Joseph Franz v. Judith Franz ( 2012 )

Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2011-285
JANUARY TERM, 2012
Joseph Franz } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
v. } Family Division
}
}
Judith Franz } DOCKET NO. 815-9-10 Cndm
Trial Judge: Matthew I. Katz
In the above-entitled cause, the Clerk will enter:
Father appeals from the family court’s order in this dispute involving parent-child
contact. We affirm.
Mother and father were married in 1998, and they separated in 2006. They are the
parents of a son, born in April 1999. By agreement, and pursuant to their final divorce order,
mother was awarded sole legal and physical custody of the child with father having “reasonable
and liberal rights of visitation.” In 2007, a master recommended that mother be found in
contempt for treating father as though he were a second-class parent and fostering a similar
attitude in the parties’ child. At the time, the parties were living in Maryland. Mother
subsequently moved to Vermont. In 2008, a Maryland court issued a consent order incorporating
a parenting plan made by the parties. The parties agreed that mother would remain the child’s
sole legal and primary physical custodian and that the child would benefit from spending time
with father at least twice each month. The agreement provided that the child would spend the
second weekend of each month with father. It also provided that father could arrange for
additional liberal and reasonable parenting time as he was able. Additionally, the agreement
allowed father to call the child briefly each night to say goodnight between certain specified
times. Father subsequently moved to Massachusetts, and he purchased a condominium in
Vermont. By agreement of the parties, father saw the child for three overnights on alternate
weekends plus alternate Mondays after school.
In June 2010, father relocated to Vermont, moving to a home a mile away from mother.
At that time, the parties agreed that father could see the child each week, alternating between
Friday to Tuesday and Sunday to Tuesday. Father asked mother if she would continue this
schedule during the school year, and mother refused, instead reverting to the visitation allowed in
the 2008 consent order of two overnights per month. In September 2010, father filed a motion to
modify and to enforce. He asked the court to allow him “reasonable and liberal rights of
visitation” as provided by the consent order and to modify the order in recognition that the
parties now both lived in Vermont. Mother responded by filing a motion to enforce and to
amend the prior order as to parent-child contact. She asked the court to place restrictions on the
parties’ interactions at public events and to modify father’s visitation so that she could transport
the child to religious education classes on Sundays.
Following a hearing, the court issued a March 2011 order modifying parent-child contact.
See 15 V.S.A. § 668 (“On motion of either parent . . . and upon a showing of real, substantial and
unanticipated change of circumstances, the court may annul, vary or modify an order made under
this subchapter if it is in the best interests of the child . . . .”). The court recognized that at the
time of the parties’ divorce, there was a high degree of animosity between the parents, and
substantial ill will and distrust remained. The court noted, for example, that mother had not
listed father with the school as an emergency contact, and that she sometimes did not answer the
telephone when father called to speak with the child. Nonetheless, the court found that the
parties’ relationship had become somewhat more businesslike. Father had since remarried to a
woman who resided in Williamstown, Massachusetts, and the court found that father was
frequently in Williamstown. The court found that the child had a particularly good relationship
with father, and that father seemed to have a detailed understanding of the child’s school and
daily life.
The court concluded that, in the interest of regularizing the child’s contacts with father,
visitation should occur every other weekend from school dismissal on Fridays to the start of
school on Mondays, or Tuesdays if it was a three-day weekend. The court found that father was
capable of bringing the child to his religious education classes and that father could pick the
child up from school. The court adopted a summer schedule and holiday schedule as well. The
summer schedule allowed father to have three weeks with the child one year and four weeks the
next. The court also held that father had the right to telephone the child during those weeks
when he had an upcoming weekend visit with the child—only on Tuesdays between 8:00 and
8:30 for no longer than five minutes. During the other weeks, father could call on Tuesday and
Thursday under the same time limits above. The child was allowed to call either parent at any
time. Finally, the court rejected mother’s request that father remain 500 feet away from her at
public events. It did order, however, that the parent who does not have the child on a particular
day stay at least 100 feet away from the other at outdoor events and 50 feet at indoor events,
where reasonable, although the parent could approach and converse with the child for not more
than five minutes. The court issued a subsequent order in June 2011 addressing father’s motion
for reconsideration. It modified its earlier order to add that father should have a mid-week
“supper visit” every Wednesday from the end of school until 7:30 p.m. This appeal by father
followed.
Father argues that the court failed to state explicitly that its decision was in the child’s
best interests and it failed to consider the statutory best-interest factors set forth in 15 V.S.A.
§ 665 in reaching its decision. According to father, the court failed to articulate sufficiently how
and why it reached its decision. More specifically, he complains that the court did not explain:
why three overnight visits every two weeks was in the child’s best interests as opposed to the
schedule in place the previous summer; why it reduced the child’s summer visitation with father;
and why it limited father’s ability to call the child on the phone. Father also argues that the
findings that the court did make do not support its conclusion. Father cites the various statutory
factors and argues that the majority of them support his position as to visitation. In making his
arguments that his visitation time has been reduced, father refers to the schedule that was in
place by informal agreement, not the schedule that was set forth in the court order that the court
was asked to modify. Finally, father argues that the court’s decision contravenes Vermont’s
public policy that parent-child contact should be “frequent and continuing.” 15 V.S.A. § 650.
