Jody LaFlam v. Diana LaFlam

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2022 VT 57

No. 21-AP-301

Jody LaFlam Supreme Court

On Appeal from
v. Superior Court, Rutland Unit,
Family Division

Diana LaFlam September Term, 2022

Helen M. Toor, J.

Jody LaFlam, Pro Se, West Rutland, Plaintiff-Appellee/Cross-Appellant.

Stacey Adamski of Adamski Law, PLLC, Castleton, for Defendant-Appellant/Cross-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. CARROLL, J. Mother Diana LaFlam appeals from an order denying her motion

to modify physical and legal rights and responsibilities. She argues that her relocation to Florida

following a divorce from father Jody LaFlam was an unanticipated circumstance requiring

modification of the physical rights and responsibilities of their two children, and that father’s

neglect of the children’s health warranted a modification of legal rights and responsibilities. Father

cross-appeals the portion of the order finding that his neglect of the children’s health constituted

changed circumstances under 15 V.S.A. § 668(a). We agree with the family division that mother’s

relocation was not a change in circumstances as to physical rights and responsibilities, that father’s

conduct was a change in circumstances with respect to legal rights and responsibilities, but reverse

and remand as to its best-interests analysis.
¶ 2. The family court found the following by a preponderance of the evidence. Mother

and father divorced in May 2018 after seven years of marriage. Together, mother and father have

a son, aged ten, and a daughter, aged seven. Mother has three daughters from a previous marriage,

one of whom father adopted during the marriage. Adopted daughter was nineteen at the time of

the divorce. The divorce court awarded father sole physical and legal rights and responsibilities

and the family home, and established a fifty-fifty parent-child contact schedule. The divorce order

required father to consult with mother on major decisions regarding son’s and daughter’s “health,

welfare, education or medical needs.”

¶ 3. Father has been inattentive to the children’s medical and hygienic needs since the

divorce. He once forgot to give son the correct asthma inhaler for a sleepover. Father stopped

providing inhalers for son for a period of time without medical approval. Father failed to fill out

a questionnaire required to complete an important evaluation based on a referral from son’s

pediatrician. After son was injured, father did not know if son’s tetanus shot was up to date, which

it was not. Father did not take son to an orthodontist despite a recommendation to do so. He failed

to require the children to consistently attend mental-health counseling after mother moved to

Florida. Father did not require the children to bathe for several days, after which son developed a

bacterial infection. Father ignored a serious rash that daughter had developed related to a

medication she was taking. Daughter developed a different rash for several days and cried when

she went to the bathroom. She told the doctor that there was not enough toilet paper at home to

properly wipe.

¶ 4. The children act differently depending on whether they are in Vermont or Florida.

When in Florida, son, who arrives reserved, becomes more relaxed during the stay. Daughter is

happy and excited to see everyone. Son and daughter are close to adopted daughter and mother’s

new husband in Florida. The children do not want to leave.

2
¶ 5. When in Vermont, son is stiff and gives one-word answers on video calls with

mother. Daughter also looks sad and whispers, appearing to be checking to see if anyone is

listening to the conversation. Both children have told mother that “what happens at Dad’s house

stays at Dad’s house.” In Vermont, the children spend every other weekend with their

grandparents. During the pandemic, the children completed their online schoolwork from their

grandparents’ home. Both children do well in school. Father gets them to school on time. The

family division credited the testimony of a fellow coach at the children’s school who stated that

daughter is happy, neither son nor daughter showed any fear of father, and father is appropriate

with his children. However, the marital home is in foreclosure proceedings following father’s

failure to pay the mortgage for three years.

¶ 6. In July 2021, shortly before moving to Florida, mother filed a motion seeking to

modify parental rights and responsibilities and parent-child contact. Mother contended that her

move to Florida was a real, substantial, and unanticipated change in circumstances requiring a

modification of the physical custody of the children. Mother argued that father’s inattention to the

children’s health was a real, substantial, and unanticipated change in circumstances sufficient to

modify legal custody of the children. Mother alleged that she had come to realize that father had

been sexually abusive toward her during the marriage. She maintained that she had first realized

this while in therapy in the spring of 2021. In addition, mother attached an affidavit to the motion

in which adopted daughter accused father of sexually inappropriate behavior with her prior to the

divorce. Mother framed these allegations of pre-divorce sexual abuse as appropriate for the court

to consider only under the best-interests factors in 15 V.S.A. § 665, and not as evidence of a real,

substantial, and unanticipated change in circumstances since the divorce.

