On Appeal from Superior Court, Chittenden Unit, Family Division February Term, 2013 A. Gregory Rainville, J.
The opinion of the court was delivered by: Dooley, J.
Hanson-Metayer v. Hanson-Metayer
PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Gerety, Supr. J.,
¶ 1. Appellant/defendant Elizabeth Hanson-Metayer [wife] appeals the decision of the superior court in the divorce between her and appellee/plaintiff, Michael Hanson-Metayer [husband]. She claims that the court committed error by: (1) making findings not supported by evidence; (2) questioning the parties without swearing them in; (3) changing its findings of fact from those announced in an oral decision on the record; (4) weighing the statutory factors in making its custody decision; (5) awarding the marital home to husband; (6) inequitably dividing the personal property; and (7) awarding attorney's fees to husband. Because the superior court's custody decision was supported by the evidence and the irregularities were harmless, we affirm that part of the decision. We reverse and remand, however, as to the division of the marital property and the attorney's fees.
¶ 2. The following discussion is mainly of the proceedings in the superior court. In general, the facts as found by the superior court, and some of the evidence relating to those facts, are discussed in the body of this decision.
¶ 3. Wife and husband were married in 2007, after the birth of their one child--a daughter--in 2006. They purchased a condominium in South Burlington in 2008, and resided there from that date until wife moved to Washington, D.C. in August 2011.
¶ 4. During their marriage, wife obtained a degree from Johnson State College, completed in May 2011, and planned to attend law school. At various points, each party served as the primary caregiver of the child. Husband agreed in principle to wife's plan to attend law school, but did not agree to wife's plan to move to Washington, D.C. to do so. He wished instead for her to attend Vermont Law School, so that he could continue working in Vermont and the couple would have the benefit of their families nearby to support them. These initial discussions assumed they would remain together as a couple.
¶ 5. In May 2011, wife left the home with the child and sought a Relief from Abuse (RFA) order evicting husband from the home and prohibiting contact between husband and her and the child. The court issued an ex-parte RFA order, scheduling a hearing two weeks later. The hearing was not held at that time because wife requested appointment of a guardian ad litem and an attorney for the child. The court did, however, authorize husband to have supervised visitation with the child. Husband filed for divorceon May 20, 2011, and the RFA case was consolidated with the divorce action.
¶ 6. The hearing before the family division of the superior court took place on July 14, 2011. At the hearing, some evidence was taken by the court, but a full evidentiary hearing did not take place because of the lack of time available to the Court. Wife's petition for a final RFA order was dismissed, but a temporary custody order in favor of wife was issued in August. That order awarded wife primary legal and physical rights and responsibilities and granted her permission to relocate with the child to Washington, D.C. It set up a visiting schedule for husband for both the time before wife left for law school and the time after she relocated.
¶ 7. Wife left Vermont in early August 2011, for Washington, D.C. Husband then filed a motion to reopen the evidence and requested that the court establish a specific parent-child contact schedule. A hearing was held on September 19, 2011 that resulted in a modified schedule that doubled husband's parent-child contacts and allowed for telephone and/or Skype communication. An evidentiary merits hearing was held on January 2, 2012, at the end of which the trial court made oral findings and an order granting primary parental rights and responsibilities to husband. Wife immediately filed for a motion to stay execution of the order pending appeal, which was denied by the superior court. On January 4, she filed an appeal of that motion to a single justice of the Supreme Court, as well as an appeal of the disposition of the case. The motion to stay was denied, and the appeal was withdrawn on February 13, 2012 and dismissed on February 28, 2012.
¶ 8. After an additional evidentiary hearing on March 2, 2012, where issues of division of property and some clarification of the parent-child contact schedule were taken up, the trial court issued its written findings and decision on June 4, 2012. These findings also covered the custody and parent-child contact issues that were the subject of the oral findings. They included an analysis of the statutory factors provided by 15 V.S.A. § 665 that was more favorable to husband than the oral findings had been. The court reaffirmed the award of primary parental rights and responsibilities to husband.
