Sunday, December 31, 2017

"A Very Difficult Case"

Yep. That's about the sentiment. 
Knutsen v. Cegalis, 2017 VT 62

By Andrew Delaney

This case has previously been described as “heartbreaking.” This is the fourth published opinion in this case I’m aware of. You can read summaries of the second and third opinions by clicking on the respective links. The first opinion predated this blog.

This time mom is appealing from the trial court’s denial of her motion to modify parental rights and responsibilities. She argues that the trial court’s findings don’t support its conclusions. Specifically, even though the trial court found that mom had shown a real, substantial, and unanticipated change in circumstances, and that dad and stepmom weren’t credible, the court nonetheless chose not to modify parental rights and responsibilities because it reasoned that transferring custody to mom wasn’t in the kiddo’s best interests. SCOV says, more or less, “We guess that’s within the trial court’s discretion, but if dad and stepmom keep up the alienation stuff, then that’s probably going to warrant a change.”

Mom also appeals the trial court’s denial of her motion for attorney’s fees. On that point, SCOV sides with mom, reasoning that she’s “entitled to such fees given father’s egregious and ongoing effort to alienate her from” kiddo, which is what brought all this about.

Mom also told SCOV during oral argument that she hadn’t had a visit since March 10, 2017 when dad moved for—and the trial court ordered—suspension of mom’s visits. SCOV says, “Y’all better get on that like John Pinette on a Chinese buffet.” Mom’s visits need a hearing within fourteen days of this opinion (July 7, 2017) and the trial court should consider awarding makeup time, SCOV opines. One gets the distinct impression that SCOV is none too impressed with dad’s actions.

SCOV doesn’t delve too deeply into the history but does note that since 2012, when the kiddo was five, dad and stepmom have been “waging war” on mom (and her then-boyfriend) with false allegations and basically making sure mom hasn’t had time with kiddo for years.

“Despite father and stepmother’s egregious behavior, the trial court has thus far declined to modify parental rights and responsibilities for the child.” Initially, because of the potential disruption to kiddo, the trial court kept him with dad and stepmom, but ordered therapy with a goal of reunification with mom. In the meantime mom’s visits were suspended except for letters—letters that didn't even make it to kiddo.

SCOV upheld the decision on appeal, not because it agreed with dad and stepmom’s horrible behavior, but because the decision focused on kiddo’s best interests and was legally and factually correct. It was one of those hold-your-nose-and-hope-for-the-best situations.

That brings us to the current state of affairs. SCOV notes that dad and stepmom continued to wage war against mom during the pendency of the 2015 appeal. Mom filed an emergency motion arguing that dad “continued to deliberately and repeatedly undermine and defy the court’s orders. The trial court agreed.” At a hearing, the trial court concluded that dad’s “serious and blatant violations of its prior order constituted a real, substantial, and unanticipated change of circumstances.” For example, despite a prohibition on giving kiddo’s medical information to any third party, stepmom gave kiddo’s private medical information to the media.

Dad also wrote several letters to kiddo’s therapist despite a clear prohibition on interfering with kiddo’s therapy. The bent of the letters was that dad wanted mom prosecuted and that kiddo had been abused. Dad referred to a “court-ordered cover up,” encouraged the therapist to report to the kiddo’s attorney, and insinuated that there were investigations happening—this gives you an idea as to dad’s attitude about everything. The trial court found dad’s “violations so fundamental to the heart of the case that they could not be overstated.”

There was a best-interests hearing. Mom’s expert psychologist was kind of wishy-washy and the trial court didn’t put much stock in his testimony. Dad and stepmom testified that they still believed mom abused kiddo but they also were okay with reunification now. Mom wasn’t buying it.

The court, like mom, was skeptical. It noted that stepmom wrote a mom-is-evil manifesto to the U.S. Attorney for the District of Vermont and released kiddo’s medical records to the media. All this happened after kiddo’s therapy that dad and stepmom attributed to their changes of heart. So, the oh-we’re-all-good-now line didn’t carry much water. The trial court was especially sick of stepmom’s garbage.

The court again kept custody with dad, however, because the change would be destabilizing for kiddo. Kiddo was doing well in school, happy, well-behaved, and involved (no thanks to dad and stepmom). Sending him to live with mom given his development up to this point would potentially have a bad effect on him. So, even though none of this was mom’s fault, the kid was alienated from mom and moving him in with her would be a potentially traumatic change.

