Valeo v. Valeo

• Decision Date: 08 July 1974
• Docket Number: No. 238-73,238-73
• Citation: 322 A.2d 306,132 Vt. 526
• Court: Vermont Supreme Court
• Parties: Robert H. VALEO v. Koreen Rose VALEO.

Page 306

322 A.2d 306

132 Vt. 526

Robert H. VALEO v. Koreen Rose VALEO.

No. 238-73.

Supreme Court of Vermont.

July 8, 1974.

Dick, Hackel & Hull, Rutland, for plaintiff.

Patrick R. Berg, Vermont Legal Aid, Inc., Rutland, and Anita C. Lobo, Rutland, of counsel, for defendant.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (Ret.)

SMITH, Justice.

This is a petition for the change of the custody of the two minor children of the parties from their mother to the father. On September 9, 1971, the appellant, Koreen Rose Valeo, was granted a divorce from the appellee, Robert H. Valeo, on the grounds of intolerable severity after an uncontested proceeding. The custody of the two minor daughters of the couple was awarded to the appellant, with reasonable visitation rights to the appellee. The two children involved are Pamela, aged thirteen at the time of the hearing on the petition below, and Nancy, who was then aged eight. Both are in school in Manchester, Vermont, and are doing well.

At the time of the divorce Mr. Valeo was deeply in debt, unable to care for his children, and believed his wife to be a good mother.

The petition to modify the order, brought pursuant to 15 V.S.A. § 292, alleged that because of a substantial change in material circumstances the custody of the two children should be changed. In this petition Mr. Valeo alleged that the former Mrs. Valeo was openly living with another man and that she was then pregnant by such man. It was further alleged that Mr. Valeo had since remarried and was now able to maintain a suitable and loving home for his children, and that it would be in the best interest of the children for their care, custody, and control to be entrusted to him. The order of the lower court changed the custody of the two children from Mrs. Valeo to the petitioner.

The law that is applicable to a petition for change of custody has been well stated by Justice Keyser in Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738 (1968). On page 335 of that opinion, 248 A.2d on page 739 the standards are set forth, and we quote:

After granting a divorce the court upon petition of a parent has the authority to annul, vary or modify the order for the care and custody of minor children as it deems expedient. 15 V.S.A. § 292. It is the settled law of this court that to warrant the modification of a custody order the petitioner must show a substantial change in the material circumstances since the date of the decree. Buckminster v. Buckminster, 38 Vt. 248, 250; McKinney v. Kelley, 120 Vt. 299, 302, 141 A.2d 660; Miller v. Miller, 124 Vt. 76, 79, 197 A.2d 488. It is equally well settled that it is the welfare of the child which in the last analysis is determinative in a custody matter. McKinney v. Kelley, supra, at page 302, 141 A.2d 660. Change of circumstances is not a ground for modification of a custody order. It is a prerequisite. Ibid. Thus, the petitioner must first prove a 'substantial change in the material circumstances' and next prove that under the new conditions a change of custody is in the best interests of the child.

This Court reaffirmed those standards last year. Gerety v. Gerety, 131 Vt. 396, 306 A.2d 693 (1973).

The first attack on the amendment to the original divorce decree by the appellant is that the lower court did not comply with the standards in Gokey v. Gokey, supra, in that it did not find that there was in fact a substantial change in the circumstances of the parties. However, the real thrust of this argument seems to be that the lower court did not 'sort out' the evidence on change of circumstances from that upon which the court based its determination that a change of custody would be in the best interests of the children.

It is true, as we have seen in Gokey v. Gokey, supra, that change of circumstances is only a prerequisite for a modification of a custody order, and the petitioner must next prove that under the new circumstances a change of custody would be in the best interests of the children. But this requisite is only on the order of proof which is the burden of the petitioner, and the lower court is not bound by this rule in the making of the findings of fact.

In the present case the lower court, in its first five findings, set forth the facts regarding the circumstances of the parents and the children at the time of the original decree. Found also were the present ages and school progress of the children, the reasons why the appellee, the father, did not seek custody at the time of the original divorce, and the fact that the appellant was a good mother, and remains so, in the sense that the children were well fed and clothed, and affectionately regarded.

Finding 6 sets forth, however, that 'Other circumstances have materially and substantially changed . . .' The changes in circumstances since the divorce which were found are set forth in Findings 6 to 13. Technical arguments have been advanced that certain of these findings, individually considered, are not changes at all. For example, Finding 7, to the effect that the area in which the appellant and the children live in East Manchester, Vermont, is in a neighborhood with considerable minor criminal activity, is characterized by the appellant as a long-standing, accurate description, valid prior to the divorce. However, even if this characterization be correct and the neighborhood has not changed, circumstances have changed if petitioner now resides in a better environment. Other attacks of this nature, focusing on individual findings, also lack merit when Findings 6 to 13 are considered cumulatively and certainly do not constitute grounds for a reversal.

In Finding 6 the lower court found that Mr. Valeo has remarried, and lives in Pittsford, Vermont, with his present wife, a school teacher, and her two children by a former marriage. Mr. Valeo's financial condition has improved, and his new wife is willing and well qualified to care for the Valeo children. The two sets of children have gotten along well together in visits to the home in Pittsford.

Finding 8 refers to the atmosphere of the home in which the children of the parties are presently living. The court found that Mrs. Valeo has had at least two men living with her since the divorce. One of the two, a David O'Neill, has now been living in the home for some time, admittedly cohabiting with Mrs. Valeo, although himself married. O'Neill was found to have a police record and possess violent tendencies. Finding 9, to which the appellant particularly objects, is that at the time of the hearing both O'Neill and the appellant admitted that he was the father of the expected child, and that this fact is known to Pamela.

Finding 10 is to the effect that although the children are Catholic no effort is made by the appellant to see that they get a religious education, while, on the contrary, when visiting the father's new home they are regularly sent to Sunday School.

Finding 11 states that while the physical needs of the two children are taken care of in their present home they would be better off in the custody of the father. 'The moral atmosphere in the present custody is virtually nonexistent, with open, gross, and repetitive adultery being freely admitted and defended.'

Finding 12 is to the effect that the older girl, Pamela, desires to remain with her mother, because she believes that her father has shown insufficient interest in her. However, she likes her father and gets along with her father's new family, and does not want O'Neill for her permanent father.

Finding 13 is in the nature of a negative finding that, as to the accusations made by the appellant that Mr. Valeo has had...