Wener v. Wener, 15-316

• Decision Date: 16 September 2016
• Docket Number: No. 15-316,15-316
• Citation: 157 A.3d 1108
• Parties: Heidi Corcoran WENER v. Erik WENER
• Court: Vermont Supreme Court

157 A.3d 1108

Heidi Corcoran WENER

v.Erik WENER

No. 15-316

Supreme Court of Vermont.

September 16, 2016

Motion for Clarification Denied November 22, 2016

David G. Carpenter of Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, for Plaintiff-Appellant.

Pamela Gatos of Kenny & Gatos, LLP, Rutland, for Defendant-Appellee.

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Tomasi, Supr. J., Specially Assigned

DOOLEY, J.

¶ 1. Mother appeals from a superior court decision finding that her proposed relocation and parents' breakdown in communication were changed circumstances warranting modification of parental rights and responsibilities and transferring sole legal and physical responsibilities to father. She argues that the court erred in finding a real, substantial, and unanticipated change in circumstances, and that the decision to modify the extant custody agreement was not in the best interests of the child as required by 15 V.S.A. § 665. We affirm the court's finding of changed circumstances with respect to the court's award of legal rights and responsibilities to father based on the breakdown in parental cooperation, but reverse and remand the modification in the order with respect to physical rights and responsibilities and parent-child contact.

¶ 2. The parties are parents of an autistic son born on January 19, 2000. They divorced in August 2008, and stipulated to the following regarding parental rights and responsibilities:

(a). Legal and Physical Parental Rights and Responsibilities and Parent-Child Contact:

... The parties shall share parental rights and responsibilities for [child] with parent child contact established at [mother] having [child] 57% of the time and [father] having [child] 43% of the time as mutually agreed upon. Vacations and Holidays shall be shared as mutually agreed upon. In the event the parties cannot agree upon a major issue affecting legal responsibility (educational, religious, medical, travel) for [child], and only after good faith mediation has been unsuccessfully pursued, and absent court order, [mother] shall have the final say in the matter.

Following a discussion between the parties in August 2013, the schedule was altered, such that child spent 64% of his time with mother and 36% with father, and this schedule remained in place until the family court's decision. The child has lived in West Rutland since he was two years old, and has attended West Rutland schools from kindergarten onward.

¶ 3. The family court found that both parents "consistently participated" in all aspects of the child's education and, in the initial years following their divorce, were able to "communicate and cooperate in making joint decisions regarding [child's] education and medical care." For example, although mother moved from West Rutland to Proctor, the parties agreed to keep child in the West Rutland school and continued to share their time with him, with "no transportation issues between the two homes." However, the court found that in recent years the parties' ability to cooperate "evaporated," and that the increasing level of disagreement over matters ranging from which dentist child would see or whether he would ride the bus to school or participate in the free lunch and milk program has "directly impacted" the child's wellbeing.

¶ 4. On February 18, 2015, mother informed father by certified mail that she planned to move to South Burlington and enroll child in South Burlington High School for the 2015-16 academic year. On March 31, father filed a motion to modify parental rights and responsibilities on the basis of changed circumstances; he requested emergency relief, and proposed a schedule that reallocated child's time to 14% with mother and 86% with father during the school year. Father requested sole legal and physical parental rights, subject to contact with mother on the first, second, fourth, and fifth weekends of each month, with the parties alternating and sharing holidays. Mother in turn proposed that she be awarded sole legal and physical rights and responsibilities but agreed to consult with father before making major decisions and to permit father to have contact with child three weekends a month as well as during summer and school vacations.

Mother's schedule also contained an alternate plan: should the court decide it was in child's best interests to remain in the West Rutland school system, mother would maintain her Proctor residence to permit the existing parent-child contact arrangement, which the court could memorialize in an order, to continue without interruption. The family court denied father's request for emergency relief on April 1 and scheduled a hearing for June 17. The parties participated in two mediation sessions before the hearing without success.

