Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-126

                                      DECEMBER TERM, 2012

 Todd Swim a/k/a Todd C. Swim                          }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Margaret (Swim) O'Neill                               }    DOCKET NO. 267-9-09 Wmdm

                                                            Trial Judge: John P. Wesley

                          In the above-entitled cause, the Clerk will enter:

        Mother appeals a final divorce order entered by the superior court, family division. She
argues that the court erred in excluding evidence of domestic abuse and awarding father sole
legal, and primary physical, rights and responsibilities with respect to the parties’ three children.
We affirm.

        The parties were married in August 2003 and separated in July 2009. Their oldest child
was born in June 2004 and their younger twins were born in June 2006. Before the parties’
separation, mother was the primary care provider for the children.

        In August 2009, mother sought a relief-from-abuse (RFA) order against father. The court
denied ex parte relief, noting that mother’s affidavit described an incident of abuse from
December 2008 but no later than that and thus did not support a finding of an immediate danger
of further abuse warranting emergency, ex parte relief. In September 2009, mother sought an ex
parte RFA order on behalf of one of the parties’ twin sons, alleging that during a domestic
argument father dropped the boy and dragged him across the floor. The court granted a
temporary RFA order, assigned parental rights and responsibilities to mother, and allowed father
only one hour per week of supervised parent-child contact. On September 19, 2009, shortly after
mother filed her second RFA petition, father filed a complaint for divorce.

        On December 4, 2009, after considering evidence in the RFA action on two separate
days, the family court declined to issue a final RFA order and dismissed the RFA petition
because it was unable to find a risk of abuse. At the same time, in connection with the divorce
action, the court issued a temporary order assigning physical and legal rights and responsibilities
to mother and unsupervised parent-child contact on alternating weekends and one evening mid-
week to father.

        On Christmas Day 2009, less than three weeks after mother’s second RFA complaint was
dismissed, father’s sister came to mother’s home to pick up the children for a visit with their
father. Mother was not around, and the house was in disarray. Father’s sister took the children,
and father asked the police to do a welfare check. Mother did not answer the door, and police
ultimately found her in her bed; they had difficulty rousing mother, who appeared disoriented
and was unaware that her children had been gone for over an hour. In response to a petition for a
finding that the children were in need of care or supervision (CHINS) filed by the Department
for Children and Families (DCF), the family court issued an emergency care order placing the
parties’ children in DCF custody. Mother eventually stipulated to a CHINS finding. Pending a
disposition hearing, the temporary care order continued DCF custody of the children, but placed
them with their parents as provided in the then-current temporary order in the divorce case.

        The juvenile disposition hearing and contested divorce actions were set together for a
two-day hearing in July 2010. Following two days of hearing in the divorce action, the family
court issued a “Stipulated Temporary Parental Rights and Responsibilities Order” signed by the
parties, their attorneys, and the children’s attorney. The temporary order assigned mother sole
legal parental rights and responsibilities and provided that the parties would share physical rights
and responsibilities as detailed in the parent-child contact schedule. The parties also agreed to
submit to the parent coordination process and asked the court to assign a parent coordinator to
make recommendations about the parent-child contact schedule as set forth in the stipulation.
DCF returned custody of the children to mother and closed its CHINS case.

      The parent-child coordinator filed a report and recommendations in December 2010.
Based on those recommendations, in January 2011 the parties stipulated to a further amended
temporary order regarding parental rights and responsibilities.

       At a May 2011 status conference, father indicated his support for incorporating the
January 2011 stipulated order into the divorce decree as the final order on parental rights and
responsibilities. The children’s guardian ad litem (GAL) and attorney supported the proposal,
but mother opposed the plan, and the court set the case for a contested final evidentiary hearing.
Mother’s attorney withdrew in July 2012 and mother represented herself in the final divorce
hearing, which was held over two days in February 2012.

        On March 2, 2012, the family court issued a final divorce order in which, among other
things, it awarded father legal and physical rights and responsibilities for the children. The court
awarded mother parent-child contact as set forth in the January 2011 stipulated order, with a
relatively minor change in a mid-week pickup by father. In transferring legal rights and
responsibilities to father, the court concluded that father was more committed to a course best
suited to the continuation of the children’s healthy development. The court noted mother’s
unwavering conviction that father is an alcoholic with an abusive personality prone to domestic
violence. The court found, however, that notwithstanding mother’s repeated castigations against
father’s character, the credible evidence did not support any persistent pattern of domestic
violence on father’s part.

