On Appeal from Superior Court, Windsor Unit, Family Division. Harold E. Eaton, Jr., J.
Steven J. Howard, Rutland, for Plaintiff-Appellant.
Patrick M. Ankuda of Parker & Ankuda, P.C., Springfield, for Defendant-Appellee.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morse, J. (Ret.), Specially Assigned. Morse, J. (Ret.), Specially Assigned, concurring
[¶1] In this parentage action, father appeals the superior court's decision denying, based on the absence of changed circumstances, his motion to modify parental rights and responsibilities with respect to the parties' young son following mother's relocation with the child to the State of Georgia. We affirm.
[¶2] For eight or nine months following the birth of their son on January 17, 2012, the parties lived together in an apartment connected to the home of the child's maternal grandfather in Springfield, Vermont. In the fall of 2012, mother asked father to leave the apartment, and father moved into his parents' home in Chester, Vermont.
[¶3] Father brought the instant parentage action on November 30, 2012. Following a hearing, the family division of the superior court issued a December 7, 2012 interim order providing that the parties' son, J.B.-F., would reside with mother. Under that order, father had limited parent-child contact, supervised by father's parents, totaling about six percent of the child's time, because of concerns about father's mental stability at the time of the breakup. On February 25, 2013, the family court issued a temporary order granting mother sole legal and physical responsibility for J.B.-F. and increasing father's parent-child contact to two overnights per week without supervision restrictions. The parties reached an agreement on parental rights and responsibilities at a September 2013 hearing, and the following month the family court issued a final order retaining mother as J.B.-F.'s sole custodian subject to father having parent-child contact that amounted to approximately twenty-five percent of the child's time.
[¶4] On March 25, 2014, mother's attorney notified father's attorney by letter that mother planned to relocate with her boyfriend to Peachtree City, Georgia on May 3, 2014. The letter included a proposed visitation schedule that consisted of four time periods during the year, totaling seven or eight weeks, during which J.B.-F. could visit Vermont, supplemented by weekly contact through Skype or Facebook. In response, father filed an emergency motion to modify parental rights and responsibilities in which he asked that custody of the child be transferred to him.
[¶5] A hearing on the motion was held on April 24, 2014. The hearing was restricted to the threshold issue of whether there was a real, substantial and unanticipated change of circumstances sufficient to modify parental rights and responsibilities based on the best interests of the child. See 15 V.S.A. § 668(a) (providing, in relevant part, that family court may modify previous order in best interests of child " upon a showing of real, substantial and unanticipated change of circumstances" ). Mother and father were the only witnesses at the hearing. The day after the hearing, the family court issued a decision denying father's motion to modify based on its finding that father had failed to demonstrate the existence of changed circumstances sufficient to warrant another hearing on whether J.B.-F.'s best interests warranted transferring custody to father. While recognizing that mother's move would disrupt father's ability to see J.B.-F.
as frequently as he had been under the parties' then-current schedule, the court concluded that Georgia was sufficiently close to arrange longer visits by air travel of reasonable duration. Noting that the then-current schedule would be unworkable once mother moved to Georgia, the court directed the parties to negotiate a new schedule and the court clerk to schedule a hearing on parent-child contact. That hearing was later canceled when father filed a notice of appeal of the family court's decision.
[¶6] Meanwhile, in early May, after the family court issued its decision, mother moved to Georgia with J.B.-F. Following a hearing on August 6, 2014, the court issued a new parent-child-contact order based on the parties' stipulation in anticipation of father's planned move to Georgia the next month to be near J.B.-F. The new schedule called for J.B.-F. to stay with father in Vermont from August 12 to September 1, 2014, at which point father would fly to Georgia with the child and thereafter have regular specified parent-child contact in Georgia.
[¶7] In this appeal from the family court's April 25 order denying his motion to modify parental rights and responsibilities, father argues that the court's decision is not supported by the law in light of the evidence presented in the case. In response, mother argues that the case is moot because father decided to move to Georgia to be near the parties' child, and that, in any event, the family court correctly determined that father failed to meet his burden of showing a real, substantial and unanticipated change of circumstances.
[¶8] We first address the mootness question. Mother contends that father's move to Georgia for an indefinite period of time resolved the underlying controversy and thus made this appeal moot. Mother asserts that the predicate bases for father's claim of changed circumstances -- the distance of the move and the cost of travel to see J.B.-F. -- no longer exist, and thus there is no live controversy. See In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (stating general rule that case becomes moot when issues no longer present live controversy, when parties no longer have legally cognizable interest in outcome, or when reviewing court can no longer grant effective relief).
