Wright v. Kemp

• Decision Date: 15 February 2019
• Docket Number: No. 2018-210,2018-210
• Citation: 2019 VT 11
• Parties: Michele L. Wright v. Dean J. Kemp
• Court: Vermont Supreme Court

2019 VT 11

Michele L. Wright v. Dean J. Kemp

No. 2018-210

Supreme Court of Vermont

December Term, 2018

February 15, 2019

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windsor Unit, Family Division

Elizabeth D. Mann, J.

Elizabeth A. Kruska of Elizabeth A. Kruska, PLLC, Woodstock, for Plaintiff-Appellee.

Dean Kemp, Pro Se, Claremont, New Hampshire, Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

¶ 1. MORRIS, Supr. J. (Ret.), Specially Assigned. Father appeals the superior court's decision granting mother's motion to modify parental rights and responsibilities and permitting father to have contact with the parties' minor child only if the child agrees. We affirm the modification of parental rights and responsibilities, but reverse and remand the parent-child contact order.

¶ 2. The parties' daughter was born in July 2002. In November 2012, the family division of the superior court entered a final order awarding primary legal rights and responsibilities for daughter to mother, subject to an obligation to consult with father prior to making any major decisions. The court ordered the parties to share physical rights and responsibilities. The schedule set forth in the order called for daughter to spend approximately half of her time with each parent. The parties were required to attempt to resolve any disputes about parenting issues through mediation before returning to court.

¶ 3. In August 2017, father filed a motion to enforce parent-child contact. He claimed that mother had consistently interfered with his contact with daughter and recently had prevented him from seeing daughter at all. Mother denied father's allegations that she had interfered with his contact with daughter. She asserted that daughter, who was now fifteen years old, felt uncomfortable and anxious around father and no longer wanted to have contact with him. Mother asked the court to appoint counsel for daughter so that daughter could testify on her own behalf. Mother also moved to modify the November 2012 order to give her sole legal and physical responsibilities for daughter. She sought to modify the parent-child contact order so that overnight visits were no longer required and daughter could end contact with father if daughter felt uncomfortable. The court initially denied both parties' motions because they had not attempted to mediate their dispute before coming to court.

¶ 4. After an unsuccessful attempt at mediation, the parties renewed their motions. The court appointed a guardian ad litem for daughter and scheduled an evidentiary hearing on parental rights and responsibilities for March 15, 2018. In the meantime, it ordered that father be allowed contact with daughter for at least one hour per week in a public location.

¶ 5. The day before the March 2018 hearing, mother asked the court to schedule a separate hearing to permit testimony from daughter.¹ She argued that "certain events had occurred" between father and daughter, causing daughter to express a desire not to have contact with father, and that daughter's testimony was necessary because only she could testify about those events. Father opposed mother's request for daughter to testify, arguing that it was not appropriate for daughter to testify about why no visitation agreement had been reached, or "to address activitythat is simply a recurrence of the same behavior/refusals which the Court was informed about at the previous hearing." He further argued that daughter could not testify unless the court appointed a lawyer to represent her.

¶ 6. At the beginning of the March 2018 hearing, mother's attorney suggested that the court hear from the parties' other witnesses before deciding whether daughter should be called to testify. Father's attorney did not object. After hearing testimony from mother, daughter's therapist, daughter's school principal, and father, the court granted mother's motion to set another hearing to allow daughter to testify. Father's attorney asked if he could submit questions for the court to ask daughter. The court ordered the parties to file a stipulated list of proposed questions prior to the hearing.

¶ 7. The second hearing took place in May 2018. At father's request, the court appointed counsel for daughter. Opportunity was provided for daughter to consult with counsel, and she did so. The court then questioned daughter briefly in chambers, in the presence of her attorney and guardian ad litem. Daughter's testimony was recorded and broadcast into the courtroom to be heard by the parties and their counsel.

¶ 8. The court subsequently issued a written decision granting mother's motion to modify parental rights and responsibilities and parent-child contact and denying father's motion to enforce the original order. The court found that the parties' motions were triggered by an incident in July 2017. Daughter was with mother and stepfather at their summer home in Island Pond on father's birthday. Father was scheduled to have contact with daughter that day. Daughter wanted to remain in Island Pond and tried to convince father to delay parent-child contact. An argument ensued. Father then posted disparaging comments about stepfather on Facebook.²Daughter saw father's posts and became deeply upset. She began crying and screaming that she hated father. She blocked him on her Facebook account and blocked his calls and text messages on her cell phone.

¶ 9. Daughter later tried to talk to father about her feelings but was unsuccessful. She wrote a letter to father explaining that his negativity caused her to feel stressed, anxious, confused, and unhappy, and that she did not feel comfortable being around him as a result. In the letter, she asked father not to contact her and to consider engaging in counseling. At the time she wrote the letter, daughter was fifteen years old. The letter was admitted as an exhibit at the March 2018 hearing. The court found that daughter wrote the letter of her own accord and was not influenced by mother or any other person in doing so.³

¶ 10. The court found that father loved daughter but was unable to see how his interactions with daughter and his reactions to situations created stress and anxiety for her. It found that daughter had expressed reservations and concerns about spending time with father at various times over the years. At times, she had tried to avoid going to his home, and she had left his home during a scheduled visit. This behavior had increased over time, but father's actions in July 2017 had led daughter to express a desire to cease contact completely. The court concluded that the breakdown in their relationship constituted a real, substantial, and unanticipated change in circumstances warranting modification of the prior order.

¶ 11. The court then analyzed whether a modification of the prior order was appropriate under the best-interests factors set forth in 15 V.S.A. § 665(b). The court found the first, third, fourth, and sixth statutory factors favored mother. Specifically, it found that although father loved daughter, there had been a breakdown in their relationship that father was unable to see, and hehad not demonstrated an understanding of how his own behavior contributed to daughter's emotional needs and struggles. It found that daughter's developmental needs were now primarily emotional and that mother was able to meet those needs by supporting her participation in therapy. Father, on the other hand, did not support daughter's participation in therapy, believing that her involvement in treatment was influenced by mother. The court found that requiring daughter to continue to participate in the weekly overnight visits with father called for by the original order would have a significant negative impact on daughter. Removing that requirement would be a positive change because it would alleviate the stress and anxiety she experienced in anticipation of visits with father. Finally, the court found that although the parents had shared primary caregiving responsibilities in the past, daughter's relationship with father was now extremely strained, in contrast to her close relationship with mother. The court found the other statutory factors to be neutral or inapplicable. Notably, it found that both parents were able to foster a positive relationship with the other parent, implicitly rejecting father's claims that mother was attempting to alienate daughter from father.

¶ 12. The court concluded that mother was better suited to meet daughter's emotional and developmental needs, and that it was in daughter's best interests for mother to have sole physical rights and responsibilities. It ordered that "[f]ather may have such parent child contact with [daughter] as [daughter] requests." It permitted father to communicate with daughter through mail or her therapist and required mother to provide a quarterly report to father about daughter's school activities, progress, and medical status. The court declined to modify the prior order's assignment of legal rights and responsibilities. Father appealed.

¶ 13. On appeal, father argues that the family court erred by calling daughter as a witness. He also challenges the court's decision to modify the previous order governing parental rights andresponsibilities to effectively end his contact with daughter.⁴ We conclude that father failed to preserve his arguments regarding daughter's testimony and that the court's determination to modify physical rights and responsibilities is amply sustainable, based upon its...