2011 VT 110



Chickanosky v. Chickanosky
(2010-385)
 
2011 VT 110
 
[Filed 22-Sep-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to notify
the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier,
Vermont 05609-0801 of any errors in order that corrections may be made before
this opinion goes to press.
 
 

2011 VT 110

 

No. 2010-385

 

Michael Chickanosky


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Addison Unit,


 


Family Division


 


 


Margaret Chickanosky


May Term, 2011


 


 


 


 


Cortland
  Corsones, J.


 

James C. Foley, Jr. of Deppman & Foley, P.C.,
Middlebury, for Plaintiff-Appellee.
 
Lisa M. Werner of Clark, Werner & Flynn, P.C.,
Burlington, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.   Mother appeals from a family court order
granting father sole physical and legal rights and responsibilities of their
child.  She contends that: (1) the family court’s findings and legal
conclusions are inconsistent with the evidence presented at trial and are based
on inadmissible evidence; (2) the family court erred in failing to consider her
argument that father’s reason for moving should be considered when deciding
whether there has been a change in circumstance, such that the co-parent’s
rights to physical custody are reduced; and (3) the family court erred in
failing to consider her argument that mother should maintain physical custody
when father decided to move and mother had the majority of physical
custody.  We affirm.
¶ 2.            
  Mother and father were divorced in 2005.  Pursuant to
the original divorce order, the parties shared legal and physical rights and
responsibilities in their daughter, who was five years old at the time of the
judgment.  Following their divorce, mother and father generally shared time
with daughter: she was with mother for four overnights per week and with father
for three.  During the school year, she was with father from Wednesday to
Saturday and with mother from Saturday to Wednesday.  During the summer,
she was with father from Friday to Monday and with mother from Monday to
Friday.  They also co-parented daughter during this time. 
Nonetheless, mother and father have had an especially contentious post-divorce
relationship.  Both parents have new partners and children, and this has
caused additional tension in their relationship.  Daughter’s participation
in extracurricular activities caused particular difficulties. 
¶ 3.            
As a result of the parties’ disputes, father moved to modify parental
rights and responsibilities in January 2008.  Following a five-day
hearing, the court issued a written order in January 2009 awarding primary
legal responsibility to father.  The court found that because parents
could not agree, daughter was being denied the opportunity to participate in
extracurricular activities she had previously enjoyed.  In addition, the
parties could not agree on a counselor or dentist for daughter, whether she
should see an orthodontist, and how her religious upbringing should
occur.  Overall, the court found that daughter’s welfare was negatively
affected by the parties’ inability to cooperate or reach agreements.  
¶ 4.            
Based on its findings, the court concluded that it had become necessary
to grant primary legal responsibility of daughter to one parent.  It
further concluded that it was in daughter’s best interest that father be
awarded primary responsibility with certain “caveats,” including that father
not remove daughter from her current school unless the parties agreed, nor
change her current church membership without mother’s approval.  The court
specifically ordered that father would be the primary decision-maker for
non-school-related extracurricular activities.  At the same time, the
court denied father’s request for primary physical responsibility of daughter,
concluding that it would be traumatic for daughter if her residential schedule
were altered.  Given the parties’ co-parenting arrangement, a change of
custody was not necessary to solve the dispute before the court.  
¶ 5.            
Nevertheless, mother appealed the family court order awarding father
primary decision making responsibility over daughter’s extracurricular
activities, as well as a subsequent order denying her motion to modify,
claiming that the orders impermissibly infringed on her shared physical rights
and responsibilities.  We affirmed both family court decisions in Chickanosky
v. Chickanosky, Nos. 2009-094 & 2009-444 (Vt. May 21, 2010) (unpub.
mem.), http://vermontjudiciary.org/d-upeo/eo09-094.pdf.
¶ 6.            
In October 2009, while mother’s appeals were pending before this Court,
father again petitioned the family court for primary physical responsibility of
daughter because of a planned relocation to Missouri.  He asserted that
the relocation was a real, substantial, and material change in circumstances
warranting a change in the award of physical rights and responsibilities. 
Father further asserted that it would be in daughter’s best interest that he be
awarded primary physical responsibility so that she could move with him and his
wife to Missouri and that mother be awarded reasonable parent-child
contact.  Mother contended that it would be in daughter’s best interest to
remain with her in Vermont.  
¶ 7.            