The trial court reluctantly based its decision on dad and stepmom’s suspiciously stated positions—that they now supported reunification. The trial court was clear that any kind of shenanigans going forward contrary to dad and stepmom’s stated positions could be considered a real, substantial, and unanticipated change in circumstances.

The trial court also set forth a specific parent-child contact schedule to begin in January 2017. Kiddo was to go to therapy once a week and dad was to pay for it and provide transportation. Stepmom wasn’t to tag along.

Mom later moved for attorney’s fees. The trial court denied the request. Mom appeals the orders.

SCOV acknowledges that mom has “understandable frustration over what has occurred in this case.” A good acronym here is SSDD—the Urban Dictionary version. Despite dad and stepmom’s repeated bad behavior, the trial court gave them credit for their last-minute “conversion.” Mom says the trial court should have instead given her expert’s testimony more weight and granted her motion.

The SCOV, and one can almost feel the reluctance here, notes that its “review of the court’s decision is deferential.” This is a situation where findings stand unless clearly erroneous and legal conclusions stand as long as they’re supported by the findings.

The SCOV also opines “this is a very difficult case.” But the trial court did properly focus on kiddo’s best interests.

Mom’s expert never met with kiddo and didn’t actually offer a best-interests opinion. So that’s as far as that goes.

Here, the critical factors were kiddo’s “engagement in his local school and community and his strong bond with father.” And even though dad and stepmom’s horrible behavior set up some of the reasons that a change might not be in kiddo’s best interests, the fact that kiddo “was healthy and happy and deeply involved in his school and community were also important factors.”

SCOV reasons that setting the benchmark on dad and stepmom’s promises that they’d support reunification with mom going forward was okay under the circumstances. Mom, with justification, points out that the trial court has set such benchmarks before, dad and stepmom have willfully stomped all over those benchmarks and there are no apparent consequences. And the fact that dad moved to suspend contact in March doesn’t make it look like dad and stepmom are going to keep their promises. Still, SCOV reasons, at this point, and based on what the trial court had to work with, its analysis of kiddo’s best interest was “factually based and legally correct.”

SCOV concludes: “Father and stepmother cannot continue to engage in alienating behavior, however, without consequence.” But nonetheless, SCOV affirms the trial court’s decision to keep kiddo in dad’s custody.

Mom requested attorney’s fees because dad had caused all the trouble. Dad responded that attorney’s fees wouldn’t be equitable because he was responsible for the costs of raising kiddo and mom was suing him and stepmom. If the court did decide to award attorney’s fees, dad asked for a hearing, noting that financial circumstances had changed since last time.

The trial court denied mom’s motion. It noted that while mom prevailed on the change-in-circumstances question, she didn’t prevail on the best-interests question. Dad had also offered a partial settlement, which mom rejected. In this context, the trial court found it fair that each side bear its own costs and fees. Mom moved for reconsideration and the trial court denied the motion.

Mom argues that the trial court abused its discretion in denying her request. SCOV agrees. The trial court focused on whether mom had “prevailed” and that was wrong. Dad has a lot more resources than mom. He’s a veterinarian and lives on a 425-acre estate. Mom works several jobs. The purpose of awarding attorney’s fees in family cases is to level the playing field.

SCOV doesn’t care in this context that dad is paying for kiddo’s therapy. He and stepmom caused the need for it. SCOV is “equally unpersuaded” by the but-she’s-suing-us pitch. Finally, SCOV reasons that mom was justified in being skeptical about dad’s last-minute offer to pay for kiddo’s therapy, especially given that dad has used therapists against her in the past.

Mom filed her motion to promote kiddo’s best interests and to stop dad’s “ongoing egregious violations of existing court orders. Mom shouldn’t have to pay to enforce her constitutional right to parent kiddo under these circumstances. SCOV reasons that dad should pay the bill.

Justice Eaton, joined by Justice Robinson concurs. The concurrence notes that “the dire predictions made by Justice Robinson in her concurrence in the previous appeal have come or are coming true.” There’s a block quote from the previous opinion and as Yogi Berra might have quipped, “It’s like déjà vu all over again.”

The concurrence continues: “It does not matter how sternly this court chastises father and stepmother for continuing to engage in alienating behavior or how many warning shots are fired across their bow; the alienation continues.”

At some point, something’s gotta give. And in the concurrence’s view, that point is close at hand.

This type of case, ladies and gents, is why I no longer do family law. 

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