The Not-So-Funny Farm

By Nicole Killoran

Paine v. Buffa, 2014 VT 10.

Vermont is well-known for inspiring self-sufficiency and industry.  World-weary travelers seek the solace of the Green Mountains, buy land, take up the homestead life, and pick up a craft or farming.  But as today’s parties found, it’s no easy task to start a cottage industry.  Many newly-arrived flatlanders have tried to do so under their own steam, and have failed.  Today’s parties appear to have met such a fate notwithstanding substantial support from the parental units.

But today’s case is not simply an idyllic metaphor about trying, and failing, to live a charmed life in rural Vermont (Chevy Chase or his agents, please take note).  It’s about custody and property.  So let’s get to it. 

The parties met in Colorado in 2002 when they were 18 and 22.  (I envision a chance meetup at the Bonnaroo Festival beneath Widespread Panic on the main stage, but who knows, they may have met at Red Rocks).  The young couple traveled for a year, and landed in Vermont.

In 2003 the female partner’s apparently wealthy parents, who live in Georgia (the Peach state, not the lake town), financed the female partner’s purchase of a home in Brattleboro for the couple.  The two moved in and took up a variety of odd jobs.  He worked at an apple orchard and did some carpentry on the side.  She worked as a waitress and as a clerk at a farm stand.  As you might imagine, it was only by the grace of her parents that the couple were able to support themselves while working in these colorful, but less-than-lucrative, professions.

Two years later, the charm had worn off their free home.  In 2005, the female partner approached her parents again, and convinced them to buy her a 32-acre parcel of land in Brattleboro.  With the parents’ help and the male partner’s carpentry labor, the young couple built a house on the property.  They also worked up an intention to live “off the grid,” be “self-sufficient homesteaders,” raise sheep, and create wool fabric products. 

The dream was short-lived—as it turned out, the female partner “was less committed” to homesteading than he was.  She gave up her woolly dreams, sold house number one, and deposited the proceeds into her own bank account.  In 2007, despite their thus-far tumultuous relationship, the young couple decided to get married.  Kid No. 1 arrived nine months later.  Kid No. 2 arrived three years after that.

When Kid No. 2 was six months old, the now-mother and father separated.  Father moved out of the house he built, though he returned regularly and continued to care for the kids at the home several days and nights, per week while mother attended community college.  In March 2012, father filed for divorce and started spending his time with the kids at a cabin at the orchard to which he had removed.

Shortly after the divorce was filed, mother decided she wanted to move to North Carolina with the kids.  She requested an expedited hearing to establish a parent-child contact order, but the trial court denied her request because there was no emergency.  Mother decided to try another tactic—she requested emergency relief claiming father was putting the kids at risk by spending time with them at the cabin. 

At the emergency hearing in May 2012, the trial court deemed mother’s “emergency” a ruse to get custody so she could move out of state.  The cabin was safe for the children.  The court threatened to give father temporary legal custody unless the parties could agree to some other arrangement.  Shortly thereafter, they stipulated to shared legal and physical rights and responsibilities and the trial court entered a temporary parenting order.

By the time the trial court heard the case at trial, mother had changed course again and decided she wanted to move back to Georgia with the kids to live with her parents.  Before trial, mother proposed a parenting plan that gave her sole legal responsibilities and shared physical responsibilities, with father either getting the kids in Vermont for school vacations or following her to Georgia to live in one of her parents’ homes.

On the first day of trial, mother’s parents decided it was time to collect on the rather expensive bill their daughter had been racking up over the last decade.  They filed suit in Georgia against both mother and father seeking to recover the $700,000 they loaned the young couple to buy their first house, and build their second.

The trial court issued its divorce decree a month after the trial.  The court found both parents evenly balanced on the statutory custody factors, but ultimately granted shared physical responsibility, and sole legal responsibility to father.  The court was motivated by mother’s zeal for relocation and a determination that it would be in the kids’ best interests to stay in Vermont rather than move to Georgia.

The trial court awarded mother the only significant asset of the marriage—the house, a “gift” from mother’s parents worth about $350,000.  Father got a lien for his share of equity in the amount of $85,000, enforceable in 120 days.  The court also put the responsibility for mother’s parents’ lawsuit in Georgia squarely on mother—she was ordered to hold father harmless if any judgment was obtained.

Mother appealed the custody and property awards.

On appeal, the SCOV takes up the custody decision first.  When it comes to the family court’s determinations on parental rights and responsibilities, the SCOV gives a lot of deference to the trial court.  The findings of fact, viewed in the light most favorable to the prevailing party—in this case, the father—have to be clearly erroneous, and the conclusions of law unsupported by the findings, before it will reverse.

Mother takes issue with the trial court’s focus on her proposed relocation to Georgia rather than the statutory best-interest-of-the-child factors.  She claims the trial court ignored her attempt to convince the court she would stay in Vermont if necessary to get legal custody. 

Where parents are equally situated with regards to the best-interest factors, one parent’s proposal to relocate can be a dominant factor in a custody decision.  In situations like this, the party who wants to move can ask the court to either assume she intends to move, or assume she hasn’t made up her mind. 