        The court further noted mother’s expectation that she would move to Massachusetts with
a man with whom she had commenced a serious relationship and her belief, despite the evidence
to the contrary, that the stipulated parent-child contact order was not good for the children. In
contrast, the court recognized father’s continued support for the ongoing parenting plan and his
constant efforts to make that plan work. In the court’s view, the stabilizing effect of the plan had
served the children well under stressful circumstances and thus continuation of the plan was
essential to the children’s best interests. The court concluded that if mother were to relocate with
the children, it would not be in their best interests, given the distance it would take the children
from father, his extended family, and their broader social network. The court also concluded that
father was more disposed to foster a positive relationship with the other parent and that mother
had made questionable judgments regarding dental and mental health issues concerning the
children. The court emphasized, however, that the principal basis for its transferring legal

                                             2
custody to father was the desire to maintain a parent-child contact schedule that had served the
children well and was supported by father.

       On appeal, mother challenges the court’s order regarding parental rights and
responsibilities and raises a host of issues about the process surrounding the final hearing and the
substance of the trial court’s opinion.

                                                 I.

        Mother first argues that because she had already been awarded parental rights and
responsibilities following the December 4, 2009 final RFA hearing, the family court had no basis
for holding another hearing regarding parental rights and responsibilities—a hearing that clearly
was not and could not have been a modification hearing—in the spring of 2012. We find no
merit to this argument. Following the December 4, 2009 RFA hearing, the family court
dismissed mother’s RFA petition. At the same time, in the then-pending divorce action, the
family court issued a “Temporary Order Regarding Parental Rights and Responsibilities and
Parent-Child Contact.” In that order, the court awarded “temporary primary legal and physical
rights and responsibilities” to mother, subject to father’s parent-child contact. In July 2010 and
again in January 2011, pursuant to the parties’ stipulations in both instances, the court issued
new, revised temporary orders regarding parental rights and responsibilities; these orders were
specifically captioned as temporary orders.

        Temporary orders regarding parental rights and responsibilities are just that, temporary
orders pending a final hearing. See V.R.F.P. 4(c)(1); 15 V.S.A. § 594a; see also Thompson v.
Pafundi, 2010 VT 80, ¶ 17, 188 Vt. 605 (mem.) (citing another case for proposition that “the
temporary order in place up until then was just that: temporary” in rejecting mother’s argument
that family court erred by not addressing whether there had been change of circumstances before
considering child’s best interests). In the absence of a stipulation of the parties regarding
parental rights and responsibilities, the court properly did what the rules contemplate—it held a
final hearing and issued a final order regarding parental rights and responsibilities.

                                                 II.

         Mother next challenges various evidentiary rulings regarding witnesses mother sought to
call at the final hearing. Mother does not specify which of the various witnesses, who were the
subject of a motion in limine and motions to quash below, are the subject of her challenge on
appeal. We infer that her argument is directed primarily at the proffered testimony of a
psychologist who had apparently administered a psychological forensic evaluation of mother
approximately eighteen months earlier.

        In January 2010, father served his first set of discovery requests on mother’s attorney.
Among other things, father requested disclosure of experts and any expert reports. Mother
responded by stating that no experts had been hired yet, but that she was contemplating hiring an
expert to evaluate father’s business interests. She indicated that she would supplement her
response as appropriate. Nearly two years later, by the time of the family court’s January 4,
2012 pretrial status conference, mother had not disclosed any expert. The court’s pretrial order
required each party to provide a list of witnesses no later than January 20, 2012. The evening of
January 22, 2012, mother e-mailed father’s attorney with a list of fifteen witnesses, including
some expert witnesses, whom she expected to testify on her behalf at the trial scheduled for
February 6-7.


                                             3
        At the beginning of the first day of the final divorce hearing, the family court addressed
those motions. The first witness listed by mother was a clinical psychologist who reportedly had
administered a forensic psychological evaluation of mother a year and a half earlier. Mother
proffered that the psychologist would verify the domestic violence perpetrated by father upon
her, explain how traumatic the abuse had been for her and the children, and explain to the court
that domestic violence is evident from his evaluation. Father objected that the psychologist had
not been timely or properly disclosed, that mother had failed to establish that the expert’s opinion
would comply with the standard for expert opinions set forth in Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993), and adopted by this Court in State v. Brooks, 162 Vt. 26 (1993), that
father had never seen the psychological evaluation or any other report prepared by the
psychologist, and that he had never been given an opportunity to depose the expert. Father stated
that if mother were going to be allowed to present expert testimony concerning her mental
condition, he would be entitled to all of the files of various mental health providers, which would
be a substantial undertaking that would delay the onset of the trial.

       The court granted the motion in limine with respect to the psychologist. The court
expressed some doubt that psychological tests such as the one administered by mother’s expert
could be sufficiently validated to be admitted as evidence that mother was the victim of domestic
violence in this case. But the court emphasized that it was granting father’s motion because
mother had failed to timely disclose the expert to the prejudice of father, who had a right to
depose the expert in advance of trial and obtain his own experts if necessary.

