Varnum v. Varnum

• Decision Date: 30 November 1990
• Docket Number: No. 87-308,87-308
• Citation: 586 A.2d 1107,155 Vt. 376
• Parties: Larry James VARNUM v. Christine Carol VARNUM.
• Court: Vermont Supreme Court

Page 1107

586 A.2d 1107

155 Vt. 376

Larry James VARNUM v. Christine Carol VARNUM.

No. 87-308.

Supreme Court of Vermont.

Nov. 30, 1990.

Gensburg Axelrod & Adler, St. Johnsbury, for plaintiff-appellee.

John L. Kellner of Langrock Sperry Parker & Wool, Middlebury, for defendant-appellant.

Before ALLEN, C.J., DOOLEY and MORSE, JJ., KEYSER, J. (Retired) and SPRINGER, District Judge (Retired), Specially Assigned.

DOOLEY, Justice.

This is a divorce action between Larry James Varnum, plaintiff, and Christine Carol Varnum, defendant. They were divorced by order of the Caledonia Superior Court on May 17, 1987. Although the trial court dealt with all issues between the parties, the only appeal issues relate to custody of the two children of the marriage--Mack, now age 13 and Sarah, now age 11. The court awarded legal and physical responsibility for both children to plaintiff, and defendant appeals that award. We affirm.

Defendant makes four arguments in this Court: (1) the trial court's custody decision impermissibly considered her religious beliefs and activities, in violation of the United States and the Vermont Constitutions; (2) the trial court failed to consider and accord weight to defendant's status as the primary care giver as required by 15 V.S.A. § 665(b)(6) ¹; (3) the trial court made key findings of fact that were unsupported by the evidence and clearly erroneous; and (4) the trial court's setting of a strict time limitation for the presentation of each side's case deprived defendant of a fair trial. After setting forth the facts, we discuss these arguments in order.

Although the hearing in this case was long and acrimonious, ² the trial court reduced the testimony to fifty-three findings, made orally and on the record. The following is a summary of the findings.

The parties were married in California and relocated by joint decision to Vermont in 1978. Defendant has a daughter from a prior marriage who lived with them in California and relocated with them to Vermont. One of the children of the parties was born shortly before the move, and one was born shortly thereafter. The marriage was fraught with difficulty, and the parties separated twice before seeking a divorce. They last lived together in 1985. Plaintiff filed this action that same year, and defendant was awarded temporary custody of the two minor children. Defendant's daughter returned to California to live with her natural father.

The court made extensive findings relating to the ability of each parent to raise the children and serve as primary custodian. It found that both parties had secure jobs and sufficient income to raise the children. It found that plaintiff had on one occasion slapped defendant on the face but had otherwise not been physically or sexually abusive toward her. It rejected as not credible defendant's other allegations that plaintiff sexually and physically abused her.

Each party alleged that the other physically abused the children. The court found that plaintiff had used a belt to administer discipline to defendant's daughter, and on one occasion used the belt on his son. It found, however, that such discipline was not occurring at the time of the hearing and that plaintiff did not use physical discipline on a regular basis. It found that defendant physically abused the two children and that she believes:

strict discipline is essential to install a conditioned response in the children to certain demands imposed upon them by her. When the children fail to respond to her, she believes that it is appropriate and she does administer physical punishment to the children and has done so with various implements which includes [sic] a spoon, a ladle and a paddle.

The Defendant has punished the children by striking them about the face and body using both her hands and other implements with sufficient force to leave red marks on the children's skin. The court finds that that physical discipline does amount to physical abuse.

Defendant's daughter alleged that plaintiff had sexually abused her when she was living with the parties in Vermont. The court found this accusation not credible.

Both parties have abused alcohol, and defendant twice attempted suicide while under the influence of alcohol. Although defendant has been told she should not consume alcohol, she continues to be a moderate drinker.

Both parties spend a great deal of their free time with the children. The findings detail activities in which each party participates with the children to show, with respect to each parent, a supportive relationship. Each parent has a residence and can provide safe and suitable care for the children. If she obtained custody, defendant intended to return to California with the children.