Mother changed her story over the course of the trial.  Throughout most of the trial she claimed she anticipated moving and that father could move with her and the kids.  She outlined her plans to study dental hygiene in Georgia, live in one of her parents’ homes, and take a high-paying job handed out by her father’s business associate.  It wasn’t until the last day of trial, when it looked like she might not be able to take the kids to Georgia, that mother told the trial court she would stay in Vermont to get legal custody. 

Under the circumstances, says the SCOV, the trial court didn’t do anything wrong by assuming mother intended to relocate, and basing its decision on that assumption.  The trial court also got it right in concluding that father should have sole legal custody. 

The trial court had to consider whether relocation would significantly impair father’s ability to play the same role in the kids’ lives he had been playing.  Moving the kids to Georgia would reduce his role, and would also be disruptive because it would take the kids away from the community they had grown up in and their established relationships in Vermont. 

The trial court also found mother’s housing, education, and employment plans for relocation to be “speculative” given her track record and the pending lawsuit with her supposedly-supportive parents.  Nor was the relocation the only thing the trial court considered—it also looked at whether each parent could better care for the kids, and which parent was more likely to foster a positive relationship between the kids and the other parent.  All told, says the SCOV, the trial court got this one right.

As a last gasp on the custody issue, mother takes issue with the trial court applying to a temporary parenting order the standard for a motion to modify a pre-existing parenting order.  Where there is a pre-existing order, and a proposed relocation would impair one parent’s ability to parent, the trial court considers a number of factors beyond the best-interest factors, such as each parent’s history of custodial responsibility and how much the relocation would change the circumstances of the parents and the kids. 

Ordinarily, these factors aren’t considered when the trial court makes a custody determination in a divorce because there is no pre-existing final order to modify.  Therein lies mother’s beef: the trial court didn’t need to look at how much of a change in circumstances the move would cause, but did anyway.  No matter, says the SCOV.  The trial court didn’t do anything wrong when it considered the impact of the proposed relocation on the already-established, albeit temporary, parenting arrangement.  It was reasonable for the trial court to look at the statutory best-interest factors through the lens of the proposed relocation.  Sorry mother—you get to share physical custody, but father gets sole legal custody.

Next the SCOV takes up the property award.  Mother has a number of arguments on this issue, none of which the SCOV agrees with. 

First, mother argues that the trial court should have treated her parents’ funding for the property and the house built on it to be a loan rather than a gift, especially given her parents’ suit to collect the debt.  The SCOV disagrees.  The house was in mother’s name alone, and it’s not clear whether mother’s parents ever treated the money they used to fund it as a loan.  There was no promissory note, or mortgage, and mother’s parents never asked either of the parties to repay them at any time prior to the divorce.  In fact, father testified that whenever he tried to discuss repayment with mother’s parents the topic was brushed aside.  It was reasonable for the trial court to treat the house as a gift under these circumstances, says the SCOV.

Second, mother claims the trial court impermissibly determined her parents’ rights regarding the house when it divided the equity.  But the court had to put some value on the marital asset, retorts the SCOV, and mother’s parents’ interest in the property is theoretical given the lack of mortgage, note, or recorded document.  What the trial court did was to treat the parents’ future judgment  as mother’s debt alone, and give father a share of the equity—Mother’s parents can have their day in a Georgia court, but ultimately mother has to pay for it.  The SCOV finds this to be a fair division of assets and liabilities.

Third, mother decries as “unfair” the trial court’s order for her to sell the house within 120 days because she had to fix a problem with the septic system before she could sell it.  The SCOV notes that the trial court had broad discretion to equitably divide the only real asset of the marriage, and that to grant father a share of equity and order sale was within the trial court’s powers.  Mother didn’t present much evidence about the septic system, either, and didn’t demonstrate why the house could not be sold without fixing it.  Sorry mother—the SCOV agrees with the trial court here too.

Finally, mother claims that the amount of equity awarded father was excessive because he really only contributed $40,000 in labor to building the house.  But here again, the trial court had discretion to make an equitable division of assets, and it was allowed to consider all relevant factors, including nonfinancial contributions. 

The couple wasn’t married for very long, and their assets largely came from mother’s parents.  But, unlike father, mother’s parents are wealthy, they are probably going to continue to support their daughter, and at the very least mother stands to inherit some major moolah from her parents.  Father also supported the family and cared for their kids during the marriage, in addition to putting labor into the house.  He is entitled to more equity than just the value of his labor, and the trial court was reasonable in making that conclusion.  The SCOV upholds all of the trial court’s conclusions, and affirms the underlying decree.

Justice Robinson, the SCOV’s ever-constant guardian of unanticipated outcomes, pens a separate concurrence to warn against reading too far into the SCOV’s analysis of the custody issue.  In particular, the concurrence emphasizes that an agreement to share legal custody, the ability to make educational, medical, religious, etc. decisions, need not prevent one parent from relocating.  Justice Robinson warns future litigants to remember that it is possible for parents to share legal custody while one parent has sole physical custody after relocating.

Unfortunately for mother she is stuck with shared physical custody, while father gets sole legal custody.  She also has to figure out how to sell the house, and she’ll have to deal with any judgment her parents are awarded in Georgia.  (Who suspects that mommy and daddy will be settling their action soon?) 

But hey, if the SCOV is to be believed, all mother has to do is wait for her parents to take care of her or give her an inheritance—the trust fund is her oyster.