Shea v. Metcalf  (97-015)  [Filed 3-Apr-1998]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 97-015


Charles Thomas Shea                          Supreme Court

                                             On Appeal from
    v.                                       Addison Family Court

Mary Oliver Metcalf                          September Term, 1997



Matthew I. Katz, J.

Lucy T. Brown and Dennis R. Pearson of Gravel and Shea, and Lindsey M.
  Huddle, Burlington, for Plaintiff-Appellee.

Susan M. Murray of Langrock, Sperry & Wool, Middlebury, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund, JJ.


       AMESTOY, C.J.   Mary Metcalf appeals an Addison Family Court divorce
  order in which legal rights and responsibilities for her two minor children
  were divided between herself and her former husband, Charles Shea.  The
  family court granted legal responsibility for decisions concerning the
  children's medical care and education to father, and legal responsibility
  for all other matters to mother.  Mother contends that (1) the family
  court's order divides legal rights and responsibilities in a manner not
  permitted under 15 V.S.A.  665(a), and (2) even if the statute authorizes
  such division, the family court abused its discretion in ordering the
  division and not awarding all legal rights and responsibilities to her.  We
  affirm.

       The parties were married in Vermont in 1988 and have two children,
  aged seven and five at the time of final hearing before the family court. 
  Early in their marriage, the parties researched and discussed different
  approaches to parenting in such areas as the duration of nursing, whether
  the children should sleep with their parents in a "family bed" or in their
  own rooms, whether the children should be immunized, and whether they
  should attend public school or be home schooled.  Mother's research led her 
  to believe that the health risks associated with immunizing children 
  against infectious diseases such  as diphtheria, whooping cough, polio, 
  measles and mumps outweighed the benefits.  The parties thus agreed to 
  forego immunizing their children.(FN1)   
  Although father initially agreed to this decision, he later developed
  misgivings and changed his mind.

       The parties also decided to educate their children at home, with
  instruction and supervision provided by mother, rather than send them to
  public school.  Father initially agreed to this decision, but after the
  eldest child had been home schooled for approximately two years, changed
  his mind and decided that the children's needs would be better served by
  attending public school.

       In seeking a divorce, the parties were able to settle all issues
  relating to spousal and child support and property division.  The parties
  also agreed that mother would continue as the primary custodian with
  primary physical responsibilities for the two children.  The sole dispute
  before the family court centered on assignment of legal rights and
  responsibilities for the children.  Father sought sole legal rights and
  responsibilities over decisions concerning the children's medical care and
  education.  Mother sought legal rights and responsibilities for all
  matters.  The central area of dispute concerning legal custody was the
  parties' differences over medical and educational decisions for the
  children.

       The family court heard testimony from the parties and several medical
  and education experts.  From its consideration of testimony on childhood
  immunizations, the family court found that the prevailing medical regimen
  of childhood immunizations "is rational and represents the best-informed
  judgment" to protect the heath of the children.  The court also found that
  father was the parent most likely to make sound medical and health care
  decisions generally for the children, and accordingly, awarded legal rights
  and responsibilities for medical decisions to father.

       On educational matters, the court found that the parties' eldest son,
  who was at that time their only child of school age, had not been well
  served by home schooling with mother.  The court found that the child could
  not read even basic words despite the fact that he was of second grade age,
  and it was normal for children to begin reading at an earlier age.  The
  court also found that mother's home schooling was not affording the child
  enough interaction with peers. Because of mother's ineffective home
  schooling, and her insistence that she would continue to home school the
  children if given authority over the decision, the court awarded father
  legal rights and responsibilities for the children's educational decisions. 
  Mother appeals.

       Mother first argues that the family court was without statutory
  authority to divide legal rights and responsibilities between the two
  parents.  She acknowledges that 15 V.S.A.  665(a) generally permits such
  division, but contends that when the parties cannot agree, the statute
  requires that all legal rights and responsibilities be awarded to one
  parent.

       When adjudicating the divorce of a couple with one or more minor
  children, the family court must assign parental rights and responsibilities
  for the child or children to one or both of the parents, or a suitable
  third party.  See 15 V.S.A.  665(a).  Parental rights and responsibilities
  are defined as those "rights and responsibilities related to a child's
  physical living arrangements, parent child contact, education, medical and
  dental care, religion, travel, and any other matter involving a child's
  welfare and upbringing."  Id.  664(1).  Rights and responsibilities are
  comprised of "physical responsibility," and "legal responsibility," which
  is defined as "the rights and responsibilities to determine and control
  various matters affecting a child's welfare . . . includ[ing] but . . . not
  limited to education, medical and dental care, religion and travel
  arrangements."  Id.  664(1)(A).  The family court may "order parental
  rights and responsibilities to be divided or shared between parents on such
  terms and conditions as serve the best interests of the child."  Id. 
  665(a) (emphasis added).  Mother argues that the family court's order
  violates the statute's requirement that "[w]hen the parents cannot agree to
  divide or share parental rights and responsibilities, the court shall award
  parental rights and responsibilities primarily or solely to one parent." 
  Id.  665(a) (emphasis added).

