Knutsen v. CEGALIS

¶ 1. Mother appeals the Rutland Family Court order awarding her primary rights and responsibilities of the parties’ minor child until March 1, 2010, at which time the rights *102and responsibilities automatically shift to father for the remainder of the child’s minority. On appeal, mother contends that the order’s provision automatically shifting the rights and responsibilities to father is unlawful and that we are compelled by principles of res judicata to order that she retain primary rights and responsibilities to the child indefinitely. We agree that the provision in question is unlawful, but disagree that mother should be awarded indefinite rights to the child by virtue of res judicata. Consequently, we reverse and remand for the family court to make a new custody order.

¶ 2. The relevant facts may be briefly stated. The parties were never married. They met in 2004, conceived a child, and subsequently moved in together in father’s Vermont residence in March 2005. Their child was born on August 16, 2005. The parties lived together on a somewhat steady basis until February 2006 when the relationship dissolved and mother took the child from their Vermont home and moved to New Hampshire.

¶ 3. Thereafter, father filed a complaint for parentage in the Rutland Family Court, which resulted in a temporary order for parental rights and contact. For purposes of the temporary order, the parties agreed that the child would remain with mother in New Hampshire and have contact with father every other weekend and on one weekday per week.

¶ 4. In seeking a final order before the family court, father requested additional contact with the child until the start of kindergarten and primary rights and responsibilities for the child thereafter. Specifically, father testified that he would support mother having custody of the child until the child started kindergarten as long as he could have contact with the child every other week from Wednesday through Sunday with one additional weekday contact on every off-week. Father testified that when the child started kindergarten and he obtained primary custody, he would support contact with the mother as frequently as every weekend and every school vacation. In opposition, mother requested that she be granted permanent primary rights and responsibilities over the child, but with a temporarily expanded contact schedule for father until the child began kindergarten. Mother proposed that contact thereafter be reduced to accommodate the child’s school schedule. The parties’ proposals overlapped in that they both suggested that mother retain custody until the child started kindergarten and proposed identical contact schedules for father *103from January 2009 until the start of kindergarten. The proposals differed, however, regarding the period of time between the date of the final order and January 2009. And, of course, the parties disagreed as to who should be awarded primary rights and responsibilities once the child started kindergarten.

¶ 5. In its final order, the family court awarded primary rights and responsibilities to mother until the start of kindergarten, subject to contact with father every other week from Wednesday through Sunday with one additional weekday contact during every off-week. The court also awarded primary rights and responsibilities to father from a date six months prior to the child’s matriculation at kindergarten — March 1, 2010 — through the remainder of the child’s minority.1 In reaching this decision, the court weighed the nine factors for determining the best interests of the child, 15 V.S.A. § 665, and found that, although both parties could provide quality care for the child, ultimately the balance favored an award to father when the child approached school age. Specifically, the court found that the decision turned on father’s demonstrated superior ability to promote frequent and continuing contact between the child and the other parent, id. § 665(b)(5), and his superior disposition to meet the child’s future developmental needs, id. § 665(b)(3). The court found that these factors outweighed the mother’s status as the child’s primary caregiver. See id. § 665(b)(6). This appeal followed.

¶ 6. On appeal, mother challenges the order on the grounds that the provision automatically shifting primary rights and responsibilities to father is unlawful — specifically because the automatic switch: (a) is scheduled to happen in the future and is therefore unsupported by findings, based on speculation as to what the circumstances will be at that time, and fails to consider the child’s best interests; (b) violates the principles of res judicata because the court is essentially reversing its own judgment without any new facts; and (c) impermissibly circumvents the court’s need to establish jurisdiction to modify the order. Mother also argues that the court disregarded the parties’ agreement that the child remain with mother until age six — instead awarding custody of the child to father some five months before his fifth *104birthday — and that the court improperly conflated the factors listed in 15 V.S.A. § 665(b)(3) and (5). Finally, mother argues that because father did not cross-appeal that part of the award granting mother custody from the date of the final order until the start of kindergarten, that part of the award is res judicata and cannot be considered on appeal or remand. We agree that the provision automatically shifting rights and responsibilities to father was unlawful, but disagree with mother’s res judicata argument and remand for reconsideration of the entire award.

¶ 7. The issue of whether an automatic custody change provision is lawful is a pure question of law which we review de novo. See Heffernan v. Harbeson, 2004 VT 98, ¶ 7, 177 Vt. 239, 861 A.2d 1149. We reverse the family court’s order because automatic changes in parental rights and responsibilities are contrary to precedent and contravene policies behind the child custody statutes.

