Price v. Price

Citation149 Vt. 118,541 A.2d 79
Decision Date24 December 1987
Docket NumberNo. 86-122,86-122
CourtUnited States State Supreme Court of Vermont
PartiesElise PRICE v. Stephen PRICE.

Edwin H. Amidon, Jr. and Heather R. Wishik of Langrock Sperry Parker & Wool, Burlington, for plaintiff-appellant.

Valerie White, Morrisville, for defendant-appellee.

Before ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

DOOLEY, Justice.

Plaintiff, Elise Price, appeals from an order of the superior court granting custody of the minor daughter of the parties to appellee, Stephen Price. Both parties sought a divorce in the superior court and contested the disposition of the property of the marriage, child support, custody and visitation. Only the court's order with respect to custody has been appealed. However, as noted below, the appeal necessarily involves the orders of the court with respect to visitation and child support.

The parties lived together until January of 1985, when plaintiff went for a visit to her parents' house in Connecticut, taking her two-year-old daughter with her. During this visit, plaintiff decided not to return to Vermont. Thereafter, attempts at reconciliation failed. The conflict between the parties grew as they were unable to work out the details of their separation, particularly with respect to custody and visitation. Plaintiff would allow the defendant to visit their daughter only at her parents' house in Connecticut and only when she or her parents were present.

Plaintiff filed for divorce in April seeking custody of the minor child. Defendant cross-filed for divorce, also seeking custody. A temporary custody and visitation order was entered in July awarding temporary custody to plaintiff, with visitation set forth for defendant on a month by month basis. The temporary order was constructed to allow limited visitation contact in the beginning leading up to a more general visitation scheme to allow defendant to take the child every other weekend.

The custody and visitation scheme continued to create conflicts. Defendant's job as a hotel manager made it difficult for him to make long-term commitments, or exercise visitation rights on a particular day. Plaintiff expressed frustration over deviations from the agreed upon schedule and, in general, would not agree to such deviations. As a result, defendant had less time with the minor child than originally contemplated.

The hearing on the merits was relatively brief in view of the issues separating the parties. Plaintiff's testimony centered on the reasons why she should be the primary custodian for the child. She also testified that defendant lacked judgment in caring for the child and that, as a result, she had been forced to restrict visitation. She detailed her frustrations about defendant's inability or unwillingness to visit the child as the order allowed.

Defendant's testimony covered why he would be a proper custodian of the child. He emphasized what he believed to be unreasonable conduct of the plaintiff in withholding unrestricted visitation. He explained how plaintiff's requirement of a very specific long-term visitation plan was inconsistent with his work responsibilities and made it impossible for him to engage in visitation.

The trial court awarded custody to defendant, concluding that this award was in the child's best interest. While the award is based on some forty findings, the major emphasis of the court's discussion appears to be the issue of visitation rights. The court concluded that the plaintiff had intentionally left the State of Vermont to frustrate any court order on visitation and custody. It further found that plaintiff had deliberately attempted to prevent visitation and that she would continue to prohibit visitation despite a court order. Thus, the trial court found that custody in defendant would provide "the best opportunity for fruitful and positive relation with both parents."

Plaintiff appeals from the order with respect to custody on five grounds: (1) the trial court erred in basing its custody award on plaintiff's decision to end the marriage; (2) trial court erred in basing its custody award on difficulties with visitation without finding that the difficulties impacted on the child's best interests; (3) the trial court failed to make findings on the best interests of the child generally and failed to make them on the specific factors listed in 15 V.S.A. § 652; (4) the findings and conclusions of the court are unsupported by the evidence; and (5) the trial court erred in failing to make findings on issues raised by plaintiff's requests for findings. We reverse and remand.

At the time of the trial court's decision in this case, the standards for determining custody were set forth in 15 V.S.A. § 652. 1 This statute required that the court "be guided by the best interests of the child." It was a codification of the preexisting standard adopted by this Court over many years. See, e.g., Jensen v. Jensen, 141 Vt. 580, 581, 450 A.2d 1155, 1155 (1982); Ohland v. Ohland, 141 Vt. 34, 39, 442 A.2d 1306, 1309 (1982); Korshak v. Korshak, 140 Vt. 547, 550, 442 A.2d 464, 466 (1982); Cameron v. Cameron, 137 Vt. 12, 14, 398 A.2d 294, 295 (1979); Lumbra v. Lumbra, 136 Vt. 529, 531, 394 A.2d 1139, 1141 (1978); Senesac v. Senesac, 135 Vt. 24, 25, 370 A.2d 214, 215 (1976).

