Note: Decisions of a three-justice panel are not t o be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2011-160

NOVEMBER TERM, 2011

Anne-Marie Matthews } APPEALED FROM: } }

v. } Superior Court, Chittenden Unit, } Family Division } Thomas Matthews } DOCKET NO. 769-9-09 Cndm

Trial Judge: Matthew I. Katz

In the above-entitled cause, the Clerk will enter:

Father appeals the court’s custody decision followi ng a contested divorce. Father argues that the court erred in granting mother sole parent al rights and responsibilities and in adopting mother’s proposed parent-child contact schedule. W e affirm.

The parties were in a long-term relationship and ha d a child in June 2000. They married in 2004, and separated in April 2008. At the time of the final hearing, father was 63 and mother was 43. When the child was a baby, mother was the primary caregiver. Mother returned to work when the child was two, at first on a part-time bas is. She now works full-time at a restaurant as a store manager. Evidence was presented at trial con cerning mother’s use of alcohol. The court

found that the evidence was stale and insufficient to demonstrate that mother still drinks to excess or that it “is an ongoing issue in her day-t o-day life or a detriment to her exercise of custodial responsibility.”

During the parties’ relationship, father worked ful l-time at Green Mountain Power. Father retired early, and his income now includes h is retirement, social security payments, rental income, and some investment income. He receives ov er $900 per month as a social security dependency payment for the child. He enjoys huntin g and goes on extended hunting trips to

other states.

Following separation, the parties’ stipulated to a shared custody arrangement where each parent had the child for equal amounts of time. Fa ther took the parties’ son on a three-week trip out west, which the court found was a “wonderful ex perience” for the child. The court found, however, that the trip revealed several aspects of the parties’ respective parenting traits. First, the trip was made possible by mother’s willingness to give up some of her time with the child. Second, father demonstrated insensitivity for his s on’s need to see and communicate with his mother by failing to explain the limits of a prepai d cellphone, which meant that the minutes were used within the first few days of the trip and afte rwards the child could not communicate with his mother. Additionally, father failed to understand why mother requested to see the child immediately upon their return. The court found als o that father has generally displayed disrespect for mother’s relationship with her son b y scheduling special classes and dentist appointments during mother’s time.2

At the final hearing, both parties testified and re quested sole parental rights and responsibilities. Father proposed a parent-child c ontact schedule where he would have the child five days a week. Mother’s counsel explained that he would submit a detailed schedule on behalf of mother, but in answer to counsel’s questi on of what type of contact mother proposed,

mother testified that she would like the child to b e with each parent half of the time. Both parties submitted requests for findings. Mother’s schedule proposed that the child be with her four nights a week and father three nights per week.

The court issued its findings in a written order in January 2011. In considering custody,
the court examined the factors listed in 15 V.S.A. § 665(b). On most of the factors, the court found that the parties were relatively evenly balan ced. The court found that neither parent was the primary caregiver and both were qualified to pr ovide care and guidance to their son. The court specifically rejected father’s argument that mother’s alcohol use diminished her ability to parent. The court determined that that “the tippin g point between the parties is their respective ability to foster a good relationship with the nonc ustodial parent.” On this point, the court found that mother had demonstrated flexibility and respec t for father’s time with his son, whereas father had shown an inability to foster a good rela tionship with mother. The court also found that the child has a strong relationship with his m aternal grandmother. In light of mother’s superior ability to communicate with father and fos ter a positive relationship with father, the court granted mother sole parental rights and respo nsibilities.

The court directed counsel to agree on the form of a decree, and submit a proposed order. In March 2011, father moved for appointment of a gu ardian ad litem to make sure that the child’s best interests were represented in determining pare nt-child contact. The court denied the request, noting that the issue had already been tried. The parties were ultimately unable to agree and submitted competing proposed orders. Father’s prop osal maintained the temporary arrangement of equal time on a two-week rotating schedule. Add itionally, father requested that the order stipulate that mother should use the child’s social security dependency payment to pay the child’s health insurance, income taxes, account fee s, property taxes, school taxes, school lunches, savings for braces, and other activities. The cour t adopted mother’s proposed order, granting father parent-child contact from Wednesday morning to Saturday at 6:00 p.m. The signed order erroneously indicates that the parent-child contact schedule was stipulated to by the parties. Father appeals.