¶ 5. Following two days of evidentiary hearings, the trial court issued its decision in July 2015. The court found that father had met his burden in demonstrating by a preponderance of credible evidence that there had been a real, substantial, and unanticipated change in circumstances since the date of the prior order justifying a modification of parental rights and parent-child contact. The court noted there were at least two potential bases for the change: the "breakdown in the parents' ability to communicate, cooperate and make joint decisions" and mother's relocation to South Burlington and decision to change the child's school. The court also applied the factors itemized in 15 V.S.A. § 665, outlining the best interests of the child, and found that the circumstances favored father. In particular, the court agreed with father that an autistic child's developmental needs were promoted by "consistency, continuity, and stability" and that the child has "flourished" in West Rutland schools and enjoys "strong bonds" with classmates, school personnel, and the extended family that live in the community. Accordingly, the court awarded sole "legal and physical parental rights" and responsibilities to father, adopting father's proposed schedule for mother's parent-child contact and vesting him with the right to act as child's "designated decision maker." This timely appeal followed.

¶ 6. On appeal, mother raises two primary arguments. First, she contends that under either of its rationales the family court erred in finding a real, substantial, and unanticipated change in circumstances. Second, she avers that the decision to modify the 2008 order—and the de facto 2013 arrangement—was not in the child's best interests as required by § 665. While we agree with the family court that the breakdown in parental cooperation was a sufficient change in circumstances to allow a reexamination of the 2008 order with respect to legal rights and responsibilities, we also conclude that the court failed to separately consider whether grounds existed to modify the physical rights and responsibilities in light of mother's alternate physical responsibility and parent-child contact plan. Accordingly, we reverse and remand the part of the trial court order relating to physical rights and responsibilities and parent-child contact.

¶ 7. In addressing mother's argument with respect to changed circumstances, it is instructive to review the statutory law on parental rights and responsibilities and how the parties' agreement on which the divorce order is based fits with that law. The sections of the statutes on parental rights and responsibilities in divorce and annulment actions begin with a series of definitions. "Parental rights and responsibilities" is defined to mean "rights and responsibilities related to a child's physical living arrangements, parent child contact, education, medical and dental care, religion, travel and any other matter involving a child's welfare and upbringing." 15 V.S.A. § 664(1). "Legal responsibility" is defined to mean "the rights and responsibilities to determine and control various matters affecting a child's welfare and upbringing, other than routine daily care and control of the child, [including] ... education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared." Id . § 664(1)(A). "Physical responsibility" means "the rights and responsibilities to provide routine daily care and control of the child subject to the right of the other parent to have contact with the child. Physical responsibility may be held solely or may be divided or shared." Id . § 664(1)(B). In turn, "[p]arent child contact" means "the right of a parent who does not have physical responsibility to have visitation with the child." Id . § 664(2).

¶ 8. The statutes go on to authorize parents to agree "to divide or share parental rights and responsibilities." Id . § 665(a). The effect and content of such an agreement is provided by 15 V.S.A. § 666. An agreement between parents that divides or shares parental rights and responsibilities "shall be presumed to be in the best interests of the child." Id . § 666(a). To be "a complete agreement," the pact must include provisions that address (1) physical living arrangements; (2) parent-child contact; (3) education of the minor child; (4) medical, dental and health care; (5) travel arrangements; (6) procedures for communicating about the child's welfare; and (7) if parental rights and responsibilities are to be shared or divided, procedures for resolving disputes, which may include mediation and binding arbitration. Id . § 666(b).

¶ 9. The agreement in this case, according to its words, shared parental rights and responsibilities. With respect to physical responsibilities, it shared those responsibilities, with 57% of the time going to mother and 43% of the time going to father, with no specification of how this division of time was to be allocated over the days of the week, month or year. That allocation was left to be worked out by the parties, which they did, including an agreement by father to lower his hours with the child to 36% of the time...