Porcaro v. Drop

• Decision Date: 27 December 2002
• Docket Number: No. 01-177.,01-177.
• Citation: 816 A.2d 1280
• Parties: Melissa PORCARO v. Mark Francis DROP.
• Court: Vermont Supreme Court

816 A.2d 1280

Melissa PORCARO v. Mark Francis DROP.

No. 01-177.

Supreme Court of Vermont.

December 27, 2002.

David Putter and Cassandra Edson of Putter & Edson, LLP, Montpelier, and Thaddeus Lorentz of Lorentz, Lorentz & Harnett, Rutland, for Plaintiff-Appellant.

Eugene Rakow of Biederman & Rakow, P.C., Rutland, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

¶ 1. Mother appeals from a family court order awarding custody of the parties' minor child to father. Mother's claims of error consist of two basic contentions: (1) the court erred in failing to find that mother was the child's primary care provider, and to accord that fact sufficient weight and deference in its decision; and (2) the court impermissibly relied on mother's relocation out of state in its decision. We affirm. ¶ 2. Although never married, the parties lived together for several years in Rutland, and had a child, born in April 1996. In May 1999, the parties separated. In October, they stipulated to a temporary court order awarding parental rights and responsibilities. The order provided that mother would retain physical rights and responsibilities, and the parties would share legal custody. Father was afforded substantial visitation, consisting of two weekdays, one overnight on weekends, and portions of holidays, vacations, and birthdays.

¶ 3. Although the parties reunited in December 1999, they separated again in March 2000, whereupon they reverted to the provisions of the temporary order. Evidence showed, however, that father spent considerable time with the child beyond that specified in the order, including two days on weekends and other occasions when mother was unavailable. Also at this time, mother became acquainted through the Internet with a man named Maco Stewart, who resides in Los Alamos, New Mexico. In June, after two in-person meetings with Stewart in April and May, mother moved with the child to Stewart's residence in New Mexico. Father thereupon filed a contempt motion for interference with visitation, and mother filed a motion to modify parent-child contact.

¶ 4. Following an evidentiary hearing, the court issued a written decision in March 2001. The court observed preliminarily that the October 1999 order was designed to be temporary. Therefore, the court defined its task as determining the custody placement that would serve the child's best interests, rather than whether there had been a substantial change of circumstances.¹ The court proceeded to review the statutory factors set forth in 15 V.S.A. § 665(b). The court found that both parties had the ability and disposition to provide the child with love, affection and guidance, to provide for the child's present and future developmental needs, and to foster a positive relationship with the noncustodial parent. The court further found that mother "was the primary care giver during the child's first two years of life, although this has changed over time to become more equal." As to the parties' ability to provide the child with a safe and stable environment, and the child's relationships with others who may affect him, the court found that the evidence favored father. The court noted that father had held the same job for over nine years, was well-settled in his life and home, and had a network of family and friends actively involved with the child. The court further found that the child enjoyed good relationships with family and friends in the State of Vermont. Mother, in contrast, had recently moved to New Mexico, without prior notice to father or to the child's school or friends, in order to pursue a relationship with a man she had met several months earlier on the Internet and with whom she had spent little time. The man had recently moved out of his own marital home, and was in the process of obtaining a divorce. Mother was not employed in her new home, had no family in New Mexico, and few friends. The circumstances suggested, in the trial court's judgment, a lack of stability when compared with father, and supported the conclusion that father "can and will be better able to provide for [the child] on a daily basis in the future."

¶ 5. Based on these findings, the court concluded that the child's best interests would be served by awarding physical rights and responsibilities to father, and so ordered. By agreement of the parties, the court ordered shared legal rights and responsibilities. Mother was awarded substantial visitation, within the logistical limitations, including eight weeks during the summer, all of Christmas vacation, winter and spring vacations, and unlimited phone and e-mail contact. This appeal followed.

