Appeal from Superior Court, Chittenden Unit, Family Division,
Barry D. Peterson, Acting J., Specially Assigned
E. Patnode, Pro Se, South Burlington, Plaintiff-Appellee.
Cynthia L. Broadfoot of Broadfoot, Attorneys at Law,
Burlington, for Defendant-Appellant.
Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
1. Father, Garisson Urette, appeals the superior court's
order amending the parent-child contact order. We find that
the court improperly modified the original parent-child
contact order without the necessary finding of a real,
substantial, and unanticipated change in circumstances.
Additionally, we find that granting mother, Lisa Patnode,
sole authority to sign releases and waivers of liability was
an improper infringement on father's parental rights.
Accordingly, we reverse.
2. In July 2011, the superior court issued the original order
regarding parental rights and responsibilities and
parent-child contact (original PCC order), which granted
mother physical and legal parental rights and
responsibilities, subject to father's substantial
parent-child contact.Since that original order, the parties have
filed over seventy motions to amend or clarify the orders and
have appealed to this Court six times. The superior court
issued an amended order regarding parent-child contact
(amended 2013 PCC order) in April 2013. This appeal follows
mother's September 2016 motion to the superior court to
clarify (1) father's legal right to bring the child on
private planes, jets, or helicopters without notice and
consent of mother, (2) father's ability to sign the child
up for activities, and (3) father's ability to sign
parental consent forms and release of liability
3. The superior court held a hearing on October 26, 2016. In
response, the superior court issued a decision on
mother's motions on November 15, 2016, in which it found
that "[b]ased on the evidence presented . . . there has
not been a real, substantial, and unanticipated change of
circumstances since [the original PCC order] to support a
modification of the parent child contact order . . . ."
The court then issued the following orders: (1) if the child
is with father in Vermont on Mother's Day, father's
contact "shall be interrupted" by the child
spending Mother's Day with mother; (2) mother has the
sole authority to make decisions regarding the child's
transportation and travel because mother has sole legal
rights and responsibilities; and (3) mother has sole
discretion to sign any releases or waivers of liability
because she has sole legal rights and responsibilities.
Father then filed a motion to amend the judgment and, on
December 13, 2016, the superior court issued an entry order
adding that mother shall not unreasonably withhold her
consent for releases and waivers of liability. Father appeals
all three orders as inappropriate modifications and
infringements on his parental rights. Mother argues that the
orders were proper.
4. It is well established that this Court gives substantial
deference when reviewing family division rulings on
parent-child contact. Patnode v. Urette, 2014 VT 46,
¶ 5, 196 Vt. 416, 98 A.3d 787. "[W]e will not
reverse the court's decision unless its discretion was
exercised upon unfounded considerations or to an extent
clearly unreasonable upon the facts presented."
Groves v. Green, 2016 VT 106, ¶ 23, __ Vt.__,
154 A.3d 507 (quotation omitted). However, modification of a
parental-rights-and-responsibilities order or a
parent-child-contact order requires the superior court to
undertake a two-part analysis. The court must first determine
if there has been a "real, substantial and unanticipated
change in circumstances." 15 V.S.A. 668(a). If this
threshold condition is met, only then may the court move on
to determine if changes to the orders would be in the best
interest of the child and to make changes as it deems
necessary. Id.; see also Siegel v. Misch,
2007 VT 116, ¶ 6, 182 Vt. 623, 939 A.2d 1023. Yet not
all subsequent orders regarding a standing
parental-rights-and-responsibilities order or a
parent-child-contact order are considered modifications-an
order may be a clarification that does not require the
two-part analysis. See Patnode, 2014 VT 46, ¶
13 ("Where the inherent purpose of an amendment to an
existing order is not to change the terms of the original
order, but to help the parties meet the original terms, it is
well within the court's discretion to view such
alterations as clarifying rather than modifying."). For
example, in a previous appeal between these parents regarding
the modification/clarification distinction, we held that
"an addendum which does not alter the terms [of a PCC
order] is not necessarily a modification but rather a
clarification of the original order." Id.
5. Here, the superior court made an unambiguous finding that
there had been no "real, substantial, and unanticipated
change in circumstances." However, instead of stopping
at the unsatisfied threshold question, the court then went on
to order two modifications to father's parent-child
contact-one concerning Mother's Day and another
concerning the child's travel arrangements.
6. First, the court modified the PCC order regarding
Mother's Day. The original PCC order stated,
"[i]f possible, the parties will arrange parent
child contact so that the child spends Mother's Day with
[mother] and Father's Day with [father]."
Mother's September 2016 motion to the superior court did
not specifically raise the Mother's Day issue, but during
the hearing on the motion, both parties discussed scheduling
issues around Mother's Day and debated over how many
Mother's Days mother had actually spent with child since
the original PCC order. Ultimately, the court found that
mother spent "one or two" Mother's Days with
the child but also found that "[b]ased on the evidence .
. ., there has not been a real, substantial, and
unanticipated change of circumstances." The court then
went on to, in their words, "supplement" the
original PCC order, ordering that if the child is with father
in Vermont on Mother's Day, "the contact
shall be interrupted" so that the child can be
with mother from ten o'clock in the morning until six
o'clock in the evening.
7. The court's order regarding Mother's Day was more
than a mere clarification or supplement-it was a
modification. In a previous appeal between father and mother,
we held that there was no modification because father's
parent-child contact had not been increased and the change
merely addressed an ambiguity in the issued PCC order.
Id. ¶ 13. We further noted that "[i]t
bears emphasizing that the superior court did not in any way
alter the amount of time that each parent was awarded with
the child under the PCC order." Id. ¶ 12.
8. Here, by changing the operative language from "if
possible" to "shall, " the superior court made
a discretionary matter into an obligatory order, possibly
depriving father of a day of his allotted time. The original
order's discretionary language made it clear that, if
arrangements could not be made, father's parent-child
contact would not be interrupted. With the new order, there
is no question that father's time with child
will be interrupted if the child is in Vermont and
with father, regardless of the ease of arrangements. To
modify a discretionary measure into a mandated reduction of
father's assigned time, the court must find that there
was some real, substantial, and unanticipated change in
circumstances. The court did not, and thus the modification
was improper and we reverse.
9. Second, the superior court modified the PCC order by
granting mother the sole authority to make decisions as to
transportation. The original PCC order stated that
"[father] shall be responsible for making the travel
arrangements and shall notify [mother] of the costs and
provide documentation." The amended 2013 PCC order
required father provide two weeks' notice to mother of
travel plans whenever he intended to travel outside of
Vermont. Subsequently, mother's September 2016 motion
requested clarification from the court to reinforce that
father must give mother two weeks' notice of all travel
by any method of transportation other than an automobile and
to further clarify that father did not have the legal right
to take the child on privately hired transportation. In
response to mother's motion, the superior court held that
mother has "sole legal rights and responsibilities and
therefore makes the decisions as to ...