¶ 9. The June decision also divided the marital property, apparently attempting to do so equitably and in accordance with the wishes of the parties. It noted that "[f]rom a financial point of view, there is little at stake except for the division of debts." Insofar as they are in dispute, the details of the division will be discussed below.
¶ 10. Wife appealed from the custody decision, the property division decisions and the award of attorney's fees to husband.
¶ 11. Wife makes a number of arguments about the trial court's findings and analysis that led to the custody decision: (1) that the trial court found facts that were not supported by the record;*fn1 and (2) that the trial court improperly analyzed three of the statutory factors that must be considered in rendering a custody decision. See 15 V.S.A. § 665(b). All these arguments combine into one: that the trial court's custody decision was not supported by the evidence or the findings.
¶ 12. When considering the trial court's analysis and decision in awarding parental rights and responsibilities, this Court applies a highly deferential standard of review. See Knutsen v. Cegalis, 2011 VT 128, ¶ 13, ___ Vt. ___, 35 A.3d 1059 (mem.); Payrits v. Payrits, 171 Vt. 50, 53, 757 A.2d 469, 472 (2000) ("Given its unique position to assess the credibility of witnesses and weigh the evidence, we will not set aside the [trial] court's findings if supported by the evidence, nor its conclusions if supported by the findings." (quotation omitted)). "In the highly fact-intensive context of a custody determination, we rely on the family court's determinations of fact and evaluations of credibility." Chickanosky v. Chickanosky, 2011 VT 110, ¶ 14, 190 Vt. 435, 35 A.3d 132. Therefore, "[t]he findings will stand if any reasonable and credible evidence supports them." Id. Although appellant "would rely on different evidence, interpret the evidence differently, or offer new evidence . . . on appeal, these are not grounds for reversal. Knutsen, 2011 VT 128, ¶ 13.
¶ 13. In awarding parental rights to the husband, the superior court considered each factor included in 15 V.S.A. § 665 in its analysis. Wife challenges the court's conclusion on three of the factors, and for each some of the supporting findings.
¶ 14. First, wife challenges the court's conclusion as to the fourth statutory factor: "the quality of the child's adjustment to the child's present housing, school, and community and the potential effect of any change." 15 V.S.A. § 665(b)(4). The court found this factor weighed in favor of husband. Prior to the move, the child had spent most of her life in Vermont and had done quite well as a student at a Montessori school and was generally regarded as an intelligent, personable child, well adapted to her educational environment. The court found she "significantly benefited from the close availability of both grandparents and other family members." Wife testified that the child is doing very well in her new school in Washington and that she is adjusting well. The court found, however, that there was no corroborating evidence from the educational system on this point. In contrast, there was substantial independent evidence of her performance in the Vermont school.
¶ 15. The court addressed under this factor the extent to which each parent did, or would, spend time with the child. The court noted that the demands of wife's law school studies meant that the child was often with others. It found that the only family support in Washington came from wife's sister, who was a senior in college and--the court noted in the findings--was undecided on remaining in Washington after graduation. It also found that wife received some support from her mother, who had taken time off from her job "on a couple of occasions for two to three weeks in order to help her daughter." Wife also testified that the child spends a significant amount in time in daycare. The court also factored in that the child has the benefit of the availability of her grandparents and other family members in Vermont.
¶ 16. Wife's first claim is that the court improperly interpreted § 665(b)(4) to create a comparison between the housing, school, and community in Maryland and those elements in Vermont. Her argument is that her "present" living arrangement is in Maryland, not Vermont, so the factor requires the living arrangement in Maryland to be assessed, along with the disruption of a move. The statutory factors necessarily involve a comparison, Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989), and the court did not err in viewing it so.
¶ 17. Nor did the court err in its findings and its conclusion on this factor such that we could reverse its custody decision. The evidence supported its conclusion that the support system and educational environment was stronger in Vermont than in Maryland,*fn2 even though the support system in Maryland was temporarily aided by the visits of wife's mother. The court could give less weight to wife's ...