¶ 7. Following a two-day evidentiary hearing, during which mother, father, and adopted

daughter testified, the family division denied mother’s request to modify parental rights and

responsibilities. The family division concluded that mother’s move to Florida was not

3
unanticipated because the May 2018 final divorce and custody order considered her potential move

to Florida.1 The court however concluded that father’s neglect of the children’s medical needs

was a real, substantial, and unanticipated change regarding legal custody and proceeded to weigh

the statutory best-interests factors in 15 V.S.A. § 665. The court found that mother was better able

to provide medical care, that mother’s housing situation was more stable than father’s, and that

father was not fostering the children’s needs to speak freely without risking punishment or

disapproval. On the other hand, it found that father was better able to serve the children’s

developmental needs, and that mother chose to move to Florida despite knowing she would see

the children less. The court found that there was little evidence regarding the children’s

connections to school and community, which did not favor either parent. It found that neither

parent interfered with the children’s contact with the other parent, which favored neither parent,

and that “no issue [was] raised as to who has been the primary care provider.” The court therefore

gave no weight to the primary-care-provider factor. It found that the children’s relationships with

family members in Vermont and Florida did not favor father or mother. It did not weigh mother’s

allegations regarding pre-divorce sexual abuse because father’s alleged conduct took place before

1
The family division’s order expressly analyzed legal custody but not physical custody,
even though mother raised both in her motion to modify. Mother does not appeal the court’s failure
to expressly analyze physical custody, though she notes that “the trial [c]ourt did not make a
separate analysis of the burden and findings [regarding] legal versus physical rights and
responsibilities.” See Wener v. Wener, 2016 VT 109, ¶ 21, 203 Vt. 582, 157 A.3d 1108
(concluding that when both physical and legal rights and responsibilities are raised by moving
party, court must address each with separate findings and analysis). When pressed at oral
argument, mother’s counsel reiterated the position she maintained at the evidentiary hearing, and
which she also explained in her appellate brief: “[i]t is without question that [mother] could not
use [father’s] history of sexual violence to initiate the [m]otion to [m]odify parental rights and
responsibilities.” Instead, mother appears to argue that the family division denied her motion
regarding physical custody solely because it determined that her move to Florida was not
unanticipated, not because it failed to exercise its discretion to consider any other change in
circumstances. Accordingly, she has failed to preserve the argument that any other event or events
could have constituted changed circumstances as to physical custody. See Miller-Jenkins v.
Miller-Jenkins, 2010 VT 98, ¶ 28, 189 Vt. 518, 12 A.3d 768 (mem.) (“Failure to preserve issues
below results in waiver [of those issues on appeal] . . . .”).

4
the divorce and because the court found mother’s claim that she only realized the abuse after the

divorce not credible. The court did not explicitly consider adopted daughter’s allegations at all,

apparently because it concluded that they only concerned events predating the divorce, a period

the court concluded was inappropriate to raise in a custody-modification proceeding. Moreover,

the court made no finding as to the timing of the report to mother even though adopted daughter

testified that she did not make mother aware of the specifics of the allegations until after the

divorce.

¶ 8. The court ultimately concluded that the § 665 factors did not favor either party, and

therefore mother failed to meet her burden to demonstrate that modifying legal custody was in the

children’s best interests. It granted mother’s motion to modify parent-child contact based on the

parties’ agreement that mother’s relocation required a schedule change.2

¶ 9. Mother raises several questions on appeal. She renews her argument that relocating

to Florida meets the changed-circumstances threshold under 15 V.S.A. § 668(a), to modify

physical rights and responsibilities. She contends that the court erred when it did not modify legal

custody, even though more § 665(b) best-interests factors favored her. She also argues that the

court erred by refusing to consider her and adopted daughter’s allegations of pre-divorce sexual

abuse in its analysis of the best-interests factors regarding legal custody.

¶ 10. Father cross-appeals, arguing that the court abused its discretion when it concluded

that his failure to sufficiently attend to the children’s medical needs was a real, substantial, and

unanticipated change in circumstance regarding legal custody.

I.