¶ 8. We discussed automatic changes of custody in deBeaumont v. Goodrich, 162 Vt. 91, 96-97, 644 A.2d 843, 846 (1994). There, we upheld a final custody decree that included a provision naming the occurrence of a particular event as sufficient for establishing the changed circumstances — and thus the jurisdiction — needed to modify the award. Id. at 95-96, 644 A.2d at 846; see also 15 V.S.A. § 668 (providing that a court may modify a custody order upon a showing of “real, substantial and unanticipated change of circumstances”). In deBeaumont, the mother challenged the provision that the threshold of changed circumstances would be met by a parent moving more than fifty miles away. The father argued that the provision created a reasonable benchmark to determine whether the parties’ circumstances had changed significantly enough for the purpose of challenging the existing child custody arrangement. We agreed. deBeaumont, 162 Vt. at 95-96, 644 A.2d at 846. In doing so, we distinguished the disputed provision from one that would automatically change custody upon the happening of an event. Id. at 96-97, 644 A.2d at 846. We reasoned that we would not give effect to a provision automatically changing custody because such an order would be based on “‘speculation [as to] what the best interests of . . . children may be at a future date.’ ” Id. at 97, 644 A.2d at 846 (quoting Hovater v. Hovater, 577 So. 2d 461, 463 (Ala. Civ. App. 1990)). Any change of custody, we reasoned, must be based on an independent assessment of the best interests of the children at *105the time of the contemplated change. Id.; see also Wells v. Wells, 150 Vt. 1, 4, 549 A.2d 1039, 1042 (1988) (“Willful interference with court ordered visitations, no matter how deplorable, cannot be made the basis for an automatic change of custody.” (quotations omitted)). We see no reason to depart from the course we set in deBeaumont today.

¶ 9. At the outset, we note that deBeaumont is in line with the law of our sister states. An overwhelming majority of courts that have considered the question take the view that automatic change provisions in custody orders are impermissible.2 In contrast, we were able to find only two courts that have upheld such provisions under direct attack. See Maeda v. Maeda, 794 P.2d 268, 270 (Haw. Ct. App. 1990); State v. Hart, 132 P.3d 1249, 1254 (Idaho 2006) (noting that such a “case creates a difficult issue”); see also Roberts v. Roberts, 64 P.3d 327, 330 (Idaho 2003).

¶ 10. Moreover, our reasoning in deBeaumont — that changes in custody must be based on real-time determinations of a child’s best interests — remains persuasive. The variables are simply too unfixed to determine at the time of a final divorce decree what the circumstances of the parties will be at the time a future contingency occurs. Cf. Scott, 578 S.E.2d at 880 (citing unfixed and indeterminate variables in determining that automatic change provision unlawful). As a result, the family court cannot resolve prospectively whether an automatic change in custody will *106be in the best interests of the child at the time of the triggering event. In this case, there is no way of knowing who these parties will be in a few years — particularly the child — or what the nature of their relationships with each other will be at the time the child enters kindergarten. Mother and father could choose to relocate, change careers, enter into romantic relationships, or even have more children. All of these changes would properly contribute to a best interests calculus undertaken at the time the child is school-aged. The advent of school, while certainly a formidable milestone, is only one factor in a long list which must be considered if a change in custody is contemplated at that time. See Rhubart, 789 N.Y.S.2d at 386 (vacating automatic change provision premised on future contingency and reasoning that “[n]o one factor is determinative of whether there should be a change in custody” (quotation omitted)). The best interests determination cannot be made in the absence of all the necessary facts. What those facts may be when the child enters kindergarten are matters of speculation. “Such speculation is not a substitute for complete analysis of all existing circumstances when and if a change in [a] . . . child custody arrangement becomes necessary.” Martin, 798 P.2d at 323. By reference to the factors outlined in § 665, a family court must decide what custody arrangement serves the best interests of a child given the circumstances that exist at that time. See 15 V.S.A. § 665(b). After that, the family court’s role is extinguished unless and until presented with the changed circumstances needed to support its jurisdiction to modify the award. See id. § 668 (providing that a court may modify a custody order if it is in the best interests of a child “upon a showing of real, substantial and unanticipated change of circumstances”).

