Root v. Root, 04-015.

• Decision Date: 02 August 2005
• Docket Number: No. 04-015.,04-015.
• Parties: Susan Connal ROOT v. A. Kenneth ROOT.
• Court: Vermont Supreme Court

882 A.2d 1202

Susan Connal ROOT v. A. Kenneth ROOT.

No. 04-015.

Supreme Court of Vermont.

August 2, 2005.

Present: DOOLEY, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned, and GIBSON, J. (Ret.), Specially Assigned.

ENTRY ORDER

¶ 1. Mother appeals from the family court's order finding her in contempt and modifying father's spousal maintenance obligation. We affirm the court's contempt finding but reverse its modification order.

¶ 2. Mother and father divorced in February 2000 after approximately sixteen years of marriage. Mother was awarded sole legal and physical parental rights and responsibilities for the parties' four minor children. Father was granted liberal parent-child contact. The final divorce order required that the parties mediate any disputes involving the parent-child contact schedule. At the time of their divorce, both parties resided in Killington, Vermont. Father was employed as a sales associate with Killington Valley Real Estate; mother had not worked outside the home for approximately thirteen years.

¶ 3. The parties had significant marital debt as well as several income-producing assets. One such asset was a parcel of property, referred to as the Bigelow Drive property, which contained both commercial and residential space. At the time of the final divorce order, Alan Neveu was operating a ski rental shop in the commercial space and paying $1298 in monthly rent. Mr. Neveu was also paying the parties approximately $2700 per month on a promissory note, which was to be paid in full on November 30, 2000.

¶ 4. Father was ordered to pay mother monthly rehabilitative maintenance between December 1, 2000 and December 31, 2005 as follows: $1500 directly from father; $1298 in commercial rent from the Bigelow Drive property; and $450 in rent for an apartment at the Bigelow Drive property. The court stated that father could keep any increase in rental income from these properties but conversely, should the rental incomes decline, he remained obligated to pay the amounts set forth in the order. The court indicated its expectation that father's income would increase during this five-year period and mother would obtain wage-producing income.

¶ 5. In August 2001, mother relocated to Connecticut with the children without consulting father. Father filed an emergency motion to compel mother to comply with the parent-child contact schedule set forth in the final divorce order, and he asked the court to hold mother in contempt for deliberately violating the order. Mother then filed a motion to enforce father's outstanding spousal maintenance obligation and to hold him in contempt. Father responded with a motion to modify his maintenance obligation, asserting that he no longer had the ability to pay rehabilitative maintenance as set forth in the final divorce order.

¶ 6. Father made the following arguments in support of his motion to modify. At the time of the final divorce hearing, the Bigelow Drive commercial premises had been rented to Alan Neveu for $1298 per month. Father believed that Mr. Neveu would renew the lease but Mr. Neveu did not do so, and the lease expired on November 30, 2000. By that time, it was too late to rent the premises to another tenant so father reinstituted the ski rental business and ran it himself through the winter of 2000-2001. Although the ski rental business produced revenues, it barely broke even. As a result, father had not received rent for the commercial premises, and his revenues from the ski business were insufficient to pay the rental equivalent portion of his maintenance obligation that had previously been paid by Mr. Neveu. The abandonment of the ski rental business by its former tenant was unanticipated by father, and it constituted a real, substantial, and unanticipated financial change since the final divorce order. Father also maintained that because of a downturn in the real estate market, he had fewer commissions available to him, which also constituted a real, substantial, and unanticipated change in circumstances.

¶ 7. After four days of hearings, the court issued an order finding mother in contempt and reducing father's maintenance obligation. As to the first issue, the court explained that under the terms of the parties' final divorce order father had been granted visitation every other weekend, and on Monday and Wednesday evenings, with an overnight stay on Wednesdays. The order also provided that the children could telephone either parent as they wished. Mother left Vermont with the children in August 2001; she did not discuss her move with father beforehand, she did not file a motion to modify the parent-child contact order, and she did not engage in mediation as required by the divorce order. The court rejected mother's assertion that she had made a last-minute decision to relocate, finding her testimony not credible. The court found that Judge Cohen had ordered mother to comply with the existing contact order at an August 2001 hearing, where mother participated by telephone. Mother did not comply with the contact order, however, and father was routinely unable to parent the children on a regular schedule without court intervention. Mother also put a block on her telephone, which prevented the children from calling father.