       Our paramount goal in statutory construction is to give effect  to the
  Legislature's intent. See Burlington Elec. Dep't. v. Vt. Dep't of Taxes,
  154 Vt. 332, 335, 576 A.2d 450, 452 (1990).  We apply the plain meaning of
  a statute where the language is clear and unambiguous, see Conn v.
  Middlebury Union High School Dist. No 3, 162 Vt. 498, 501, 648 A.2d 1385,
  1387 (1994), and where there is ambiguity, we look to the general context
  of the statutory language, the subject matter, and the effects and
  consequences of our interpretation, see Paquette v. Paquette, 146 Vt. 83,
  86, 499 A.2d 23, 26 (1985).  We find unambiguous the applicable provision's
  initial phrase: "[w]hen the parents cannot agree to divide or share
  parental rights and responsibilities."  15 V.S.A.  665(a).  The parents
  here clearly "do not agree" on how best to allocate responsibility for
  their children.  Nor do we find any question that the family court here
  "divided" parental rights and responsibilities between the two parents; the
  division gives father responsibility for decisions relating to the
  children's medical and educational needs, and responsibility for all other
  areas of legal responsibility to mother.

       The language of  665(a), however, is not plain or understandable in
  its requirement that the court award legal rights and responsibilities
  "primarily or solely" to one parent when parents disagree.  Mother
  construes the phrase to mean that the entire "bundle" of legal rights and
  responsibilities identified in  664(1)(A) must be assigned to a single
  parent.  Father, on the other hand, argues that the statute is satisfied so
  long as each of the individual rights and responsibilities is awarded
  "primarily or solely" to one parent or the other, even if those rights and
  responsibilities are divided between the parents.  In light of this
  ambiguity, we cannot determine the Legislature's intent from the plain
  meaning of the words, and must therefore look beyond the language itself.(FN2)
  See Langrock v. Dep't of Taxes, 139 Vt. 108, 110, 423 A.2d 838, 839 (1980).

       We have said before that, in cases where parents do not agree, 
  665(a) reflects a legislative judgment that court-imposed joint
  decision-making is not in the best interests of the child.  See Bankroft v.
  Bankroft, 154 Vt. 442, 448, 578 A.2d 114, 118 (1990).  That said, we have
  also had occasion to caution against a statutory construction of  665(a)
  which would obligate a court to take an "all or nothing" approach to the
  allocation of legal rights and responsibilities.  See Gazo v. Gazo, ___ Vt.
  ___, ___, 697 A.2d 342, 347 (1997); Cabot v. Cabot, ___ Vt. ___, ___, 697
  A.2d 644, 650-51 (1997).  In Gazo, we concluded that the prohibition
  against compelled joint decision-making "does not mean that the only
  alternative is an award of all rights and responsibilities solely to one
  parent."  ___ Vt. at ___, 697 A.2d at 347.  In considering this statute, we
  also have reaffirmed the family court's "broad discretion to craft parental
  rights and responsibilities orders that serve the best interests of the
  children." Cabot, ___ Vt. at ___, 687 A.2d at 651.

       We find instructive the language of  665(b)(8) which illuminates the
  Legislature's specific concern about dividing and sharing rights and
  responsibilities.  Under that provision, when a court orders allocation of
  parental rights and responsibilities, the court shall consider, among other
  things, "the ability and disposition of the parents to . . . cooperate with
  each other and make joint decisions concerning the children."  15 V.S.A. 
  665(b)(8) (emphasis added).
  In Cabot, we stressed that the statute reflects the Legislature's concern
  with forcing "unwilling parents to share parental rights and make joint
  decisions."  ___ Vt. at ___, 697 A.2d at 650 (emphasis added).  The family
  court in that case imposed upon the parents joint decision-making authority
  for legal rights and responsibilities, even though they had not agreed to
  such an arrangement.  We reversed the order out of concern that the
  imposition of joint decision-making responsibility upon unwilling parents
  "cannot solve the problem of fighting parents. . . . [and] risks placing a
  child in the middle of constant and harmful disputes."  Id.  We held that,
  where the parents cannot agree, "one parent must be given primary
  responsibility to make decisions on behalf of the child."  Id. at ___ n.4,
  697 A.2d at 650 n.4.  But that requirement does not lead inexorably to the
  conclusion that one parent must be awarded all rights and responsibilities.
  See Gazo, ___ Vt. at ___, 697 A.2d at 346-47; see also Cabot, ___ Vt. at
  ___, 697 A.2d at 656 (Morse, J., concurring) (When parents cannot agree,
  circumstances may warrant court "reserving a specific, discrete area of
  parental responsibility for the noncustodial parent.  The statutory scheme
  specifically contemplates such an award.").

