contact imposed by the court were an impermissible modification of the existing contact order that was not supported by a finding of changed circumstances or an assessment of the statutory best-interests factors. Finally he claims that the protective order must be reversed because it is self-contradictory and not supported by the evidence. We affirm.

¶ 2. The parties married in 2010 and separated in May 2019. They have four minor sons, W.P., A.P., N.P., and B.P. The oldest boy is now nine years old and the youngest is four. Mother filed for divorce in November 2019. In January 2020 the court issued an interim order granting primary custody of the children to mother. Father was to have contact with the children twice a week, from Wednesday afternoon to Thursday morning and from Saturday morning to Sunday morning.

¶ 3. In August 2020, mother filed a complaint for relief from abuse in the family division, alleging that father had attempted to kidnap the children and take them to live in New York. She further alleged that he had physically abused the children and had used limited force on her, and that she feared he would retaliate against her for the divorce. This was mother's second complaint for relief from abuse against father. The first complaint, which she filed in May 2019, was denied by the court after a hearing in June 2019.^[1]

¶ 4. The court scheduled a hearing on mother's complaint in October 2020. Due to the COVID-19 pandemic, the court notified the parties that the hearing would be conducted remotely using video conferencing software. If a party chose to appear in court, a mask would be required. Father called in by telephone before the hearing began but his connection failed. The court decided to proceed with the hearing in his absence. After mother had testified for a few minutes, father rejoined the hearing by telephone. The court summarized mother's testimony up to that point for father, and then permitted mother to finish her testimony. Father was offered the opportunity to ask mother questions but did not do so. Instead, he asked the court why it was addressing mother's complaint when it had previously rejected mother's 2019 request for a relief-from-abuse order, which he asserted was based on many of the same allegations. He testified briefly that the children enjoyed their time with him. He denied that he had abused them.

¶ 5. Following the hearing, the court issued a final order in October 2020 in which it consolidated the relief-from-abuse proceeding with the divorce proceeding and granted mother's request for a protective order. In its final order, the court found as follows. Father had physically intimidated mother on several occasions. In May 2018, on the date that the parties were to close on the purchase of their Vermont home, father was running late. Mother encouraged him to move along, and father jumped up, raised his fists, and came at her as if he was going to strike her. Mother was holding the youngest child and ran out to the car. Mother was scared that father would physically hurt her. Similar incidents occurred throughout the marriage. The most recent incident occurred at the Vermont State Police barracks in Westminster in July 2020, where the parties met to exchange the children. Three of the boys got out of the truck, and five-year-old N.P. was still buckled in. Father was angry about something, and mother was attempting to unbuckle N.P. Father pushed mother out of the way and gave her an angry glare. The push did not hurt, but mother was fearful of father's expression and withdrew.

¶ 6. The court further found that father had routinely hit the children during the marriage. When the parties' oldest son, W.P., was three weeks old, father shook and hit him to make him stop crying. When W.P. was two years old, father smacked him for crying, giving W.P. a bloody nose. Father would hold his hand over the boys' mouths and sometimes their noses to stop them from crying. On one occasion when father did this with A.P., mother realized the child could not breathe. She was afraid to intervene but finally did so when she became concerned about the amount of time father was restricting A.P.'s breath. The court found that father's actions went beyond the limits of acceptable corporal punishment and were unreasonable and cruel.

¶ 7. Pursuant to the temporary order in the divorce proceeding, father had custody of the children for two nights a week at the former marital residence. N.P. came home from a visit with father with bruises on his back and bottom, and W.P. had red marks across his face. The boys told mother that father had caused the injuries. The court noted that the boys' statements were hearsay but found based on the parties' history and the timing of the injuries that father had inflicted them.

¶ 8. In August 2020, the boys reported to mother that the marital residence was almost empty. Mother feared that father was planning to flee out of state with the children. She filed an emergency motion to modify parent-child contact. The court denied the request for emergency relief but issued an order prohibiting father from taking the children out of Vermont for more than a day trip without mother's written permission.

¶ 9. Two days later, on August 19, 2020, mother delivered the boys to father for an overnight visit as required by the interim parent-child contact order. Father filed a document with the court that day stating that it lacked jurisdiction over him. Later that night, father texted mother the following message: "Hi Sarahann the boys are going to stay home now, we're not continuing with this child trafficking and the way you're trying to raise them is not natural or acceptable. Goodbye." Mother saw the message in the early morning and called the state police. A trooper went to the marital home and determined that it was empty, but informed mother there was nothing he could do unless father failed to return the children to her at the scheduled time later that morning. When father failed to do so, police began searching for him in earnest. Mother knew that father had family in western New York and believed he had found employment there, and police learned that father had received a ticket for texting while driving in Yates County, New York, a week earlier. The criminal division of the Windham Superior Court issued a warrant against father for custodial interference, and the children were located and taken into custody by New York officials until mother could make the five-hour drive to collect them.

¶ 10. Based on these findings, the court concluded that father had abused the children by causing them physical harm and had abused mother by placing her in imminent fear of serious bodily harm, and that there was a danger of further abuse. It denied mother's request to terminate all contact between father and the children, finding that the risk of future abuse or abduction could be prevented by eliminating in-person contact. The court noted that in the divorce proceeding, it had already limited father's contact to one ten-minute phone call per week after father attempted to abscond with the children to New York. Consistent with that order, it issued a final relief-from-abuse order prohibiting father from contacting mother or the children in any way, except that he could have one ten-minute phone call with the children per week.

¶ 11. On appeal, father raises a number of claims. He argues that use of a remote hearing, and the judge's conduct of the hearing, violated his right to due process. He argues that the Governor's order declaring a state of emergency due to the COVID-19 pandemic did not permit the court to dispense with in-person hearings. He contends that the court improperly modified parent-child contact without making the required finding of changed circumstances or adequately addressing the best interests of the children. He further argues that the court's order is self-contradictory and impossible for him to comply with. Finally, he claims that the court's finding of abuse is not supported by the evidence. We conclude that none of these claims have merit.

¶ 12. We first address father's due process arguments. Father maintains that the court violated his right to due process by conducting the hearing remotely because he was denied his right to confront mother in person, the judge was unable to fully observe the witnesses and thereby gauge their credibility, and he was unable to submit documentary evidence to the court. He argues that he was further denied due process when the judge began the hearing without him, because he missed several minutes of mother's testimony.

¶ 13. We conclude that father failed to preserve these claims for our review by raising them before the family court. "To properly preserve an issue for appeal a party must present the issue with specificity and clarity in a manner...