¶ 8. In reaching its conclusion, the court recognized the financial realities that had precipitated mother's move, but it found that this did not provide a basis for mother to relocate without first addressing how father would exercise his right to parent the children. The court explained that the parties' final divorce order had contemplated that mother would attempt to subvert father's parenting of the children, which was why the order included a mediation provision. The final order also contained a detailed parenting schedule to limit the need for any "negotiation" between the parties. The court concluded that mother was aware of the terms of the final divorce order and its parent-child contact provisions, and she had intentionally prevented father from parenting the children in accordance with that schedule. The court also found that mother was aware of Judge Cohen's verbal order directing that parent-child contact would continue as set forth in the final order and she had intentionally violated that order as well. The court found that mother's actions constituted clear and substantial violations, and it therefore found her in contempt. ¶ 9. The court also granted father's motion to modify spousal maintenance after finding that there had been a real, substantial, and unanticipated change in father's financial circumstances since the final divorce order. The court explained that a partial source of father's maintenance payment had been rental payments from Mr. Neveu, and this income source had ceased in November 2000 when Mr. Neveu failed to renew his lease. The court stated that while father had taken over the ski rental business from Mr. Neveu, he had not had sufficient time to market it during the 2000-2001 season and the business had broken even. The court also found that the final divorce order contemplated that father's income from real estate commissions would increase over the five-year period of rehabilitative maintenance, and the evidence showed that his income from the real estate business had decreased in 2001. The court noted that the final divorce order also contemplated that mother would obtain outside employment to supplement her income. The court found that mother had not made any effort to obtain job skills while living in Vermont, and she continued to assert that she could not parent and work at the same time.

¶ 10. As to father's income, the court made the following specific findings. Father's gross income in 2000 was $53,717, $45,000 of which was from real estate commissions. In 2001, father received approximately $29,500 in real estate commissions. Relying on an exhibit prepared by father, the court found that father had received $16,000 in net income from his ski rental business between June 2001 and April 2002. The court concluded that father had less income than he did in 1999 because the promissory note payments from Mr. Neveu had ceased. As noted above, the court also found that the income from the commercial rental of the Bigelow Drive property had ceased in November 2000. Adopting a May 2001 finding by a magistrate, which was made in connection with child-support proceedings, the court concluded that father's current income from all sources was approximately $4300 per month. After reviewing father's expenses, the court concluded that father had the financial ability to pay $850 per month in rehabilitative maintenance. The court also retroactively reduced father's maintenance obligation by $1298 per month between March 2001 and January 2003, which represented the commercial rent from the Bigelow Drive property, and it reduced father's $1500 per month payment to $850 as of April 2001. Mother appealed.

¶ 11. We first address mother's challenge to the court's contempt finding. Mother maintains that she should not have been found in contempt of Judge Cohen's verbal order because she was not present at the hearing and she had no knowledge of the order. She also argues that it was physically and financially impossible for her to comply with the parent-child contact provisions of the final order, and the court therefore erred in finding her in contempt.

¶ 12. Contempt proceedings in family court are governed by 15 V.S.A. § 603 and Rule 16 of the Vermont Rules for Family Proceedings. The family court may hold a parent in contempt if it finds a clear and substantial violation of a court order. V.R.F.P. 16(b)(1), (5). We will reverse an order of contempt only if it is shown on appeal that the court abused its discretion by issuing the order. Hunt v. Hunt, 162 Vt. 423, 436, 648 A.2d 843, 853 (1994). The court did not abuse its discretion here.

¶ 13. First, mother's...