The statute set forth four nonexclusive factors that may be considered by the court. § 652(a)(1)-(4). The court could, however, consider "all factors relevant to the best interests of the children." Bonanno v. Bonanno, 148 Vt. 248, 251, 531 A.2d 602, 604 (1987).

The trial court has wide discretion in evaluating the facts and circumstances bearing on the best interest of the child. We will not set aside a judgment solely because we would reach a different conclusion on the facts. Ohland v. Ohland, 141 Vt. at 39, 442 A.2d at 1309. Nor will we reverse unless the discretion is "erroneously exercised, or was exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence." Jensen v. Jensen, 141 Vt. at 581-82, 450 A.2d at 1156 (citations omitted).

We have, however, required that the findings and conclusions state the findings critical to the disposition of the case and the basis of the decision. See Mayer v. Mayer, 144 Vt. 214, 216-17, 475 A.2d 238, 239-40 (1984). We will not speculate on the basis for the findings and conclusions. Id. at 216, 475 A.2d at 239-40. With these standards in mind, we review the decision of the trial court in light of the claims of the plaintiff.

Plaintiff's first claim is that the trial court based its custody conclusion in part upon its determination that plaintiff was at fault for the breakup of the marriage because she moved out of the home without a good explanation. The evidence in the case showed that the plaintiff decided to separate from defendant at least temporarily while on a visit to her parents' home in Connecticut. Attempts to reconcile failed and plaintiff has continued to reside at her parents' home with the expectation she will set up a permanent residence nearby.

Neither party raised the issue of fault for breaking up the marriage. The presiding judge attempted to establish it, however, by questions to each of the parties and found that "a ... review of the evidence fails to demonstrate a single, credible reason justifying her leaving." Later findings and conclusions have direct or indirect allusions to the fault of the wife--for example, the court found that plaintiff had absconded with the child out of the jurisdiction.

The relative fault of the parties in terminating the marriage is not relevant to the determination of custody between them. The relevant cases and the statute as it then existed are clear that the determination must be made on the basis of the best interest of the child at the time of hearing. The purpose of custody award is not to "punish or reward one parent for real or supposed derelictions." Curless v. Curless, 708 P.2d 426, 430 (Wyo.1985). See Korshak v. Korshak, 140 Vt. at 552, 442 A.2d at 467 (act of "child snatching" does not prevent custody award to parent who committed the act because it does not necessarily have bearing on the welfare of the child). See also J.B. v. A.B., 161 W.Va. 332, 345, 242 S.E.2d 248, 256 (1978) (child custody award should not be to punish the offending spouse because "one may also punish the innocent child").

Even if fault were relevant, the evidence and findings here do not support a conclusion that plaintiff was at fault. Under Vermont's no-fault divorce law, a divorce is available if the parties have lived apart for six consecutive months and the resumption of marital relations is not reasonably probable. 15 V.S.A. § 551(7). In Emmons v. Emmons, 141 Vt. 508, 450 A.2d 1113 (1982), this Court held that a finding of fault based on the sole fact that the spouse left the homestead "would substantially circumvent the no-fault divorce provision." Id. at 511, 450 A.2d at 1115. The Court was particularly concerned that neither spouse would be willing to leave the home, even after the marriage was irretrievably broken, for fear that it would be used against the spouse in dividing the marital property. The Emmons holding was recently reaffirmed in Cleverly v. Cleverly, 147 Vt. 154, 157, 513 A.2d 612, 614 (1986).

Plaintiff's actions in terminating the marriage in this case go no further than those in Emmons or Cleverly. Thus, her actions could not be considered as fault bearing on any of the issues in the case.

Defendant argues that the court's fault determination does not warrant reversal because it is not clear that the custody holding was based on the fault determination. We agree that although the court alluded to plaintiff's action in leaving the home in a number of findings and conclusions, it is not clear that the court determined custody on this basis. This is because the court did not clearly specify the facts it relied upon...

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