S.B.L., In re

• Decision Date: 26 August 1988
• Docket Number: No. 84-578,84-578
• Citation: 553 A.2d 1078,150 Vt. 294
• Parties: , 57 USLW 2195 In re S.B.L.
• Court: Vermont Supreme Court

Page 1078

553 A.2d 1078

150 Vt. 294, 57 USLW 2195

In re S.B.L.

No. 84-578.

Supreme Court of Vermont.

Aug. 26, 1988.

M. Jerome Diamond and Suzanne R. Brown, Law Clerk (On the Brief), of Diamond & Associates, P.C., Montpelier, for appellant.

David C. Drew and Susan A. Davis, Law Clerk (On the Brief), Lyndonville, for appellee.

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

DOOLEY, Justice.

A grandfather appeals from a superior court order denying him custody of or visitation with his granddaughter, S.B.L. The defendant below, appellee here, is the natural father of S.B.L. We affirm the custody award and reverse and remand the order denying visitation.

S.B.L. was born in April of 1979 to a 17-year-old mother (mother) and a 20-year-old father (father) who were not married. The father and mother lived together for about 6 months after S.B.L.'s birth and then separated. S.B.L. and her mother went to live with her mother's parents (hereinafter grandparents). The father visited S.B.L. infrequently and apparently provided no support. The grandparents were actively involved in S.B.L.'s upbringing.

In October of 1982, S.B.L.'s mother died in an automobile accident. Subsequently, the grandfather applied to the probate court pursuant to 14 V.S.A. § 2645 to be appointed guardian of S.B.L. The father objected, at least so far as the guardianship would also give custody to the grandfather. The probate court initially entered a pro forma order to allow review in the superior court. The superior court, however, remanded for fact finding. Following the remand, the probate court took evidence and made extensive findings. The court denied the guardianship petition, leaving the father as the "natural guardian and custodian of his daughter" subject to certain specified rights of visitation in the grandparents. The grandfather appealed to the superior court.

The superior court treated the appeal as a custody case. In a notice of decision, the court indicated that it would grant custody to a nonparent third party "given proper grounds" where it found "extraordinary circumstances." Based on its findings that the father was the primary caretaker, was fit and that it would be in the best interests of S.B.L. to award custody to the father, the court determined that no extraordinary circumstances existed that would warrant an award of custody to the grandfather. Accordingly, the court awarded custody to the father. The court further concluded that "unrestricted visitation" by the grandparents should be ended, although it did not preclude future visitation "if the parties submitted themselves to counseling and the visits [were] monitored under professional supervision." However, the court did not believe that the evidence was adequate to allow it to fashion such a visitation order at that time.

Following the notice of decision, the court entered a judgment denying the grandfather's appeal from probate court so that "the custody of S.B.L. shall remain with her natural father" and denying all visitation rights to the grandparents. The grandfather appealed to this Court.

Before we reach the substantive issues raised by the grandfather, we must address a procedural issue. The evidentiary hearing in this case went on for five days. The stenographic notes of the last day of hearing are missing, however, and as a result there is no transcript available for that day. The grandfather's appellate counsel states that he was not trial counsel and does not know what occurred on that last day. He believes, however, that the court may have made oral findings on the record and the grandfather's trial counsel may have requested written findings. Because the superior court did not make any written findings, he argues that proper review is impossible and the only fair course of action is to reverse and remand for a new trial so that a proper record can be made for review.

Our rules provide remedies when a transcript is unavailable. V.R.C.P. 59(f) authorizes the trial court to set aside a judgment and grant a new trial where a material part of the transcript is unavailable without fault of the parties and the lack of the complete transcript prevents a party from "effectively prosecuting an appeal." In this case, appellant failed to make a motion in the trial court for relief under V.R.C.P. 59(f).

V.R.A.P. 10(c) provides that where a transcript is unavailable, the appellant may prepare a statement of "the evidence or proceedings from the best available means." The statement is served on the appellee who can object with the presiding judge in the trial court to resolve any differences. See also V.R.A.P. 10(e) (procedure for correcting any error in the record). There is no indication that appellant has pursued the procedure set out in V.R.A.P. 10(c). In fact, the appellant has failed to order a transcript even for the days for which a transcript is available, and there is neither an order from the superior court nor a stipulation of the parties dispensing with the requirement to provide a transcript of the proceedings for which one can be prepared. See V.R.A.P. 10(b).

