Rogers v. Parrish, 05-354.

• Citation: 923 A.2d 607,2007 VT 35
• Decision Date: 04 May 2007
• Docket Number: No. 05-354.,05-354.
• Court: Vermont Supreme Court
• Parties: Christopher ROGERS v. Carla PARRISH.

923 A.2d 607

2007 VT 35

Christopher ROGERS v. Carla PARRISH.

No. 05-354.

Supreme Court of Vermont.

May 4, 2007.

Rebecca G. Olson and Brice C. Simon of Olson & Simon, PLC, Stowe, for Plaintiff-Appellee.

Benjamin W. King of King Lashman & King, PLLC, Burlington, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. BURGESS, J.

In Hawkes v. Spence we addressed the "seemingly irreconcilable conflict" that arises when a "custodial parent's interest in building a new life with the children" in a distant location is "pitted against the noncustodial parent's interest in maintaining a close relationship with the children." 2005 VT 57, ¶ 1, 178 Vt. 161, 878 A.2d 273. While acknowledging that "there is no precise formula" for resolving such conflicts, we adopted a governing standard and a nonexclusive list of relevant factors that trial courts must apply in determining whether a reexamination of parental rights and responsibilities in such circumstances is justified. Id. ¶ 13. Here, we are confronted with yet another difficult relocation dispute between two loving, capable parents, both of whom are intent on maintaining their current contact with the child, yet only one of whom can prevail. Such cases underscore yet again that this area of the law is not susceptible to precise formulas, and that we must permit trial courts — guided by the principles set forth in Hawkes — the latitude to exercise their discretion to reach reasonable decisions. As explained more fully below, that is what occurred here. Accordingly, we affirm the judgment.

¶ 2. The record evidence may be summarized as follows. The parties were married in 1996 and divorced in October 2003. They have two children who were approximately three years old and fourteen months old at the time of the parties' separation in October 2002, and six and four years old at the time of the proceedings below. The divorce judgment incorporated a stipulation between the parties granting mother sole physical rights and responsibilities and providing for shared legal rights and responsibilities. The judgment also accorded father substantial parent-child contact. In addition to visitation every other weekend from Friday until Monday evening, and off-weeks from Tuesday until Wednesday evening, it authorized father to pick the children up from daycare on a daily basis and bring them to mother's home, where he cared for them until she arrived from work. In addition, father testified, and the court found, that father made considerable efforts to see the children on other occasions, staying with neighbors and friends near the marital home (which father had conveyed to mother pursuant to the divorce stipulation), and spending time with the children during days off from his job as a police officer with the Stowe Police Department.

¶ 3. Father testified, and the court found, that mother's job as the comptroller of a company in Burlington made it difficult for her to arrive home until after 6:00 p.m., which in turn made it impossible for father to pick up the children daily from daycare and arrive for his police shift on time. Father advised that he could no longer do the daily pickups. As a result, in June 2004, mother moved from Morrisville to Vergennes to shorten her commute time. Thereafter, father's time with the children decreased. According to mother, this was because father no longer wished to exercise all of his visitation rights, while father contended that mother denied him visitation. Finding mother's excuse incredible for denying father's Thanksgiving visit so she could take the children to see her boyfriend's parents in Michigan, the court further found it was mother, and not father, who initiated the lapse in father's visitation.

¶ 4. In November 2004, mother informed father that she intended to remarry and move with the children and her new husband, an Army sergeant then stationed in Vermont, to North Carolina. Father subsequently moved to modify custody based on mother's move to Vergennes and the disruptions that this had occasioned in the children's lives, including a change of daycare providers and reduced contact with father and his family, as well as on mother's contemplated move to North Carolina. Mother, in response, filed a cross-motion to modify custody and parent-child contact, seeking sole legal rights and responsibilities and a new visitation schedule. In a supporting affidavit, mother denied she was considering a move to North Carolina, stating that her new husband "has no orders at present to be transferred to anywhere let alone North Carolina." Mother later filed an amended motion and supplemental affidavit, indicating that her husband's replacement had arrived in Vermont and it was expected that within about 30 days her husband would receive orders to report to a new duty station outside Vermont, possibly in the states of North Carolina, Colorado, or Washington. As to mother's earlier affidavit purporting ignorance about any orders requiring her husband to move, the court found that mother, contrary to her sworn declaration, was then aware that her husband had standing orders to leave Vermont and relocate within nine months at the latest.

