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Ward v. LaRue

Supreme Court of Vermont

July 22, 2016

Kevin Ward
Renee LaRue

         On Appeal from Superior Court, Chittenden Unit, Family Division, Barry D. Peterson, Acting Superior J., Specially Assigned.

          Norman R. Blais, Burlington, for Plaintiff-Appellee.

          Joanna K. Watts of Law Office of Joanna K. Watts PLC, Shelburne, for Defendant-Appellant.

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

          EATON, J.

         ¶ 1. Mother appeals from the trial court's imposition of sanctions against her and its denial of her request that Vermont relinquish jurisdiction over this case to Virginia. She asserts that the evidence does not support the imposition of sanctions and that the court erred in evaluating her jurisdictional request. We affirm.

         ¶ 2. To place the court's ruling in context, we must recount the procedural history of this case. The parties are the parents of a daughter, born in August 2004. The parties were living in Vermont and obtained a final parentage order in December 2012. Mother was awarded sole legal and physical parental rights and responsibilities, and father was awarded significant parent-child contact (PCC). In October 2013, the court granted father's motion to enforce his parent-child contact. The court warned mother that if she withheld or denied father's right to contact in the future, it would seriously consider modifying parental rights and responsibilities. The court was persuaded that mother had no ability or disposition to foster a positive relationship and frequent and continuing contact with father, and that it was in the child's best interests to have frequent and continuing contact with him. The court reiterated that, pursuant to existing orders, father had the right to full access to the child's medical, dental, law enforcement, and school records.

         ¶ 3. In August 2014, mother and daughter moved to Virginia. Father continues to live in Vermont. The parties stipulated to a PCC order in early December 2014, which the court approved in early January 2015. By agreement, father was to be provided with PCC during Christmas 2014 and during the early spring and summer of 2015. The Christmas visitation did not occur. In April 2015, father moved to enforce the PCC order. Father asserted that he had been unable to schedule a spring visit because mother refused to tell him where the child lived and which school she attended. Father asked the court to order mother to supply him with the name and address of the child's school and her health care providers. He also sought an order requiring mother to cooperate with him in setting up summer visitation. In June 2015, the court issued an order stating that the summer visit would occur between June 28 and August 28, 2015. The court explained that if the child, who had been homeschooled, was to be enrolled in a "brick-and-mortar" school in the fall of 2015, father would have to return the child on the Sunday before the school year began. For this provision to apply, mother was required to file an affidavit attesting to the fact of enrollment and stating the first and last day of classes.

         ¶ 4. On July 2, 2015, father filed an emergency motion for sanctions and for enforcement. He indicated that he had purchased an airplane ticket for the child's summer visit but had been informed that the child refused to board the flight. Father asked the court to order mother to deliver the child as soon as possible, and to impose sanctions. Following a hearing, mother agreed to drive the child to Vermont and father withdrew his motions. In late July 2015, mother filed an affidavit stating that the child was enrolled in school, which would begin on August 19, 2015. The court subsequently ordered father to return the child to mother on August 16, 2015. Approximately one month later, father moved for an order compelling mother to disclose the name and address of the child's school as mother refused to provide him this information. Mother did not deny father's assertion, but indicated that she had provided father with information about the child's academic progress, her report cards, and general information about her educational development.

         ¶ 5. The court granted father's request in October 2015. It found no reason why father should be required to obtain information concerning the child's education exclusively from mother, and it reiterated that father had the right to communicate directly with the child's school to obtain such information. The court ordered mother to sign a release within ten days that authorized father's communication with the school and its personnel, and authorized the release to father of all information concerning the child. One month later, father filed another motion for sanctions and enforcement, asserting that mother had not signed the release as ordered by the court.

         ¶ 6. Shortly before father's filing, mother asked the court to relinquish jurisdiction over this case to the Virginia courts. Mother argued that she and the child no longer had a significant connection to Vermont and that the "center of gravity regarding the child's care, protection, schooling and personal relationships center fully in Virginia." Mother acknowledged that the parties had an "active history" in the Vermont family court regarding PCC matters, but asserted that it was "reasonably probable that the significant majority of disputes have already arisen and been addressed." Even if there were further disputes, mother stated Vermont was an inconvenient forum for her. Mother had apparently tried to register and modify a Vermont order in the Virginia courts prior to this filing. She attached to her motion an order from a Virginia court, which indicated that it could not modify a Vermont order unless Vermont declined continuing jurisdiction.

         ¶ 7. The court considered both parties' motions at an evidentiary hearing in December 2015. The court noted at the outset of the hearing that the matter had been scheduled as a status conference. However, both attorneys stated their understanding that they were there for an evidentiary hearing on the pending motions. Both parents testified at the hearing, and the testimony focused on whether mother had provided father with the information required by the prior court order. Mother's attorney also presented a brief argument in support of transferring the case to Virginia, but he offered no evidence beyond mother's testimony. Mother's attorney indicated that he had briefed the issue and asked the court to take the motion to transfer under advisement.

         ¶ 8. Following the hearing, the court issued the order challenged in this appeal. Based on a review of the admissible evidence presented, including the parties' testimony and a review of the file, the court found that mother did not provide father with a copy of the child's school records or identify the school that she was attending, despite father's repeated requests. Mother similarly did not sign a release for the child's school records as required by the court's October 7, 2015 entry order. The court rejected mother's testimony to the contrary as not credible. It determined that father had incurred unnecessary attorney's fees of at least $500 to address these enforcement issues, and thus ordered mother to pay this sum to father's attorney.

         ¶ 9. The court also denied mother's request to decline continuing jurisdiction, finding that father continued to live in Vermont and the original parentage order and all subsequent orders had been issued by Vermont. Since mother's unilateral decision to relocate to Virginia fourteen months earlier, the only contested issues presented to the court had been issues directly related to father's rights to PCC, access to his daughter's school records, and the identity and address of her school, all as a result of mother's failure to comply with the court's orders and Vermont law. The court found no compelling reason that would justify relinquishment of jurisdiction in this case. It concluded that Vermont remained the more appropriate jurisdiction to address father's PCC rights with his daughter. The court thus denied mother's motion. This appeal followed.

         ¶ 10. Regarding the imposition of sanctions against her, mother contends that she timely complied with all court orders, that the parties were equally at fault with respect to any communication problems, and that father had not had any difficulties in the past in obtaining information from her. Mother also asserts that father did not engage in mediation before filing his motion, which she suggests was required under the final parentage order. As support ...

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