As we noted in State v. Moquin, 135 Vt. 94, 96, 369 A.2d 1371, 1372-73 (1977):

The function of appellate ... review is not one of searching a record to find grounds to argue to this Court. It is to review the proceedings in the light of claims of error made at the trial in some form. Even those instances of so-called "clear error" generally are identifiable without requiring the reproduction of an entire trial record.

It is the burden of the appellant to demonstrate how the lower court erred warranting reversal. We will not comb the record searching for error. The appellant has failed to show that the loss of the transcript has clearly prejudiced him, has failed to use V.R.A.P. 10(c) to eliminate any potential prejudice, and is hardly in a position to claim prejudice when he has failed to order a transcript of those parts of the proceedings for which a transcript can be prepared. Accordingly, we will not reverse for a new trial because of the missing transcript.

Appellant grandfather raises two substantive issues on appeal: the trial court based its custody award on an erroneous construction of 15 V.S.A. § 652, the relevant custody statute; and the trial court failed to consider the right of the grandparents to visitation established by 15 V.S.A. § 1013. We need reach the latter issue only if we disagree with appellant on the custody issue. Moreover, there is some question whether the grandfather has a right to appeal the visitation order.

The resolution of the issues raised by the grandfather requires us to analyze a series of interrelated statutes in light of a factual pattern that has not formerly been before this Court. For the reasons stated below, we find that appellant's analysis of the statutory scheme is erroneous. Further, as often is the case with statutory construction, the meaning of our relevant statutes is not immediately clear and, in fact, a literal reading may produce a result contrary to the intent of the Legislature.

The instant case is novel because it is presented as a custody fight between a father of a child born out of wedlock, and a person who is neither the spouse of that party nor a parent of the child over whom custody is sought. As none of our modern cases involve parties of either of these classes, the presence of both as adversaries in a single case requires us to break substantial new ground. ¹

While we perceive this case as one requiring extensive analysis because of the issues involved, the grandfather argues it as a simple extension of Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23 (1985). In Paquette, which was a divorce proceeding, a divided Court held that the trial court erred in not awarding custody of a child to the child's stepfather rather than to the natural mother. The Court determined that such an award could be made if the natural parent is "unfit" and it is in the best interests of the child. 146 Vt. at 92, 499 A.2d at 30. Thus, while there is a presumption that it is in the best interests of the child to grant custody to a natural parent, the Court stressed that such presumption can be overcome "by clear and convincing evidence that the natural parent is unfit or that extraordinary circumstances justify an award of custody to a nonparent." Id. The grandfather argues here that Paquette controls but that the requirement of showing parental unfitness or extraordinary circumstances should be eliminated because it is not contained in the relevant statute, 15 V.S.A. § 652. ²

We find Paquette to have little bearing on the instant case. Paquette was a divorce case in which the custody dispute arose between husband and wife. Two statutes were involved in Paquette. The stepfather relied on 15 V.S.A. § 293, which authorizes a stepparent to bring a petition against the parent seeking a decree "concerning the care, custody, maintenance and education" of the child if the parties are living separately. The mother relied on the divorce custody statute, 15 V.S.A. § 652, ³ which authorizes a custody award for a "child of the marriage." In essence, the Court held that § 652 had to be read in light of the specific authorization of § 293 so that the stepfather could seek custody.

Neither of the statutes involved in Paquette apply here. In fact, we have no statutes that authorize a third party, such as a grandparent, to seek custody of a child. Specifically, the child custody standards of § 652, now 15 V.S.A. § 665, apply only in divorce or annulment proceedings, and not in a case such as this. Thus, the grandfather's argument that he can obtain custody based on a proper reading of § 652 must fail.

At this point, it is important to emphasize that this case began as a guardianship case, even though custody was the primary goal of the grandfather. Under our statute, the guardian...