2014 VT 46


Patnode
v. Urette (2013-179)
 
2014 VT 46
 
[Filed 02-May-2014]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2014 VT 46

 

No. 2013-179

 

Lisa Patnode



Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Family Division


 


 


Garrison Urette


October Term, 2013


 


 


 


 


Linda
  Levitt, J.


 

Cynthia L. Broadfoot, Broadfoot, Attorneys at Law, Burlington, for
Plaintiff-Appellee.
 
Mary G. Kirkpatrick of Kirkpatrick & Goldsborough, PLLC,
South Burlington, for 
  Defendant-Appellant. 
 
 
PRESENT:   Reiber, C.J.,
Dooley, Skoglund and Robinson, JJ.,
and Crawford, Supr. J., 
 
                  
Specially Assigned
 
 
¶ 1.            
SKOGLUND, J.   This appeal is the latest iteration of a
long and difficult dispute between two parents formerly in a
relationship.  Following the superior court’s amendment of a parent-child
contact order, and in response to a child support order remanded to the
magistrate by the superior court, appellant mother seeks to overturn the
superior court’s amendment and raises a number of issues with both the superior
court and the magistrate’s treatment of father’s income for child support
purposes.  We affirm the superior court’s amended parent-child contact
order and dismiss mother’s appeal of issues regarding the child support order.
 
¶ 2.            
Mother and father were in a long-distance relationship for several
years, throughout which mother lived in Vermont and father in Florida, where
they continue to reside at the time of this appeal.  In 2006, the parties
had a child together.  Although they never lived together as a family,
parents continued taking regular trips with the child to visit each other until
2010, when they ended their relationship and mother filed a parentage action.
 
¶ 3.            
The superior court issued parental rights and responsibilities (PRR) and
parent-child contact (PCC) orders in 2011, awarding mother sole physical and
legal parental rights and responsibilities, and father significant parent-child
contact.  During the school year, father was entitled to ten days with the
child each month, all long weekends, and every other two-week block in the
summer.  All school vacations and holidays were to be shared on an
alternating basis, and the combination of long weekends, ten-day periods and
vacations were capped so as not to exceed fourteen days with father at a time.  Mother
appealed the PCC order to this Court, and we affirmed.  
¶ 4.            
In the wake of that affirmance, several issues arose between the parties
regarding the child’s school vacations and travel with father.  Following
a flurry of motions from both parties to modify, clarify, or enforce the PCC
order, the superior court issued an amended order in April of 2013, which
mother now appeals.  The amendment was in direct response to a
motion to clarify and enforce filed by father, which raised two particular
issues: 1) whether father could take the child out-of-state with him on travel,
and 2) whether the child’s school vacation break in April superseded father’s
regular monthly allotment of parent-child contact.  In response to these
issues, the amended PCC order instituted two changes: first, that father
provide mother two-weeks notice of his plans to
travel outside of Vermont with the child; and second, that during months where
mother has the child during a school holiday, father may alter the beginning
and end date of his ten-day contact period so as not to overlap with mother’s
holiday.  Mother now contends that these changes are modifications
to the PCC order, which the superior court erred in granting without first
finding that a substantial and unanticipated change in circumstances had
occurred.  
¶ 5.            
When reviewing the family division’s ruling on parent-child contact, we
afford substantial deference to the court’s decision.  Chickanosky v. Chickanosky, 2012 VT 52, ¶ 17, 192 Vt. 627, 54
A.3d 162 (mem.). “Granting, modifying, or
denying visitation is within the discretion of the trial court and will not be
reversed unless its discretion was exercised upon unfounded considerations or
to an extent clearly unreasonable upon the facts presented.”  Gabriel v. Pritchard, 173 Vt. 452, 454, 788 A.2d 1, 5 (2001)
(quotation omitted).  Our substantial reliance on the trial court’s
determinations is a result of the court’s unique position as the trier of fact
to evaluate the credibility of witnesses and weigh evidence in the “highly
fact-intensive” context of parental custody and visitation rights.  Miller-Jenkins
v. Miller-Jenkins, 2010 VT 98, ¶ 11, 189 Vt. 518, 12
A.3d 768.  
¶ 6.            
Here, mother objects to the amended PCC order on the grounds that it
effected three significant modifications to the standing PCC order for which
the trial court failed to find that a substantial and unanticipated change of
circumstances had occurred that justified modifying the order.  According
to mother, the amended order allows father out-of-state travel with the child
where it was not permitted before—thereby increasing mother’s contribution to
travel costs—and institutes a modified schedule for father’s visitations. 
We disagree with mother’s characterization of the contents of the amended order
as modifications; rather, we view them as clarifications to the order which the
superior court was authorized to make.  DeSantis
v. Pegues, 2011 VT 114, ¶ 26, 190 Vt. 457, 35 A.3d 152 (reiterating
that “[d]ecisions regarding the granting, modifying
or denying of parent-child contact lie within the discretion of the family
court”); Cleverly v. Cleverly, 151 Vt. 351, 355-56, 561 A.2d 99, 102
(1989) (“The pattern of [parental] visitation adopted is within the discretion
of the trial court . . . .”).
¶ 7.            
The first purported change mother takes issue with is father’s ability
to travel with the child outside of Vermont during the school year.
 Mother argues that father never possessed this right before the amended
order based on a “universal understanding” that father’s contact with child
must take place within Vermont.  Mother’s foundation for this
understanding is one line from one day of the PCC hearing where the superior
court judge was describing father’s visitation rights and stated that “as far
as monthly, one week in Vermont or in Vermont each month during school,
September, October, November, December, and so on.”  The judge  clarified her words at a later hearing, stating that
she “would have no reason to say, ‘[b]e in Vermont on a long weekend,’ ”
and “wouldn’t have said that long weekends [during the school year] need to be
in Vermont, because it would seem to be pointless.”  In light of these
clarifying statements, there is no question that during the hearing the court
did not intend to confine father’s visitation rights to Vermont.  
¶ 8.            
In furtherance of her argument that father was never allowed to take the
child out-of-state, mother also points to a special order father obtained from
the superior court in 2012, allowing him to take the child to Florida over a
long weekend.  However, while the superior court did in fact grant father
permission to take the child to Florida “for this special occasion/event,” it
was in response to a motion for a protective order and emergency hearing filed
by mother in an attempt to bar father from traveling outside of Vermont with
the child.    Considering the particular circumstances
under which permission to travel was granted—in response to mother’s preemptive
attempt to bar out-of-state travel—the special order bears little weight on
whether the original PCC order allowed for out-of-state travel with the child. 
¶ 9.            
The amended order itself contains the following directive: “[t]he notice
requirement of Paragraph 8 shall be amended to require [father] to provide two
weeks’ advance notice to [mother] of the travel plans whenever he plans to
travel outside of Vermont on long weekends with [child].”  In turn,
paragraph 8 of the original PCC order states that: 
Both
parties shall give the other notice of all travel plans with the child and
shall provide contact information before taking any trips with the child. 
Both parents shall cooperate with obtaining a passport for the child and then
the child’s passport shall travel with the child so that she can easily []
travel with her parents.  
 