[¶9] We conclude that the appeal is not moot. At oral argument before this Court, father stated that he moved to Georgia only temporarily so that he could be near J.B.-F. while the Vermont proceedings on his motion to modify are pending, and that he intends to return to Vermont and live here with J.B.-F. if he obtains custody as a result of those proceedings. According to mother, father indicated at the August 6 hearing that his stay in Georgia was for an indefinite period of time. These statements are not necessarily inconsistent. In any event, apart from the statements at oral argument, there is nothing in the record before us regarding father's intent as to the length of his stay in Georgia. Under these circumstances, we cannot assume that the appeal is moot.
[¶10] We now turn to the merits of father's appeal from the family court's decision concluding that he failed to demonstrate changed circumstances as the result of mother's relocation. The moving party has a heavy burden to demonstrate changed circumstances. Sundstrom v. Sundstrom, 2004 VT 106, ¶ 29, 177 Vt. 577, 865 A.2d 358 (mem.). In Hawkes v. Spence, we clarified our law on relocation in custody cases, particularly with respect to determining the threshold question of whether changed circumstances exist. 2005 VT 57, ¶ ¶ 16-23, 178 Vt. 161, 878 A.2d 273. This area of the law is not susceptible
to application of precise formulas, and thus " we must permit trial courts--guided by the principles set forth in Hawkes -- the latitude to exercise their discretion to reach reasonable decisions." Rogers v. Parrish, 2007 VT 35, ¶ 1, 181 Vt. 485, 923 A.2d 607.
[¶11] In Hawkes, we adopted " § 2.17(1) and comment b of the American Law Institute's (ALI) Principles of the Law of Family Dissolution for determining when changed circumstances exist" in relocation cases. 178 Vt. 161, 2005 VT 57, ¶ ¶ 1, 13, 878 A.2d 273. Section 2.17(1) provides that relocation is a substantial change of circumstances justifying a reexamination of parental rights and responsibilities " only when the relocation significantly impairs either parent's ability to exercise responsibilities the parent has been exercising or attempting to exercise under the parenting plan." ALI Principles of the Law of Family Dissolution § 2.17(1) (2002). Thus, whether a relocation amounts to changed circumstances sufficient to reexamine a child's best interests " must be determined in the context of all the surrounding circumstances, keeping in mind that the effect on the child is what makes a change substantial." Hawkes, 178 Vt. 161, 2005 VT 57, ¶ 10, 878 A.2d 273.
[¶12] Comment b in § 2.17(1) acknowledges that the relevant factors in making this determination are too numerous and varied to identify, but lists three nonexclusive factors that are particularly relevant in determining whether changed circumstances exist: " [t]he amount of custodial responsibility each parent has been exercising and for how long, the distance of the move and its duration, and the availability of alternative visitation arrangements." ALI Principles, supra, § 2.17(1) cmt. b. We must determine, then, " whether mother's relocation would significantly impair father's ability to continue exercising the rights and responsibilities he has been exercising." Hawkes, 178 Vt. 161, 2005 VT 57, ¶ 16, 878 A.2d 273. To answer this question, the family court must address all relevant factors, including those quoted above, to gain insight into " the nature and extent of [each party's] relationship" with the child and how the proposed move would affect those relationships. Id.
[¶13] The first of the three changed-circumstances factors cited in comment b of the ALI principles and adopted in Hawkes is the amount of custodial responsibility that the parties have been exercising and for how long. This factor requires the court to consider the nature and extent of the relationship, and how much the move would affect it. Id. The record is undisputed as to this factor. Father lived with mother at the home of the child's maternal grandfather for the first several months after J.B.-F.'s birth. For the next few months after leaving mother's home at her request, father had very limited, supervised parent-child contact until the family court issued a temporary custody order in February 2013. Both the temporary order and the final order issued in October 2013 granted mother sole legal and physical parental rights and responsibilities. Under both orders, father had only limited parent-child contact with J.B.-F. -- approximately one-quarter of the child's time at the home of the child's paternal grandparents, where father was living.
[¶14] The facts surrounding the second factor are also undisputed. Mother relocated with the parties' child to Georgia, a distance of approximately 1100 miles from Vermont, and has no plans to return to Vermont.
[¶15] Regarding the third factor -- the availability of alternative visitation arrangements -- mother proposed a visitation schedule in which J.B.-F. would go to Vermont
to live with father for seven-to-eight weeks a year, mostly in the summer. The proposal indicated that mother would accompany J.B.-F. on the airplane at her own expense until he could fly alone, and that she would bear the cost of the child's ticket for the first year's summer and holiday visits to Vermont. Under the proposal, father would bear the costs of J.B.-F.'s travel the second year. This proposal would have reduced father's parent-child contact time by about nine percent (from twenty-five percent to approximately sixteen percent). Mother acknowledged that her move would alter father's parent-child contact, but ...