Stearns v. Stearns

• Decision Date: 17 March 1971
• Docket Number: No. 35-69,35-69
• Citation: 129 Vt. 264,276 A.2d 494
• Parties: Martha G. STEARNS v. Harold D. STEARNS.
• Court: Vermont Supreme Court

Page 494

276 A.2d 494

129 Vt. 264

Martha G. STEARNS v. Harold D. STEARNS.

No. 35-69.

Supreme Court of Vermont.

March 17, 1971.

Kolvoord & Overton, Essex Junction, for plaintiff.

Wool, Agel, Murdock & Kittell, Burlington, for defendant.

Before HOLDEN, C. J., BARNEY, SMITH and KEYSER, JJ., and HILL, superior judge.

HILL, Superior Judge.

The petitioner-appellee, Mrs. Martha G. Stearns, initiated a contempt petition alleging that the Appellant failed to comply with the 8th paragraph of the decretal order of the Essex County Court, whereby the parties were divorced. This paragraph provided in part as follows:

'shall pay or cause to be paid the sum of Five Thousand Dollars ($5,000) per year or necessary part thereof, as required for medical and dental assistance, psychotherapy and psychiatric treatment, special education, and other special requirements, and transportation in connection therewith as prescribed by professional persons for Harold Stearns, II. This program shall be reviewed at the end of three (3) years.'

This provision concerns a young son of the parties who has been suffering from severe emotional disorders since early childhood. As a result he has been undergoing a continuing program of psychiatric and other special therapeutic treatment.

It was the failure or refusal on the part of the Appellant to pay certain bills representing the expenses of these treatments that led to the finding of contempt by the court below. That Court found that bills presented within the annual limitation set out in the decretal order and not paid by the Appellant totaled Seven Thousand Three Hundred Nineteen Dollars and Forty Cents ($7,319.40). The Court directed that the Appellant purge himself by the payment of this sum together with the payment of Fifteen Hundred Dollars ($1,500.00) to be applied upon the costs, expenses and attorney's fees for Mrs. Stearns' prosecution of the petition.

Findings of Fact were made by the Court below. It is from Findings of Fact Nos. 13, 19, 36 and 39 that this appeal is taken. The Appellant contends there is no reasonable evidence to sustain these findings.

It is established by rule of law in countless decisions since 1824, as well as by statute, that findings of fact must stand if there is any credible evidence fairly and reasonably supporting them. 12 V.S.A. 2385; Guilmette v. Franklin Realty, 127 Vt. 130, 136, 241 A.2d 323.

By Finding No. 13 the Court reported: 'During the year 1965 the petitioner Martha G. Stearns procured the services of one Helen Tickey to stay with Harold Stearns II and care for him while she, Mrs. Stearns, pursued advanced studies and engaged in gainful employment. Mrs. Tickey transported Harold Stearns II to schools, prepared meals, and gave him his medicine. She was present, caring for Harold Stearns II, whom we find required care at that time when he was not entered into the Mary Haven School, in which he was later enrolled. She was not a psychiatric aide, registered nurse, or licensed practical nurse, but we find that she rendered services which were vitally necessary for the care, comfort, welfare and security of Harold Stearns II, and where such as would come within the contemplation of the original order in the premises. For these services Martha G. Stearns paid the sum of Thirteen Hundred Ninety-three Dollars ($1,393.00) to the said Helen Tickey.'

The language of Paragraph 8 in the original 1965 decree is very broad and encompasses services and treatments beyond strictly medical, dental and psychiatric therapy. It also includes the following language:

'* * * special education, and other special requirements, and transportation in connection therewith as prescribed by professional persons * * *'

This Court said in Crawford v. Lumberman's Mutual Casualty Co., 126 Vt. 12, 16, 220 A.2d 480, 483:

'Although this Court has the power to set the lower court's findings aside, we will not do so where the evidence is in conflict, merely because the evidence preponderates against them.'

The Appellant in his brief admits that there was a good deal of conflicting testimony concerning the duty of Helen Tickey. In addition the transcript discloses that when the Court questioned the Appellee with respect to the services of Helen Tickey she testified as follows:

'when it became evident that in order to keep any family together I would have to go to work, I went to work, and I had to hire somebody to take care of the children, and in particular to take Jack to special schools, to special doctors, to whatever the experts in this field suggested was best for him. I have always had somebody, some competent person in charge of the children, up until the time that I ceased working in September 1966. This fact has always been known in my statement to the Internal Revenue. There always has been a statement indicating a responsibe person was in charge for the child care necessary for a child like this, and it was signed by a medical doctor who was supervising his medical care.'

This uncontradicted testimony reasonably substantiates the findings of the lower Court. We find no cause for changing this determination of fact.

Appellant has briefed the arguments relating to findings of fact No. 19 and No. 36 as constituting a single factual issue. These findings relate to the failure of Appellant to have paid certain expenses including those involving the costs of tuition, board and room and medical treatment that were incurred by Appellee on behalf of Harold Stearns II at the Mary Haven Residential and Day School for Exceptional Children.

These Findings of Fact are as follows:

'19. Harold Stearns II was admitted to the Mary Haven Residential and Day School for Exceptional Children September 11, 1966, and was in such school through the month of June, 1968. The total amount due this school (Petitioner's A) in the amount of twenty three hundred seventy dollars ($2370.00) This exhibit also shows that the State of New York paid tuition in the amount of two thousand dollars ($2,000.00) and there is a credit of six hundred thirty dollars ($630.00) on the total room, board, and medical; this amount of $630.00 was paid by Mrs. Stearns.

36. The total amount which we find that Harold D. Stearns is in contempt for failure to pay is as follows:

Forty four hundred seventy-three dollars and fifty cents ($4473.50) to the...