Following a four-day hearing, the court issued a written decision in
July 2010.  The court made extensive findings, relying on a court-ordered
forensic evaluation by Dr. Joseph Hasazi, its January 2009 order and related
findings and conclusions of law, and the testimony of multiple witnesses. 
The court found that father’s primary motivation for moving to Missouri was to
be closer to his wife’s family.  Other factors influencing father’s
decision to move included Missouri’s lower cost of living, the tense situation
with mother and its impact on daughter, and the cost of the ongoing litigation
regarding their daughter.  
¶ 8.            
The court found that mother continued to make it “very difficult for
[daughter] to be able to truly consider [father] as a co-parent,” and that
mother’s “tendency to fail to see [father] as an equal co-parent has continued
since the time of the [January 2009] order, and she has directly, or
indirectly, continued to instill this belief in [their daughter].”  In
particular, the court found that mother had criticized father’s choices
concerning daughter’s extracurricular activities after the court granted him
decision-making authority in this area.   Similarly, the court found
that mother had not set aside her anger towards father’s wife, even though
doing so would benefit daughter, who had bonded with father’s wife.  The
court noted that things had not improved in this regard since its January 2009
decision.  The court also found that mother had “a history of interfering”
with the daughter’s schooling.  Indeed, the court found that mother was
“not as good as [father] as far as giving [daughter] space to learn and develop
on her own.”  
¶ 9.            
In contrast, the court found that father was “much more likely to make
decisions that [were] based on [daughter’s] best interest [and] not influenced
by his feelings for [mother].”  Indeed, the court found that father was
much better at keeping “adult issues” away from the child.  The court also
found that father had “a better understanding of the boundaries between adult
and child and [could] provide [daughter] with better guidance.” 
¶ 10.        
  The court found, too, that daughter had strong ties to her
community in Monkton, where mother lived, and that she was closer to her
Vermont friends and relatives than to her relatives in Missouri.  The
court found in this regard that a move from her Monkton home would “cause [her]
some emotional upset.”  
¶ 11.        
Relying on our decision in Hawkes v. Spence, 2005 VT 57, 178 Vt.
161, 878 A.2d 273, the court concluded that father met his burden of proving
that his relocation was a substantial change in material circumstances,
allowing modification of the parties’ custody arrangement.  The court
highlighted the parties’ co-parenting of daughter, the permanence and distance
of father’s relocation, and the lack of alternative visitation arrangements
that could approximate their current schedule.  
¶ 12.        
Having concluded that father met his threshold burden of proving changed
circumstances, the court then granted father’s motion to modify based on the
best interests of the child and the factors outlined in 15 V.S.A. §
665(b).  It determined that, based on its findings, the majority of the
factors favored father and concluded that it was in daughter’s best interest
for father to be awarded primary legal and physical rights and
responsibilities.  Accordingly, the court granted father primary legal and
physical responsibility of daughter subject to mother’s right of parent-child
contact.  Mother subsequently filed a motion to correct findings of
fact.  Following a hearing, the court issued a written order addressing
each challenged finding.  The court did not substantively change any
findings.  
¶ 13.        
Mother argues on appeal that the family court erred by: (1) making
findings that were inconsistent with the evidence presented at trial or based
on inadmissible evidence; (2) applying an incorrect legal standard to determine
if there had been a change in circumstances; and (3) applying an incorrect
legal standard to determine what custody arrangement would be in daughter’s
best interests.
¶ 14.        
We address at the outset mother’s argument that the family court’s
findings were inconsistent with the evidence presented at trial or were based
on inadmissible evidence.  In general, we defer to family court findings
of fact.  Miller-Jenkins v. Miller-Jenkins, 2010 VT 98, ¶ 11,
___ Vt. ___, 12 A.3d 768 (mem.).  Faced with a motion to modify
parental rights and responsibilities, the family court has broad discretion to
determine the child’s best interests as required by the statute.  Id. 
Because of its unique position as the trier of fact, the family court alone may
evaluate the credibility of witnesses and the weight evidence should be
afforded in making such an assessment.  Id.  In the highly
fact-intensive context of a custody determination, we rely on the family
court’s determinations of fact and evaluations of credibility.  Id. 
We will therefore uphold the court’s findings of fact unless they are clearly
erroneous, viewing them in the light most favorable to the prevailing party
below and excluding the effect of modifying evidence.  Id.
¶ 12.  The findings will stand if any reasonable and credible
evidence supports them.  Id. 
      
