Opinion
NO. 2012-059
08-31-2012
John J. Fitzpatrick v. Renee Ciotti
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Washington Unit,
Family Division
DOCKET NO. 366-9-07 Wndm
Trial Judge: Brian J. Grearson
In the above-entitled cause, the Clerk will enter:
Mother appeals a family division order finding her in contempt and modifying parent-child contact. On appeal, mother argues the court erred in (1) finding her in contempt of the final parentage order, (2) excluding evidence of virtually all communications between the parties during the months when they were engaged in mediation regarding the child's contact schedule, (3) preventing mother from withdrawing her motion to modify, (4) precluding mother from cross-examining father, (5) granting father an award of attorney's fees, and (6) granting father increased parent-child contact in the modified schedule. We affirm the modification of the parent-child contact schedule, but reverse the contempt adjudication and the attorney's fees award.
The parties are parents to one child, born in March 2006. In November 2008, the court entered a final parentage order based on the parties' agreement. That order granted mother sole legal and physical parental rights and responsibilities. Father was entitled to significant parent-child contact, including several overnights per week and every other Thursday evening from 4-7 p.m. At that time, the parties lived within ten minutes of each other in Montpelier. The final order specified the following concerning modification of its terms:
The parents may modify from time to time, by mutual agreement, the parent child contact schedule, which agreement must be reduced to writing and signed by both parties in order to be enforceable. In the event of a dispute around the parent child contact schedule or any issue concerning [the child], the parents shall, in good faith, work with a mediator and shall participate in at least 2 mediation sessions . . . . In the event the parties fail to resolve a pending issue directly between themselves or then through good faith mediation then [mother], after full and good faith consideration of [father's] position, concerns and reasons, shall make such decision as she deems in [the child's] best interest and [father] is reserved his remedies as provided by Vermont law.In a separate provision, the order stated: "In the event either parent intends to change residence so that the change in residence will render impractical the parent child contact schedule set forth above, no move shall occur prior to the parents establishing a new parent child contact schedule."
In March 2010, mother informed father of her intent to move on June 1 to Starksboro, Vermont, twenty-nine miles and forty-five minutes driving distance from Montpelier. This move made the Thursday evening visit particularly challenging due to the travel time involved and comparatively short visit. The parties participated in mediation between March and July 2010, but did not conclude a written agreement to modify the parent-child contact schedule. Mother moved on June 1, 2010.
In October 2010, father filed a motion to enforce and modify parent-child contact and for contempt. Father alleged that mother moved without an agreement between the parties to modify the parent-child contact schedule in violation of the final parentage order, and that the move had resulted in father being denied parent-child contact. Father requested a modified contact schedule so the child would be with him each weekend. He also requested attorney's fees to compensate for the alleged contempt. Mother responded with her own motion to modify the parent-child contact schedule based on her relocation.
The court issued an interim order modifying the parent-child contact schedule to give father longer, but less frequent, visits and to eliminate the Thursday evening visit. The court held a merits hearing in August 2011 on the motions to modify. Mother, represented by new counsel, attempted to withdraw her motion to modify at the start of the hearing, and refused to stipulate that mother's move was a substantial change of material circumstances. The court denied mother's request to withdraw the motion to modify based on mother's prior assertion that such a change had occurred. Later in the hearing, the court clarified that mother could withdraw her motion, but then she could not advocate for an alternative contact schedule in response to father's motion to modify. Mother chose to proceed with her motion to modify.
At the hearing, father testified that mother notified him in early spring—prior to the start of the parties' mediation—that she intended to move. Father claimed that the parties did not reach an agreement regarding a new schedule. Father expressed that the interim order was working well because it involved fewer transitions between households. He claimed that he did not get make-up time for the loss of Thursday evening visits until the interim order went into effect. At the close of father's testimony, the court stated that it would proceed with mother's direct testimony before determining if cross-examination of father was warranted.
