Sochin v. Sochin, No. 2004-271

• Docket Nº: No. 2004-271
• Citation: 872 A.2d 373
• Case Date: March 23, 2005
• Court: United States State Supreme Court of Vermont

872 A.2d 373

Gregory Sochin
v.
Lea Ann Sochin

No. 2004-271, December Term, 2004

Supreme Court of Vermont

March 23, 2005

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.¹ 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...