¶ 15.        
Mother challenges two findings, which we review in turn.[1]  First, mother argues that the
family court incorrectly found that father moved to Missouri to be near
family.  The court specifically found that “[father’s] primary motivation
for moving to Missouri is because his wife is from there and her support base
is there.”  It found that “other factors exist but are secondary.” 
Mother moved to correct this finding of fact, but the court declined to do so,
explaining that the finding was supported by the credible testimony of both
father and father’s wife.  Father testified that family was “very, very
important to us” and that his wife’s family was in Missouri.  Father’s
wife testified that daughter had friends and family in Missouri.  As
noted, we rely on the family court’s determinations of credibility and will not
overturn findings if credible evidence supports them.  The finding that
father moved to Missouri to be near family is not clearly erroneous.
¶ 16.        
Mother also argues that the family court incorrectly found that she does
not foster independence in daughter.  Mother’s primary contention is that
the court’s finding improperly relied on hearsay testimony from interviews
contained in Dr. Hasazi’s report.  We agree that the court erred in using
hearsay statements from Dr. Hasazi’s report as substantive evidence to support
this finding.  Because, however, independent evidence in the record
supports the court’s overall findings and conclusions, notwithstanding its
improper use of hearsay from Dr. Hasazi’s report, we conclude that the family
court did not err in its ultimate award of primary legal and physical custody
to father.  
¶ 17.        
By statute, reports of an expert “evaluating the best interests of the child”
are admissible in determining parental rights and responsibilities if the
expert is available for cross-examination.  15 V.S.A. § 667(b); Velardo
v. Ovitt, 2007 VT 69, ¶ 35, 182 Vt. 180, 933 A.2d 227.  Here, Dr.
Hasazi testified and was available for cross-examination, and his report was
entered into evidence by stipulation.  The expert witness’s report was
properly admitted as authorized by a rule of evidence and specific
statute.  See V.R.E. 703; 15 V.S.A. § 667(b).    
¶ 18.        
Contrary to the family court’s analysis, the admission of Dr. Hasazi’s
report does not render substantively admissible the facts forming the basis of
his opinions that are not otherwise admissible or admitted into evidence. 
It is true that in writing his report, Dr. Hasazi could rely on facts not
admissible or admitted as evidence as long as the facts are of a type
reasonably relied on by experts in the field.  V.R.E. 703; Velardo,
2007 VT 69, ¶ 35.  These facts could include hearsay
statements.  Velardo, 2007 VT 69, ¶ 35.  In Velardo,
we explained that “[u]nder controlled circumstances, the evidence forming the
basis of the expert’s opinion can be admissible on that ground even if it is
otherwise inadmissible.”  Id. (citing State v. Recor, 150
Vt. 40, 48, 549 A.2d 1382, 1388 (1988) and Reporter’s Notes to 2004 Amendment,
V.R.E. 703).  That is, as we stated in Recor, evidence otherwise
inadmissible that forms the basis of an expert’s opinion may be admissible to
demonstrate the basis for the expert’s opinion—not for its substance.  150
Vt. at 48, 549 A.2d at 1388.  
¶ 19.        
Dr. Hasazi’s use of inadmissible hearsay evidence as a basis for his
expert opinion as expressed in his report does not make that hearsay suddenly
admissible for its substance.  Id.  Rather, as we clarified in
Recor: 
 
[u]nder Rule 703, if an expert relies on the out-of-court statements of another
in forming his or her opinion and if such statements are of a type
reasonably relied on by experts in the particular field, then the
statements—even if not independently admissible for their substance—will be
admissible for the limited purpose of demonstrating the basis for the expert’s
opinion.  
 