¶ 11. Father urges us to distinguish this case from deBeaumont on the grounds that, unlike in deBeaumont where neither the fact nor the timing of the condition’s occurrence was certain, in this case, the child’s matriculation at kindergarten is an anticipated event that occurs on a date certain. Setting aside the fact that the parties actually dispute the date on which the child will begin kindergarten, see supra, ¶ 5 n.l, the distinction father asks us to make is without a difference, and makes no difference to a child. See Herstine, 1994 WL 37209, at *3 (reasoning that the difference between automatic change provisions involving definite versus indefinite dates “is not critical” and that both are unlawful).

*107¶ 12. As we have previously made clear, a custody change is a significant and confusing change for a child. Lane v. Schenck, 158 Vt. 489, 499, 614 A.2d 786, 792 (1992). When we shift rights and responsibilities between parents, every aspect of a child’s life is subject to change — including everything from how much television the child watches to what school the child attends. See Cabot v. Cabot, 166 Vt. 485, 494, 697 A.2d 644, 650 (1997). Thus, this Court and others have recognized that stability in custody arrangements is desirable due to the potential harm that inures to children as a result of shuttling them between their parents. See, e.g., Wells, 150 Vt. at 5 n.*, 549 A.2d at 1042 n.*; Hayes v. Hayes, 144 Vt. 332, 336, 476 A.2d 135, 138 (1984); see also Rice v. Rice, 415 A.2d 1378, 1383 (D.C. 1980); Jordan v. Jordan, 439 A.2d 26, 29 (Md. Ct. Spec. App. 1982), overruled in part as recognized by Braun v. Headley, 750 A.2d 624, 629 (Md. Ct. Spec. App. 2000). Automatic change provisions like the one at issue in this case build instability into a child’s life, and this is so whether the automatic change is premised on an anticipated or unanticipated event.

¶ 13. A blanket rejection of automatic custody change provisions is also consistent with the policy against forcing shared custody onto parents who are at war with each other. The Legislature has provided 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.” 15 V.S.A. § 665(a). We have recognized that a court risks placing a child in the middle of constant disputes by forcing unwilling parents to share parental rights and make joint decisions. Cabot, 166 Vt. at 494, 697 A.2d at 650. The evil the Legislature sought to avoid by preventing courts from ordering parents to share rights and responsibilities in the absence of agreement was the negative effect the resulting animosity has on children. Id. The automatic change provision at issue in this case is no less harmful in that it subjects any child-rearing decision made by mother to veto by father starting on March 1, 2010. In our judgment, the provision breeds increased opportunity for animosity between the parents of the kind § 665 seeks to avoid, not to mention confusion for the child.

¶ 14. Again, the weight of authority supports our view. Courts that reject automatic custody change provisions do so *108regardless of whether the event that triggers the change is certain to occur. To be sure, the annals are replete with decisions criticizing automatic change provisions premised on unanticipated or speculative events; however, courts also strike down these provisions when premised on events that will occur on a date certain, including at the child’s attainment of a certain age, Cleveland, 18 So. 3d at 952 (one year old); Jacobson, 735 P.2d at 628-29 (twelve years old), after the passage of a certain period of time, Herstine, 1994 WL 37209, at *3 (one year from the dissolution of marriage), and — importantly, for our case — at the commencement of a certain school year, Compton, 33 P.3d at 372-73 (high school). Thus, we are also in agreement with our sister states in holding that the distinction between anticipated and unanticipated events that trigger an automatic custody change provision is one that should not impact our analysis. See Jacobson, 735 P.2d at 628-29 (“[Courts] lack the power to order an automatic change of custody operative solely on the occurrence of a birthday, the end of a school year or any other such happening. Further, we doubt that a court could ever provide for an automatic change of custody on the happening of any general or specific event.”). In fact, we are unable to find a single jurisdiction that distinguishes between the two kinds of triggering events. Rather, whatever a jurisdiction’s rule regarding automatic change provisions, that rule is applied uniformly regardless of whether the contingency triggering the automatic change is certain to occur or speculative. Compare Cleveland, 18 So. 3d at 952 (voiding provision divesting mother of custody on child’s first birthday), with Hovater, 577 So. 2d at 463 (holding that custodial reversionary clause providing that custody be transferred from mother to father if mother moves from school district to be of no effect); compare Herstine, 1994 WL 37209, at *3 (holding that court may not give effect to provision in parties’ separation agreement automatically transferring custody from one parent to the other on the first anniversary of the dissolution of marriage), with Bastian, 160 N.E.2d at 136 (declining to give effect to clause in parties’ separation agreement granting father custody until mother “obtained adequate and proper living quarters and [was] able to properly care for” the child, whereupon mother would have custody); compare Hart, 132 P.3d at 1254 (holding that it was no abuse of discretion to order that equal joint physical custody change to primary physical custody with father once child started school), with Roberts, 64 *109P.3d at 330 (upholding provision transferring custody to father upon mother’s relocation out of county).

