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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-329

                                          MAY TERM, 2013

 Matthew Aldrich                                       }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Franklin Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 Jennifer Aldrich Haselman                             }    DOCKET NO. 158-5-11 Frdm

                                                            Trial Judge: A. Gregory Rainville

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

        Mother appeals the court’s order modifying parental rights and responsibilities and
awarding custody of the parties’ children to father. On appeal, mother argues that there was no
change of circumstances, that the evidence does not support several of the court’s findings, and
that the court failed to consider which parent could better provide for the children’s future
developmental needs. We affirm.

        Mother and father divorced in 2008 in Alabama. They have twin girls born in January
2002. Following the divorce, parents had joint legal custody and mother had primary physical
custody. The order required the parties to consult each other regarding the children’s health and
education. Father had contact every other weekend; because mother had by that time moved to
Vermont with the children, and in recognition of the impracticality of father’s exercising the
alternate-weekend contact given the distance from Alabama to Vermont, the court granted father
extensive summertime contact. Father was in the military and moved from Alabama to Germany
to a tour in Afghanistan, and eventually to Vermont in late 2011.

       Pursuant to father’s request, Vermont assumed jurisdiction over the case in June 2011.
Father filed a motion to enforce and for contempt in June 2011 based on mother’s refusal to
cooperate in allowing the children to travel to Germany where father was stationed. In January
2012, the court found mother in contempt for willfully violating a court order and preventing
contact with father.

        In December 2011—after the evidentiary hearing on father’s motion for contempt, but
before the trial court’s decision—father filed a motion to modify parental rights. The court
found that father’s relocation to Vermont and mother’s actions depriving father of contact and
inhibiting father’s involvement in the children’s educational activities and medical decisions
collectively constituted an unanticipated change in circumstances. As to the children’s best
interests, the court found that mother had failed to adequately provide for the children’s
educational and medical needs, and could not provide a positive or supportive environment. The
court found that father was attentive to the children’s educational and medical needs and was
better able to foster a positive relationship with mother. Thus, the court concluded that it was in
the children’s best interests for father to have sole legal and physical rights and responsibilities.
Mother appeals the modification.

        On appeal, mother first raises several challenges to the trial court’s finding of a change of
circumstances. The family court has authority to modify parental rights and responsibilities
“upon a showing of real, substantial and unanticipated change of circumstances.” 15 V.S.A.
§ 668(a). “We have recognized that there are no fixed standards to determine what constitutes a
substantial change in circumstances; instead, the court should be guided by a rule of very general
application that the welfare and best interests of the children are the primary concern in
determining whether the order should be changed.” Sundstrom v. Sundstrom, 2004 VT 106,
¶ 28, 177 Vt. 577 (mem.) (quotations omitted). The family court has discretion in deciding if the
moving party has met its burden of demonstrating changed circumstances. Id.

       In this case, the trial court found that there was a change of circumstances based on
several factors. One was father’s move to Vermont. Other factors included mother’s
contemptuous conduct that deprived father of contact with the children, mother’s failure to
inform and involve father in medical decisions, mother’s interference in father’s ability to
involve himself in the children’s educational activities, and the parties’ inability to cooperate.

        Mother argues that father’s move closer to the children did not impair his relationship
with his children, and therefore cannot be a change of circumstances. Mother contends that the
relocation of a parent is a change of circumstances only if it significantly impairs the
responsibilities of either parent. See Hawkes v. Spence, 2005 VT 57, ¶ 13, 178 Vt. 161. We
need not address mother’s claim that relocation by a non-custodial parent closer to the custodial
parent and children cannot as a matter of law amount to a change of circumstances. In this case,
the trial court did not rely exclusively or even primarily on this consideration. Rather, the trial
made extensive findings supporting its conclusion that mother was unduly interfering with
father’s parental rights, and found a change of circumstances on that basis.