¶ 5. An evidentiary hearing on the cross-motions was held in August 2005. Shortly thereafter, the court issued a written decision, concluding that mother's proposed relocation represented a real, substantial, and unanticipated change of circumstances justifying a reexamination of parental rights and responsibilities under 15 V.S.A. § 668, and that, under the criteria set forth in 15 V.S.A. § 665, the best interests of the children favored an award of sole physical and legal rights and responsibilities to father. In addressing the threshold question of changed circumstances, the court recognized that the issue was governed by the principles set forth in Hawkes v. Spence. There, we held that "relocation is a substantial change of circumstances justifying a reexamination of parental rights and responsibilities only when the relocation significantly impairs either parent's ability to exercise responsibilities the parent has been exercising or attempting to exercise under the parenting plan." Hawkes, 2005 VT 57, ¶ 13, 178 Vt. 161, 878 A.2d 273 (quotation and citation omitted).

¶ 6. Hawkes explained that in determining whether a parent's exercise of responsibilities will be substantially impaired, the court may consider, among other factors, "the amount of custodial responsibility each parent has been exercising and for how long, the distance of the move and its duration, and the availability of alternative visitation arrangements." Id. (quotation and citation omitted). Additionally, "the court should consider the amount of custodial responsibility that a parent has been actually exercising, rather than the amount allocated but not necessarily exercised under a court order." Id. (quotation and citation omitted) (emphasis added).

¶ 7. The trial court here systematically considered each of the foregoing factors. As to custodial time, the court found that, although mother had been granted sole physical rights and responsibilities, father had "maximized his contact with the children such that he had them in his care almost as much as mother." Next, the court found that the distance and duration of mother's proposed move to a military posting out of state were extensive, and would substantially affect the children's ability to maintain their current relationship with father and his family in Vermont. Finally, the court found that mother's proposed summer and holiday visitation schedule with father would significantly diminish his contact with the children and "negatively impact their relationship." Indeed, given its findings that mother previously denied father's visitation rights, the court justifiably expressed "some concerns that an alternative visitation order would not be adhered to by mother."

¶ 8. The court thus determined that "each of the Hawkes factors, as well as many others, support the court's conclusion that the proposed relocation is a real, substantial and unanticipated change in circumstances requiring the court to consider whether modification of the parties' parental rights and responsibilities is appropriate." Turning to that question, the court remarked that father bore "a heavy burden of proof," presumably in reference to the "high hurdle" faced by a noncustodial parent "in justifying the violent dislocation of a change in custody from one parent to the other" when the change is "based solely on the custodial parent's decision to relocate." Hawkes, 2005 VT 57, ¶ 11, 178 Vt. 161, 878 A.2d 273. "On the other hand," the court correctly observed from Hawkes, "when childrearing and its concomitant decision-making are shared, relocation to a remote location by one parent requires at the very least a reassessment of the custodial arrangement and, because of the practicalities involved in shared parenting, will often necessitate a change in custody." Id. ¶ 12. The court also noted that father's motion was not based solely on the proposed relocation, but also on a general breakdown in the parties' relationship, mother's interference with father's visitation and a concern that the children would continue to move every three years if left in mother's physical custody.

¶ 9. Proceeding to apply the factors of 15 V.S.A. § 665(b), the court found both parents were close to the children and were able to provide them with love, affection, and guidance, as well as a safe and nurturing environment, and that these factors were therefore evenly balanced. The court placed considerable emphasis, however, on the criterion addressed to the children's adjustment to their home, school, and community — particularly in Morrisville where they had lived near father prior to the move, attended day care, and been surrounded by friends and family. The court noted father planned to...