Joshua Scheffler v. Mikaela Casey

VERMONT SUPREME COURT Case No. 23-AP-025
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

JUNE TERM, 2023

Joshua Scheffler v. Mikaela Casey* } APPEALED FROM:
} Superior Court, Bennington Unit,
} Family Division
} CASE NO. 89-7-20 Bndm
Trial Judge: Howard A. Kalfus

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

Mother appeals from the trial court’s denial of her motion to modify parental rights and
responsibilities (PRR) and parent-child contact (PCC) as to the parties’ son. We affirm.

The parties were married in April 2017 in California. They subsequently moved to
Vermont, where their son was born in October 2017. In April 2019, mother left Vermont to join
the military and was stationed in North Carolina. Father and son remained living in Vermont.
For the next year or so, under the parties’ voluntary arrangement, son visited with mother in
North Carolina for certain periods of time, but primarily lived with father in Vermont. A North
Carolina court granted mother’s petition for a divorce in June 2020.

The following month, mother filed a motion to establish PRR and PCC in Vermont.
After a contested hearing, the family division issued a final order in November 2020. It awarded
the parties shared legal PRR because they agreed to that arrangement. The court awarded father
primary physical PRR and mother daily telephone or virtual contact as well as in-person contact
during specified holidays and other periods.

In July 2022, mother filed a motion to modify PRR and PCC based on her imminent
relocation from North Carolina to Vermont, father’s alleged refusal to work cooperatively with
her, and alleged deficiencies in father’s parenting. In December 2022, the family division held a
contested hearing and issued findings of fact and conclusions of law on the record. Ultimately,
the court denied mother’s motion to modify without examining the statutory best-interests factors
because it determined that mother had not demonstrated a real, substantial, and unanticipated
change of circumstances warranting a best-interests analysis.

Shortly thereafter, mother filed a motion requesting that the court require the parties to
attend mediation to assist with modification of the current order governing PRR and PCC. The
court denied the motion on the basis that it had already ruled that modification was not
warranted.
On appeal, mother raises several challenges to the court’s order denying her motion to
modify PRR. We review the family division’s decision as to whether there has been a real,
substantial, and unanticipated change in circumstances for abuse of discretion. Wener v. Wener,
2016 VT 109, ¶ 17, 203 Vt. 582. As we have explained:

Modifying a rights-and-responsibilities order is a two-step process.
First, the moving party must demonstrate that a real, substantial,
and unanticipated change of circumstances has occurred, and then
only after such a finding may the court move on to the question of
whether a modification is in the best interests of the children.

LaFlam v. LaFlam, 2022 VT 57, ¶ 12 (quotations and brackets omitted). “So long as it applied
the correct legal standards, we will uphold the court’s factual findings unless they are clearly
erroneous and will affirm its legal conclusions if supported by the findings.” Vance v. Locke,
2022 VT 23, ¶ 11.

Mother first contends that the trial court erroneously denied her motion to modify
because it failed to analyze the best-interests criteria under 15 V.S.A. § 665. Motions to modify
PRR and PCC are governed by 15 V.S.A. § 668, not § 665. Likewise, mother’s citations to case
law involving initial custody determinations are not applicable. Because the court concluded that
mother had not met the threshold of demonstrating a change in circumstances, it properly
declined to consider the statutory best-interests factors. LaFlam, 2022 VT 57, ¶ 12.

Mother also argues that the trial court’s conclusion regarding changed circumstances was
erroneous because the evidence favored her. She asserts the evidence showed that
communication between her and father had declined, and that father had been neglecting son.
She also suggests that her testimony was more credible than father’s testimony. Determinations
regarding the weight of the evidence or the credibility of witnesses are strictly within the trial
court’s purview, and we will not revisit them on appeal. Mullin v. Phelps, 162 Vt. 250, 261
(1994). We are satisfied that the court’s decision rested on adequate findings, supported by
evidence in the record. See Quinones v. Bouffard, 2017 VT 103, ¶ 10, 206 Vt. 66 (“The court’s
factual findings must stand unless, viewing the record in the light most favorable to the
prevailing party and excluding the effect of modifying evidence, there is no credible evidence to
support the findings.” (quotation omitted)).

Here, for each instance of father’s neglect to which mother testified, father either denied
mother’s version of events or provided an innocuous explanation. The court found that each
party was equally credible, but because mother had the burden of proof to demonstrate changed
circumstances, she failed to meet her burden insofar as it was premised on neglect of the
custodial parent. See Trepanier v. Eldred, 137 Vt. 108, 109 (1979) (per curiam) (holding that
party failed to meet its burden of proof because trial court found witnesses equally credible).