         A change of circumstances may occur based on “willful, repeated interference with
visitation rights,” Wells v. Wells, 150 Vt. 1, 4 (1988), or from a breakdown in the parties’
communication, Maurer v. Maurer, 2005 VT 26, ¶ 8, 178 Vt. 489 (mem.). The court found both
in this case. As the trial court explained, under the final divorce order the parties had joint legal
custody and demonstrated a level of cooperation.1 Their relationship deteriorated, however, and
at the time of the final order the court found the parties were unable to cooperate. In addition,
the court found that mother had substantially interfered with father’s relationship with the
children by depriving him of contact with the children. These findings adequately support the
       1
          Mother argues that the court lacked evidence to support its finding that the parties had a
level of cooperation at the time of the divorce that deteriorated over time. She argues that
because the parties did not get along at the time of the divorce, their inability to cooperate was
not a change of circumstances. Evidence at trial supported the court’s finding. On cross-
examination, father agreed that there was a period of time after the divorce when the parties were
able to get along reasonably well. In addition, mother’s sister testified that the parties were
amicable after the divorce. She felt that the relationship became more strained beginning in mid-
2010. Mother also testified that the parties were able to communicate after the divorce and
worked together collaboratively. Mother stated that the parties’ communication started
deteriorating in the summer of 2010.
                                                  2
court’s determination that there was a change of circumstances without regard to the impact of
father’s relocation on that threshold question.

        Mother also argues that the court erred in finding changed circumstances based in part on
its findings from the January 2012 contempt order, relied-upon by the court without notice to
mother. Mother argues that the court did not provide her with notice of the court’s intent to
incorporate these findings and this violated Rule of Evidence 201(e). Under Rule 201, the court
may take judicial notice of facts “not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” V.R.E.
201(b). When the court takes notice of such fact, “[a] party is entitled upon timely request to an
opportunity to be heard as to the propriety of taking judicial notice.” V.R.E. 201(e).

        Although the court stated that it was taking “judicial notice of its prior decision issued
January 30, 2012,” the court’s incorporation of the January 2012 findings was not a matter of
judicial notice, but merely a recognition of the existing law of the case. The contempt order was
final and not appealed by mother, and therefore it became the law of the case and the issues
decided were not open to challenge by mother. See Coty v. Ramsey Assocs., Inc., 154 Vt. 168,
171 (1990) (defining law-of-the-case doctrine as preventing reexamination of issues previously
decided in same case by same court or higher appellate court). Because mother could not
challenge the findings in the contempt order she was not prejudiced by a lack of notice.

        Mother’s remaining arguments relate to the court’s analysis of the children’s best
interests. If there is a change of circumstances, the court must then consider the best interests of
the children in deciding whether to modify parental rights and responsibilities. 15 V.S.A. § 668.
The court is guided by the statutory factors, including the children’s relationship to the parents,
each parent’s ability to meet the child’s medical and educational needs, the children’s
developmental needs, and each parent’s ability to foster a positive relationship with the other
parent. 15 V.S.A. § 665(b). The moving party “bears the burden of showing that a transfer of
custody is in a child’s best interest,” and the trial court has “broad discretion” in assessing the
best interests. Sundstrom, 2004 VT 106, ¶ 37.

        Mother first contends that the court abused its discretion in concluding that mother had
failed to adequately provide for the children’s medical needs. Mother argues that the court’s
analysis was flawed because the court improperly penalized her for how she chose to treat her
daughter’s medical problem, and claims that it is not the court’s position to choose one medical
treatment plan over another. There was no error. The court did not make a judgment about the
proper medical treatment, but made findings focusing on how mother’s decisions affected her
children, specifically their health. These findings were supported by the record and not
erroneous. See Miller-Jenkins v. Miller-Jenkins, 2010 VT 98, ¶ 12, 189 Vt. 518 (mem.)
(findings will stand if supported by credible evidence). Among other things, the court found that
in relation to one of the children’s elimination problems, mother was unwilling to follow the
recommendations of medical professionals, and failed to involve father in the decisions.
Mother’s lack of cooperation and her failure to notify the office that father had legal
responsibility to share in medical decisions resulted in the doctor declining further treatment.
The doctor’s letter described that mother had been unwilling to comply with the medical
recommendations or to administer medication as described. At the hearing, a health care
provider testified that mother did not comply with the recommendations for treating her child. In
addition, father testified that he was active in scheduling and attending medical appointments for
                                                   3
the children and working with providers to avoid unnecessary treatments. This evidence
supports the court’s findings that mother “refused to comply with sound medical advice,” and
that father “demonstrated a more reasonable and sound medical approach and commitment to the
medical needs of the children.” Therefore, there was no error.