¶ 15. We also wish to clarify that it makes no difference whether the court’s award of primary rights and responsibilities to mother, and then to father, was apparently premised on father’s concession to the arrangement.3 Even if it were fair to say that an “agreement” flowed from father’s concession, any such agreement would not circumvent the court’s duty to act in the best interests of the child. Luce v. Cushing, 2004 VT 117, ¶ 10, 177 Vt. 600, 868 A.2d 672 (mem.). Despite the Legislature’s determination that an agreement between the parties on the issue of parental rights and responsibilities is presumptively in the best interests of children, see 15 V.S.A. § 666(a) (“Any agreement between the parents which divides or shares parental rights and responsibilities shall be presumed to be in the best interests of the child.”), a court is not bound by that agreement when the evidence demonstrates that the best interests of a child requires a different result. Luce, 2004 VT 117, ¶ 10; see also 15 V.S.A. § 666(c) (“If the court finds that an agreement between the parents is not in the best interests of the child ... the court shall refuse to approve the agreement.”). Because, as we have established, automatic changes concerning who has primary rights and responsibilities are not in the best interests of children, it matters little to what extent the trial court relied on father’s concession in crafting its order in this case. See Hovater, 577 So. 2d at 463 (ruling that custodial reversionary clause was of no effect despite parties’ agreement to it); Scott, 578 S.E.2d at 879 n.3 (“No relevant distinction may be drawn between self-executing change of custody provisions based upon their source.”); Mundon, 703 N.E.2d at 1136 (holding that an automatic change provision is void whether agreed to by the parties or not); Zwack, 876 N.Y.S.2d at 718 (holding that a court may not give effect to a provision in the parties’ separation agreement automatically changing custody upon the occurrence of a certain event; rather, the court was obligated to make a best interests determination at the time of the proposed change); Herstine, 1994 WL 37209, at *3 (same); Jacobson, 735 P.2d at 629 (reasoning that the parties’ agreement to the disputed provision did not confer upon the court that which *110it lacked — “power to provide for an automatic change of custody”).

¶ 16. Finally, we need only briefly discuss mother’s contention that because father failed to cross-appeal that portion of the custody award granting mother primary rights and responsibilities until March 1, 2010, the award is res judicata and that that portion of the custody award may not be revisited on appeal or on remand. The natural extension of this argument is that we should affirm the award and remand with directions to reconsider parental rights and responsibilities thereafter. Mother’s argument is without merit. The doctrine of res judicata “bars litigation of a claim or defense if there exists a final judgment in former litigation in which the parties, subject matter, and causes of action are identical or substantially identical.” Kellner v. Kellner, 2004 VT 1, ¶ 8, 176 Vt. 571, 844 A.2d 743 (mem.) (emphasis added) (quotation omitted). Stated more generally, the doctrine precludes relitigation in a second suit of what was or could have been litigated in a suit in which there has been a final judgment. The doctrine is thus on its face an ill fit for mother’s contention. This is because, of course, neither proceedings on appeal nor remand constitute a second suit for purposes of res judicata. The family court made a comprehensive ruling in which the temporary award of custody to mother was premised on the eventual, indefinite award to father. Thus, there is also no basis in logic for prohibiting the family court from reevaluating the entire custody award on remand. In fact, in order to safeguard the best interests of the child, the family court must be given the latitude to make another comprehensive order, consistent with law. Cf. Cleveland, 18 So. 3d at 952 (rather than simply voiding an automatic change provision, remanding with instructions to vacate the provision and determine the custody arrangement “that currently serves the best interests of the [child],” where it was not clear from the record what the child’s best interests were).

¶ 17. We find it unnecessary to reach the remainder of the parties’ arguments in light of our decision. We reverse the family court’s order, but continue the custody and parental contact provision as specified in the final order until such time as that court can revisit its decision. On remand, the family court shall reevaluate the custody order in its entirety in light of the opinions expressed herein.

Reversed and remanded.