Thompson v. Pafundi

• Decision Date: 19 August 2010
• Docket Number: No. 09-397.,09-397.
• Citation: 2010 VT 80,8 A.3d 476
• Parties: Matoaka THOMPSON v. Jesse PAFUNDI.
• Court: Vermont Supreme Court

8 A.3d 476

2010 VT 80

Matoaka THOMPSON

v.Jesse PAFUNDI.

No. 09-397.

Supreme Court of Vermont.

Aug. 19, 2010.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, Associate Justices.

ENTRY ORDER

¶ 1. Mother appeals the Washington Family Court's award to father of physical and legal rights and responsibilities for the couple's minor daughter. On appeal, mother contends: (1) the court violated her due-process rights when, without notice to her, it converted a hearing to amend temporary parent-child contact into a final determination of parental rights and responsibilities; (2) the trial court's award of custody to father was a de facto award to the paternal grandparents; (3) the trial court erred in failing to find areal, substantial, and unanticipated change in circumstances before conducting the statutory analysis of the child's best interests under 15 V.S.A. § 665(b); (4) the trial court's findings were clearly erroneous and did not support the court's conclusions; and (5) the court erred in not providing an order for parent-child contact. Deferring to the trial court's broad discretion, we affirm.

¶ 2. The material facts are largely uncontested. The child was born July 27, 2008. Parents stipulated in December 2008 to a temporary order giving mother sole physical and legal rights and responsibilities for their daughter. Under that order, father was to have contact with the child six out of seven days a week with the possibility of increasing contact as the child grew older. Indeed, father spent increasing amounts of time with his daughter. By February 2009, the child and father spent "significant blocks of time" away from mother, sometimes for several days or up to a week. The child's paternal grandparents, who live in New York state, several hours drive from central Vermont, provided significant financial and child-care support. They often took care of the child when parents needed to work. In June and July 2009, the child spent as much time or more with father and father's parents than with mother.

¶ 3. Starting in early spring 2009, over a short period of time mother lost her driver's license for failure to pay fines and lost her waitressing job. Mother fell behind in her rent and utility payments, her car was repossessed, and she was forced to leave her apartment. At the beginning of summer 2009, mother decided to pursue her dressmaking ambitions by applying to a graduate program in costume design in California. In July 2009, she secured final admission to a selective theater-arts program at University of California at Long Beach, where she planned to move with her elder daughter from a previous relationship and the young child at the heart of this custody dispute.

¶ 4. On July 12, 2009, after returning from a month-and-a-half long trip to various rock concerts along the East Coast, mother informed father of her unilateral decision to move. She planned to depart August 12, 2009. On July 13, 2009, the day after telling father she intended to move, mother filed for an emergency modification of the parent-child contact laid out in the December temporary order and requested an expedited hearing. The trial court scheduled the expedited hearing for August 5, 2009. Mother also sought leave to participate by telephone in the final custody hearing, originally scheduled for September 1, 2009. In a letter to the court clerk, mother's trial counsel also suggested that the final hearing be moved forward to complete the matter before mother's departure. On July 16, 2009, father filed an emergency motion for an expedited final hearing and sought primary parental rights and responsibilities on the basis that mother's proposed move to California would damage his relationship with their daughter and destroy the strong bond the child had developed with her paternal grandparents. On August 4, after an unexpected cancellation on the court's afternoon calendar, the judge granted father's unopposed motion for a final hearing on parental rights and responsibilities. The final hearing was shifted to August 5, the same day mother's motion for modification had been scheduled.

¶ 5. At the start of the hearing, the judge conferred with counsel for both sides and then asked in open court if they were prepared to proceed with a "final" hearing. Neither party objected. Mother testified that she knew she and father had agreedonly to a temporary custody arrangement and that a final hearing would have to occur. In her testimony, mother expressed a desire to "deal with [the final determination of custody] all right now while I'm here [rather] than when I'm 3,000 miles away."