         Mother also contends that the court erred in faulting mother’s bad behavior but ignoring
father’s. Mother claims that father has failed to demonstrate that he will facilitate visitation with
mother in a better manner than mother has done with father. Essentially, mother asks us to
reweigh the evidence. This was a matter for the family court. It was up to the court to judge the
credibility of the parties and to assess the weight of the evidence. Mullin v. Phelps, 162 Vt. 250,
261 (1994) (stating that “our role in reviewing findings of fact is not to reweigh evidence or to
make findings of credibility”). Father testified that he believed mother should be granted liberal
visitation, that he thought it was important for the girls to have a strong bond with their mother,
and that he would keep mother informed about the children. Therefore, the evidence supported
the court’s finding that father would foster a meaningful relationship between the children and
mother.

         Mother also challenges several findings as unsupported by the evidence. Mother claims
that the court took isolated incidents of mother’s actions and exaggerated that behavior into
patterns. Having reviewed the record, we conclude that there was sufficient evidence to support
the court’s relevant findings. Mother claims that the court erroneously stated that mother had
appeared at school “on multiple occasions” when she knew father would be there.2 Father
testified that he went to the children’s school to have lunch with them. He testified that he did
not mention the day in advance because otherwise mother would “sabotage” it. The evidence
indicated that there was a particular day when the parties agreed father would have lunch with
the children and that mother arrived at school on that day, preventing father from having lunch
with the girls. While the trial court described “multiple occasions” that mother showed up at
school when she knew father would be present, this extrapolation was not material to the court’s
decision. The court’s main finding was that mother willfully prevented father from engaging in
meaningful parent-child contact and “prevented him from effective involvement in the children’s
educational activities and medical decisions.” Abundant evidence, including the court’s January
contempt order, demonstrates that mother interfered with father’s contact with the children.

        In addition, mother asserts that the court failed to properly consider which parent could
better provide for the children’s future developmental needs. 15 V.S.A. § 665(b)(3). While the
court did not specifically make findings on each of the statutory factors, the court is not required
to do so. See Mansfield v. Mansfield, 167 Vt. 606, 607 (1998) (mem.) (noting that court is
required to consider each factor but statute “imposes no specific requirement on how
consideration is to be manifested in the court’s findings and conclusions”); Harris v. Harris, 149
       2
           Mother also claims that the court’s finding that school officials have “noted uniformly”
that the girls are receptive to their father’s presence at school was not supported by the evidence.
The testimony supports this finding. While the principal noted that one daughter would be upset
if father did not come, the testimony of the principal and the girls’ teacher indicated that the girls
were excited to see their father. As countervailing evidence, mother points to minutes from a
meeting between school officials and the parents wherein the girls’ classroom teacher
recommends visitation after school rather than at lunch time. This evidence does not undermine
the court’s finding that the girls were receptive to their father’s presence at school, but merely
indicates that other times might have been less disruptive to the children’s schedule.
                                                    4
Vt. 410, 414 (1988) (explaining that trial court not required to make findings on each factor as
long as findings as whole demonstrate that court has considered statutory factors). The court
considered the best interests of the children as required in 15 V.S.A. § 665(b). The decision
reflects that the court considered all relevant factors. The court found, among other things, that
mother had deprived the children of contact with their father, had not followed medical advice,
had put her emotional needs ahead of the children’s, and had not created a positive or supportive
environment for the children. The court made a thorough and reasoned evaluation of all the
relevant factors and there are no grounds to disturb its judgment.

         As a final matter, father objects to certain evidence submitted by mother on appeal.
Father claims that mother has submitted documents on appeal that were not offered or admitted
at the evidentiary hearing. This Court’s “review is confined to the record and evidence adduced
at trial.” Hoover v. Hoover, 171 Vt. 256, 258 (2000); see V.R.A.P. 10(a) (confining record on
appeal to items filed in trial court and any transcript of proceedings below). Mother requested
that this Court supplement the record on appeal with the documents, noting that they were
attached to one of her pleadings. This Court ruled that documents attached to pleadings are part
of the record on appeal. Therefore, the motion to strike the documents is denied. Nonetheless,
because the documents were not admitted at the evidentiary hearing the substance of the
documents has not been considered in addressing mother’s claims regarding the sufficiency of
the evidence. In any event, we conclude that consideration of the proffered documents would
not in any way affect our analysis.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




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