Hoover (Letourneau) v. Hoover

Morse, J.

In this custody dispute, mother appeals from the Rutland Family Court’s modification order awarding sole custody of two of the parties’ three children to father. The decision modified the parties’ shared legal and physical parental rights and responsibilities.1 Mother challenges the factual findings that served as the basis for the court’s modification. We affirm.

The court concluded that both parents were actively involved in their children’s daily lives following their divorce. Until August 1998, both parties resided in Rutland. Their divorce in 1996 did not result in any changes of schools or significant changes in routine for the children, with the exception of their sleeping slightly more often at mother’s townhouse.

After the divorce became final, mother entered into a relationship with a man living in Connecticut. In April 1998, mother informed father that she intended to move with the children to Connecticut to live with him. Father objected to the move and, in July 1998, filed a motion to modify custody so that the children could remain with him in Rutland. Shortly after father filed his motion, mother moved to Connecticut. Soon thereafter, without father’s agreement, she moved the two youngest children to Connecticut and enrolled them in school there.

*258 In a decision dated December 18,1998, after a hearing on the matter, the court concluded under 15 V.S.A. § 668 that mother’s move to Connecticut constituted a real, substantial and unanticipated change of circumstances necessitating reconsideration and modification of the parties’ legal and physical parental rights and responsibilities.2 The court then considered the best interests of the children by weighing and balancing various factors under 15 V.S.A. § 665(b). It concluded that it was in the best interests of the children to return to Rutland and live primarily with father. Accordingly, the court ordered the children returned to father, granting him sole legal and physical custody. This appeal followed.

Mother challenges several of the court’s conclusions as being clearly erroneous. She offers her own interpretation of the court’s findings of fact and provides additional facts that were not in the trial court record in support of her arguments that the court’s findings were erroneous. Our standard of review, however, is limited. A trial court’s findings of fact must stand unless, viewing the record in the light most favorable to the prevailing party and excluding the effect of modifying evidence, there is no credible evidence to support the findings. See Highgate Assocs., Ltd. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991). Furthermore, our review is confined to the record and evidence adduced at trial. On appeal, we cannot consider facts not in the record.3

*259 As an initial matter, the custodial underpinning of this case should not be equated with that of Lane v. Schenck, 158 Vt. 489, 614 A.2d 786 (1992). Lane involved a judgment granting sole physical and legal parental rights and responsibilities to one parent, and neither party in that case disputed the fact that the mother had continued to be the sole custodian following the divorce. We noted that when a noncustodial parent seeks a change in custody based solely on the custodial parent’s decision to relocate, the moving party faces a high hurdle in justifying the “violent dislocation” of a change in custody from one parent to the other. See id. at 499, 614 A.2d at 792 (quoting Kilduff v. Willey, 150 Vt. 552, 555, 554 A.2d 677, 680 (1988)). We also observed “[t]he place of residence for a family is central to childrearing, and thus that decision is understandably entrusted to the parent awarded parental rights and responsibilities.” Id. at 495, 614 A.2d at 789. However, when childrearing and its concomitant decision-making are shared, relocation to a remote location by one parent requires at the very least a reassessment of the custodial arrangement and, because of the practicalities involved in shared parenting, will often necessitate a change in custody. This result is further compelled when the parties are no longer able to engage in shared decision-making because of a deterioration in their parenting relationship.

This case involves a prior divorce judgment providing for shared legal and physical parental rights and responsibilities.4 Furthermore, the court’s factual determination that the parties continued to share custody up to the time mother moved to Connecticut is supported by the evidence presented at the modification hearing. Cf. deBeaumont v. Goodrich, 162 Vt. 91, 105, 644 A.2d 843, 851 (1994) (Morse, J., concurring) (co-parenting relationship which made neither party primary care giver most important factor that differentiated case from Lane). Because mother and father were unable to resolve their *260 conflict and reach an agreeable arrangement that would enable them to continue co-parenting, a disruption of the custodial arrangement in this case was inevitable. The trial court was merely in the position of deciding what was in the best interests of the children: sole custody with mother or sole custody with father. Cf. Lane, 158 Vt. at 499, 614 A.2d at 792 (where one parent has sole custody, trial court is faced with decision to continue the current custody arrangement or to order change in custody based solely on custodial parent’s decision to relocate).

The findings of fact upon which the court based its award of sole custody to the father include the following: Father had a slightly more active engagement in the children’s lives, including helping them with their homework, having dinner with them on a regular basis and involving himself in their extra-curricular activities. He placed the interests of the children first, whereas mother blended her perception of her own interests with those of the children, describing the children’s best interests as coextensive with and dependent on her personal happiness. Father was more committed to providing a long-term, stable home environment, while the future of mother’s new relationship was unsettled and the new home she offered untested. Although the children seemed to have made a reasonable adjustment to their new school, one child’s grades had slipped. The children were familiar with the home, community and school in Rutland. In addition, the children’s older sister and maternal grandparents resided in Vermont.5 The court was also concerned about the manner in which the children were moved to Connecticut and their involvement in the process.