¶ 11. Mother first argues that her move to Florida was unanticipated and meets the

“heavy burden” of demonstrating the changed circumstances necessary to modify physical rights

2
After the parties failed to agree to new terms, the family division ultimately issued a
parent-child contact order on December 20, 2021. That order is not at issue in this appeal.
5
and responsibilities. Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273; see also

id. ¶ 1 (“[W]hen one parent has parental rights and responsibilities for a significant majority of the

time, the [non-custodial parent] bears a heavy burden of demonstrating that the severe measure of

transferring primary rights and responsibilities from one parent to another is necessary to serve the

children’s best interests.”). We disagree.

¶ 12. “We will uphold a family court’s decision as to whether there has been a real,

substantial, and unanticipated change in circumstances unless the discretion of the lower court was

exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Wener, 2016 VT 109, ¶ 17 (quotation omitted). 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 “[o]nly after such a finding may

the court move on to the question of wh[ether a modification] is in the best interests of the

children.” Gates v. Gates, 168 Vt. 64, 69, 716 A.2d 794, 798 (1998); see 15 V.S.A. §§ 665(b),

668(a). “For the purposes of § 668, an unanticipated change is one that was unexpected at the time

of the divorce.” Terino v. Bleeks, 2018 VT 77, ¶ 14, 208 Vt. 65, 195 A.3d 647 (emphasis omitted)

(holding that mere fact of child aging and starting school, without more, cannot be

“unanticipated”); accord Sundstrom v. Sundstrom, 2004 VT 106, ¶ 35, 177 Vt. 577, 865 A.2d 358

(mem.).

¶ 13. Mother argues that the question of whether her relocation is unanticipated is not

whether “it is in the realm of possibility that a parent may relocate” at the time of the divorce, but

rather whether the original custody order had mother’s move “baked into” its conclusions. In

support of this argument, mother cites spousal-maintenance cases from this Court, and contends

that the unanticipated-change standard in those cases should be applied to custody-modification

proceedings.

6
¶ 14. In Atherton v. Atherton, the trial court incorporated the terms of a maintenance

stipulation into a June 2017 final order which provided that husband would pay $1500 in monthly

maintenance to wife. 2019 VT 15, ¶ 2, 209 Vt. 505, 208 A.3d 603. At the time the order issued,

husband was employed and made $5895 per month. Husband was terminated in August 2017. In

September 2017, husband filed a motion to modify spousal maintenance under 15 V.S.A. § 758.

At the evidentiary hearing, husband disclosed, for the first time, that he had received a “final

written warning” from the employer in June 2016, one year before the final order. He also

disclosed that he had taken a leave of absence in April 2017. The family division denied husband’s

motion, concluding that husband alone knew of the warning letter and the leave of absence when

he signed the maintenance stipulation, and his termination one month after the final order was “a

reasonable possibility” at the time of the final order. Id. ¶ 7. We reversed, holding that the proper

test for evaluating whether a change is unanticipated is whether “subsequent developments depart

substantially from the assumptions considered in the maintenance order.” Id. ¶ 15. We explained

that “[w]hile husband’s termination may have been foreseeable based on his receipt of the warning

letter and his leave of absence,” the court’s conclusion that husband could have known “at the time

of the final order . . . whether he would be actually terminated as a result of these two factors, and

what change in income would result” was incorrect because it “would have been based purely on

conjecture.” Id. ¶ 16 (emphasis omitted).

¶ 15. We need not decide whether the standard for unanticipated changes in the spousal-

maintenance context applies to custody-modification proceedings instead of the standard we have

long used, which is whether the change in circumstances was “not expected at the time of the

divorce.” Sundstrom, 2004 VT 106, ¶ 35. Under either standard, to the extent they are distinct,

mother’s relocation to Florida was not unanticipated because the divorce court made findings

concerning her potential relocation and considered them when determining the children’s best

interests. For example, the divorce court found that mother’s support system was in Florida, and

7
that “in the event [mother] were to relocate to Florida, [mother] would be able to reside with her

parents.” It also found that she had been applying for employment in Florida prior to the issuance

of the final divorce order. Indeed, the divorce court concluded that potential relocation to Florida

did not weigh in favor of the children’s best interests. Accordingly, the move to Florida was not

a subsequent development “depart[ing] substantially from the assumptions considered in the

[custody] order,” Atherton, 2019 VT 15, ¶ 15, nor was it “unexpected” at the time of the custody

order. Terino, 2018 VT 77, ¶ 14. The family division did not abuse its considerable discretion in

concluding that the relocation did not satisfy the heavy burden necessary to modify physical

custody. See Falanga v. Boylan, 2015 VT 71, ¶ 17, 199 Vt. 343, 123 A.3d 811 (holding that family

division has “wide discretion” when determining whether changed circumstances exist); see also

Hayes v. Hayes, 144 Vt. 332, 338, 476 A.2d 135, 139 (1984) (explaining that modification court

can make “explicit reference” to findings contained in original custody order when appropriate).