Mother argues that father failed to cooperate with her because he refused to attend
mediation in violation of the court’s order. However, the trial court denied mother’s motion for
mandated mediation, so any refusal by father would be consistent with the court’s rulings and
would not show a breakdown in communication. Mother also contends that father “continues to
show the same inability [to communicate] that the trial court noted about in 2020.” This
assertion, if true, shows circumstances have stayed the same rather than changed. The court
found, based on the parties’ testimony, that their ability to work together may have declined to
some extent, but that there was no evidence of significant deterioration. Moreover, the court

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noted, and mother does not contest, that the parties were able to work cooperatively in fashioning
a voluntary change to the PCC schedule following mother’s relocation to Vermont, thereby
demonstrating an ability to work collaboratively when necessary. These findings are supported
by record evidence, and in turn support the court’s conclusion that any change in circumstances
regarding cooperation was not substantial.

Mother additionally contends that her relocation to Vermont constituted a substantial
change of circumstances. We have held that “relocation without more is not per se a substantial
change of circumstances.” Habecker v. Giard, 2003 VT 18, ¶ 6, 175 Vt. 489 (mem.) (quotation
omitted). As we explained in Hawkes v. Spence, “relocation is a substantial change of
circumstances justifying a reexamination of parental rights and responsibilities only when the
relocation significantly impairs either parent’s ability to exercise [their parental rights and]
responsibilities.” 2005 VT 57, ¶ 13, 178 Vt. 161 (quotation omitted). Mother’s attempt to
analogize this case to Hawkes is unpersuasive. There, the Court concluded that relocation by the
custodial parent hundreds of miles away from Vermont had the potential to significantly interfere
with the noncustodial parent’s contact and relationship with the child and therefore constituted a
real, substantial, and unanticipated change in circumstances. Id. ¶¶ 18-19. Mother’s citations to
Bonk v. Bonk, 2018 VT 15, ¶ 9, 206 Vt. 522, and Hoover v. Hoover, 171 Vt. 256, 260 (2000),
are likewise inapplicable because both involved a move by the custodial parent away from the
noncustodial parent. Here, by contrast, mother has moved much closer to father and son and her
contact with son has increased. Mother does not contest the family division’s finding that her
relocation enhanced, rather than impaired, her ability to exercise her parental rights or
responsibilities. Thus, the trial court did not err in concluding that mother failed to show a
substantial change in circumstances.

Given the above analysis, we reject mother’s argument that the trial court did not provide
adequate reasons for its decision. This contention appears to be based primarily on the premise
that the trial court needed to address the statutory best-interests criteria and failed to do so. We
previously rejected this premise.

Mother also contends that the court erred by failing to acknowledge that in its 2020 order
regarding PRR and PCC, it stated that the parties could request modification of PRR to address
any ongoing concerns regarding factors (5) and (8) under 15 V.S.A. § 665(b). This statement
merely informs the parties that they have a right to request modification. The fact that one
parent’s dangerous or neglectful behavior could potentially be grounds for modifying a PRR
order does not mean that the other parent’s allegation of such behavior automatically entitles
them to their requested modification. As the trier of fact, it is for the court to assess the
credibility of witnesses and weigh the evidence before exercising its discretion to determine
whether there has been a change in circumstances. Mullin, 162 Vt. at 261. The court did so
here, and it applied the correct legal standards. The court’s statement in its 2020 order was not
inconsistent with its denial of mother’s motion to modify, and mother has not identified any error
in the court’s analysis.

Finally, mother argues that the trial court’s decision was inconsistent with a statement
that it made orally on the record. In explaining why mother’s relocation back to Vermont did not
constitute changed circumstances warranting modification of the existing order, the court stated:

You know, you worked out a very reasonable schedule. That’s not
to say that the fifty-fifty schedule wouldn’t be better. In fact, I
think it would be. But you were able to work that out on your

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own, and you are to be commended for that. So I don’t believe the
relocation constitutes changed circumstances.

The court’s suggestion that a fifty-fifty schedule might be better than the PCC schedule the
parties crafted and agreed upon themselves did not undermine its conclusion that mother had not
met the legal threshold for demonstrating changed circumstances. The question before the court
was not which schedule works best for the family but rather whether mother had met the
statutory standard of changed circumstances that warrants revisiting the existing PCC order.
Mother has not identified any error in the latter inquiry, and she has not otherwise provided a
basis for disturbing the court’s decision.

Affirmed.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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