Sunday, May 4, 2014

Long-Distance Love Leads to Lengthy Litigation

Patnode v. Urette, 2014 VT 46

By Andrew Delaney

People often say that long-distance relationships just don’t work out. Today’s case doesn’t deviate from that rule, but there’s also a kid involved, which means a lot more paperwork.

Mom lived in and continues to live in Vermont; dad lived in and continues to live in Florida. Mom and dad were in a long-distance relationship for several years. At some point the birds and the bees ended up in the picture, which led to a visit from a stork. I never got a clear explanation of this phenomenon during my own childhood.

All was well for four years while mom and dad made trips to visit each other with the kid. But then mom and dad broke up and mom filed a parentage action.

The “superior court issued parental rights and responsibilities (PRR) and parent-child contact (PCC) orders . . . awarding [mom] sole physical and legal parental rights and responsibilities, and [dad] significant parent-child contact.” Among other things, dad got ten days a month, long weekends, and every other two week block in the summer. Mom appealed and the SCOV affirmed.

That was not the end of it. School vacations and travel with dad were problematic for the parties. After a “flurry of motions” from both sides to clarify, enforce, or modify the PCC order, the trial court issued an amended order. The amendment was a direct response to one of dad’s motions to clarify or enforce that sought to clarify two specific issues: (1) whether dad was allowed to take the kid out of state on travel; and (2) whether a school vacation (on mom’s schedule) superseded his regular monthly allotment of parent-child contact.

So, the amended order basically said (1) dad has to give mom two-weeks’ notice when he has out-of-state travel plans with the kid; and (2) when mom has a school holiday, dad can alter the beginning and end date of his ten-day contact period so it doesn’t overlap with mom’s holiday.

Mom appeals again. She argues that the amendments are modifications to the PCC order, and the court screwed up when it granted them without first making a finding that a substantial and unanticipated change in circumstances had occurred.

The SCOV notes its heavy deference to the trial court when reviewing a ruling on parent-child contact, and that gives a little foreshadowing of where this case is headed. If we were on a bus, for example, the driver might say something like, “Next stop, folks, Affirmance Alley.”

Mom argues that the trial court’s order worked significant modifications to the standing PCC order. According to mom, it allows dad to have out-of-state travel, which wasn’t allowed before; it increases mom’s contribution to travel costs; and it institutes a modified schedule for dad’s visitation. The SCOV disagrees, and views these changes as “clarifications to the order which the superior court was authorized to make.”

Mom argues that dad never had the right to travel outside Vermont with the child during the school year, citing “one line from one day of the PCC hearing where the superior court judge was describing father’s visitation rights” and said things indicating dad’s visits would be in Vermont. The SCOV notes that the judge later clarified her statements making it clear that dad was allowed to leave Vermont with the child. Thus, the SCOV rejects the travel-is-a-new-thing argument.

Mom points out that dad got a special order allowing him to take the child to Florida for a long weekend. The SCOV acknowledges this, but points out that the special order was in response to mom’s motion for a protective order and emergency hearing that she filed to preempt dad from leaving the state with the kid. So that’s not getting much weight.

The original order said that the parties would give each other “notice” before “trips”; the amended order says that dad has to give two-weeks’ notice if he’s going to be doing an out-of-state trip over a long weekend.

As the SCOV puts it: “This is a clarification; it does not change the terms of the PCC order in any way as father was mandated to give notice in the original order and is likewise mandated to give notice by the amended order.” The old order never defined “notice”; the amended order does.

Mom’s argument that the new order increases her travel costs is a nonstarter. Because the amended order is no more than a clarification, and mom’s argument is based solely on dad’s allegedly new ability to travel out of state (and not mentioned at all in the amended order), the SCOV reasons that the amended order does not modify mom’s pay-part-of-dad’s-travel-costs obligation in any way.

Mom’s final argument is that the amended order significantly changes dad’s visitation schedule. The SCOV doesn’t agree. As the SCOV sees it, the amended order just clarified what happens when dad’s scheduled time conflicts with mom’s scheduled time. There’s a little dictionary and case law discussion on the differences in meaning between “clarify” and “modify,” with the SCOV noting that accepting mom’s argument would effectively remove the family division’s ability to clarify existing orders.

And thus the SCOV upholds the PCC order, as amended. But we’re not quite done yet.

There’s the matter of mom’s child-support-calculation issues. The SCOV deftly dodges this bullet, while giving us a glimpse of what the child-support magistrate is in for below. There were three days of hearings below. When the magistrate issued an order, both parties appealed to the superior court—mom with ten issues, and dad with six. The superior court reversed several aspects of that order. Mom started to appeal, but withdrew it, and the magistrate issued a new decision consistent with the superior court’s appeal order. Mom tried to go straight to the SCOV.

Here, the SCOV says that although neither party addresses it, the magistrate’s order on remand was never appealed before mom commenced her appeal in the SCOV. That means it’s not properly before the SCOV and the SCOV dismisses the appeal, but not before instructing the family division to hear the appeal. Even though the notice of appeal was mistakenly filed in the SCOV, it’s considered filed in the superior court on the same date.

So the child-support appeal is dismissed (or kicked back to the family division depending how you look at it), and the PCC order is affirmed.  Will that keep these folks busy for a while?  Stay tuned.

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