Id.  We emphasized
there that Vermont Rule of Evidence 703 “is not to be treated as either an
auxiliary hearsay exception, or as a backdoor to an expansive reading of
existing hearsay exceptions.”  Id.  In the case at hand, the
family court’s justification for using otherwise inadmissible statements
contained within the report was based on the fact that Dr. Hasazi’s report was
entered into evidence by stipulation and, according to the court, “without any
restrictions.”  This does not overcome the limits of the rule and statute
governing the report’s admission.  V.R.E. 703; 15 V.S.A. § 667(b). 

¶ 20.        
Nonetheless, independent evidence in the record supports the court’s
finding that mother does not foster independence in daughter.  See Miller-Jenkins,
2010 VT 98, ¶ 12 (stating that findings will stand if any reasonable and
credible evidence supports them).  For example, the family court noted
that mother had a history of interfering with daughter’s schooling, referring
back to its 2009 order and that these issues continued to occur.  At the
hearings for the case at hand, Dr. Hasazi’s expert testimony was that,
regardless of the number of times that mother visited daughter at recess, it
was concerning that mother’s presence there bothered daughter and that daughter
did not feel comfortable telling mother this.  Father testified that
mother has continued to leave cards and gifts in daughter’s cubby at school, a
concern of the court in its 2009 order.  
¶ 21.        
In addition, father’s wife testified that mother did not allow daughter
to be alone at extracurricular activities when father and his wife were present. 
Mother’s husband also testified that he believed mother would re-apply for a
teaching position at the high school daughter would attend if she remained in
Vermont.  Despite the evidence mother cites to the contrary, given the
record evidence supporting the court’s finding that mother’s involvement in the
classroom, at recess, and with extracurricular activities was “smothering,” we
have no reason to overturn it.  
¶ 22.        
We turn now to mother’s arguments regarding the legal standards applied
by the family court.  We review questions of law, such as the correct
standard to apply, de novo. Mitchinson v. Mitchinson, 173 Vt. 483, 484,
788 A.2d 23, 24 (2001) (mem.).  We otherwise defer to the family court’s
broad discretion in awarding custody.  DeLeonardis v. Page, 2010 VT
52, ¶ 20, 188 Vt. 94, 998 A.2d 1072.  We will uphold the court’s custody
award “if it reflects reasoned judgment in light of the record evidence.” 
Id. (quotation omitted); see Cloutier v. Blowers, 172 Vt. 450,
452, 783 A.2d 961, 963 (2001) (stating that reversal is warranted only if trial
court’s legal conclusions are unsupported by findings).  
¶ 23.        
Mother argues that the court should have considered father’s reasons for
moving in deciding whether there has been a change in circumstances allowing
reconsideration of the custody arrangement.  The crux of her argument is
that father’s motivation for moving is invalid based on the American Law
Institute’s Principles of the Law of Family Dissolution (2002) (ALI Principles),
and that, therefore, father did not meet his burden of showing changed
circumstances.  We disagree and decline mother’s invitation to change the
legal standard in this regard.
¶ 24.        
The statute allows that “upon a showing of real, substantial and unanticipated
change of circumstances, the court may annul, vary or modify an order
[regarding parental rights and responsibilities] if it is in the best interests
of the child.”  15 V.S.A. § 668.  We have held that several
general principles guide a court’s evaluation of this statutory test, which
requires a threshold showing of changed circumstances before parental rights
and responsibilities can be modified based on the child’s best interests. 
Hawkes, 2005 VT 57, ¶ 9.  In particular, we explained in Hawkes
that “whether a relocation or other change is substantial enough to meet the
threshold must be determined in the context of all the surrounding
circumstances, keeping in mind that the effect on the child is what makes a
change substantial.”  Id. ¶ 10.  We emphasized that when
parties share custody and parenting, one party’s move to a distant location
requires, at minimum, a reassessment of the custodial arrangement and will
often necessitate a change in custody.  Id.
¶ 12.
                             
