Sundstrom v. Sundstrom, 2003-423.

• Decision Date: 21 October 2004
• Docket Number: No. 2003-423.,2003-423.
• Parties: Richard SUNDSTROM v. Bobbi Jo SUNDSTROM.
• Court: Vermont Supreme Court

865 A.2d 358

Richard SUNDSTROM v. Bobbi Jo SUNDSTROM.

No. 2003-423.

Supreme Court of Vermont.

October 21, 2004.

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

ENTRY ORDER

¶ 1. Mother appeals from the family court's order modifying parental rights and responsibilities, and awarding custody of the parties' two minor children to father. The court found that mother's "on-going, intentional, mean-spirited violations" of court orders concerning parent-child contact constituted a material and substantial change of circumstances, and the harm caused by mother's obstruction of visitation outweighed the harm that could be caused by a change in custody. The court thus concluded that the children's best interests required that they be removed from mother's home and placed with father. On appeal, mother argues that the court abused its discretion in awarding custody to father, and committed various procedural mistakes that constitute reversible error. We affirm in part, and reverse in part.

¶ 2. To place the court's June 2003 order in its proper context, we first review the procedural history of this case. Father and mother divorced in September 1998. At the time of their divorce, they agreed that mother would have sole parental rights and responsibilities over the parties' two children, JoAnn, born in May 1992, and Cameron, born in April 1994. They also agreed that father would have contact with the children every other weekend, two weeks in the summer, and shared holidays. Pursuant to the final divorce order, father was also awarded "reasonable telephone contact" with the children, which "[u]nder normal circumstances . . . should be one telephone call per day."

¶ 3. Mother and father's relationship deteriorated significantly after the divorce, and in 1999, father filed a motion to modify parental rights and responsibilities. Although the court denied the motion, it found that mother had been engaging in "a pattern of behavior" that had frustrated father's ability to have parent-child contact. The court found the record replete with examples of mother's negative behaviors, including her repeated interference with father's attempts to contact the children by telephone. The court explained that, on those occasions when father was able to reach the children, mother would typically be in the background telling the children what to say and often making snide remarks about father or his girlfriend. The court also found that mother had involved the children in adult issues, and she had sabotaged the children's relationship with father's new girlfriend. Mother acknowledged that she needed to get better control of her anger.

¶ 4. The court found that, "remarkably," mother's negative behavior had not yet poisoned the children's relationship with father, although it found that her behavior had begun to have an adverse impact on the children, particularly JoAnn. The court agreed with expert testimony "that a continuation of these unacceptable behaviors by mother could bring about significant erosion of father's relationship with the children and have negative long-term effects on the children."

¶ 5. Based on its findings, the court concluded that mother had substantially interfered with father's relationship with the children. The court concluded, however, that it was not in the children's best interests to transfer custody to father. The court explained that the children had not yet been alienated from father, although the potential existed. Additionally, the court found that mother had always been the children's primary caretaker, and in all other respects was a fit parent. The court indicated its belief that mother was capable of changing her behavior. The court also found it significant that father's job required him to be away from home during virtually all of the children's waking hours, and thus, if it transferred custody to father, father's girlfriend would effectively become the children's primary care giver. Therefore, on balance, the court concluded that it was not in the children's best interest to transfer custody to father.

¶ 6. The court warned mother, however, that it viewed the situation as extremely serious, and that if mother persisted in her negative behavior, "the court will have no choice but to change custody in the children's best interests." The court ordered mother to stop denigrating father and his girlfriend in the children's presence, and stop interfering with the children's relationship with father and his girlfriend. The court also ordered mother to participate in counseling to address her anger and bitterness resulting from the divorce, and her refusal to accept that father's girlfriend was now part of the children's lives.

¶ 7. Problems between mother and father continued, and both parties filed numerous motions with the court. At father's request, the court entered several orders setting forth a more specific telephone contact schedule.¹ In 2001, father again moved to modify parental rights and responsibilities, complaining that mother continued to interfere with his relationship with the children. In July 2001, after a hearing, the court denied father's motion. The court concluded that all of father's complaints of interference arose from mother's refusal to acquiesce to his demand for a larger role in the care of the children than was permitted by the final divorce order. The court found no change in circumstances that would warrant a change in custody. We affirmed the family court's order in October 2002, although the appeal did not reach the merits.²

¶ 8. After this Court's entry order, and in light of the over one/hundred post-judgment motions that the parties had filed, the family court asked the parties to indicate which issues remained to be addressed. In letters to the court, both father and the attorney for the children indicated that father's motion to modify parental rights and responsibilities, which had been filed on March 6, 2002, remained outstanding. Both parties also indicated that a motion for contempt that had been filed by guardian ad litem Sandy Hutchins on February 14, 2002, remained to be heard as well. On December 13, 2002, the court issued an entry order stating that these motions would be considered at the motions hearing. In a pro se filing dated December 18, 2002, mother asked the court to dismiss father's motion to modify. The court denied mother's request on January 13, 2003. On the same date, the court issued an entry order indicating that four new motions that mother had filed on December 30, 2002 would be heard with the motions that had already been scheduled. In January 2003, mother filed another pro se document asking the court if a revision of a family court order required an unanticipated and substantial change of circumstances, and if so, what the court believed these changes were so that she could prepare for the court hearing. The court denied mother's request, explaining that it did not provide legal advice to the parties.

¶ 9. A hearing on the pending motions was held in April 2003, and both parties appeared pro se. The court divided the time allotted for the hearing between the parties. Father went first, and after his direct testimony, mother sought to cross-examine him. The court informed mother that it would allow father to present all of his evidence, and then mother and the attorney for the children could cross-examine him. Mother cross-examined father after he had presented his case. Guardian ad litem Sandy Hutchins, who had worked extensively with mother and father, but who had not met with the children, was present at the hearing. At the hearing's close, the court asked her if she had any comments. The guardian replied that her recommendation "then and now is that [father] have full custody of his children." Mother did not object to the guardian's testimony.

¶ 10. In a June 2003 order, the court granted father's motion to modify parental rights and responsibilities. The court found that since father's last motion to modify, mother had continued to interfere with father's telephone contact with the children. The court explained that when father tried to call the children every day, as permitted by the divorce decree, one of several things happened: there was a busy signal; the phone would go unanswered; mother would answer and say the children were unavailable; the call would be automatically forwarded to a business; or mother would answer and tell father that until he paid her all the money she felt she was due, he would never get to talk to the children. The court found that when father had spoken to the children, he heard mother on many occasions in the background telling the children what to say. Mother also stated to father, when he asked her when a good time to call would be, "There is no good time to call. Stop calling us and move on with your life."

¶ 11. The court found that in the weeks before the hearing, a new development had occurred: mother would place the children on the phone and tell father that he needed to get a job and pay mother. Father presented two tapes of the children making the following statements to him. "Hi Dad, leave us alone. Pay your child support. Get a job, OK?" In March 2003, JoAnn stated "Pay your support, Dad." The court found it beyond doubt that mother told the children to make these statements to father, and explained that it was "entirely inappropriate for a parent to place a child in the middle of the parental dispute over child support or maintenance." The court also found that mother had attempted to keep father from attending First Communion for one of the children several months prior to the hearing by refusing to tell father when the ceremony was scheduled. Additionally, the court found that mother had filed a form with the children's school that listed her boy-friend as the children's stepfather, which meant that father was not permitted to...