¶ 6. At the hearing, the trial court heard testimony indicating mother and father's early time together had been chaotic. They met while working at an inn in Stowe. Mother, then a waitress, and father, a bartender, drank and used marijuana and cocaine after work. On occasion they sold small amounts of marijuana, and they traveled outside the state to secure drugs. Although mother determined to stop using illegal substances once she found out she was pregnant, the trial court credited testimony that she continued to do so to the point that the couple discussed terminating the pregnancy. The trial court also credited cumulative evidence that, despite claims of sobriety-including testimony during the hearing-mother continues to use drugs recreationally. Father drank and continued to use drugs for a short time after the child was born. He has two convictions for driving under the influence. Father continues to drink moderately, but also continues to attend counseling even after completing a state requirement.

¶ 7. The trial court also heard testimony from a private investigator, whom the child's paternal grandparents had hired to trail mother to a summer concert. The private investigator indicated she had observed mother and her boyfriend smoke repeatedly from a small pipe, presumably containing marijuana, during the music concert. The court admitted into evidence still photographs extracted from a video taken by the private investigator at the concert. On the Friday before the hearing, father had observed drug paraphernalia in plain view in mother's apartment. Father also testified that he discovered what he believed to be a hit of LSD in mother's purse in the week before the hearing.

¶ 8. In its final order, the trial court determined that both parents had strengths and weaknesses, but that the interplay of statutory best-interest factors favored father overall. The trial court found that though mother had been the primary caregiver during the first six months, all other factors favored father, and the court awarded him primary parental rights and responsibilities. The court found that both parents loved the child and were capable of providing affection and ensuring her daily needs were met. Mother also testified that she wanted to return to school to improve her ability to care for the child and the child's elder half-sister. But the trial court judge observed that mother's belief that the child would simply "cope" with her father's absence "betrayed astonishing ignorance about the importance of [the child] forming a positive parental attachment with her father" and that she thus lacked insight into the child's developmental needs. Moreover, the trial court judge noted that mother's continued use of illegal drugs and decision to continue driving after her license was suspended for failure to pay fines called into question both her ability to provide adequate guidance to the child and to ensure a safe environment. The court had some misgivings about father's own ability to provide a safe environment given his checkered history of substance abuse, but also found that he had gained insight into his previous missteps and that his parents represented a strong counterbalance. With respect to the paternal grandparents, the court also determined it was not in the child's best interest to disrupt the strong bond that had developed between them and the child. The court instructed theparties to work out a parent-child contact schedule and to return to court if they were unable to come to an agreement. This appeal followed.

¶ 9. Mother first contends that the trial court violated her due process rights by converting a hearing on modification of parent-child contact under a stipulated temporary order into a final hearing on parental rights and responsibilities without providing her adequate notice. In support of this assertion, mother relies on the trial court's willingness to accommodate mother's own request for an expedited resolution before her scheduled departure and, apparently, ignores the record.

¶ 10. As noted, on July 16, father requested that the trial court schedule a final hearing on parental rights before mother's August 12 departure for California. Mother lodged no objection to father's motion-filed nearly three weeks before the hearing. Following a break in the trial court's typically busy calendar, the trial court granted father's request for an expedited final hearing and scheduled it for August 5, the day originally slated for mother's motion. More than two weeks before the hearing, in a letter to the court, mother's own trial counsel urged the trial court to advance the September 1 final hearing to accommodate mother's planned departure. At the hearing, mother testified that she had discussed the upcoming hearing with father at least two weeks before. Mother, in fact, came to court desiring to have "the final hearing in terms of custody" before she "left for California [August 12]." When the trial court judge asked whether mother and father were prepared to proceed with a final hearing no objection was offered. The evidence clearly indicates mother was on notice and waived any objection. There was no error.

¶ 11. We next consider the trial court's analysis of the child's best interests in assigning primary physical and legal parental rights and...