                         
¶ 25.        
To further clarify the circumstances in which relocation alone may
satisfy the threshold requirement of showing changed circumstances, we adopted
§ 2.17(1) of the ALI Principles, specifically noting that we were adopting
only this particular subsection.  Hawkes, 2005 VT 57, ¶ 13
n.6.  Under § 2.17(1) of the ALI Prinicples, relocation is a substantial
change of circumstances justifying a reexamination of parental rights and
responsibilities “only when the relocation significantly impairs either
parent’s ability to exercise responsibilities the parent has been exercising or
attempting to exercise under the parenting plan.”  Among other relevant
factors, the court must consider the “amount of custodial responsibility each
parent has been exercising and for how long, the distance of the move and its
duration, and the availability of alternative visitation arrangements.”  Hawkes,
2005 VT 57, ¶ 13 (quoting ALI Principles § 2.17 cmt. b).  
¶ 26.        
Here, the family court applied the correct legal standard, looking to Hawkes
and our adoption of §2.17(1) of the ALI Principles.  The court found that
a “true co-parenting situation” existed because father had primary legal
responsibility for daughter and mother and father shared physical
responsibility for her, with daughter residing for four days with mother and
for three days with father.  In addition, the court considered that
father’s move to a location hundreds of miles away was intended to be permanent
and that no alternative visitation arrangements could approximate the current
schedule.  The court highlighted that father’s move to Missouri meant that
daughter’s loss of one parent or the other would be substantial. 
Therefore, the court found that father met his burden of showing a change of
circumstances warranting a reassessment of the custodial arrangement. 
Under Hawkes, the court’s conclusion that a move by one co-parent to
Missouri was a sufficient change in circumstances to reopen the custody
arrangement for review was supportable.
¶ 27.        
Mother contends, however, that the court made a mistake of law when it
failed to consider father’s “true reason for moving” in determining whether
father met his burden of showing changed circumstances.  She suggests that
father is moving for an invalid reason−“to get away [from mother]”−and
therefore the court incorrectly found that father met his burden.[2]  To support her claim, she cites
§ 2.17(4)(a)(ii) of the ALI Principles.  
¶ 28.        
We have not yet adopted § 2.17(4) of the ALI Principles, but more
importantly, this subsection does not address the threshold question of changed
circumstances, but rather the modification of parenting plans once changed
circumstances have been found.  Section 2.17(4)(a)(ii) lists “valid”
reasons for relocation for purposes of § 2.17(4), which offers guidelines
for a court modifying a parenting plan “[w]hen a relocation constituting
changed circumstances . . . renders it impractical to maintain the same
proportion of custodial responsibility to each parent.”  ALI Principles §
2.17(4).  Lastly, this subsection calls only for a court to consider
whether purposes for relocation are valid when “a parent who has been
exercising the clear majority of custodial responsibility” seeks to relocate
with the child, not when there is a co-parenting situation, such as that found
by the court here.  Id.  For all these reasons, the court made
no error in its determination of whether changed circumstances existed. 
     
¶ 29.        
We turn next to mother’s argument that the family court erred in failing
to consider her argument that, pursuant to the ALI Principles, mother had and
should maintain the majority of physical custody.  As before, mother
relies on portions of the ALI Principles that we have not yet adopted:
§ 2.17(4)(a) and comment d to § 2.17, which elaborates on §
2.17(4)(a).  Section 2.17(4)(a) states that a court “should allow a parent
who has been exercising the clear majority of custodial responsibility to relocate
with the child if that parent shows that the relocation is for a valid purpose,
in good faith, and to a location that is reasonable in light of the
purpose.”  
¶ 30.        
Mother suggests that the inverse should be applied—a primary physical
custodian who is not relocating should continue to determine the child’s
residence.  Again, mother’s citation to the ALI Principles does not
support her case.  The court did not find mother was the primary physical
custodian.  It found that the parties co-parented daughter and shared
custody, even though father had only three days per week to mother’s
four.  Given the change of circumstances and parents’ shared custody of
daughter, the court was correct to apply the best interests of the child
standard upon father’s motion to modify parental rights and
responsibilities.  See 15 V.S.A. § 665 (setting forth best interests of
the child standard and factors to consider); id. § 668
(stating that if change of circumstances found, court may modify custody order
if it is in best interests of child).  
¶ 31.        
The family court’s application and analysis of the best interests of the
child standard and related factors outlined in § 665 was well within its broad
discretion.  See DeLeonardis, 2010 VT 52, ¶ 20 (recalling that
we defer to family court’s broad discretion in awarding custody).  Of the
seven applicable factors, the court concluded that four favored father, one
favored mother, and two did not favor either parent. 
    
