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Frazer v. Olson

Supreme Court of Vermont

June 26, 2015

Stacey Frazer
v.
James Olson

On Appeal from Superior Court, Windham Unit, Family Division December Term, 2014 Katherine A. Hayes, J.

Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Plaintiff-Appellant.

James Olson, Pro Se, Brattleboro, Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

REIBER, C.J.

¶ 1. Mother appeals the parent-child contact and property division orders in a final divorce decree that assign her sole parental rights and responsibilities with regard to the parties’ children. On appeal, mother argues that the trial court was bound to consider findings of fact made by the presiding magistrate at a temporary hearing and that the court’s findings do not support its conclusions. We conclude that at the final hearing the trial court was not bound to consider the findings from the temporary hearing and that its decision regarding parent-child contact was clearly supported by the evidence. Mother’s other arguments fail because there is no clear error in the court’s findings, and the findings reasonably support the court’s conclusions. We affirm.

¶ 2. The parties married in July 2000. During the marriage, mother worked part-time as a special educator at Guilford School. Father worked full-time as a clinician at Health Care & Rehabilitation Services of Vermont. In 2008, the parties bought land in Brattleboro and built a home where they lived until they separated in December 2011. On December 21, 2012, mother filed for divorce. The parties have two children that were born during the marriage.

¶ 3. After separation, the parties agreed to a parent-child contact schedule. Under this arrangement, father had only one overnight per week with the children. Father’s schedule with the children was generally as follows: Mondays and Wednesdays from after school until early evening; Friday from after school until Saturday at noon; and Sunday during dinnertime. Both parents followed this schedule until April 2013.

¶ 4. By order dated April 16, 2013, after a hearing, a magistrate in the family court established temporary parental rights and responsibilities and issued a parent-child contact order in connection with mother’s complaint for divorce. In her order, the magistrate looked to the nine statutory factors enumerated in 15 V.S.A. § 665(b) to determine the best interests of the children. As to the sixth statutory factor, the magistrate found mother to be the primary care provider before and after the parties’ separation. See 15 V.S.A. § 665(b)(6). She further concluded that the seventh factor-the relationship of the children with any other person who may significantly affect them-favored father. See id. § 665(b)(7). The magistrate awarded temporary legal and physical responsibility to mother and put in place a temporary parent-child contact schedule.

¶ 5. The final hearings before a trial judge took place in December 2013 and January 2014. The trial court made the following findings. In raising their children, the parents shared time with them in different ways. Both parents encouraged the intellectual development of their children in a positive and loving manner and shared parental responsibilities. Mother’s part-time work schedule enabled her to provide more direct care for the children than could father. The parties agreed that having one parent working part-time allowed the children to have “as much time as possible in the care of a parent, rather than in childcare.”

¶ 6. Although both children are in good health, they have “anxious temperaments.” The trial court found that mother and father have different approaches to their children’s anxieties. Father is able to encourage the children to “take appropriate risks, to learn from mistakes, and to ask for help when it is needed. ” In contrast, mother believes that protecting the children “from feeling any anxiety, distress, or sadness... will encourage them to develop and learn in a healthy way.”

¶ 7. The court carefully considered the § 665(b) factors and found that some factors favored father, some favored mother, and others favored the parents equally. On balance, the court concluded that mother should continue to have primary legal and physical responsibilities for the children. The court crafted a detailed parent-child contact schedule for the parties addressing school year, overnight, summer and holiday visitations, and telephone and email communications.

¶ 8. Finally, the court addressed the property division. The factors enumerated in 15 V.S.A. § 751(b) guided the court in making the property settlement. The court divided the property, including the marital home, mother’s 2009 Toyota Highlander, father’s 2005 Toyota RAV4, mother’s People’s Bank IRA, mother’s Vermont State Teacher’s Retirement account, and father’s Vermont State Teacher’s Retirement account. The court awarded father sole ownership and possession of the marital residence, including all financial liability for all debt related to the residence. The court also awarded mother a sum of $13, 350 “to compensate her share of the equity in the marital home.”

¶ 9. On April 25, 2014, mother filed a motion to reconsider the final order, challenging the trial court’s findings and the parent-child contact schedule. She argued that the court misconstrued or misheard evidence, and that its conclusions that mother was not the primary caregiver of the parties’ daughter and that father was better able to foster a positive relationship were not supported by the evidence. She also argued that the court’s ...


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