       In contrast to the family court's order in Cabot, the family court's
  order here has awarded each of the rights and responsibilities "solely" to
  one parent.  In doing so, the order avoids the problems of joint
  decision-making while satisfying the Legislature's intent that children
  retain "the opportunity for maximum continuing physical and emotional
  contact with both parents."  15 V.S.A.  650.  Legal rights and
  responsibilities are divided between the parents along discrete lines of
  authority; father has exclusive authority for health care and education,
  and mother has exclusive authority for religion, travel, and other areas of
  responsibility.  Had the court compelled joint decision-making in any
  individual area of authority, such as education, the court's order would
  have run afoul of our prior holdings.  By avoiding an "all or nothing
  approach," the order keeps both parents in the role of active parenting,
  takes full advantage of their individual strengths, and avoids awarding
  either parent responsibility for which he or she is not suited.  Cf. Osier
  v. Osier, 410 A.2d 1027, 1029-30 (Me. 1980) (in custody dispute, although 
  court regarded mother as parent best suited for day-to-day care of child,
  court was constrained to award full legal and physical custody to father 
  because mother, as Jehovah's witness, refused to authorize necessary blood 
  transfusion for child).  We hold that the family court's division of discrete 
  legal rights and responsibilities between the parties satisfies the 
  requirements of  665(a).

       Mother's second argument is that, even if  665(a) permits division of
  legal rights and responsibilities between the parents, the court
  nonetheless abused its discretion by not granting her the entire bundle of
  legal rights and responsibilities.  According to mother, the court ignored
  the fact that she had been primarily involved in the children's day to day
  needs, including medical care, and that father had expressed approval of
  her actions concerning the children.  She also contends that the court
  ignored her testimony that father had not always made good decisions
  regarding health care.

       We see no basis to mother's claim that the family court abused its
  discretion by awarding father responsibility for medical care and school
  decisions.  See deBeaumont v. Goodrich, 162 Vt. 91, 103, 644 A.2d 843, 850
  (1994) (trial court has broad discretion in child custody matter; Supreme
  Court will not set aside result merely because it would have reached
  different result). Ample evidence in the record supports the court's order. 
  To begin with, mother acknowledged the health risks inherent in her refusal
  to immunize the children.  She stated simply that she had survived
  childhood infectious diseases and that "I'd rather my children took the
  risks."  On the other hand, father communicated his intent to have the
  children immunized, and supported his position with testimony from Dr.
  Hagen, a Board-certified pediatrician and member of the Immunization
  Advisory Committee for Vermont's Department of Health.  Dr. Hagen testified
  that he believes children should be immunized against infectious diseases. 
  When asked if a child living in Vermont who is not immunized is at risk,
  Dr. Hagen responded "I believe that to be the case.  That is my
  professional belief."  The family court found Dr. Hagen's testimony
  credible.  In marked contrast is the testimony from mother's witness, Dr.
  Incao, whom the family court did not find credible.  Dr. Incao expressed the 
  opinion that the children's health was not at risk by not being immunized, but he
  admitted to having no formal training in either pediatrics or immunology,
  and to having done no research or publishing on the subject. Assessing the
  evidence before it, the family court concluded that mother had
  "consistently made decisions in the past which seem to reflect personal
  whim, the desire to be different or all-controlling, rather than a
  willingness to follow generally accepted, sound medical practice."  The
  record supports the court's conclusion that father is the parent "more
  likely to make sound [medical and health care] decisions in the best
  interest of the children in the future."

