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

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-282

                                      DECEMBER TERM, 2013

 Misty Bowen                                           }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Family Division
                                                       }
 Terrel Spearman                                       }    DOCKET NO. 661-8-10 Cndm

                                                            Trial Judge: Linda Levitt

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

        In this parentage action, the family court modified parental rights in February 2012,
transferring custody of the parties’ child from father to mother based on its finding that father
was hindering parent-child contact. Specifically, the court credited mother’s testimony that
father failed to appear for parent-child transfers and did not find father credible in stating that he
had been at the police station for the transfers, but mother was not present. Since then, father has
attempted to regain custody by demonstrating that the court’s findings were in error because
mother was lying. Here, father seeks again to challenge the February 2012 order by submitting
evidence in this Court demonstrating that he was at the police station for scheduled transfers.
Father’s appeal is untimely and is dismissed.

        Following the transfer of custody in February 2012, father appealed to this Court. This
Court affirmed the modification. See Bowen v. Spearman, No. 2012-089 (Vt. Aug. 29, 2012) (3-
Justice unpub. mem.). We rejected father’s argument that mother lied during the hearing,
explaining that credibility determinations were left to the factfinder, and there was no abuse of
discretion.

        In September 2012, father filed a motion in the family court to reconsider the custody
transfer and a motion to modify parental rights, attaching affidavits from the police department
attesting that father was present for the arranged pickups and mother was absent on several
occasions. In October 2012, the court denied modification, explaining that the February 2012
was now final and the law of the case. Father appealed, and on June 12, 2013, this Court
affirmed. Bowen v. Spearman, No. 2012-446 (Vt. June 12, 2013) (3-Justice unpub. mem.). We
explained that father’s new evidence was insufficient to undermine the final February 2012
order. We acknowledged that father had documents demonstrating that mother was not present
at the police station for scheduled transfers, but explained as follows:

                According to the documents, the instances occurred in December
                of 2012 and January and February of 2013. There is no indication
                that these documents are part of the record for this appeal, and, in
                any event, they are irrelevant to this appeal about events that
                occurred in February of 2012. To the extent that father claims
                mother failed to appear for exchanges at the Essex Police station
               subsequent to the events involved in the appeal in this case—as the
               documentation in his printed case suggests—he of course remains
               free to file a new motion for enforcement or modification in the
               trial court.

        On July 17, 2013, father filed a notice of appeal, stating that he was appealing the
February 28, 2012 order regarding parental rights. He stated that mother lied to the court by
stating that father was not complying with the court’s contact order and he had police affidavits
to prove it.

        On October 1, 2013, this Court dismissed father’s appeal as untimely, noting that it was
filed beyond the thirty-day filing period because it was filed on July 17, 2013 and claimed to be
appealing the February 28, 2012 order. V.R.A.P. 4(a). Father moved to reopen. He stated that
he was appealing the most recent court decision, and was complying with this Court’s instruction
to resubmit his documents. This Court granted father’s subsequent motion to reopen, stating that
father’s appeal on July 17, 2013 was timely to appeal an order appearing in the trial court docket
on July 16, 2013.

        The appeal is dismissed because it is untimely as to the February 28, 2012 order and there
is no other appealable order to which the notice could apply. In reopening this case, this Court
explained that father’s July 17, 2013 notice was timely to appeal an order entered on July 16,
2013, but the July 16, 2013 order is a magistrate’s order regarding child support, and appeals
from a magistrate decision are on the record to the family division. 4 V.S.A. § 465; see V.R.F.P.
8(g) (describing procedures for magistrate appeals to family division); Williams v. Williams, 158
Vt. 574, 577 (1992) (explaining that appeals from magistrate decisions are to family division, not
Supreme Court). In any event, father does not make any claim of error related to the child-
support order. Father’s brief relates solely to the issue of parent-child contact and father’s
continuing allegation that mother lied in the modification proceedings and therefore the February
2012 modification order should be reversed. This Court has no current jurisdiction to entertain
an appeal from the February 2012 modification order. As this Court previously instructed, to the
extent father seeks to modify custody based on more recent events, he can file a motion to
modify in the trial court.

       Appeal dismissed.




          The trial court docket entries indicate that father is pursuing this avenue of relief. On
July 16, 2013, father filed a motion to modify parental rights. On August 20, 2013, the court
held a hearing and ordered mother to make visits happen or she would risk losing custody.
                                                 2
BY THE COURT:


_______________________________________
Paul L. Reiber, Chief Justice

_______________________________________
Beth Robinson, Associate Justice

_______________________________________
Geoffrey W. Crawford, Associate Justice




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