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Lee v. Ogilbee

Supreme Court of Vermont

September 7, 2018

Caroline S. Lee
v.
Mark Ogilbee

          On Appeal from Superior Court, Windsor Unit, Family Division June Term, 2018 Elizabeth D. Mann, J.

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

          Emily S. Davis of Davis Steadman Ford & Mace, LLC, White River Junction, for Defendant-Appellant.

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

          EATON, JUDGE

         ¶ 1.Father appeals the trial court's final divorce order, challenging the court's parent-child contact plan, parental rights and responsibilities determination, and property division. We affirm in part, and reverse and remand in part.

         I. Facts & Procedural History

         ¶ 2. Mark Ogilbee (father) and Caroline Lee (mother) were married in January 1995 and separated in December 2015. The parties have one child, a daughter born in 2010. During the marriage, the parties moved several times to accommodate their career aspirations, eventually settling in Vermont in 2006. Father has suffered from the disease of alcoholism for over twenty years, and the couple has grappled with the ramifications of his alcoholism throughout their marriage. Mother became aware of father's problems with alcohol in 1997 when father was hospitalized due to alcohol-induced seizures. Despite father's attempts to achieve sobriety, he has had multiple relapses. During these relapses, father will binge drink, often secretly, until he is discovered. On several occasions, his intoxication has impacted their daughter. The trial court found multiple instances before and after the parties' separation when father was obligated to care for their daughter or attend a scheduled event and was unable to do so due to his intoxication. The trial court further found that these and other incidents upset their daughter and placed her at risk of harm. For example, while in her father's care, the daughter injured her forehead due to father's inattentiveness. He later admitted he was inebriated and did not know how she sustained the injury. After the parties' separation, father suffered relapses in his sobriety and missed court-scheduled parent-child contact dates with their daughter. Father has participated in both inpatient and outpatient treatment for his alcoholism. However, the trial court found father "is an alcoholic who desires sobriety but has not yet attained recovery" and "has no credibility on drinking issues."

         ¶ 3. Mother filed a complaint for divorce in March 2016 and requested that the court grant her sole legal and physical parental rights and responsibilities. Mother also asked the court to award her child support, medical support, and/or supplemental maintenance, and to divide the parties' assets. Both parties presented proposals for parental rights and responsibilities and parent-child contact. Father conceded sole physical rights to mother, but he sought liberal parent-child contact. He proposed several alcohol-related conditions to ensure his sobriety during his time with their daughter, including abstaining from alcohol during her visits, sending mother frequent breathalyzer tests, and attending treatment groups to support his sobriety. Father also sought legal parental rights and responsibilities in decision-making for their daughter, [1] 50% of the marital estate, and alimony.

         ¶ 4. The court issued its final order and decree of divorce in November 2017 addressing three main issues: parental rights and responsibilities, property division, and spousal maintenance. Regarding parental rights and responsibilities, the court awarded primary physical and legal parental rights and responsibilities to mother. The court explained that mother should "engage in meaningful consultation with [father] regarding significant decisions regarding [their daughter's] education and health concerns[, ] but if there is a disagreement between the [p]arties, [mother] shall have the final decision-making authority."

         ¶ 5. The court also established the parent-child contact schedule and set alcohol-related conditions for father's visits with his daughter. The contact schedule limited father's time with the child, which the court attributed to its concerns over father's alcohol abuse. Due to father's ongoing relapses, Phase One of the parent-child contact schedule did not allow father to have overnight visits with his daughter for the first ninety days following the divorce order. After the ninety-day period, Phase Two of the contact schedule allowed the daughter to "be with [father] on Friday from after[ ]school until the start of school on Monday" every other weekend. The court set this alternating-weekend schedule to continue "thereafter." The conditions of parent-child contact required that father abstain from using alcohol, submit to alcohol-detection urinalysis upon wife's reasonable suspicion and request, and participate in treatment to ensure continued sobriety, among other conditions. The court also provided that the parent-child contact schedule "may be modified without a court order providing both parents agree to the modification."

         ¶ 6. The court divided the parties' property based on what it said was an award of 60% of the assets to mother and 40% of the assets to father. The court made this division based on the parties' earnings and contributions to the marriage. The court found that mother made the greater financial contribution to the marriage and had the greater earnings. The court further found that both parties are well educated and able to acquire income and assets as they move forward and are on relatively equal footing in their ability to realize income. The court awarded the marital residence to mother and split their retirement funds on the same 60/40 basis. The court valued the parties' assets as of from the date of their separation, rather than the date of the final divorce hearing.[2] The court denied father's request for maintenance.

         ¶ 7. Father filed a motion to amend judgment with respect to the parent-child contact schedule and the property division. Soon after, the court issued an entry order granting both parties holiday and vacation time with their daughter-holiday parenting time had been inadvertently omitted from the original parenting schedule-and provided that their daughter's summer vacation would be equally shared by the parties. Both parties filed motions to amend that order, and the court issued two orders in response: an entry order responding to the parties' motions to amend and an amended final order and decree of divorce. In the final order, the court altered the parent-child contact schedule for summer vacation so that the alternating-week schedule for summer vacations under the initial order would not start until 2020 to give father time to "fully 'advance his recovery.'" The court also gave further justification for its 60/40 property division, explaining that it valued the equity in the marital property as of the parties' separation date to account for inflation in the value of the residence and to avoid "unjustly benefit[ting]" husband for the mortgage payments made by wife following separation, and assigned husband's credit card debt and personal loans to husband. This appeal followed.

         ¶ 8. Father raises several issues on appeal. He alleges that the court abused its discretion in establishing the parent-child contact schedule, awarding sole legal rights and responsibilities to mother, and distributing the marital assets. We consider each claim in turn.

         II. Standard of Review

         ¶ 9. We review the trial court's determination regarding the parent-child contact plan, parental rights and responsibilities, and property distribution for abuse of discretion. See LeBlanc v. LeBlanc, 2014 VT 65, ¶ 21, 197 Vt. 17, 100 A.3d 345 ("The family court has broad discretion in determining what allocation of parental rights and responsibilities is in a child's best interests."); MacCormack v. MacCormack, 2015 VT 64, ¶ 17, 199 Vt. 233, 123 A.3d 383 ("The trial court enjoys broad discretion in dividing the marital property, and we will uphold its decision unless that ...


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