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Spaulding v. Butler8/31/2001
On Appeal from Rutland Family Court March Term, 2000 Mary Miles Teachout, J.
Michele Butler (mother) appeals from a Rutland Family Court order granting Jon Spaulding's (father) motion to modify parental rights and responsibilities, and awarding sole legal and physical parental rights and responsibilities of the parties' son, Nathan, to father, and visitation to mother. Mother argues that the court erred in finding that a real, substantial and unanticipated change of circumstances had occurred, see 15 V.S.A. ยง 668, and in concluding that awarding custody to father was in Nathan's best interests, see id. We affirm in part, reverse in part, and remand.
I.
The trial court found the following facts. Mother has a child, Michael, from a previous relationship with a man named Pero. Michael is developmentally delayed. Mother's relationship with Pero ended when mother obtained a relief-from-abuse order against him. Father was previously married. When this marriage ended, his ex-wife obtained a relief-from-abuse order against father, which was later amended to include a restraining order against father.
Mother and father met in January 1993. One month later, when Michael was approximately two years old, mother and Michael moved in with father. Mother became pregnant with the parties' child, Nathan. However, the relationship was problematic. According to the court, father has a temper, which revealed itself in violent ways, e.g. when scratched by Michael's cat, he got angry and shot and killed the cat. In May 1993, mother called some friends to come and help her leave the home. While on the phone with mother, the friends heard father "raging in the background and threatening them with a bullet if they came." Father threw mother's belongings out of the house "in a rage." After two weeks, father convinced mother to return, which she did, but only briefly. She eventually left and obtained a relief-from-abuse order against father on the grounds that he had abused both her and Michael, including beating him with a belt. At the hearing resulting in the order presently on appeal, father testified that the parties never argued and that he could not understand why mother left him. The court found that father "was not credible in his testimony" and that "Mr. Spaulding physically abused Michael, and was threatening to Ms. Butler and placed her in fear of imminent serious physical abuse."
Nathan was born on December 7, 1993. Father filed a parentage case, seeking to establish parentage and parental rights and responsibilities with respect to Nathan. In January 1994, mother was awarded temporary sole legal and physical rights and responsibilities. Father was denied visitation. At mother's request, the court also amended the June 1993 relief-from-abuse order to include a no-stalking provision. In March 1994, father obtained an order providing for visitation.
In the spring of 1994, father entered into a relationship with his present wife, Penelope, who became actively involved in issues concerning Nathan. She took over arranging father's visits with Nathan and wrote letters to mother telling her how she should be taking care of Nathan. The court found that Penelope's involvement interfered in father and mother's ability to communicate directly over Nathan.
In June 1994, at mother's request, the court renewed the provisions of the June 1993 relief-from-abuse order, including the no-stalking provision.
In July 1994, mother began therapy with Meredith McCartney of Community Mental Health Center, to get help coping with Michael's special needs. This therapy continued, on a regular basis, for approximately a year. In this regard, the court
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