Considering this provision of the
original PCC order and the language used by the superior court in the amended
order, the only alteration to the order was to give a specific notice timeframe
of fourteen days.  
¶
10.        
This is a clarification; it does not change the terms of the PCC order
in any way as father was mandated to give notice in the original order and is
likewise mandated to give notice by the amended order.  Only the amount
of notice has changed, and the difference is from no specified timeframe to a
clearly delineated one—which is, in essence, a clarification of the previously
ordered timeframe.  Likewise, we see no modification present in the
amended order’s mention of father “travel[ing]
outside of Vermont on long weekends with [child].”  The PCC order
explicitly anticipated father traveling with the child outside of Vermont by
ordering parents to cooperate in obtaining a passport by which the child could
easily travel “with her parents,” and it contains no mention of father’s visits
with the child during the school year being confined to Vermont state
lines.  Mother’s argument that father has been awarded a visitation right
he did not have under the original PCC mischaracterizes the amended order.
 
¶ 11.         Similarly,
mother’s assertions that the amended order modifies the terms of both her
obligation to pay for part of father’s travel with the child and of father’s
visitation schedule are without merit.  First, the amended order makes no
mention whatsoever of the requirement that mother pay for father’s out-of-state
travel with the child.  Mother’s argument is entirely based on the effect
of father’s ability to travel out-of-state, which mother presumes to be
increased travel and therefore increased travel costs to her.  However, as
explained above, the amended order did not award father any such right; his
ability to travel out-of-state with the child on long weekends was initially
established in the language of the original PCC order.  As there was no
modification in the amended order with respect to that issue, there is necessarily
no modification for the travel costs, particularly as the order makes no
mention of such costs.  Mother’s claim that her payment responsibilities
are increased by the amended order thus fails.  Furthermore, father has
conceded that mother is not expected to contribute to out-of-state trips father
takes with the child during his allotted parent-child time, and therefore
mother should experience no additional travel costs beyond what she already
pays.  
¶ 12.         Mother’s
third and final argument that the order has been modified—that father’s
visitation schedule is significantly changed by the amended order—also fails.
 The court merely clarified how the existing PCC order terms should be met
in months where mother’s allotted vacation time conflicts with the ten days and
long-weekend holidays that father is entitled to.  Contrary to mother’s
assertions, the superior court did not guarantee father fourteen days of
contact every month, it only clarified how both parents’ allotted time was to be
accommodated in months where father was entitled to fourteen days that
conflicted with mother’s time.  It 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; the only “change” was to allow father to
begin his ten-day period on a different day than usual so that both parents
might have their allotted time with the child, and that amendment is strictly
limited to months when mother is scheduled to have the child during a school
vacation or holiday.  
¶ 13.         If,
as mother argues, an adjustment of this nature were a modification, then the
family division would lose its ability to clarify existing orders.  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.  When a conflict arises from the terms of an order,
and the family division is asked by a party to clarify its intent for how those
terms should operate, an addendum which does not alter the terms is not
necessarily a modification but rather a clarification of the original
order.  See The American Heritage College Dictionary 258, 877 (3d ed.
1993) (defining “clarify” as “[t]o make clear or easier to understand;
elucidate” and “modify” as “[t]o change in form or character; alter”); see also
Perry v. Perry, 24 A.3d 1269, 1273 (Conn. App. Ct. 2011) (holding that
changes to parental visitation order were clarifications, not modifications,
where original order contained ambiguity the court had authority to correct,
stating “the purpose of a clarification is to take a prior statement, decision
or order and make it easier to understand”).  As the court has the power
to grant, modify or deny parent-child visitation rights, it is only logical
that by extension it also has the power to clarify its own order regarding such
rights.  Gabriel, 173 Vt. at 454, 788 A.2d at 5.
 We therefore uphold the court’s amended PCC order, finding no error in
the court’s clarification of terms in the standing PCC order.