Mother testified that the Thursday evening visit had been problematic for some time prior to her moving because it was a short time-period. She felt it would be better for the child if there were larger blocks of time with each parent. Mother claimed father agreed generally that the Thursday evening visit was not working well and said that because they could not agree on a revised schedule, they participated in mediation. Mother sought to testify that prior to her June 1 move she and father had agreed to end the Thursday evening visit and that father had changed his work schedule accordingly. Mother argued that even if no agreement was reduced to writing, their oral agreement was evidence to rebut father's contempt allegation and to demonstrate that mother had proceeded in good faith. The court ruled that any testimony regarding conversations between the parties about the contact schedule that occurred during the months they were engaged in mediation was not admissible; the court accordingly excluded that evidence. Mother testified that she did not deprive father of time with the child and had offered him extra time, but father did not respond to her requests. She stated that father had not lost any time and she had been flexible in offering time.
At the close of the hearing, the court scheduled time on a different day for cross-examination. The following day mother's attorney filed written notice waiving cross-examination, and father's attorney responded by similarly waiving cross-examination.
The court issued a final order in September 2011. As to parent-child contact, the court found that mother's move was a real, substantial and unanticipated change of circumstances. The court explained that the move had resulted in father's loss of time on Thursday evenings, but also in father's inability to have spontaneous contact with his daughter. The court further explained that the move affected father's relationship with his daughter by impeding his ability to attend school functions and to easily reschedule visits due to the increased travel.
The court concluded that the change warranted a modification of the parent-child contact schedule because it was in the child's best interests, which the court emphasized was served by having a set schedule and fewer transitions between households. Thus, the court granted father contact every other weekend from Friday at 4:00 p.m. to Tuesday at 8:00 a.m. and on the alternate weekend from Sunday at 4:00 p.m. until Tuesday at 8:00 a.m. In addition, the court granted father an additional full weekend during the months of October, January, March and May.
As to the contempt motion, the court concluded that the final parentage order required mother to reach an agreement in writing with father prior to moving. Although the court found that mother notified father of the move in March, and had mediated with father to construct a new contact schedule, the court found that the parties did not have an agreement prior to mother's move. The court explained that mother failed to follow the terms of the final order by not having a written and signed agreement with father prior to moving and thus found her in contempt. The court granted father $3000 in attorney's fees, based on its finding that mother's move led to the litigation.
On appeal, mother first challenges the court's contempt order. The family division has discretion to initiate contempt proceedings where there is evidence of "a clear and substantial violation of a previous order of the court." V.R.F.P. 16(b)(1). As the movant, father bore the burden of proving the elements of contempt by clear and convincing evidence. Vt. Women's Health Ctr. v. Operation Rescue, 159 Vt. 141, 146 (1992). "We will reverse an order of contempt only if it is shown on appeal that the court abused its discretion by issuing the order." Root v. Root, 2005 VT 93, ¶ 12, 178 Vt. 634 (mem.). The purpose of civil contempt is not to punish, but to compel compliance with court orders. Mayo v. Mayo, 173 Vt. 459, 463 (2001).
While we accept the court's factual findings, we conclude that they do not support an adjudication of contempt because the underlying order was not definite and unambiguous and because any failure on mother's part to comply with the parentage order did not amount to a "clear and substantial violation." V.R.F.P. 16(b)(1).
We first examine the order itself. " '[A] mere showing of noncompliance with a court order, or even misconduct, is never sufficient alone to prove civil contempt.' " In re Contempt of Cullen, 2004 PA Super 102, ¶ 6, 849 A.2d 1207. "[B]efore a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties imposed upon him. The order must be specific and definite so that it leaves no reasonable basis for doubt as to its meaning." State v. Pownal Tanning Co., 142 Vt. 601, 605 (1983); see Mitchell v. Mitchell, 785 N.E.2d 1194, 1198 (Ind. Ct. App. 2003) ("A person may not be held in contempt for failing to comply with an ambiguous or indefinite order." (quotation omitted)). There was no such specific and definite order here regarding mother's obligation prior to moving.