¶ 6. Mother's principal contention on appeal is that the trial court committed reversible error by failing to find that she was the primary care provider, and by further failing to accord that fact sufficient weight in its analysis. Our review of the court's findings and conclusion is deferential. "Given its unique position to assess the credibility of witnesses and weigh the evidence, we will not set aside the [family] court's findings if supported by the evidence, nor its conclusions if supported by the findings. In determining the best interests of the children in custody matters, the court may draw upon its own common sense and experience in reaching a reasoned judgment." Payrits v. Payrits, 171 Vt. 50, 53, 757 A.2d 469, 472 (2000) (internal quotation and citation omitted); see also Hoover v. Hoover, 171 Vt. 256, 258, 764 A.2d 1192, 1193 (2000) (trial court's findings must stand unless, viewing record in light most favorable to prevailing party, and disregarding modifying evidence, there is no credible evidence to support them).

¶ 7. Although mother asserts that the court made no finding identifying the primary care giver, the court, as noted, found that mother "was the primary care giver during the child's first two years of life, although this has changed over time to become more equal" between the parties. While open to some interpretation, the court's meaning is reasonably clear, to the effect that mother was initially the child's primary care provider but that over time father had assumed a substantial — possibly equal — role as caregiver. The court did not state precisely whether mother remains the primary care provider or whether both parties are now entitled to that label. See Payrits, 171 Vt. at 54, 757 A.2d at 473 ("We have never held ... that a court may not find that both parents qualify as the primary care provider or that neither parent so qualifies ...."). The finding, nevertheless, plainly addresses the issue and reasonably conveys the dynamic of the evolving family relationship as revealed through the testimony and exhibits. This is all that we require for purposes of appellate review. See Harris v. Harris, 149 Vt. 410, 414, 546 A.2d 208, 211 (1988) ("It is sufficient if the findings as a whole reflect that the trial court has taken the statutory factors into consideration, in so far as they are relevant, in reaching its decision.") (internal quotation and citation omitted).

¶ 8. Mother also contends the trial court erred because the evidence compelled an unequivocal finding that she was the primary care giver. Again, as reflected in the court's finding, the record reveals a more nuanced set of relationships. To be sure, father's testimony finds him continually assenting to counsel's suggestions that mother was the primary care provider. It is readily apparent, however, that the term did not have the same loaded meaning for father that it does for courts and lawyers. Thus, while father agreed at trial that mother was "the larger caregiver," he went on to explain in the same answer that "as [the minor] has gotten older, he's — you know, he comes right along with me pretty much wherever I go.... I mean, I've, I've done it all. I've changed diapers, fed, bathed, cleaned, everything...." The same qualified response recurs in father's later testimony, where he again assents to counsel's suggestion that mother was the primary care provider, but further explained, "we cooked meals, we bathe him; she woke him up in the morning. That's cause I was at work." (Emphasis added.)²

¶ 9. Extensive additional testimony supports the court's finding that although mother was initially the primary parent, father had taken an increasingly substantial role in caring for the minor. After the separation, as agreed by the parties, the minor spent Tuesday and Thursday, as well as Saturday through Sunday with father, and substantial additional time on outings, birthdays, vacations, and other occasions. Although mother claimed that the division of time was approximately 65% to 35% — if not more — in her favor, other witnesses testified that the division was more equal. It was also undisputed that mother had left the minor with father for four or five days in April 2000, when she went to New Mexico to meet the man with whom she had become acquainted on the Internet, and for another full week in May, when she went to Maine to meet the same man. Additional testimony also established that father and son were extremely close; that father was a loving, playful, and compassionate parent; and that the child was completely accustomed to having father care for him. Although mother cites her own and others' testimony suggesting that she, and not father, remained the child's primary care giver, this does not compel reversal of the court's finding, which was otherwise supported by credible evidence. Payrits, 171 Vt. at 52-53, 757 A.2d at 472. We thus discern no basis to disturb the court's finding that although mother was initially the primary care provider, the division of responsibilities had evolved over time to become more equal between the parties.

¶ 10. The additional weight to be accorded the primary care giver relationship depends on "the likely effect of a change of custodian on the child." I...