The trial court made a number of findings that relate to defendant's religious beliefs. Defendant is a Jehovah's Witness and is a strict disciple of her faith. Her belief in physical punishment to discipline the children was apparently related to her religion. Because of her religious belief, she forbade the children to have close relationships with children who were not members of her faith, and would not allow the children to celebrate birthdays or holidays although the children traditionally celebrated holidays and found it enjoyable. Defendant would not permit blood transfusions even if told by a doctor that the children needed the procedure. There was, however, no evidence of health problems in the children that would create the need for a transfusion. Defendant deferred to church elders for help in making decisions. The court found that allowing others to assist in decision making hampered her ability to determine the best interests of the children.

The court ordered a psychological evaluation of the parties and the children. The psychologist's evaluation recommended that custody be awarded to plaintiff. Although the psychologist's conclusions were based on numerous factors, the most important were that: (1) if defendant obtained custody, she intended to severely limit plaintiff's access to the children and move from the state as soon as possible; (2) plaintiff had "a better attitude and concept of what children need to be raised in a normal fashion"; and (3) defendant admitted "to hitting the children and leaving marks on their body, a sign of physical abuse." Based on the evaluation, which the court found was fair to both parties, and the extensive evidence, the court concluded that it would be in the best interests of the children to award parental rights and responsibilities primarily to the plaintiff father.

I.

Defendant first argues that because the court made findings of fact that touched upon her religious beliefs and because the issue of religion permeated the trial, the court violated the free exercise clauses of the Vermont and United States constitutions. ^{3 3} She argues, therefore, that the custody decision of the superior court must be vacated and the cause remanded for a new custody hearing.

Defendant acknowledges that her constitutional argument is raised for the first time on appeal and was never brought before the trial court. Although there was extensive evidence about the religion and religious practices of each party, with an emphasis on the religious practices of defendant, neither party objected to the introduction of the evidence or its use in arriving at a custody determination. Both parties submitted evidence pertaining to religion.

It is, of course, black-letter law that this Court will not consider an issue not raised below, see Albarelli v. Albarelli, 152 Vt. 46, 49, 564 A.2d 598, 600 (1989), except in extreme and unusual circumstances. See State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986). Defendant argues that this is one of those rare cases because important interests and basic constitutional rights are involved, and analogizes to the criminal cases where we have reviewed unpreserved errors on a finding of plain error. See, e.g., State v. Ayers, 148 Vt. 421, 425-26, 535 A.2d 330, 333-34 (1987) (plain error "strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice"); In re Maher, 132 Vt. 560, 562, 326 A.2d 142, 144 (1974) (state employee's due process claim reviewable only upon showing that "this is one of those rare and extraordinary cases which is so grave and serious that it strikes at the very heart of the employee's constitutional rights"). In evaluating the claim, we recognize that fundamental rights and interests are at stake. See Osier v. Osier, 410 A.2d 1027, 1029 (Me.1980).

We also recognize, however, that there are weighty interests on the other side of the scale. The children in this case have already gone through five of the most important years of their lives under temporary custody orders, and have had during this period one change of primary custodian. The negative effect of this basic family instability, with the resulting rivalries between their parents, is likely to be profound. There is no reason to believe that the trial judge would have been insensitive to the religious liberty issue defendant raises in this Court if there had been one whisper of it prior to the filing of defendant's brief here.

We have no clear precedent to govern the standard of review in this case. Our precedents on unpreserved constitutional claims in civil cases do not involve the weighty countervailing interests of children. See In re Maher, 132 Vt. at 562, 326 A.2d at 144. Nor do our precedents in the family law area address constitutional issues. See, e.g., Brown v. Brown, 154 Vt. 625, ----, 580 A.2d 975, 978-79 (1990) (admissibility of evidence). Even with the important rights and interests defendant seeks to vindicate, we think the balance tips decidedly in favor of enforcing rules of preservation to avoid the impact of lengthy delays on the well-being of the children. We therefore approach defendant's first claim under a very limited standard...