        We find no abuse of discretion in the court’s decision to exclude the expert witness. See
Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 581 (2001) (mem.) (“On appeal from
an order excluding an expert witness from testifying, the appellant must show an abuse of
discretion.”). Under Vermont Rule of Civil Procedure 26(b)(4)(A)(i) and (ii), parties are
required to respond to discovery requests concerning the identity of experts and the substance of
their testimony to allow the opposing side an opportunity to depose the experts. White Current
Corp. v. Vt. Elec. Coop., 158 Vt. 216, 222-23 (1992). “[T]he trial court has inherent authority to
enforce [Rule 26] by excluding evidence, granting a continuance, or taking other appropriate
action.” Id. at 223. Here, considering the already extensive delay in resolving the issue of
parental rights and responsibilities in this case, the necessary further delay that would ensue from
allowing the testimony, the uncertainty over the admissibility of the proffered testimony, and
mother’s failure to adequately explain the reason for the late disclosures, we cannot say that, in
excluding the proffered expert testimony, the “court’s discretion was either totally withheld or
exercised on grounds clearly untenable or unreasonable.” Id. (quotation omitted).

        Mother also sought to present the testimony of various counselors or service providers
who were connected to the family and prior court proceedings. The court excluded the testimony
of mother’s therapist, whom mother wanted to call to share her thoughts on the bias of the
children’s GAL. The court stated that the case was not about the GAL’s alleged bias and that, in
any event, the witness was untimely disclosed. The court also excluded the testimony of a DCF
employee on a similar basis, ruling that any opinion she had about the bias of the children’s GAL
was irrelevant. To the extent mother proffered the DCF employee as a witness who could
support her claims of domestic violence, mother acknowledged that the DCF employee had
never witnessed any domestic abuse on the part of father. Mother does not identify these
specific rulings in her brief, but we conclude in any event that the court did not abuse its
discretion in excluding the testimony. See Davis v. Hunt, 167 Vt. 263, 268 (1997)
(acknowledging that family court has discretion to exclude irrelevant, cumulative, or unduly
prejudicial testimony).

                                             4
        Mother also sought to present the testimony of two other counselors to explain how the
oldest child was concerned about father drinking and driving. The trial court reserved judgment
on the admission of this testimony, telling mother that if she reached a point during the trial
when she believed, based on the testimony of other witnesses, that she could show that the
otherwise privileged proffered testimony of the counselors could be admitted to address a
potential risk of harm to the children, she could renew her request to admit the testimony.
Mother never made another offer of proof or argument to admit the proffered testimony. Nor did
mother renew her request to admit the otherwise privileged proffered testimony of a service
provider who had filed a report on the family earlier, even though the court had explicitly
reserved judgment on admitting that testimony and had given mother an opportunity to renew the
request.

        Again, mother does not specify these rulings in her more general argument on appeal.
We conclude in any event that the court did not err in reserving judgment with respect to these
witnesses. Rule 503 of the Vermont Rules of Evidence expressly provides that defined
physician-patient communications are privileged and, thus, not admissible unless an exception to
the privilege applies. Rule 503(d)(7) creates an exception to the privilege in proceedings to
determine parental rights and responsibilities or parent-child contact if the court, after hearing,
finds on the basis of evidence other than the potentially privileged evidence that: (1) “lack of
disclosure of the communication would pose a risk of harm to the child as defined in 33 V.S.A.
§ 4012 . . . ; (2) the probative value of the communication outweighs the potential harm to the
patient; and (3) the evidence sought is not reasonably available by any other means.” The court
properly invoked this rule and offered mother the opportunity to make the necessary showing.
She did not follow up.

        Finally, the court excluded the testimony of father’s sister, which mother sought to admit
for the purpose of showing that the sister’s husband—father’s brother—had broken the sister’s
arm during a domestic dispute. Mother argued that father’s brother’s prior conduct was
probative with respect to his own tendency to engage in domestic violence. The court rejected
mother’s proffer that it was relevant because domestic violence runs in families. See Davis, 167
Vt. at 268.

                                                 III.

