Titchenal v. Dexter

• Decision Date: 28 February 1997
• Docket Number: No. 96-188,96-188
• Citation: 693 A.2d 682,166 Vt. 373
• Parties: , 65 USLW 2648 Chris TITCHENAL v. Diane DEXTER.
• Court: Vermont Supreme Court

Page 682

693 A.2d 682

166 Vt. 373, 65 USLW 2648

Chris TITCHENAL v. Diane DEXTER.

No. 96-188.

Supreme Court of Vermont.

Feb. 28, 1997.

Motion for Reargument Denied

April 23, 1997.

Julie A. Frame and Jennifer E. Nelson of Hoff Curtis Pacht Cassidy & Frame, P.C., Burlington, for plaintiff-appellant.

John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for defendant-appellee.

Mary L. Bonauto, Boston, MA, for amicus curiae Gay & Lesbian Advocates & Defenders.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

The issue in this case is whether the superior court may apply its equitable powers to adjudicate a visitation dispute that cannot be brought in statutory proceedings within the family court's jurisdiction. We affirm the superior court's decision that it does not possess the authority to adjudicate such matters.

The dispute arose after the breakup of a relationship between two women who had both participated in raising a child adopted by only one of them. Plaintiff alleges the following facts, which are disputed but accepted as true for purposes of reviewing the trial court's dismissal of the case. See Sabia v. State, 164 Vt. 293, 297, 669 A.2d 1187, 1190 (1995). In 1985, plaintiff Chris Titchenal and defendant Diane Dexter began an intimate relationship. They purchased a home together, held joint bank accounts, and jointly owned their automobiles. They both contributed financially to their household, and each regarded the other as a life partner.

At some point, the parties decided to have a child. When their attempts to conceive via a sperm donor failed, they decided to adopt a child. In July 1991, defendant adopted a newborn baby girl, who was named Sarah Ruth Dexter-Titchenal. The parties held themselves out to Sarah and all others as her parents. The child called one parent "Mama Chris" and the other parent "Mama Di." For the first three and one-half years of Sarah's life, until the parties' separation, plaintiff cared for the child approximately 65% of the time. Plaintiff did not seek to adopt Sarah because the parties believed that the then-current adoption statute would not allow both of them to do so.

Eventually, the parties' relationship faltered, and by November 1994 defendant had moved out of the couple's home, taking Sarah with her. For the first five months following the parties' separation, Sarah stayed with plaintiff between Wednesday afternoons and Friday evenings. By the spring of 1995, however, defendant had severely curtailed plaintiff's contact with Sarah and had refused plaintiff's offer of financial assistance.

In October 1995, plaintiff filed a complaint requesting that the superior court exercise its equitable jurisdiction to establish and enforce regular, unsupervised parent-child contact between her and Sarah. The court granted defendant's motion to dismiss, refusing to recognize a cause of action for parent-child contact absent a common-law or statutory basis for the claim. On appeal, plaintiff argues that the superior court has equitable jurisdiction under the state's parens patriae authority to consider her complaint, and that both public policy and the doctrines of in loco parentis and de facto parenthood allow the court to exercise its equitable authority in cases such as this. An organization called the Gay & Lesbian Advocates & Defenders (GLAD) makes essentially the same arguments in its amicus curiae brief.

Plaintiff urges us to grant "nontraditional" family members access to the courts by recognizing the legal rights of de facto parents. ¹ According to plaintiff, the state's parens patriae power to protect the best interests of children permits the superior court to adjudicate disputes over parent-child contact ² outside the context of a statutory proceeding. Thus, under the scheme advocated by plaintiff and amicus curiae, the family court would adjudicate disputes concerning parental rights and responsibilities and parent-child contact within the parameters and criteria set forth in statutory divorce, parentage, dependency and neglect, nonsupport and separation, relief-from-abuse, and at times guardianship and adoption proceedings, see 4 V.S.A. §§ 454-455 (establishing jurisdiction of family court), while the superior court would exert its equitable powers to consider such disputes arising outside these statutory proceedings.