These findings all find support in the trial court record. Father testified that he had dinner with the children every week night but Tuesdays and would then help them with their homework before they returned to their mother’s house for bed. This testimony was corroborated by the mother’s testimony that when the children returned at night, their homework would either be completely *261 finished or at least partially completed. Father testified that he attended all the children’s sports games, but that mother attended only occasionally and often would not stay to the end of the game. He noted that mother failed to attend one of the children’s baseball banquets. With respect to the parents’ consideration of the children’s best interests, father indicated that he had declined a promotion at work because it would entail hours that would interfere with the time he spent with the children. With regard to the manner in which mother moved the children to Connecticut, the father gave uncontested testimony that mother inaccurately led him to believe that she was merely taking the children to Connecticut for their weekly time with her, but that she would be returning them to Vermont at the usual transfer time. Without listing further testimony at length, there is credible evidence in the record to support the trial court’s findings, most importantly the findings on which the court relied in making its disposition.

The trial court determined that both parents in fact shared parenting responsibilities. Because of mother’s move, however, and the breakdown in the parties’ ability to co-parent the children, the court was forced into the position of awarding sole custody to one parent or the other. After appropriately and carefully weighing the factors used when determining the best interests of the children, the trial court found that living in Vermont with their father was favored over living in Connecticut with their mother.

It is not what appellate judges would have done had they been the trier of fact that governs in an appeal. See deBeaumont, 162 Vt. at 103, 644 A.2d at 850 (quoting Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988)) (“[W]e cannot set aside [a trial court’s] decision ‘because we would have reached a different conclusion from the facts.’”). The trial court’s findings are supported by the record evidence. To the extent that mother offers additional information, this information is not of record and may not be considered on appeal. Therefore, we cannot say that the trial court’s findings of fact are clearly erroneous. While this is a close case and, as the trial court recognized, “both parents are capable of being the primary parent for the children,” mother has not shown that the court abused its discretion by granting father sole legal and physical custody of the *262 children based on its findings of fact.6

Affirmed.

The parties reached a separate agreement with regard to their oldest child that does not modify the shared parental rights and responsibilities at the present time, but provides that she will continue to five in Rutland with her father while mother and father attempt to resolve their disagreement with regard to her custody.

Because she discussed her intentions with father on several occasions, mother takes issue with the court’s characterization of the means by which she moved the children to Connecticut as “deceptive.” The accuracy of this characterization, however, does not control the determination that her move amounted to a real, substantial and unanticipated change of circumstances. Circumstances or arrangements are “unanticipated” if they were not expected at the time of divorce, see Lane v. Schenck, 158 Vt. 489, 493-94, 614 A.2d 786, 788 (1992), which was the case with mother’s move to Connecticut.

It appears that some of the “uncontested evidence” referred to by the dissent is partially comprised of facts that mother brought forth in her brief but do not appear in the record with specificity, including, for example, the fact that prior to her move, mother saw the children after school before they went to their father’s house; or that the mother discussed her move to Connecticut with the children and father contemporaneously. While these facts would have been mitigating evidence with respect to the evidence presented by the father at trial, they appear in an unsworn statement and were never before the trial court. Therefore, we cannot consider them. To the extent that the dissent cites to the record for support, the testimony cited is equivocal, especially considered in light of contrary testimony by father. It is not this Court’s role to second-guess inferences drawn by the trial court from equivocal evidence.

To the extent that the dissent argues it, our decision in deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994), does not stand for the proposition that a trial court or this Court should disregard a valid divorce order when making a determination regarding modification of parental rights and responsibilities, especially when it appears that the parties have adhered to the parenting arrangement reflected in that order. In deBeaumont, we noted that although the divorce order granted sole legal and physical custody to the mother, the time allocation found within the divorce order more closely reflected a co-parenting relationship that was borne out by the facts in that case. Id. at 94. 96 & n.3. 644 A.2d at 845. 846 & n.3.

The dissent miseharacterizes the trial court’s finding on this point as a determination that father was in a better position to foster a relationship with mother’s extended family. In fact, the trial court merely found that, because both maternal grandparents live in Vermont, living with their father in Vermont would allow the children more opportunities to see their grandparents.

We do not take issue with the dissent’s observation that “[t]he standards proposed by the American Law Institute in its Principles of the Law of Family Dissolution . . . thoughtfully consider the risks and rights at issue in relocation cases.” 171 Vt. at 272, 764 A.2d at 1202. The adoption of these proposed standards simply is not before us. The ALI’s proposed standards were not argued below, considered by the trial court or mentioned in the briefs. Additionally, applying the ALI analysis for joint custody would • arguably yield the same result in this case. If anything, the trial court might not have reached the best interests inquiry because of a failure to meet the first requirement, good faith, based on the manner in which mother moved the children to Connecticut. According to father’s uncontroverted testimony, the weekend she moved the children permanently to Connecticut, mother led him to believe through communications via the children that she would be returning with them to Vermont for their usual Thesdaynight transfer. In fact she failed to do so and instead enrolled the children in school in Connecticut. Cf. deBeaumont, 162 Vt. at 98, 644 A.2d at 847 (“[T]he mother unilaterally terminated the parties’ co-parenting arrangement by removing the children to Pennsylvania. In so doing, she deprived the children of day-to-day contact with their father. . . subverting, as the trial court found, ‘[t]he financial, education, housing, and co-parenting plans agreed upon by the parties . . . .’”) (second alteration in original).