        Mother also argues that the family court erred by granting father sole legal and primary
physical rights and responsibilities. We have already rejected her “jurisdictional” argument. As
for the merits of the court’s ruling, she argues that she is the primary care provider and did
nothing wrong to lose that status, that father is an abusive alcoholic, and that she never intended
to relocate to Massachusetts without the children. We first note that the court’s detailed decision
touched upon each of the statutory criteria set forth in 15 V.S.A. § 665. As indicated above, the
court assigned legal and physical rights and responsibilities to father because, among other
things: (1) he was more likely to preserve an essentially shared custody arrangement that had
worked well for the children; (2) he was more inclined to foster a positive relationship with the
other parent; and (3) mother had shown questionable judgment with respect to dental and mental
health issues concerning the children. The court has broad discretion in determining custody and
“[w]e will not disturb the court’s custody award if it reflects reasoned judgment in light of the
record evidence.” Hazlett v. Toomin, 2011 VT 73, ¶ 11, 190 Vt. 563 (mem.) (quotation
omitted). That is the situation here. The record supports the court’s carefully considered
decision.



                                             5
        As far as the statements mother makes in her brief, the court recognized that she was the
children’s primary care provider before the parties separated, but found that the parties had
essentially shared physical parental rights and responsibilities for the eighteen months
immediately prior to the final divorce hearing and that father had been essentially a co-parent
during that period in virtually all aspects of the children’s care. Cf. Porcaro v. Drop, 175 Vt. 13,
17 (2002) (“[T]he record evidence of father’s substantial involvement in all aspects of the child’s
life, and the mutual devotion of father and child, demonstrates that no additional weight [for
primary care provider status] was required in this case.”). We find no abuse of discretion in the
court’s decision not to apply mother’s primary caregiver status during the marriage so as to
override other factors favoring father in its custody determination. See Payrits v. Payrits, 171 Vt.
50, 54 (2000) (“[W]hile a primary care provider finding is entitled to great weight, we have
continually declined to adopt a rule that the primary custodian will be awarded custody as long
as the parent is fit.” (quotation omitted)).

        Regarding mother’s allegations regarding father’s abusive behavior, the court examined
this question carefully, and while recognizing incidents in which father’s behavior was
inappropriate and on one occasion resulted in a disorderly conduct charge, it rejected mother’s
claim that those incidents were representative of father’s general character or treatment of the
children. In making this determination, the court relied upon not only the testimony of the
parties, but also the testimony of multiple witnesses who had interacted with the family over the
years. See id. (stating that when trial court makes findings in area where there is conflicting
evidence, we have “consistently held that . . . the credibility of the witnesses, the weight of the
evidence, and its persuasive effect are questions for the trier of fact, and its determination must
stand if supported by credible evidence”).

        Regarding mother’s expectation that she would move to Massachusetts, as the court
pointed out, this is a case in which mother’s interest in relocating with the children arose in the
context of the initial divorce proceeding before permanent parental rights and responsibilities had
been established rather than in the context of a modification proceeding. The court did not
assume that mother would move to Massachusetts even if it meant she would not be awarded
primary custody of the children, as she suggests. In fact, the court left in place a schedule of
parent-child contact that assumed that mother did not move, and acknowledged that if she did
actually relocate, that would be treated as an unanticipated change in circumstances.

        The court did consider the possibility of mother’s relocation and clearly determined that
the children’s best interests would be served by continuing with the same shared custody
arrangement that had served them well thus far, and by remaining in the same community
surrounded by a supportive extended family. The court concluded that father was supportive of
this arrangement and that mother was not because of her ongoing belief that father had an
abusive nature and that the children were not doing well in their current circumstances,
notwithstanding the court’s findings to the contrary. There was no misunderstanding by the
court on the question of relocation.

        Finally, mother suggests throughout her brief that the trial court, the children’s attorney,
the children’s GAL, and others were biased against her or in favor of father in this case. There is
nothing in the record to support these accusations. Indeed, the record demonstrates that the court
was solicitous in assuring that mother understood its procedures and rulings throughout the trial.
Mother’s claims of bias appear to be based on nothing more than her unhappiness with the
results of these “extremely contentious and very heavily litigated” proceedings, as described by
the trial court. See Ball v. Melsur Corp., 161 Vt. 35, 45 (1993) (stating that judicial “bias or


                                             6
prejudice must be clearly established by the record” and “that contrary rulings alone, no matter
how numerous or erroneous, do not suffice to show prejudice or bias”).*

       Affirmed.



                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                John A. Dooley, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice




       *
           Father has moved to strike transcripts of RFA hearings attached to mother’s reply brief,
arguing that they are irrelevant and not part of the record below. Because we affirm the trial
court’s decision, and have not in any event relied on the transcripts for anything beyond general
background history, we treat father’s motion as moot. On the day of oral argument, mother filed
an “Emergency Motion to Consider Critical Evidence of Perjury,” to which she attached various
documents. Even if we were to consider these documents, we find nothing in the submission that
changes our analysis. Mother is essentially arguing that the documents show that the trial court
was wrong in two of its factual findings. We do not second-guess the trial court’s findings of
fact if they were based on evidence in the record—even if there was other evidence pointing the
other way.
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