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= &n= bsp; &nbs= p; = &n= bsp; ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-476
= &n= bsp; &nbs= p; = &n= bsp; APRIL TERM, 2005
Patricia Tallman = &n= bsp; &nbs= p; = <= /span>} = APPEALED FROM:
v. = &n= bsp; &nbs= p; = &n= bsp; } = Lamoille Family Court
Dorick Tallman II  = ; &= nbsp; &nb= sp;  = ; }
} DOCKET NO= . 62-4-03 Ledm
Trial Judge: Edward = J. Cashman
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Mother Patricia Tallman appeals pro se from the family court’s order, which affirmed its previous award of custody of the parties’ children to f= ather Dorick Tallman II and its dismissal of a final relief-from-abuse order aga= inst father.* Mother argues that the court̵= 7;s findings are not supported by the evidence, and its conclusions are not supported by its findings. F= ather has not filed a brief despite a January 2005 order from this Court to do so. We find the court’s conclusions sufficiently supported by the record, and we therefore affirm.=
Mother and father are the parents of two minor children. The parties divorced for the seco= nd time in November 2003, and the family court awarded custody of the parties̵= 7; children, then aged six and eight, to father. The court also dismissed a relief-from-abuse order against father as improvidently granted. Mother appealed to this Court, an= d we reversed and remanded for additional findings. Tallman v. Tallman, No. 20= 03-525 (Vt. July 1, 2004) (unpublished mem.).
a hearing at which additional evidence was received, the family court affi=
its original order and set out additional findings. As to its dismissal of the
relief-from-abuse order, the court explained that there was no credible
evidence in the record of any painful touch—assault—or threat =
assault. It stated that an
eyewitness to the alleged assault had testified at the hearing, and she had
made a convincing record that wife had fabricated the assault incident.
Turning next to its custody award, the court reviewed the criteria set forth in 15 V.S.A. § 665(b), and made findings with respect to each factor.<= span style=3D'mso-spacerun:yes'> The court found that the parties = had experienced a tumultuous relationship over the years, marrying and divorci= ng each other more than once. It explained that mother had repeatedly left the marital home during the marr= iage, and she often signaled her departure by filing a petition for a relief-from-abuse order. The= court found that the history of these orders showed that mother did not have ade= quate evidence to support her claims. The court stated that mother had moved four times in the last three years, from place to place with little long-term stability. The court also found that mother = had an inconsistent work history, and she had a medical history of long-term anxiety. As the court explai= ned, mother’s propensity to abandon domestic settings transcended the marriage—she had recently been involved in another relationship lead= ing to marriage, and after ninety days of marriage, she was getting divorced, = and was looking for a new home. = The court explained that mother’s repeated leaving, and the accompanying litigation, had created substantial disruption for the children—they= had left their home, their association with their father, and other important family members. The court fo= und that the children’s lives with mother had been marked by instability= , and placing the children with mother would create further disruptions in the children’s lives.
The court found that father, in contrast, had weathered the disruptions of the marriage and remained focused on the care of the children. He had attempted to provide stabi= lity for the family, and he had maintained the family home under difficult circumstances. He withstood a criminal prosecution for domestic assault that had ended in an acquittal.<= span style=3D'mso-spacerun:yes'> He improved the condition of the = family home and he provided direct and consistent care to the children. The court found that father appea= red to be better suited to provide for the children’s everyday needs, and h= e was more capable of maintaining a healthy relationship with mother. The court also found that the chi= ldren were doing well with father, and they had also developed a strong and heal= thy attachment to father’s parents, who lived nearby. The court rejected mother’s assertion that father was abusing regulated drugs, finding the claim unsupported by the record.
Based on its findings, the court concluded that, on balance, father was the more stable and more caring custodian of the parties’ children. It thus reaffirmed its earlier aw= ard of sole parental rights and responsibilities to father. Mother appealed, arguing that the= family court’s findings are not supported by the record, and its findings d= o not support its conclusions. Whi= le mother correctly asserts that many of the court’s findings are not supported by evidence in the record, the court’s most significant findings are supported, and these findings support the court’s concl= usion that an award of parental rights and responsibilities to father is in the children’s best interests.
The trial court has broad discretion in making a custody determination. Payrits v. Payrits, 171 Vt= . 50, 52-53 (2000). The court must consider all relevant evidence, including statutory factors, and its decis= ion must be based on the children’s best interests. 15 V.S.A. § 665(b); Gilbe= rt v. Gilbert, 163 Vt. 549, 553 (1995).&nbs= p; On review, “we will not set aside the family court’s findings if supported by the evidence, nor its conclusions if supported by= the findings.” Payrits<= /u>, 171 Vt. at 53 (quotations omitted). In conducting our analysis, we view the evidence in the light most favorable to the prevailing party, and disregard the effects of modifying evidence. Hoover v. Hoove= r, 171 Vt. 256, 258 (2000).
In this case, the court’s decision turned on its finding that father was better able to provide consistent care and stability for the children. This finding is supported by the evidence. Neither party disp= utes the tumultuous marital history described by the court. Mother testified that she and fat= her first married in June 1996, and divorced in November 1999. They remarried in February 2000, = and separated in March 2001. Mot= her filed for divorce, and the parties separated between March 2001 to December 2001. They reunited in Decem= ber 2001, and mother withdrew her divorce petition. They remained together until April 2003. The record shows that,= while married to father, mother repeatedly filed relief-from-abuse petitions, al= l of which were ultimately dismissed, with the exception of the order currently= on appeal. A jury acquitted fat= her of domestic assault. Mother acknowledged that, during the marriage, she repeatedly left the martial ho= me, and moved to different locations. Between 2001 and 2004, mother moved her primary residence four times. It appears that in 20= 01, she moved from Colchester to Cambridge, and then to Wolcott. In June 2003, she moved to Jeffer= sonville, and in February 2004, she moved to Cambridge. During this time, the children sw= itched schools several times. Mother testified to the short duration of her most recent marriage, as well as the fact that she was again looking for new housing. Based on the evidence, the court reasonably concluded that mother’s behavior resulted in instability = for the children, and her repeated filings of relief-from-abuse petitions serv= ed to isolate father from the children. &n= bsp;
court found that father was more capable of providing the children with
stability. Father testified =
had remarried, and the children were happy with their living situation.
Mother next argues that the court erred in dismissing the relief-from-abuse petit= ion against father. She asserts = that the court’s findings are not supported by the evidence. We disagree. The record supports the courtR= 17;s finding that no assault occurred. As noted above, an eyewitness to the encounter, April Flood, testified about the incident. She stated that mother had brough= t a boyfriend over to her house, and apparently, a minor saw mother having sex= with this individual. Father lear= ned of this, became upset, and came to Ms. Flood’s home looking for the children. Ms. Flood testifie= d that she did not see father touch mother. She later stated that father had come to her house; mother was stan= ding in the doorway, and father brushed by mother, looking for the children. Ms. Flood testified that father hadn’t intentionally pushed mother, or punched her. While mother asserts that father = did abuse her, the family court found Ms. Flood’s account of the incident credible. We will not distur= b this assessment on appeal. Id<= /u>. We find no error in the courtR= 17;s dismissal of the relief-from-abuse order.
BY THE COURT:
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Frederic W. Allen, Chief Ju= stice (Ret.),
* Mother was represente= d by counsel at the hearing on remand.