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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-316

                                         APRIL TERM, 2015

 Kristen E. Brosnahan                                  }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Orange Unit,
    v.                                                 }    Family Division
                                                       }
                                                       }
 William J. Brosnahan                                  }    DOCKET NO. 95-5-12 Oedm

                                                            Trial Judge: Robert P. Gerety

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

       Father appeals from a final divorce judgment of the superior court, family division. He
contends the court erred in: (1) denying a motion for continuance; (2) awarding mother sole
parental rights and responsibilities; and (3) dividing the marital estate. We affirm.

        The facts may be briefly summarized. Additional material facts will be set forth in the
discussion that follows. The parties were married for nineteen years and had two children who
were sixteen and fourteen years old at the time of the final hearing. Shortly after they married,
mother sold a property that she had inherited for $93,000, and the parties moved into a camp
owned by father that they proceeded to renovate. Mother has the equivalent of a high school
education and worked exclusively in the home throughout the marriage. Mother home-schooled
the children until shortly after the parties separated in 2012. Father was employed as a skilled
worker commuting to a job in Massachusetts and earning approximately $70,000 to $80,000
annually. The trial court found that the parties’ relationship was often volatile, and remained
contentious after their separation.

       The court awarded mother sole parental rights and responsibilities and provided parent-
child contact with father every other weekend and alternating holidays. The parties’ principal
assets were the marital home and several Fidelity investment accounts owned by father. The
court determined that a “roughly even division of the marital property” would be fair and
equitable. It ordered the marital home to be sold and the net proceeds after payment of the
mortgage and taxes to be divided evenly between the parties. It also divided the investment
accounts, with the first $47,500 to be awarded to mother, because father had already drawn
$47,500 more from the account than mother, and the balance to be divided evenly. This appeal
by father followed.

        Father first contends the court erred in denying his motion to continue the trial for the
purpose of allowing him to obtain an attorney. The record shows that father was represented by
counsel until May 2013, at which time the court granted his attorney’s motion to withdraw and
father filed a notice of pro se appearance. In late October 2013, notice was sent to father that a
contested divorce hearing had been scheduled for January 9 and 10, 2014. On January 7, 2014,
two days before trial, father filed a motion to continue, indicating that, due to the complexities of
the case, he had sought legal counsel and that “the legal counsel I have has court in Grand Isle on
the 9, 10 of this month.” Father did not identify the attorney in question, and no appearance by
any attorney had been filed on his behalf. The court denied the motion, noting that father had
received timely notice of the hearing, that two days had been set aside for the hearing, and that
judicial resources were extremely limited.

        “A decision to grant or deny a continuance is a discretionary matter and will not be
disturbed unless there is shown an abuse of discretion which causes prejudice.” Finkle v. Town
of Rochester, 140 Vt. 287, 289 (1981); see also Kohut v. Kohut, 164 Vt. 40, 45 (1995) (holding
that court did not abuse its discretion in denying motion to continue to obtain counsel). The
court’s discretion to manage its docket, set deadlines, and allocate its resources is equally broad,
and subject to reversal only for an abuse of discretion. Pcolar v. Casella Waste Sys., Inc., 2012
VT 58, ¶ 20, 192 Vt. 343.

        The record here amply supports the trial court’s ruling. Father had a full eight months
from the time of his attorney’s withdrawal until the date of trial, and three-months’ notice of the
scheduled trial date to obtain counsel. Father’s motion, filed on the eve of trial, provided no
explanation for his failure to obtain counsel during this period, and the suggestion that he had an
attorney who had a trial conflict was entirely unsupported. Under the circumstances, we find no
basis to conclude that the court abused its discretion in denying the motion.

        Father’s claim that he was unduly prejudiced by the court’s ruling is also unpersuasive.
The disadvantages he cites in dealing with questions of evidence and procedure at the hearing
were no different from those confronted by any self-represented party. Moreover, the record
discloses that the trial court assisted father during the hearing in every way that it could.1 This is
evident from the record surrounding father’s principal claim of prejudice—the court’s exclusion
on hearsay grounds of two “psycho-educational assessments” of the parties’ children. Father
claims that the assessments showing certain educational delays would have demonstrated that
mother was negligent in home-schooling the children. Although the court sustained an objection
to the admission of the assessments, it sought to mitigate the ruling for father’s benefit by
allowing the parties to stipulate that, at the time they enrolled in public school, “both of [the
children] were below grade level in more than one academic area.” Accordingly, we find no
basis to disturb the court’s continuance ruling.