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The trial court has broad discretion in crafting a parent-child contact schedule that serves
the best interests of a child, and its decision will not be reversed unless clearly unreasonable on
the facts presented or based on unfounded considerations. Gates v. Gates, 168 Vt. 64, 74 (1998).
We review findings of fact for clear error, and we will uphold the court’s conclusions where
supported by the findings. Spaulding v. Butler, 172 Vt. 467, 475 (2001). “As the trier of fact, it
[is] the province of the trial court to determine the credibility of the witnesses and weigh the
persuasiveness of the evidence.” Cabot v. Cabot, 166 Vt. 485, 497 (1997).
We recognize that “[a] major purpose of findings is to enable this Court, on appeal, to
determine how the trial court’s decision was reached. Therefore, the facts essential to the
disposition of the case must be stated.” Mayer v. Mayer, 144 Vt. 214, 216-17 (1984) (citations
omitted). At the same time, however, we do not require “that the trial court must make a specific
finding on each of the statutory factors, nor do we hold that each factor must be specifically
addressed by the trial court.” Harris v. Harris, 149 Vt. 410, 414 (1988) (quoting Rosenfeld v.
Rosenfeld, 249 N.W.2d 168, 171-72 (Minn. 1976)). Instead, “[i]t is sufficient if the findings as a
whole reflect that the trial court has taken the statutory factors into consideration, in so far as
they are relevant, in reaching its decision.” Id. (quoting Rosenfeld, 249 N.W.2d at 171-72).
With these standards in mind, we turn to the court’s decision. At the outset, we note that
father repeatedly states that the court reduced his visitation time. To the contrary, as discussed
below, the court doubled the amount of visitation allowed under in the 2008 order. The parties’
informal summer arrangement was not binding on the court or the parties, and it does not provide
the threshold standard for determining if contact has been increased or reduced.
In his request for relief, father asked the court to order visitation on alternate weekends
from Thursday after school to the following Tuesday, and alternate Mondays from after school to
the following Tuesday. In other words, the child would spend six nights out of fourteen with
father. Mother proposed that father have parent-child contact every other weekend from Friday
from 5:00 p.m. until Sunday at 7:30 p.m. The court did not adopt either side’s proposal. Instead,
it exercised its discretion and awarded father three overnights every fourteen days plus a bi-
weekly supper visit. This was an increase in visitation from the pre-existing court order, not a
reduction.
The court similarly did not reduce the amount of summertime visitation, as father
suggests. Under the 2008 order, father was entitled to three nonconsecutive weeks of visitation
during the summer. Under the new order, he will see the child for three consecutive weeks of
visitation during the summer in even-numbered years and four consecutive weeks after the July 4
period during odd-numbered years.
Certainly the court was not obligated to adopt father’s proposal, and its refusal to do so
does not demonstrate error. The court reasonably concluded that three overnights during each
two-week period—more than the amount of bi-weekly visitation in the prior order—maximized
and regularized father’s contact with the child. While father believes that an every-other-
weekend schedule is an outdated approach, it is for the trial court, not this Court, to weigh the
evidence and determine what course of action is in the child’s best interests. We note that father
raised many of these same arguments in his motion to amend, and they were rejected by the trial
court.
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Although the court’s findings are sparse, we conclude that they are sufficient to show that
it considered the statutory factors in reaching its decision. The court recognized that father and
the child had a good relationship. It found that both parents were intelligent and had good jobs,
and presumably both parents are equally capable of meeting the child’s material and emotional
needs. Mother and father live in the same neighborhood, and thus visitation will not impact the
child’s present housing, school, and community. The court recognized that there was animosity
between the parties, but found that their relationship had become more businesslike. Contrary to
father’s suggestion, none of the evidence relating to these factors obligates the court to adopt the
schedule proposed by father, and none lead to the inexorable conclusion that six overnight visits
serve the child’s best interests better than three. These kinds of decisions rest solely within the
trial court’s discretion.
We note that in reaching its conclusion, the court also indicated that it favored simplicity
over subtlety and sophistication. In ruling on the motion to amend, it found that father’s
proposed visitation schedule was very complex and that such complexity suggested that parental
interests may be predominating rather than the child’s best interest. The court expressed its
belief that the schedule should be readily understood by the child, i.e., he should know where he
had been and where he was headed. The court was also mindful that whatever schedule it
imposed, it was unlikely to remain fixed for more than three years. It is evident that the court
considered the evidence and the statutory factors and exercised its reasoned judgment. The court
did not need to state expressly that its decision was in the child’s best interests—that is implicit
in its decision.
As to the phone calls, we note that the court adopted the exact telephone contact proposal
offered by father in his motion to amend. In any event, it was certainly reasonable for the court
to conclude that a goodnight phone call every night, while appropriate for a child of nine, was no
longer warranted for a child of eleven. Indeed, mother testified to this effect.
Finally, we find the court’s decision consistent with 15 V.S.A. § 650. The fact that father
would like more contact does not show that visitation for three nights every two weeks along
with one supper visit deny the child “an opportunity for frequent and continuing contact with
both parents.” Id. Again, father wrongly suggests that the court “reduced” his contact with the
child. As set forth above, the court imposed the contact schedule that it found to be in the child’s
best interests. Father fails to show that the court abused its wide discretion in doing so.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
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