       We similarly find support in the record for the court's conclusion
  that mother's home schooling had failed to properly educate her child.  As
  the court noted, the couple's eldest child could not read even simple words
  like "cat" nearly two years after he had been ready to start reading. 
  During his kindergarten year, the child had attended public school, and
  according to his teacher, had mastered everything expected of children by
  the end of that year.  In subsequent years, however, when mother home
  schooled the child, his reading skills stalled.  An education expert, Dr.
  Hasazi, tested the child at the time of trial and concluded he could not
  read.  The record supports the family court's conclusion that "home
  schooling is having a present, ongoing and substantial detrimental effect"
  on the parties' eldest child, and that, accordingly, father should be
  granted legal responsibility for decisions concerning the children's
  education.  See 15 V.S.A.  665(b)(4) (family court shall consider the
  quality of the child's adjustment to the child's present schooling).

       We similarly find no merit to mother's contention that the family
  court awarded father more legal rights and responsibilities than he
  requested.  Mother contends that, because father's chief concerns were
  immunizations for the children and their enrollment in public school, at
  the most he should have been given legal responsibility for only those
  specific decisions, rather than medical and education decisions generally. 
  From the family court's decision, however, it is clear that father was
  seeking sole legal rights and responsibilities over medical care and
  educational decisions, rather than the limited areas of immunizations and
  whether to send the children to public school.

       Mother finally argues that the family court's allocation of rights and
  responsibilities is "confusing and unworkable."  The thrust of her argument
  seems to be that, as the primary physical custodian, mother is entitled to
  move residence of her and the children to a different town or a different
  state.  See Lane v. Schenck, 158 Vt. 489, 498, 614 A.2d 786, 791 (1992).
  Mother contends that such a move by her would make father's continued legal
  authority over medical and educational decisions unworkable.  We decline to
  address mother's contention except to point out that the court's order
  specifically retains mother's authority to "provide day-to-day medical
  care for the children."  We will not judge the efficacy of a family court's
  order on circumstances that could potentially arise in the future.  See
  deBeaumont, 162 Vt. at 97, 644 A.2d at 846 (family court order should be
  based upon parties' current circumstances, not potential changes in the
  future).

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice



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                                  Footnotes



FN1.  The parties decided to make an exception and immunize the
  children against tetanus because they perceived the benefits to outweigh
  the risks.

FN2.   A review of the statute's legislative history provides
  relatively little guidance to what the Legislature meant by the phrase
  "primarily or solely."  It is to be noted, however, that an early version
  of the House bill set forth the newly developed concept of "parental rights
  and responsibilities," and also contained definitions of specific types of
  child "custody" that could result from different allocation of parental
  rights and responsibilities.  Thus "joint legal custody" was defined as
  those arrangements where "both parents will share the parental rights and
  responsibilities relating to the child," and "sole legal custody" was
  defined as "one parent . . . be[ing] allocated rights and responsibilities
  relating to the child, subject only to those rights and responsibilities as
  are specifically allocated to the other parent."  See Vt. Senate Jour. 559
  (April 21, 1986) (emphasis added).
      
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                                 Dissenting

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 97-015


Charles Thomas Shea                          Supreme Court

                                             On Appeal from
    v.                                       Addison Family Court

Mary Oliver Metcalf                          September Term, 1997



Matthew I. Katz, J.

       Lucy T. Brown and Dennis R. Pearson of Gravel and Shea, and Lindsey M.
  Huddle, Burlington, for Plaintiff-Appellee.

       Susan M. Murray of Langrock, Sperry & Wool, Middlebury, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       JOHNSON, J., dissenting.  An absolute prerequisite to any significant
  division of parental rights and responsibilities is an agreement by the
  parents to the division.  Our law is clear and unequivocal on this point. 
  See 15 V.S.A.  665(a) ("When the parents cannot agree to divide or share
  parental rights and responsibilities, the court shall award parental rights
  and responsibilities primarily or solely to one parent.").  The majority
  acknowledges the compulsion of the law in the context of shared
  responsibilities, yet inexplicably ignores its force in the area of divided
  responsibilities.  This is a distinction that finds virtually no support in
  either the language or the policy underlying the statute.  Accordingly, I
  respectfully dissent.

       The majority faithfully reports the trial court's ruling, but
  discreetly omits many telling details.  The parties had generally agreed
  during the marriage to home school the children and to defer a number of
  standard immunizations, but disagreed once the marriage was broken. Each
  party offered evidence, including the testimony of experts, to support its
  position.  Mother had always been the children's primary caregiver, and the
  trial court apparently concluded that her care had been sound and should 
  continue, as evidenced by its award to her of sole physical custody.
  Indeed, the court acknowledged that mother had been "a good, caring,
  attentive mother on a daily basis."

