Sochin v. Sochin, 2005 VT 36 (VT 3/23/2005), 2004-271, December Term, 2004

• Decision Date: 23 March 2005
• Docket Number: No. 2004-271, December Term, 2004,2004-271, December Term, 2004
• Citation: 2005 VT 36
• Court: Vermont Supreme Court
• Parties: Gregory Sochin v. Lea Ann Sochin

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2005 VT 36

Gregory Sochin v. Lea Ann Sochin

No. 2004-271, December Term, 2004

Supreme Court of Vermont

March 23, 2005

APPEALED FROM: Windham Family Court, Docket No. 2-1-02 Wmdm, Trial Judge: Katherine A. Hayes.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1. Mother appeals a Windham Family Court decision denying her motion to modify parental rights and responsibilities so that she could relocate to Florida with the parties' minor child. Because it is undisputed that mother's proposed relocation is a "real, substantial and unanticipated change of circumstances," 15 V.S.A. § 668, this case turns on a determination of the best interests of the child. The family court's evaluation of the factors contained in 15 V.S.A. § 665(b) is supported by the record, and, therefore, we will not disturb the court's conclusion that it is in the child's best interests to remain with father in Vermont. Accordingly, we affirm the court's decision to award primary legal and physical parental rights and responsibilities to father.

¶ 2. The parties were married in 1991, and have one child, Demetri, who was born in September 1998. Following their separation, the parties entered into an interim stipulation, filed with the family court in March 2002, providing for a shared custodial arrangement-Demetri would spend from 8:00 a.m. Thursday morning until noon on Sunday with father and from noon on Sunday until Wednesday at 4:30 p.m. with mother, with alternating custody on Wednesdays from 4:30 p.m. until Thursday morning. The parties have followed that contact schedule since the filing of the interim stipulation, and in fact began splitting Demetri's time between them roughly in half in March 2001 when the divorce action was filed.

¶ 3. The court issued a final divorce order in April 2003, awarding mother sole physical and legal parental rights and responsibilities, while maintaining the contact schedule from the interim stipulation. Mother appealed, and, while that appeal was pending, she moved in family court to modify the shared parent-child contact schedule to enable her to move to Florida to live for part of the year with her fiancé, who is employed principally in that state. Father opposed the motion and cross-moved for sole parental rights and responsibilities. Following a hearing, the court issued the decision currently on appeal, concluding that mother's planned move constituted a real, substantial, and unanticipated change of circumstances, and that the child's best interests required an award of primary parental rights and responsibilities to father, and substantial parent contact with mother during summers and holidays. For the reasons that follow, we now affirm.

¶ 4. The family court enjoys broad discretion in determining custody, and we accept its findings unless they are clearly erroneous. Payrits v. Payrits, 171 Vt. 50, 52-53, 757 A.2d 469, 472 (2000). We will disturb the family court's findings of fact only if, "viewing the record in the light most favorable to the prevailing party and excluding the effect of modifying evidence, there is no credible evidence to support the findings." Hoover v. Hoover, 171 Vt. 256, 258, 764 A.2d 1192, 1193 (2000). We will not overturn the family court's legal conclusions so long as they are supported by its findings. Payrits, 171 Vt. at 53, 757 A.2d at 472.

¶ 5. The legal framework for custody modification cases consists of a two-step inquiry. First, the party seeking to modify custody must demonstrate that the proposed modification is a "real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668. See Habecker v. Giard, 2003 VT 18, ¶ 5, 175 Vt. 489, 820 A.2d 215 (mem.) (characterizing "change of circumstances" as a "threshold showing"). In this appeal, neither party disputes the family court's conclusion that mother's proposed move to Florida would be a real, substantial, and unanticipated change of circumstances.

