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

ENTRY ORDER

SUPREME COURT DOCKET NO. 2011-144

AUGUST TERM, 2011

Christine Lamothe } APPEALED FROM: }

v. } Superior Court, Chittenden Unit, } Family Division } Christopher LeBlanc } DOCKET NO. F856-10-00 Cndm

Trial Judge: Linda Levitt

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

Father appeals from the trial court’s on-the-record denial of his motion to modify parental rights and responsibilities. We affirm.

The record indicates the following. * Father and mother are the parents of son D.L., bo rn in January 2000. The parties stipulated to parental r ights and responsibilities and parent-child contact in

October 2001. Father later filed two motions to mo dify parental rights and responsibilities one in October 2004 and again in October 2005. Both motio ns were apparently resolved by agreement. In March 2008, father filed another motion to modify, which was denied after a hearing. He filed another in March 2009, which was denied. In reaching its d ecision as to the March 2009 motion, the court noted that the motion was identical to father’s pri or motion. In February 2011, father filed the moti on to modify at issue here. Father asserted that moth er was ignoring the child’s academic needs. He als o expressed concerns about the child’s emotional well -being, and his exposure to second-hand smoke in mother’s home. Father sought sole legal and parent al rights and responsibilities, and requested that the

contact schedule be amended to allow the child to s tay with him Monday through Friday and every

other weekend.

Following a hearing, the court denied father’s moti on on the record, finding no real, substantial, and unanticipated change in circumstances. It expl ained that father had raised the same issues in his prior motions, and essentially, the motions reflect ed the parties’ different parenting styles. Father was much more structured and intensive than mother, and he put the child’s academics at the forefront. Mother was more laid back, and believed that the ch ild should be exposed to a variety of activities, rather than focusing exclusively on academics. The court concluded that mother’s different parenting approach did not constitute changed circumstances, and it thus denied father’s motion. This appeal

followed.

* Our review is confined to the record, and we have not considered materials that were not presented to the trial court below. See Hoover v. Hoover, 171 Vt. 256, 258 (2000) (Supreme Court’s review on appeal is confined to the record and evid ence adduced at trial; Court cannot consider facts not in the record). To the extent that mother move s to strike materials contained in father’s filings that fall outside of the record, her motion is granted.2

Father first argues that his evidence was sufficien t to demonstrate a real, substantial, and unanticipated change in circumstances. He maintain s that the court disregarded the child’s academic needs and failed to appreciate the significance of the fact that the child had been diagnosed with a specific learning disability. Father cites the chi ld’s low test scores, and asserts that mother is no t doing enough to address the child’s educational needs. F ather also points to the fact that he now lives in the

same school district as the child and is available to care for the child full-time. Additionally, he states
that conditions in mother’s home have been deterior ating.

As reflected above, the trial court may modify a pa rental rights and responsibilities order upon a showing of real, substantial and unanticipated ch ange of circumstances where the modification is in a child’s best interests. 15 V.S.A. § 668. The movi ng party bears “a heavy burden to prove changed circumstances,” and the trial court has discretion in determining if the moving party has met its burd en. Spaulding v. Butler, 172 Vt. 467, 475-76 (2001).

We find no abuse of discretion here. The court con sidered father’s arguments, which he had raised in his prior motions, and found them unpersu asive. Father essentially asks this Court to rewei gh the evidence, which we will not do. “As the trier of fact, it [is] the province of the trial court to determine the credibility of the witnesses and weig h the persuasiveness of the evidence.” Cabot v. Cabot, 166 Vt. 485, 497 (1997). The court did not disregard the child’s academic needs, as father suggests. It recognized that the child had learnin g disabilities, and that wife took a different appr oach to parenting than husband. Mother believed the chi ld should participate in other extra-curricular activities like music lessons and hunting; father b elieved that the child should focus more heavily on developing his academic skills. The court found va lue in both positions. In the end, however, it fou nd that father’s concerns reflected a different parent ing style than mother as opposed to demonstrating a real, substantial and unanticipated change in circu mstances. Additionally, as noted above, these same issues were raised and rejected in father’s prior t wo motions to modify. This includes the concerns abut the child’s academic progress, concerns about another child of mother’s, father’s move to the child’s school district, and father’s availability to parent the child full-time. The fact that fathe r disagrees with the court’s conclusion does not demo nstrate an abuse of discretion.

Father next argues that he was denied the opportuni ty to fully present his case. He complains that the trial court erred by: stopping him from re ading his opening remarks; finding certain evidence inadmissible; failing to give him more time to pres ent his case, including time to subpoena various witnesses; and failing to issue written findings. Father also cites his pro se status in support of t hese

arguments.

As an initial matter, it is not clear that father w as cut off in making his opening remarks. More importantly, the record shows that father was provi ded ample opportunity to present his case. See Coty v. Ramsey Assocs., Inc., 149 Vt. 451, 462 (198 8) (recognizing that trial court has broad discretion “in controlling the interrogation of wit nesses and the presentation of evidence”). The cou rt recognized father’s arguments in reaching its decis ion; it simply found them unpersuasive.

As to father’s evidentiary arguments, the record sh ows that he sought to introduce a stack of documents, including emails, school reports, and ot her materials, into evidence. These documents were apparently intended to support his assertion t hat mother was failing to meet the child’s educational needs. Mother objected, arguing that w ithout someone to interpret the school reports and other related materials, she could not discern thei r meaning. She indicated that these documents should not be admitted through father’s testimony. The court sustained her objection. Even assuming arguendo that some of these documents were improper ly excluded, we discern no harm. Father3

testified that the child had a learning disability, that he was on an Individualized Education Program (IEP) at school, and that his New England Common As sessment Program (NECAP) scores were wellbelow average. He testified to his belief that mot her was not doing a sufficient job in meeting the child’s educational needs. The court questioned mo ther about missed summer school sessions, and queried whether there were areas in which she could do more to meet D.L.’s educational needs. The court was simply not convinced that these issues ro se to the necessary level to support modification o f parental rights and responsibilities.

As part of the oral exchange about the admission of father’s evidence, father indicated that he had a list of witnesses who could interpret the wri tten educational documents at issue. The court sta ted that the witnesses needed to be subpoenaed and paid . It explained that father could have subpoenaed these witnesses for the hearing, but he had not don e so. The court also noted that father was raising

this same issue for the third time. The court was properly mindful of father’s pro se status, and it did not err in requiring father to have his witnesses p resent on the date of the motion hearing. While pr o se litigants receive some leeway from the courts, they are still “bound by the ordinary rules of civil procedure.” Vahlteich v. Knott, 139 Vt. 588, 591 (1 981). Finally, there is no indication that father requested written findings from the court, and we f ind no error on this point. Certainly, the court’s onthe-record findings are sufficient to “enable this Court, on appeal, to determine how the trial court’ s decision was reached.” Mayer v. Mayer, 144 Vt. 214 , 216 (1984).

Father next asserts that the court failed to direct ly address his request to modify parent-child contact. Father sought to modify the contact arran gement to have the child with him twenty-four out of twenty-eight days per month, or 86% of the time. It is true, as father asserts, that “[t]he burden of showing changed circumstances with respect to a mot ion to alter parent-child contact is ‘not as high’ as the heavy burden of showing changed circumstances w ith respect to a motion seeking a change of custody.” Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161. Nonetheless, it is evident that the court

found no basis for the substantial modification in parent-child contact requested by father for the sa me reasons set forth above.

Affirmed.

BY THE COURT:

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Denise R. Johnson, Associate Justice

_______________________________________ Marilyn S. Skoglund, Associate Justice