        Father next contends the trial court erred in awarding mother sole physical and legal
rights and responsibilities and in reducing his parent-child contact. Our review is limited. When
considering a trial court’s award of parental rights and responsibilities, “this Court applies a
highly deferential standard of review.” Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, ¶ 12,
193 Vt. 490. “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. (quotation omitted).


       1
           Father’s passing claim that the court “actively discouraged” his cross-examination of
mother, “cut off cross-examination,” and “discouraged” his objections is not supported by the
record. On the contrary, those parts of the record on which he relies show that the court
explained to father that he was not required to cross-examine but “if you wish to, this is the time
for you to do so,” offered father every opportunity to cross-examine, and carefully explained in
overruling several of father’s objections that father’s disagreement with the witness or belief that
“the testimony is inaccurate or untruthful is not a basis to state an objection.”
                                                  2
Accordingly, the court’s findings “will stand if any reasonable and credible evidence supports
them.” Id. (quotation omitted).

        Although not clearly delineated in his brief, father’s claims concerning the custody award
appear to be several. First, he contends the trial court erred in finding that father did not seek an
award of sole or primary parental rights and responsibilities. The claim is entirely immaterial.
The court recognized that father’s statements at trial as to what was he was actually seeking were
somewhat unclear; therefore, the court expressly held that, “[r]egardless of Father’s decision and
statements in this regard, the Court concludes that the evidence supports an award of parental
rights and responsibilities solely to Mother.” Thus, whatever concession father may have made
did not figure in the court’s decision.

        Father further asserts that the court improperly relied “solely on the fact that” mother was
the children’s primary care provider, and “completely ignore[d]” evidence of the children’s
affectionate relationship with father. As father notes, the primary-care-provider criterion is
entitled to “great weight” but is not alone dispositive. Payrits v. Payrits, 171 Vt. 50, 54 (2000).
The court here did not, however, rely solely on this finding. In addition to finding that mother
had been the children’s primary care provider “all their lives,” the court also relied on findings
that she had “an excellent relationship with both children” while father’s had been “difficult” and
“abusive.” The court also found that “the substantial conflict and hostility between the parties”
strongly supported vesting sole responsibility in one party to avoid ongoing disputes. Neither
does the record support father’s claim that the court ignored evidence of his affectionate
relationship with the children. While noting the “significant difficulties in the relationship
between the children and [father],” the court also recognized his strong love for the children and
found that “their relationship ha[d] improved significantly since the separation and [father] now
has a good relationship with both children.” Accordingly, we find no merit to father’s claims.

         Father next contends the court erred in finding no “significant differences” in the parties’
abilities to meet the children’s “material” and “developmental” needs. See 15 V.S.A.
§ 665(b)(2), (3), (5). Father cites evidence that mother was unemployed throughout the marriage
while he had been consistently employed as a skilled worker earning a good wage. There was no
basis to conclude, however, that with adequate financial support from father and additional time
to find employment mother would be any less able than father to meet the children’s material
needs. Father also cites the children’s delayed educational progress as evidence of mother’s
inability to meet the children’s developmental needs.2 Although, as noted, there was some
evidence that the children had fallen behind a grade level during their home schooling, this was
insufficient to demonstrate that mother could not attend at least as well as father to the children’s
developmental needs, which, for older children, encompass not only their academic achievement
but also their ability to adapt and thrive in their school, social, and community environments.
We thus find no basis to disturb the court’s findings.