       Nevertheless, the trial court disagreed with mother's decisions in the
  areas of schooling and immunizations, as well as breastfeeding and
  sleeping.  Indeed, the court's opinion delves to an extraordinary degree
  into these intimate areas of childrearing, opining, for example, that
  "longterm bed sharing and breast feeding .  .  .  are not in the best
  interests of the children [and] may foster undue dependency," that home
  schooling was "no substitute for five days a week in the classroom, or
  perhaps more importantly, the schoolyard," and that mother's medical
  decisions "reflect[ed] personal whim .  .  . rather than .  .  . sound
  medical practice." Accordingly, despite its award of physical and legal
  rights and responsibilities to mother, the court determined to carve out
  the areas of schooling and health care and award them to father on the
  ground that his predilections in these areas represented the best interests
  of the children. This, despite the fact that mother had not only failed to
  assent to the award to father, but sharply disagreed with his views on both
  subjects.

       The trial court's decision was untenable.  It was untenable under our
  law, and it was untenable under the sound common sense that informs it. 
  Our statutory scheme governing parental rights and responsibilities
  reflects a general rule derived from common experience:  the parent who is
  entrusted with the daily care and control of a child must be afforded the
  broadest possible latitude, consistent with health and safety, in decisions
  relating to the child's education, medical care, discipline, travel,
  residence, and general upbringing.  This Court has stated unequivocally
  that the custodial parent's decisions in these areas may not be second
  guessed by a trial judge: "[W]e cannot condone a process that substitutes
  the judgment of a court for that of the custodial parent merely because the
  court would have done something different if it had been the parent."  Lane
  v. Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992).

       The same interest in preserving parental authority and minimizing
  parental second-guessing is codified in our statutes, which expressly prohibit the court
  from ordering the parties to "divide or share parental rights and
  responsibilities" absent their express agreement.  15 V.S.A.  665(a). 
  Recently, in Cabot v. Cabot, ___ Vt. ___, ___, 697 A.2d 644, 649-51 (1997),
  this Court held that the language and policy underlying the statute
  invalidated an award of shared parental rights and responsibilities where
  the parents had not agreed to such an arrangement.  As we explained:

   The Legislature recognized that where parents cannot work together,
   one parent must be given primary responsibility to make decisions on behalf
   of the child. In terms of the statute, this means that a court cannot award
   joint legal parental rights and responsibilities to parents who do not
   agree to such an award.

  Id. at ___ n.4, 697 A.2d at 650 n.4.

       As noted, 15 V.S.A.  665(a) applies to awards of "joint" as well as
  "divided" custody." Thus, parental agreement is just as much a statutory
  prerequisite to an order providing for divided legal custody as it is to
  one providing for shared legal custody.  And the policy underlying the
  statute applies with equal force as well: "[W]here parents cannot work
  together, one parent must be given primary responsibility to make decisions
  on behalf of the child." Cabot, ___ Vt. at ___, 697 A.2d at 650 n.4.

       Indeed, common sense teaches that the custodial parent cannot
  reasonably be asked to supervise and participate in the child's daily life,
  so much of which centers on schooling and health care, dispossessed of
  basic decisionmaking authority in these areas.  Every primary care provider
  of school age children knows that ferrying the children to and from school
  represents only the tip of the custodial parent's responsibilities;
  supervising and helping with homework, attending parent-teacher
  conferences, PTO meetings, and school plays, and participating in school
  fundraisers and other events all require strong parental interest and
  motivation, and all are fraught with potential conflicts requiring parental
  intervention.  The custodial parent cannot, and should not, be expected to
  undertake these daily responsibilities deprived of essential decisionmaking
  authority.  The same may be said for such basic areas of childrearing as
  medical care, religious upbringing, discipline, travel, and the like.
  That is why the Legislature wisely established parental assent as a prerequisite
  to both shared and divided custody.

       Thus understood, the Court's decision in this case should have been as
  obvious as that in Cabot.  There was no agreement between the parents to
  divide parental rights and responsibilities.  Hence, the trial court's
  order assigning responsibility for the children's education and medical
  care to father, and the balance of legal and physical rights and
  responsibilities to mother, was patently invalid and should not be allowed
  to stand.

       The trial court's decision in this case was unmistakably a choice
  between alternative lifestyles under the guise of divided legal rights and
  responsibilities.  Today's holding affirms the trial court's power to make
  such choices by parsing discrete areas of parental authority based upon the
  respective views of the custodial and non-custodial parent.  The Court's
  holding does not endorse the wisdom of such an approach.  For the reasons
  expressed above, I am hopeful that courts will exercise this new power with
  restraint, recognizing that in childrearing decisions parents must speak
  with one voice, and that voice should generally be the custodial parent's.




                              _______________________________________
                              Associate Justice