Terino v. Bleeks

          On Appeal from Superior Court, Windsor Unit, Family Division

          Thomas J. Devine, J. Mar-Rae X. Terino, Pro Se, Windsor, Plaintiff-Appellee.

          John B. Loftus, III and C. Justin Sheng of Brannen & Loftus, PLLC, Hanover, New Hampshire, for Defendant-Appellant.

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

          ROBINSON, J.

         ¶ 1. This case calls upon us to consider whether and under what circumstances the family division, in an order relating to parent-child contact, may account for likely future changes in the best interests of a very young child as the child ages-where the child's aging would not itself constitute an unanticipated change of circumstance opening the door to the possibility of modification under 15 V.S.A. § 668. Father Mar-Rea Terino appeals the family court's denial of his request to include a mechanism in the divorce decree for revisiting parent-child contact for his two-year-old child as the child gets older, particularly as he reaches school age. In addition, father argues that the family court erred in failing to address various proposals in his parenting plan. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

         ¶ 2. The trial court's findings in the final divorce order reflect the following. Mother and father met in February 2011 and married in May 2012. In March 2015, they separated while mother was pregnant with their child. Father and mother had been living in a home co-owned with mother's mother (the child's maternal grandmother), and, upon their separation, father moved into his own mother's home. Mother filed for divorce in June 2015.

         ¶ 3. In June 2015, shortly before filing for divorce, mother gave birth to the parties' child. Father was present for the birth and began to visit the child at the maternal grandmother's home frequently. Although father provided care for the child during these visits-including changing, bathing, and holding the child-mother was the primary caregiver. She had the child overnight, breastfed, brought him to medical appointments, and provided the lion's share of his day-to-day care. Starting during the summer of 2015 and lasting through 2017, father began to have the child for visits at paternal grandmother's home.

         ¶ 4. Mother and father's separation and divorce was acrimonious. In August 2015, after attending a case manager conference, the parties reached a temporary agreement to share legal and physical rights and responsibilities for the child. However, only weeks later in September 2015, mother sought to modify the agreement on the ground that she signed it under duress.^[1] Father did not have a visit with the child for the next six weeks, apparently because of tension between the parties and his want to avoid further allegations of abuse. Twice in early 2016, mother brought the child to the emergency room with minor injuries after he had visited father-a small scratch near the corner of his eye the first time and a bruise on his thigh the second. She requested that the hospital report the injuries to the Department for Children and Families, which it did while noting that it did not suspect abuse. The court found that mother's "actions in bringing the child for an unnecessary medical exam were motivated more by a desire to assemble evidence to use against [father] than by other considerations."

         ¶ 5. Between November 2015 and October 2016, when the court held the final divorce hearing, mother cancelled or failed to appear for more than thirty scheduled visits between father and the child. The family court, in its final divorce decree, found that some of these cancellations were for legitimate reasons, while other visits were cancelled "simply because [mother] did not want them to occur." The court found that:

[Mother] has engaged in a course of conduct whose purpose is to limit or deny [father's] parent-child contact without legitimate justification. The court finds [mother] lacks the ability and disposition to foster a positive relationship and frequent and ongoing parent-child contact between [father] and their child.

         ¶ 6. On the basis of these and other findings, the court issued a final order, awarding sole physical rights and responsibilities to mother, which father did not contest. In addressing father's request for an award of legal rights and responsibilities for medical decision-making, the court examined the child's best interests under the factors in 15 V.S.A. § 665(b) and ultimately decided to award sole legal decision making to mother based on her status as the primary day-today care provider and her previous management of the child's medical care. Regarding parent-child contact, the court emphasized the child's "young age," "the role of [mother] as [the child's] primary care provider and the quality of [the child's] adjustment to his present home, school and community." The court issued a parent-child contact schedule in which the child would be with father Monday, Wednesday, and Sunday from 10 a.m. to 6 p.m. One month after the order, father's contact would expand to an overnight on Sunday, with the child going back to mother by 4 p.m. Monday. And three months after the order, father's visits would expand to include contact from 10 a.m. Sunday through 4 p.m. on Tuesday.^[2]

         ¶ 7. Father subsequently moved for clarification and reconsideration of the divorce decree. V.R.C.P. 59(e). Father attached the proposed parenting plan he had entered as an exhibit during the final divorce hearing.^[3] He argued that the decree failed to adopt, or even address, various parent-child contact provisions in his proposed parenting plan regarding transportation, visitation exchange locations, who may be present at exchanges, (future) parent-child telephone contact, and dispute resolution. In addition, since the child was two years old, father requested "clarification of the standard for modifying the parent-child contact order going forward" because "the schedule will necessarily need to be adjusted as [the child] gets older, particularly once he enrolls in kindergarten." Father explained that he would not be able to avail himself of Vermont's statute for modifying custody orders, 15 V.S.A. § 668, "based on [the child's] age and ordinary enrollment in school," since these predictable future eventualities would not be unanticipated.

         ¶ 8. On August 30, 2017, the court issued an entry order regarding father's motion for clarification and reconsideration. The court declined to provide a specific arrangement for telephone or Skype contact given the child's age, and explained that, under the order, both parents would have contact with the child during the week. Similarly, the court declined to set a school or summer vacation schedule. The court noted that father "loves the child but has not yet provided any extended or sustained care" and it "would be premature and presumptuous to set forth a plan for more extended contact based on the information available now." After originally finding that mother and father lacked the ability to make decisions together, the court "remain[ed] hopeful the parties will improve their ability to communicate and work together in the years ahead," but if this turned out not to be the case, then either party could petition to modify parent-child contact under § 668. Regarding medical appointments, the court expected that nonemergency appointments would not ...