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Brosnahan v. Brosnahan

Supreme Court of Vermont

April 10, 2015

Kristen E. Brosnahan
v.
William J. Brosnahan

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.

Appeal from: Superior Court, Orange Fam. Division. DOCKET NO. 95-5-12 Oedm. Trial Judge: Robert P. Gerety.

Reiber, C.J., Dooley, and Robinson, JJ.

OPINION

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

Father appeals from a final divorce judgment of the superior court, family division. He contends the court erred in: (1) denying a motion for continuance; (2) awarding mother sole parental rights and responsibilities; and (3) dividing the marital estate. We affirm.

The facts may be briefly summarized. Additional material facts will be set forth in the discussion that follows. The parties were married for nineteen years and had two children who were sixteen and fourteen years old at the time of the final hearing. Shortly after they married, mother sold a property that she had inherited for $93,000, and the parties moved into a camp owned by father that they proceeded to renovate. Mother has the equivalent of a high school education and worked exclusively in the home throughout the marriage. Mother home-schooled the children until shortly after the parties separated in 2012. Father was employed as a skilled worker commuting to a job in Massachusetts and earning approximately $70,000 to $80,000 annually. The trial court found that the parties' relationship was often volatile, and remained contentious after their separation.

The court awarded mother sole parental rights and responsibilities and provided parent-child contact with father every other weekend and alternating holidays. The parties' principal assets were the marital home and several Fidelity investment accounts owned by father. The court determined that a " roughly even division of the marital property" would be fair and equitable. It ordered the marital home to be sold and the net proceeds after payment of the mortgage and taxes to be divided evenly between the parties. It also divided the investment accounts, with the first $47,500 to be awarded to mother, because father had already drawn $47,500 more from the account than mother, and the balance to be divided evenly. This appeal by father followed.

Father first contends the court erred in denying his motion to continue the trial for the purpose of allowing him to obtain an attorney. The record shows that father was represented by counsel until May 2013, at which time the court granted his attorney's motion to withdraw and father filed a notice of pro se appearance. In late October 2013, notice was sent to father that a contested divorce hearing had been scheduled for January 9 and 10, 2014. On January 7, 2014, two days before trial, father filed a motion to continue, indicating that, due to the complexities of the case, he had sought legal counsel and that " the legal counsel I have has court in Grand Isle on the 9, 10 of this month." Father did not identify the attorney in question, and no appearance by any attorney had been filed on his behalf. The court denied the motion, noting that father had received timely notice of the hearing, that two days had been set aside for the hearing, and that judicial resources were extremely limited.

" A decision to grant or deny a continuance is a discretionary matter and will not be disturbed unless there is shown an abuse of discretion which causes prejudice." Finkle v. Town of Rochester, 140 Vt. 287, 289, 438 A.2d 390 (1981); see also Kohut v. Kohut, 164 Vt. 40, 45, 663 A.2d 942 (1995) (holding that court did not abuse its discretion in denying motion to continue to obtain counsel). The court's discretion to manage its docket, set deadlines, and allocate its resources is equally broad, and subject to reversal only for an abuse of discretion. Pcolar v. Casella Waste Sys., Inc., 2012 VT 58, ¶ 20, 192 Vt. 343, 59 A.3d 702.

The record here amply supports the trial court's ruling. Father had a full eight months from the time of his attorney's withdrawal until the date of trial, and three-months' notice of the scheduled trial date to obtain counsel. Father's motion, filed on the eve of trial, provided no explanation for his failure to obtain counsel during this period, and the suggestion that he had an attorney who had a trial conflict was entirely unsupported. Under the circumstances, we find no basis to conclude that the court abused its discretion in denying the motion.

Father's claim that he was unduly prejudiced by the court's ruling is also unpersuasive. The disadvantages he cites in dealing with questions of evidence and procedure at the hearing were no different from those confronted by any self-represented party. Moreover, the record discloses that the trial court assisted father during the hearing in every way that it could.[1] This is evident from the record surrounding father's principal claim of prejudice--the court's exclusion on hearsay grounds of two " psycho-educational assessments" of the parties' children. Father claims that the assessments showing certain educational delays would have demonstrated that mother was negligent in home-schooling the children. Although the court sustained an objection to the admission of the assessments, it sought to mitigate the ruling for father's benefit by allowing the parties to stipulate that, at the time they enrolled in public school, " both of [the children] were below grade level in more than one academic area." Accordingly, we find no basis to disturb the court's continuance ruling.

Father next contends the trial court erred in awarding mother sole physical and legal rights and responsibilities and in reducing his parent-child contact. Our review is limited. When considering a trial court's award of parental rights and responsibilities, " this Court applies a highly deferential standard of review." Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, ¶ 12, 193 Vt. 490, 70 A.3d 1036. " In the highly fact-intensive context of a custody determination, we rely on the family court's determinations of fact and evaluations of credibility." Id. (quotation omitted). ...


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