II.

¶ 16. Father cross-appeals, arguing that the family court abused its discretion by

concluding that his neglect of the children’s medical needs was a “real, substantial, and

unanticipated change in circumstances” as to legal custody. To the extent father has adequately

briefed this argument, we discern no abuse of discretion in the family division’s conclusion. See

deBeaumont v Goodrich, 162 Vt. 91, 98, 644 A.2d 843, 847 (1994) (noting that “threshold decision

for a motion to modify [custody] is discretionary” and that decision will be upheld absent

discretion erroneously exercised, exercised on unfounded considerations or to an extent clearly

unreasonable in light of evidence) (quotation omitted)).

¶ 17. The court made findings about father’s post-divorce performance regarding the

children’s health and hygienic needs. The findings were supported by the evidence. Siegel v.

Misch, 2007 VT 116, ¶ 10, 182 Vt. 623, 939 A.2d 1023 (mem.) (“We will uphold factual findings

on appeal if any credible evidence in the record supports them, leaving credibility determinations

8
to the trier of fact.” (citation omitted)). Father’s appellate brief largely consists of arguments

disputing the trial court’s findings, including allegations of events purporting to clear his name

that occurred after the family division’s order, none of which father supports by citations to the

record. See V.R.A.P. 28(a)(4)(A), (b) (requiring issues presented to be supported by “citations to

the authorities, statutes, and parts of the record on which the [cross-appellant] relies”); see also

Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219, 19 A.3d 112 (observing that while courts accord

pro se litigants leeway in some matters, “they are still bound by the ordinary rules” of court

procedure (quotation omitted)). However, “our review is confined to the record and evidence

adduced at trial. On appeal, we cannot consider facts not in the record.” Hoover (Letourneau) v.

Hoover, 171 Vt. 256, 258, 764 A.2d 1192, 1193 (2000). Accordingly, we decline to disturb the

family division’s conclusion that father’s neglect of the children’s medical needs was a change in

circumstances requiring a best-interests analysis under § 665(b).

III.

¶ 18. Mother next argues that the family division should have considered her and adopted

daughter’s post-divorce allegations of pre-divorce sexual abuse against father and incorporated the

allegations into its best-interests analysis for modification of legal custody. We agree and hold

that the family division may consider post-divorce allegations of sexual abuse against a parent

occurring before the divorce to determine the children’s best interests under 15 V.S.A. § 665(b),

if the moving party was unaware of the allegations at the time of the divorce and the court finds

the allegations credible. See Heffernan v. Harbeson, 2004 VT 98, ¶ 7, 177 Vt. 239, 861 A.2d 1149

(“Whether the family court properly construed the controlling statutes is a question of law that we

review de novo.”).

¶ 19. As an initial matter, the family division found that, like adopted daughter, mother’s

allegations only concerned conduct prior to the divorce, and it could not therefore consider them.

However, the court credited father’s testimony that mother had been in therapy for childhood

9
sexual abuse for “years,” and found mother’s allegation that she only realized husband’s conduct

was abuse while in therapy in 2021 not credible. Therefore, as we do not reweigh credibility

determinations on appeal, our discussion focuses solely on adopted daughter’s allegations. See In

re S.B., 174 Vt. 427, 429, 800 A.2d 476, 479 (2002) (mem.) (explaining that Supreme Court does

not second-guess family division or reweigh evidence).

¶ 20. We have explained that, assuming the court first finds changed circumstances

sufficient to reach the best-interests factors, a modification “court must reassess the divorce order’s

allocation of parental rights and responsibilities in light of “all relevant periods of the child’s life.”

Sochin v. Sochin, 2005 VT 36, ¶ 10, 178 Vt. 535, 537, 872 A.2d 373, 377 (quotation omitted)).