¶ 14.         Finally,
we address mother’s concerns with the treatment of father’s income for purposes
of calculating child-support.  During parents’ dispute over the terms of
the PCC, a second dispute developed regarding father’s income and the child
support terms set by the family division magistrate after three days of
hearings.  Both parties appealed aspects of the resulting support order,
mother raising ten issues regarding the calculation of father’s income and
father cross-appealing on six issues with the same calculations.  In
February 2013, the superior court affirmed the magistrate’s rulings on all ten
of mother’s issues, but reversed and remanded several aspects of the
magistrate’s order regarding imputed income to father and a redundancy in
arrearage calculations.  Mother attempted to appeal from that decision to
this Court, but subsequently withdrew that appeal.  The magistrate then
issued a new decision in April 2013 consistent with the superior court appeal
order.  
¶ 15.         Although
not addressed by either side, the procedural history of this case reveals that
the issues mother raises regarding child support are not properly before this
Court.  Mother is appealing the superior court’s decision and the
magistrate’s remanded order following the superior court’s directive, but there
is no indication in the record that mother ever appealed the magistrate’s order
on remand to the superior court before commencing her appeal of the same with
this Court. 
¶ 16.         Section
465 of Title 4 directs that “[a]n appeal from a decision of a magistrate shall
be on the record to the family division of the superior court.”  4 V.S.A. § 465.  Likewise, Vermont Rule for Family
Proceedings 8(g)(1), which concerns appeals of magistrate proceedings, states
that “[t]he appellate jurisdiction of the Family Division shall be invoked in
the manner and subject to the conditions provided in the Vermont Rules of
Appellate Procedure.”  Despite the complex procedural history of this
case, the relevant statute and procedural rules do not allow an appeal of the
magistrate’s remanded order directly to this Court without first appealing to
the superior court.[*] 
Williams v. Williams, 158 Vt. 574, 577, 613 A.2d 200, 202 (1992) (“Any
order of the magistrate is appealable under 4 V.S.A. § 465 to the family
court, not to this Court.”); see also In re R.L., 163 Vt. 168, 172, 657
A.2d 180, 183 (1995) (“The family court’s only appellate jurisdiction
authorized by statute is over decisions from the family court
magistrate.”).  
¶ 17.         Until
this issue is properly decided by and appealed from the family division, we
cannot address the issues mother raises with the child support order—either the
superior court’s February 2013 order or the magistrate’s subsequent April 2013
order on remand.  Again, the magistrate’s order has not been properly
appealed through the superior court, and the superior court order is not a
final appealable order because it remanded the issue of child support back to
the magistrate.  In re Burlington Bakery, 150 Vt. 20, 21, 549 A.2d
1044, 1045 (1988) (“To be final and appealable an order must end litigation on
the merits or conclusively determine the rights of the parties, leaving nothing
for the court to do but execute the judgment.” (quotation
omitted)); see also Mansfield v. Mansfield, No. 2001-129, 2001 WL
36132452, at *2, (Vt. Dec. 21, 2001) (nonprecedential
3-Justice mem.) (rejecting
contention that mother failed to timely appeal child support order where order
was “not an appealable final judgment because it remanded the matter to the
magistrate for further proceedings to determine father’s revised child support
obligation”).  We do, however, construe mother’s appeal to this Court as a
notice of appeal of the April 2013 child support order to the superior
court.  See V.R.A.P. 4(a)(5) (providing that when
notice of appeal is mistakenly filed in the Supreme Court  “[t]he notice
is considered filed in the superior court on the date so noted”).
 Mother’s appeal of issues regarding the child support order is therefore
dismissed.
           
Mother’s appeal of the child support order is dismissed with instructions
for hearing by the family division.  The court’s amended order on
parent-child contact is affirmed. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
 
 





[*] 
We recognize that mother seeks to appeal the superior court order and sees a
return to that court as useless because it has clearly decided the
issues.  Mother tried to make such an appeal to this Court but withdrew
it, apparently because it was interlocutory.  She could have sought an
interlocutory appeal by permission, but did not do so.  See V.R.A.P. 5(b)
(permitting appeals from interlocutory rulings where it may materially advance
termination of litigation).  In the absence of such an appeal, she is
required by the statute to resubmit the issues to the superior court, even if
that step may appear to be futile.  
 