In his first argument, father challenges multiple f indings, arguing that they are not supported by the evidence and therefore that the co urt erred in awarding mother sole legal and physical rights and responsibilities. Father argue s that the following findings are not supported by the evidence: that mother’s alcohol use is not d etrimental to her exercise of custody, that mother maintains an orderly household, that father had not taken his son on any hunting trip, and

that father obstructed mother’s time with their chi ld. Upon review of the record, we find no merit to this argument. For the most part, father’ s argument asks this Court to reweigh the

evidence in his favor. This we will not do. It is exclusively the province of the trial court to assess the credibility of the witnesses and weigh t he persuasiveness of the evidence. Chase v. Bowen, 2008 VT 12, ¶¶ 15, 36, 183 Vt. 187; see also Bonanno v. Bonanno, 148 Vt. 248, 250-51 (1987) (“We have consistently given due regard to t he unique position of the trial court to assess the credibility of witnesses and the weight of all the evidence presented.”). Moreover, the family

court has broad discretion to determine a child’s b est interests based on the relevant statutory factors. Chase, 2008 VT 12, ¶ 34. We will not set aside individual findings “unless they are clearly erroneous,” and we will not deem findings i nsufficient unless “we are left to speculate as

to the basis of the trial court’s decision.” Bonan no, 148 Vt. at 250, 251. In determining whether findings are clearly erroneous, we consider the evi dence in the light most favorable to the3

prevailing party and exclude the effects of any mod ifying or conflicting evidence. Cliche v. Cliche, 143 Vt. 301, 306 (1983).

Given this standard, father’s arguments are unavail ing. Father’s primary challenge is that the evidence does not support the court’s finding t hat evidence of mother’s alcohol abuse was either stale or exaggerated, and that her alcohol u se was not a detriment to her exercise of custodial responsibility. Father points to an inci dent in July 2008

− just after the parties separated

− when police were called to mother’s residence and s he was ultimately taken to detox,

as well as the facts that mother did not seek treat ment for alcohol abuse, and continues to use alcohol. These facts notwithstanding, the court wa s persuaded by other evidence, including that mother has held a steady job for two years without any alcohol related absences, has had no recent problems with drinking and drinks only a few times a month. In addition, the court was persuaded by the fact that father entrusts the chil d to mother’s care for weeks at a time without concern for the child’s safety. These facts suppor t the court’s findings that mother’s use of alcohol does not adversely affect her daily life or her ability to parent.

In addition, with the possible exception of the fin ding that father never took the child on a hunting trip, there is evidence in the record to su pport the remainder of the challenged findings. The evidence supports the court’s findings that mot her keeps an orderly household and that father undermined mother’s relationship with their son by scheduling appointments during her time and failing to provide an opportunity for him to communicate with mother during their vacation. Furthermore, while one witness testified that the child was hunting with father on one occasion, the record supports the court’s finding t hat father did not bring his son along on his extended hunting trips. Regardless, this finding w as not critical to the court’s decision, and any error was therefore harmless. The court adequately explained its decision to award rights and responsibilities to mother. “Where the family cour t’s award of custody reflects its reasoned judgment in light of the record evidence, its decis ion may not be disturbed.” Kasper v. Kasper, 2007 VT 2, ¶ 5, 181 Vt. 562 (mem.).

Next, father argues that the court abused its discr etion in adopting mother’s parent-child contact schedule. According to father, the court w as required to hold another evidentiary hearing before adopting a contact schedule that deviated fr om the temporary contact order. We conclude that the court did not abuse its discretion in adop ting a parent-child contact schedule without an additional evidentiary hearing. The parties submit ted lengthy evidence during a one-day trial primarily concerning the best interests of the chil d, and no additional evidence was required. While the adopted schedule reduced father’s weekly overnights with his son, there was no vested interest in the temporary schedule. In fact, it wa s evident at the time of trial that the schedule would likely change since the parties had not agree d to share custody. Father sought to change the temporary schedule, proposing instead that the child spend five nights a week with him, and

he testified at trial that his son did not care for the temporary arrangement. The trial evidence and the court’s findings were sufficient to support the resulting contact schedule. See Bancroft v. Bancroft, 154 Vt. 442, 449 (1990) (concluding th at court’s findings on custody were sufficient to support visitation order); see also Heffernan v. Harbeson, 2004 VT 98, ¶¶ 14-15, 177 Vt. 239 (recognizing that family court has broad discretion in custody matters).

We further reject father’s contention that the cont act schedule violates the Legislature’s

directive that it is in his son’s best interest “to have the opportunity for maximum continuing physical and emotional contact with both parents.” 15 V.S.A. § 650. While father may not have as much time with the child as mother does, he has been granted substantial contact with his son

and the schedule does not contravene the statute. See Bancroft, 154 Vt. at 449 (holding that4

visitation schedule that granted father fifty perce nt of children’s time on weekends and during school vacations and twenty-five percent overall “d id not offend § 650”).

Father also asserts that it was error for the court to designate that the parties stipulated to the order when father opposed it. While error, the court’s failure to strike the stipulation wording from the order was harmless. The court and the par ties were well aware of father’s objection and no prejudice resulted from the court’s failure to o mit this language from the order.

Finally, father argues that the court erred in fail ing to designate how mother should spend the dependent social security payment. There was n o error. The court granted mother sole legal and physical parental rights and responsibilities. Therefore, mother has the right “to determine and control various matters affecting a child’s wel fare and upbringing,” including his education,
as well as his medical and dental care. 15 V.S.A. § 664(1)(A). Therefore, mother has authority to decide how the payments will be spent, and no or der from the court is required.

Affirmed.

BY THE COURT:

_______________________________________ Paul L. Reiber, Chief Justice

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Brian L. Burgess, Associate Justice