¶ 6. Next, the moving party must show that the proposed modification would be in the best interests of the child. 15 V.S.A. § 668; Habecker, 2003 VT 18, ¶ 5. In assessing the child's best interests, the family court must consider the nine factors contained in 15 V.S.A. § 665(b), and otherwise enjoys the broad discretion outlined above. Id. ¶ 10. As long as the court considers each factor, § 665(b) "imposes no specific requirement on how this consideration is to be manifested in the court's findings and conclusions." Mansfield v. Mansfield, 167 Vt. 606, 607, 708 A.2d 579, 581 (1998) (mem.). Further, the court "may draw upon its own common sense and experience in reaching a reasoned judgment" as to the best interests of the child. Payrits, 171 Vt. at 53, 757 A.2d at 472.

¶ 7. This Court has described a change in physical custody as a "violent dislocation," Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677, 680 (1988), and has required the noncustodial parent to prove that the child's best interests "would be so undermined by a relocation with the custodial parent that a transfer of custody is necessary." Lane v. Schenck, 158 Vt. 489, 499, 614 A.2d 786, 792 (1992). However, the trial court should evaluate the effect of a proposed relocation and determine whether a change in custody is warranted by examining the actual parenting arrangement experienced by the child and not the arrangement described in a prior court order concerning parental rights and responsibilities. Thus, where, as here, the parties share "childrearing and its concomitant decision-making," relocating to a distant place "requires at the very least a reassessment of the custodial arrangement and . . . will often necessitate a change in custody," especially when the parties are unable to share parenting responsibilities due to their own difficulties communicating. Hoover, 171 Vt. at 259, 764 A.2d at 1194. This follows because, where parents have shared parenting responsibilities over time and have both spent substantial time with the child, the child's loss from one parent's relocation is substantial regardless of which parent gets custody of the child.

¶ 8. This case required just such a reassessment of the custodial arrangement established in the divorce order. While the divorce order granted sole physical and legal responsibility to mother, it continued the parties' pre-existing contact schedule under which father and mother equally share time with Demetri. In ruling on the motion to modify custody, the family court noted that the parties have maintained this arrangement since March 2001. As a result of the virtually equal amounts of time each parent spent with Demetri for more than three years leading up to the modification decision, the loss to Demetri of either parent's presence would be substantial. See deBeaumont v. Goodrich, 162 Vt. 91, 102, 644 A.2d 843, 850 (1994) (recognizing that when divorced parents have spent roughly equal time with child, loss to child of either parent's presence is "very great"). Thus, the family court correctly framed its core task in this case as a reexamination of Demetri's best interests in light of mother's proposed move to Florida. See id. at 100, 644 A.2d at 849 ("The whole point of the modification process is that changed circumstances may have made the initial decision inappropriate, so a reexamination of the interests of the children is warranted.").

¶ 9. The family court evaluated Demetri's best interests properly, carefully assessing the factors contained in 15 V.S.A. § 665(b) in light of the evidence presented at the modification hearing and mother's proposed move to Florida. First, the court acted within its discretion in determining that several factors did not weigh in either party's favor. Under § 665(b)(1), the court concluded that both parties are devoted to Demetri and are equally able to provide him with love, affection, and guidance. Discussing § 665(b)(5), the court observed that each party wants Demetri to have a positive relationship with the other, but simultaneously wants to be his primary parent. Thus, the court concluded they are equally likely to "encourage regular and frequent contact with the other parent." Under § 665(b)(8), the court noted that both parties have failed to communicate effectively with each other and thus did not weigh this factor in either party's favor. As for § 665(b)(9), the court found it irrelevant because there was no evidence of abuse.

¶ 10. The court also determined that "the quality of the child's relationship with the primary care provider," § 665(b)(6), played no role in the decision because the parties had been sharing their time with Demetri equally since before the divorce order. Mother argues that the court abused its discretion by concluding that she was not the primary care provider because the court considered no new evidence and thus was bound by collateral estoppel from revising the divorce court's order. This argument fundamentally misapprehends the nature of these proceedings. "For purposes of a modification motion, of course, the most relevant period is that between the divorce and the filing of the motion to modify." deBeaumont, 162 Vt. at 101, 644 A.2d at 849. In other words, the court must reassess the divorce order's allocation of...