To this end, the Legislature has provided that the family division must consider “evidence of

abuse . . . and the impact of the abuse on the child and on the relationship between the child and

the abusing parent” when allocating parental rights and responsibilities. 15 V.S.A. § 665(b)(9).

The family division may find that abuse which occurred in the pre-divorce period continues to

impact the child and the child’s relationship with the abusing parent after the divorce. See id. This

is not at odds with our explanation that “[f]or purposes of a modification motion . . . the most

relevant period is that between the divorce and the filing of the motion to modify.” deBeaumont,

162 Vt. at 101, 644 A.2d at 849.

¶ 21. Moreover, mother could not be expected to raise an issue at the time of divorce of

which she was unaware, and which presently bears on the children’s best interests. See In re Burns

12 Weston St. NOV, 2022 VT 37, ¶ 16, __ Vt. __, __ A.3d __ (explaining in context of claim

preclusion that parties are not precluded from litigating “in the present what [they] had no

opportunity to do in the past” (quotation omitted)). We have explained that no final divorce decree

can account for “future contingenc[ies],” Knutsen v. Cegalis, 2009 VT 110, ¶ 10, 187 Vt. 99, 989

A.2d 1010, which indeed is the purpose underlying the custody-modification statutes. See

deBeaumont, 162 Vt. at 100, 644 A.2d at 849 (“The whole point of the modification process is

10
that changed circumstances may have made the initial decision inappropriate, so a reexamination

of the interests of the children is warranted.” (citing 15 V.S.A. § 668)). First learning after the

divorce of abusive pre-divorce conduct committed by a spouse on a family member is one such

“future contingency” which may continue to impact the child and the child’s relationship with the

abusive parent. See 15 V.S.A. § 665(b)(9). The focus of the inquiry is the post-divorce impact of

the “evidence of abuse” on the child and the child’s relationship with the abusing parent, not

necessarily the impact on the child and the child’s relationship with the abusing parent in the pre-

divorce period. See id. Furthermore, since sexual abuse occurring in a parent’s home after the

divorce is not in a child’s best interests, see Siegel, 2007 VT 116, ¶¶ 1, 13, it follows that pre-

divorce sexual abuse which is discovered by the moving party only in the post-divorce period is

not either.

¶ 22. Here, the court did not weigh § 665(b)(9) because “mother raised claims of physical

abuse of her and emotional abuse of the children in the pre-divorce period,” and it “did not find

any admissible evidence to support those claims.” However, the family division had before it

adopted daughter’s sworn testimony and affidavit detailing both the substance of father’s alleged

conduct and when she disclosed the allegations to mother. It was error for the court not to make

specific findings regarding when mother learned about adopted daughter’s allegations and whether

the allegations were credible before analyzing the impact of the ninth factor on the children’s best

interests. See Poulin v. Upham, 149 Vt. 24, 27, 538 A.2d 181, 183 (1987) (reversing and

remanding where court failed to make adequate findings on “critical issue” as required by

§ 665(b)).

¶ 23. Accordingly, we reverse and remand the family division’s best-interests analysis

for the court to make findings as to adopted daughter’s allegations and reweigh the § 665(b) factors

for modifying legal custody. Batton v. Holland, 2018 VT 54, ¶¶ 1, 26, 207 Vt. 517, 192 A.3d 1257

(reversing and remanding best-interests analysis where Supreme Court affirmed family division’s

11
changed-circumstances analysis); Maurer v. Maurer, 2005 VT 26, ¶ 16, 178 Vt. 489, 872 A.2d 326

(mem.) (same).3 Given our conclusion, we need not address mother’s argument that because more

best-interests factors favored her, the court should have modified legal custody.

Reversed and remanded for further proceedings consistent with this opinion.

FOR THE COURT:

Associate Justice

3
Though it is likely that adopted daughter’s allegations, if credible and not disclosed to
mother prior to the divorce, could constitute changed circumstances under 15 V.S.A. § 668(a), as
already noted mother has waived the argument on appeal with respect to physical custody. See
supra, ¶ 7 n.1. Likewise, because mother does not challenge the family division’s threshold finding
that father’s neglect of the children’s medical needs was a real, substantial, and unanticipated
change in circumstances sufficient to modify legal custody, and father fails to convince us the
court abused its discretion in doing so, we must leave this question to be answered for another day.
12