Pill v. Pill, 89-361

• Decision Date: 15 June 1990
• Docket Number: No. 89-361,89-361
• Citation: 154 Vt. 455,578 A.2d 642
• Parties: Kenneth A. PILL v. Barbara J. PILL.
• Court: Vermont Supreme Court

Page 642

578 A.2d 642

154 Vt. 455

Kenneth A. PILL v. Barbara J. PILL.

No. 89-361.

Supreme Court of Vermont.

June 15, 1990.

Stephen L. Klein, Rutland, for plaintiff-appellee.

Thaddeus Lorentz and Ron Williams of Lorentz & Lorentz, P.C., Rutland, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendant, Barbara Pill, appeals from a modification of a divorce decree that transferred primary physical responsibility for the parties' minor children to plaintiff, Kenneth Pill, and reduced plaintiff's child support obligation. We reverse and remand for further proceedings.

I.

Kenneth and Barbara were divorced on April 28, 1987 and awarded joint custody of their two minor sons, Justin and Jared. Pursuant to the divorce decree, which encompassed the parties' stipulation, Barbara retained primary physical responsibility for the children, and Kenneth received "reasonable and liberal" visitation rights. The order provided that since both parties are capable of caring for the children, they may change the primary residence and physical custody of the children without the court's permission "if it appears to the parties in the future that it is in the best interest of the children," and the children so desire. Additionally, the order stated that whichever parent gains custody of the children in the future, the noncustodial parent "shall have the right to extensive and liberal visitation." Finally, the order required Kenneth to pay $110 per week to Barbara for the children's support and maintenance.

Almost two years after the divorce, Kenneth filed a motion to modify the custody order, claiming that (1) Barbara was not properly supervising the children; (2) she was failing to take the children to the doctor; (3) she was six months' pregnant and living with a boyfriend ten years younger than her; (4) she was giving child-care responsibilities to her boyfriend, who was "partying" at the house past the children's bedtime; and (5) Justin was having specific behavior problems. One month later, Barbara filed a motion for modification of the order with respect to the decision-making arrangement, alleging that Kenneth had failed to cooperate with the exchanges of the children during visitations and had refused to share in decisions concerning the children's upbringing.

A hearing was held on June 13, 1989, at the close of which the court issued an oral notice of decision. A written order was filed on July 19, 1989. Relying on the language of the original custody order and the best interest of the children pursuant to the guidelines set forth in 15 V.S.A. § 665, the court awarded Kenneth primary physical responsibility for the children and granted Barbara visitation rights. In addition to transferring physical custody to Kenneth, the court reduced his child support obligation from $110 per week to $35 per week.

Barbara appeals the modification order, arguing that the trial court erred by (1) misinterpreting the original custody order, (2) failing to find a real, substantial and unanticipated change of circumstances pursuant to 15 V.S.A. § 668, and (3) modifying the child support award. In response, Kenneth argues that (1) the court's interpretation of the original court order was correct; (2) the court, in essence, found a real, substantial and unanticipated change in circumstances; and (3) such a change is apparent from the record and acknowledged by Barbara. Pending resolution of the appeal, this Court stayed the order of the trial court.

II.

Barbara first asserts that the court erred in interpreting the custody order. We agree. In relevant part, the order provided as follows:

1. (a) ... The children shall continue to make their primary residence with Barbara, except as hereinafter provided.

(b) The parties acknowledge that the children have wishes and desires of their own, and that as the children mature their changing interests and preferences should be given weight and consideration. The parties also confirm that each of the parties, respectively, is a fit parent, and is capable of providing the children with requisite primary care and supervision. Therefore, the best interest of the children being the parties' primary concern, if it appears to the parties in the future that it is in the best interest of the children that there be a change of their primary residence and physical responsibility, and it is the desire of the children or either of them to do so, it shall be permitted.

....

(h) In the event that in the future the parties determine and agree that one or the other of the parties should have sole custody, or that the children or either of them should primarily reside with one or the other parent, or in the event one or the other parent seeks and gains sole custody, then the noncustodial parent shall have the right to extensive and liberal visitation with the children.

(Emphasis added.) The court apparently determined that since the order gave the parties the right to modify the custody arrangement without court approval, and since the parties could not come to any agreement, it could decide which party should be awarded physical custody, regardless of whether there was a real, substantial and unanticipated change in circumstances.

We conclude that the words "the parties" in the order clearly indicate that court approval of a change in the custody arrangement is unnecessary only if both parties agree that the change would be in the children's best interest. Here, however, the parties could not agree. Consequently, in order to modify the prior order, the court had to follow the dictates of 15...