¶ 32.        
Mother specifically challenges the court’s conclusion that the third
factor, “the ability and disposition of each parent to meet the child’s present
and future developmental needs, favors father.”  15 V.S.A.
§ 665(b)(3).  Her argument hinges on her contention that the court’s
finding that mother does not foster independence in daughter was without
support.  As discussed, this finding was well-supported by evidence in the
record unrelated to the inadmissible interviews contained within Dr. Hasazi’s
report.  We therefore have no reason to overturn the court’s conclusion
regarding this factor.  
¶ 33.        
In addition, mother challenges the court’s assessment of factor five,
“the ability and disposition of each parent to foster a positive relationship
and frequent and continuing contact with the other parent, including physical
contact.”  Id. § 665(b)(5).  The court’s conclusion is
supported by the court’s findings, which are, in turn, supported by the
evidence.  The court’s findings cited Dr. Hasazi’s conclusion that father
has continued to be more supportive of mother’s relationship with daughter than
mother has been of father’s relationship with daughter.  The court quoted
Dr. Hasazi’s opinion that “some of [mother’s] behavior during many of
[daughter’s] activities may compete with and/or detract from [daughter’s]
ability to relate to [father] and other family members in a comfortable manner”
and that “[t]hese things and others noted previously in the report likely send
a message to [daughter] that [father] and his family are less able to support
her, understand her, or competently meet her needs than [mother].”
 (Quotation omitted.)  
¶ 34.        
The court also noted Dr. Hasazi’s conclusion that if daughter were to
reside with mother during the school year, father’s worries about parental
alienation would be well-founded.  Although mother highlights what she
terms the “speculative” nature of these findings, we conclude that they support
the court’s determination of this factor, which was well within its
discretion.  The court was aware that the difficulties stemming from
mother’s behavior regarding father and his family were longstanding, and, if
anything, had increased since its last decision on parental rights and
responsibilities.  Nor does the other evidence cited by mother persuade us
that the court acted outside its discretion to reach its conclusion.  See Miller-Jenkins,
2010 VT 98, ¶ 12 (stating that we uphold court’s findings of fact unless
they are clearly erroneous, viewing them in light most favorable to prevailing
party below and excluding effect of modifying evidence).  
¶ 35.        
 Upon consideration, the court concluded that the one factor
favoring mother—the quality of the child’s adjustment to her present housing,
school, and community, and the potential effect of any change—was significant
in the context of this case but, ultimately, not determinative.  See 15
V.S.A. § 665(b)(4).  Rather, in its discretion, the court concluded
that father should be awarded primary physical rights and responsibilities because
this would best allow daughter to maintain relationships with both parents and
families and develop independence and autonomy.  We will not overturn such
an award when, as here, it reflects the sound judgment of the family court in
light of the evidence.  
Affirmed. 
 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 







[1] 
Although mother terms it a “finding,” she also challenges the court’s conclusion
as part of its best-interests analysis that father has the better ability to
foster a positive relationship and frequent and continuing contact with
mother.  We address below the family court’s application and analysis of
the best-interests standard.  


[2] 
We note that mother’s claim regarding father’s motivation for moving is
contradicted by the family court’s finding that father’s primary motivation for
moving to Missouri is because his wife is from there and her support base is
there and that other existing factors are secondary.  As discussed above,
we do not overturn this finding, which is supported by evidence in the
record.  