The final parentage order requires that modification to the parent-child contact schedule be in writing and signed to be enforceable. If the parties are unable to agree on a new schedule, the order requires the parties to engage in mediation. If this is unsuccessful, mother, as the primary caregiver, is reserved the right to make a decision that she deems to be in the child's best interest, and father's rights to challenge that decision are preserved. In a separate clause, the order requires that there be a new schedule in place before a party moves to a distance that would render the contact schedule impracticable. The trial court interpreted these provisions together as precluding mother from moving until she had a written and signed agreement with father reflecting a new contact schedule.
We conclude that the language of the final parentage order is not so unequivocal regarding the parties' obligations in the event of a move. The order did not clearly require mother to reach a written and signed agreement with father regarding parent-child contact prior to moving. Any modification must be signed and in writing to be enforceable, but the parties could enter into an oral agreement that, while not enforceable, nonetheless existed. Further, the move provision does not mention a writing requirement, but says "no move shall occur prior to the parents establishing a new parent child contact schedule." There is no definite statement that a move must be preceded by a written and signed modified schedule. It is possible that a new agreed-upon oral schedule would suffice. In addition, the order does not specify what kind of move would "render impractical" the parent-child contact schedule. Mother's move, which made Thursdays difficult, but not impossible, arguably did not even trigger the renegotiation requirement. Without a specific and definite order, there was no basis for an adjudication of contempt.
We do not hold that the order was satisfied by an oral agreement or that mother's move did not require a modified schedule. We simply hold that the parentage order was not so definite on this point that it could form the basis of a contempt finding.
Moreover, mother attempted to comply with the order and the court's findings do not indicate that she acted in willful disregard of the order's requirements. She notified father of her intent well in advance of her move. She engaged in mediation in good faith. Apparently she offered alternative arrangements to father and attempted to compensate for his lost Thursday evening contact. However, the parties were unable to agree. Mother acted reasonably under the circumstances and should not be punished simply because her efforts to work with father were unavailing. As we have explained in the past, "[m]istaken judgment, without any suggestion of deceit, cannot be the basis for a finding of contempt." Mayo, 173 Vt. at 463. Mother cannot be held forever in limbo because she and father cannot agree on a new schedule. It is important to note that this is not a situation where mother singularly deprived father of contact. Cf. Root v. Root, 2005 VT 93, ¶¶ 7, 13-14, 178 Vt. 634 (mem.) (affirming contempt finding where mother moved to Connecticut without notifying father or engaging in mediation and as a result father was precluded from parenting children). We accept the trial court's unchallenged finding that father's contact was affected, but mother did not move to prevent contact and at all times sought to maintain child's contact with father. Under these circumstances, we cannot uphold the finding of contempt.
In addition, we note that the trial court specifically steered mother toward focusing on the revised parent-child contact schedule rather than on defending against the contempt allegation. At one point during direct examination of mother, the court interrupted and stated "I don't know what you think the court has in mind by way of contempt. I'm more concerned about coming up with a parent-child contact schedule that works for the father and works for the mother."
Mother also argues there was no ground to award father attorney's fees as a result of the contempt. Even though we reverse the contempt, we address this point briefly. If contempt occurs, the court may sanction the party, including by imposing a compensatory fine "if loss or injury to a party in an action or proceeding has been caused by the contempt . . . including reasonable attorney's fees." V.R.F.P. 16(c)(3). The type of bad faith conduct that would justify an award of attorney's fees has been found where "one party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons where the litigant's conduct can be characterized as unreasonably obdurate or obstinate, and where it should have been unnecessary for the successful party to have brought the action." DJ Painting, Inc. v. Baraw Enters., Inc., 172 Vt. 239, 246 (2001) (quotation omitted).
Even if mother's relocation to a nearby town before execution of a new written contact schedule did constitute contempt, the attorney's fee award would have been inappropriate on these facts because father's legal fees were not caused by mother's contempt. The proceeding below was primarily for modification of parent-child contact. This was not first and foremost a contempt and enforcement proceeding, and father did not incur attorney's fees because he had "to seek the assistance of the courts to enforce a judgment." Vt. Women's Health Ctr., 159 Vt. at 150. Mother's move precipitated the need for a change in the parent-child contact schedule, but it was the parties' inability to reach an agreement that led to the modification proceeding.