       Father further contends the evidence was insufficient to support the court’s finding that
mother was capable of making decisions regarding the children’s schooling and providing them
with the support they need, particularly in the event that they moved to New Hampshire or
Massachusetts as mother had intimated. To the extent that the argument is again based on
concerns about the children’s home schooling, father overlooks the court’s additional finding

       2
          In support of this claim, father cites to several documents that were not part of the
record and concern events occurring after the hearing, and we therefore do not rely on them in
our decision.
                                                3
that further home schooling was not in the children’s best interests, and that the court would treat
any decision by mother to home school them as a substantial change of circumstances sufficient
to support a modification motion.3

        Lastly in this regard, father contends the trial court erred in reducing his parent-child
contact from the first three weekends in each month, as provided in the temporary order, to
every other weekend. The court found that the maximum amount of visitation with father,
consistent with the parties’ schedules and circumstances, was in the children’s best interests. In
addition to the weekends, the court also provided for contact during alternating holidays and for
two separate weeks during the summer, which were not provided for in the temporary order.
Although father maintains that the revised visitation schedule will “erode or destroy” his
relationship with the children, he does not show how the reduction of one weekend per month
was seriously prejudicial or an abuse of the court’s discretion.

        Father next contends the court’s division of the marital property “ignor[ed] the record”
and misapplied the statutory factors. Again, our review is narrow. “The disposition of property
pursuant to a divorce decree is a matter of wide discretion for the trial court.” Hanson-Metayer,
2013 VT 29, ¶ 52. We will not disturb the court’s decision unless it is shown that its discretion
“was abused, withheld or exercised on untenable grounds or to a clearly unreasonable extent.”
Id. (quotation omitted).

       Father first suggests that the court erred in finding that fault was not a factor in its
decision. Father refers to the court’s exclusion of what appeared to be a page from a dating
website, and the children’s educational assessments. Father does not show how the court’s
evidentiary rulings were erroneous, nor how they prejudiced the property distribution.
Accordingly, we find no error.

         Father next contends the court “distort[ed] the reality that the marital residence was
brought into the marriage by [father],” and erred in finding that wife made substantial non-
monetary contributions to the construction and maintenance of the home. Although the marital
residence was built on property owned by father, there was evidence that proceeds from the sale
of mother’s former residence were used by both parties for ordinary living expenses during the
construction of their home, and that mother worked directly on its construction, helping with
framing, putting up sheet rock, and painting. Accordingly, we find no error. Father also faults
the court’s finding that the source of the funds in his Fidelity accounts was “not clear.” He
asserts that this is “belied by the record.” Although the trial court stated that the source of the
Fidelity accounts was not clear, it also stated, “[I]t appears that most, if not all, of the funds in
the accounts were either brought to the marriage by Defendant, were deposited by Defendant
during the marriage from his earned income, or were inherited by Defendant before or during the
marriage.” The court accordingly based its property division on an assumption that father was
the source of the retirement account funds. Father shows no prejudice from the court’s statement
that its findings on this point were not entirely clear. Accordingly, we find no basis to disturb the
court’s findings.

        Father further asserts that the court erred in awarding mother the “first $47,500 from the
Fidelity accounts to equalize the distributions.” As noted, the trial court had determined to

       3
          Neither father nor mother have challenged the court’s ability to make such an order.
As in other instances, father cites to certain documents outside the record in an attempt to show
events that transpired after the hearing. We do not rely on this material.
                                                  4
generally divide the property on an equal basis, but awarded mother the first $47,500 from the
distribution of the Fidelity accounts in recognition of father’s earlier withdrawal of funds from
the accounts. In essence, the court departed from its generally equal property division with
respect to the Fidelity account in recognition of the fact that father had, during the temporary
period, benefitted from his withdrawals from that account to a much greater extent than mother.
The trial court did not treat the spent money as part of the marital estate subject to equitable
division, as in Felis v. Felis, 2013 VT 32, ¶ 11, 193 Vt. 555. Rather, it opted to award wife a
disproportionate share of the retirement account funds that remained because husband had
already benefitted disproportionately from the funds. Father’s assertion that the additional
$47,500 awarded to wife was unsupported by the evidence also lacks merit.

        Finally, father contends the court improperly awarded mother certain personal property
enumerated on a list submitted to the court without a proper explanation. Father does not
identify any item on the list that was improperly awarded to mother or that should have been
awarded to husband, or divided. Accordingly, we find no basis to disturb the judgment.4

       Affirmed.




                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice




       4
           Father’s argument, set forth in one sentence, is that the court improperly failed to
consider the relationship between the property and maintenance awards. The argument is
inadequately briefed, and does not assert, let alone demonstrate, how father was prejudiced by
the alleged error. Accordingly, we do not address it.
                                                5