We find no legal basis for plaintiff's proposal. Courts cannot exert equitable powers unless they first have jurisdiction over the subject matter and parties. In re Marriage of Ryall, 154 Cal.App.3d 743, 201 Cal.Rptr. 504, 512 (1984); see Perry v. Superior Court of Kern County, 108 Cal.App.3d 480, 166 Cal.Rptr. 583, 584 (1980) (visitation rights may be awarded to nonparents only in proceeding in which court otherwise has jurisdiction over issue of custody). Equity generally has no jurisdiction over imperfect rights arising from moral rather than legal obligations; not every perceived injustice is actionable in equity--only those violating a recognized legal right. In re E.C., 130 Wis.2d 376, 387 N.W.2d 72, 77 (1986). A court of equity does not create rights, but rather determines whether legal rights exist and, if so, whether it is proper and just to enforce those rights. City of St. Louis v. Golden Gate Corp., 421 S.W.2d 4, 7 (Mo.1967); see Juaire v. Juaire, 128 Vt. 149, 152, 259 A.2d 786, 788 (1969) (equity affords relief whenever legal right exists without adequate remedy; by bringing action in equity, plaintiff did not seek to acquire new right, but rather sought new remedy for preexisting right). In short, a court may exert its equitable powers to grant appropriate relief only when a judicially cognizable right exists, and no adequate legal remedy is available. See Chapman v. Sheridan-Wyoming Coal Co., 338 U.S. 621, 630-31, 70 S.Ct. 392, 397, 94 L.Ed. 393 (1950) (courts applying their equitable powers "can intervene only where legal rights are invaded or the law violated").

The issue, then, is whether there is any underlying legal basis for plaintiff's cause of action that would allow the superior court to apply its equitable powers to adjudicate her claim. Courts may exert equitable powers based upon common-law, statutory, or constitutional rights, or upon judicial acknowledgement of public-policy considerations establishing an as-yet-unrecognized legal right. See Payne v. Rozendaal, 147 Vt. 488, 492-94, 520 A.2d 586, 588-89 (1986) (notwithstanding absence of statutory directive regarding age discrimination at time of alleged wrong, claim of age discrimination was sufficient basis for wrongful discharge action because termination of employee solely on basis of age is so contrary to society's concern for providing equity and justice that there is clear and compelling public policy against it).

Here, we find no legal basis from any of the above sources for plaintiff's claimed right to parent-child contact in her capacity as an equitable or de facto parent. Notwithstanding plaintiff's claims to the contrary, there is no common-law history of Vermont courts interfering with the rights and responsibilities of fit parents absent statutory authority to do so. Although there is some support for the proposition that state courts have equity jurisdiction under their parens patriae power to adjudicate custody matters, such authority is generally invoked in the context of dependency or neglect petitions. See Insurance Co. v. Bangs, 103 U.S. 435, 438, 26 L.Ed. 580 (1880) (equity jurisdiction for protection of children began in English courts of chancery and originated from general duty of crown as parens patriae to protect persons who have no other rightful protector). Invoking equity jurisdiction under these circumstances was a narrow exception to the general common-law rule that parents had the right to the custody, control, and services of their minor children free from governmental interference. Bioni v. Haselton, 99 Vt. 453, 457, 134 A. 606, 607 (1926); see In re S.B.L., 150 Vt. 294, 303, 553 A.2d 1078, 1084 (1988) (parents and children have liberty interest in relating to each other free from governmental interference); Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984) (common-law rule prohibiting third-party visitation over parental objection represents recognition that parents' fundamental right to control over their children is protected against unwarranted state intrusion); In re Hruby, 304 Or. 500, 748 P.2d 57, 60 (1987) (father's ancient common-law right to his children was qualified by eighteenth and early nineteenth century decisions in which equity courts exercised their parens patriae power to look after minors unable to care for themselves); 2 H. Clark, The Law of Domestic Relations in the United States § 20.7, at 539 (2d ed.1987) (common law did not authorize courts to grant visitation to persons other than parents); cf. Town of Brighton v. Town of Charleston, 114 Vt. 316, 321, 44 A.2d 628, 632 (1945) (state is authorized as parens patriae to legislate for protection, care, custody, and maintenance of children within its jurisdiction).

With one possible minor exception, ³ the custody-related cases cited by plaintiff and amicus curiae involve decisions made within the context of statutory proceedings. See In re B.L.V.B., 160 Vt. 368, 371-73, 628 A.2d 1271, 1273-74 (1993) (construing provisions of adoption statute); Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989) (action brought under statutory parentage proceeding); S.B.L., 150 Vt. at 306, 311, 553 A.2d at 1086, 1089 (construing guardianship and grandparent visitation statutes); Paquette v. Paquette, 146 Vt. 83, 85, 499 A.2d 23, 25 (1985) (construing divorce and separation statutes); Bioni, 99 Vt. at 456, 134 A. at 607 (petition brought under statutory guardianship proceeding). From early on, Vermont courts intervened in custody matters concerning fit parents only under the authority of divorce statutes...