Mother also challenges the trial court's ruling prohibiting her from testifying about any communications between her and father relating to the contact schedule that occurred during the months mother and father were engaged in mediation. Because the court excluded such evidence, we cannot review mother's claim that she understood that the parties had, in fact, agreed to end Thursday visits prior to her move. Mother argues that the court's ruling pursuant to the Uniform Mediation Act was overbroad, excluding from evidence several months' worth of conversations between the parents outside of the mediation room—far more than the actual mediation communications privileged under that act. Given our holding that the order was ambiguous and thus could not form the basis for an adjudication of contempt, we need not resolve this question.
The Uniform Mediation Act provides: "A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding." 12 V.S.A. § 5715(a). A mediation communication is defined as "a statement, whether oral, in a record, verbal, or nonverbal, that is made or occurs during a mediation or for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator." Id. § 5713(3).
Mother raises two other issues regarding the trial. Mother contends that the court precluded her from cross-examining father. This claim is unsupported by the record. At the end of the proceedings, the court scheduled a different hearing day for cross-examination. Prior to that day, mother sent the court a letter waiving cross-examination. Thus, at no time was mother barred from examining father; she waived cross-examination of her own accord.
Mother also argues that the court erroneously precluded her from withdrawing her motion to modify at the outset of the hearing. Initially, the court denied mother's request to withdraw her motion to modify. The court later explained that if mother withdrew her motion, she would not be able to offer a suggested contact schedule in the event the court granted father's motion. For that reason, mother opted not to withdraw her motion. The court's suggestion that without a pending motion to modify of her own mother would be unable to present any evidence of her proposed new schedule was an incorrect statement of the law. By withdrawing her motion to modify, mother forfeited her ability to proactively seek a change in the contact schedule on the ground of real, substantial, and unanticipated change of circumstances. However, even if mother had never filed a motion to modify, in opposing father's motion, she was free to argue, in the alternative, for her favored schedule in the event that the court found a change of circumstances. Mother suffered no prejudice from the court's error since the question of whether her move constituted a real, substantial and unanticipated change of circumstances was before the court anyway as a result of father's motion, and she did present to the court her suggested modified schedule.
Next, we turn to mother's challenge to the modified schedule. The trial court has broad discretion in crafting a parent-child contact schedule that serves the best interests of the child, and we will not reverse its decision unless it is 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).
Mother also claims that the court's interim order is invalid because it revised parent-child contact without a demonstration of changed circumstances or an evidentiary hearing. We find no error. No hearing is required prior to issuance of a temporary order and mother made no request for a hearing. Further, mother failed to challenge the interim order in the family division and therefore waived any objection.
Mother argues that the new contact schedule is an abuse of discretion because it inexplicably increases father's contact from the 40% he had under the prior order to 60%. Father responds that there is no increased amount of contact and father has 43% of the child's time under both schedules.
We need not decide the exact percentage of father's contact because we conclude that, even accepting mother's interpretation of father's time, the trial court committed no error. The court considered the child's best interests, and set a new parent-child contact schedule accordingly. For the most part, the modified schedule was in response to the impracticality of keeping the current schedule, and was simply a reconfiguration of the prior schedule. The court reorganized the contact schedule so that father had longer, yet less frequent, visits based on its finding that it was in the child's best interests to create a schedule with fewer transitions between households. Any consequent increased time for father under the new schedule is supported by the court's finding that fewer transitions are in the child's best interests and that the move left father fewer chances for the spontaneous and unscheduled time with the child that had been possible when the parties lived in closer proximity.
We agree with mother that it would have been improper for the court to increase father's time simply as a punitive measure for mother's perceived violation of the final parentage order. There is, however, no indication in the court's order that this was the purpose of the modification.
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The modified parent-child contact order is affirmed. The contempt order and accompanying award of attorney's fees is vacated.
BY THE COURT:
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John A. Dooley, Associate Justice
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Marilyn S. Skoglund, Associate Justice
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Beth Robinson, Associate Justice