Volume 169 — Vermont Reports

<bold>1. Divorce — Custody — Change in Circumstances</bold> <block_quote> Family court erred in attempting to retain future jurisdiction over custody award by defining in advance that father's failure to move to other town prior to beginning of school year would constitute a change in circumstances for purpose of assuming jurisdiction in a future modification proceeding, where court's order was not based on a stipulation by parties that established their expectations about their living arrangements nor effect of a change of those arrangements on child, nor did court establish a reasonable benchmark to determine changed circumstances.</block_quote> <bold>2. Divorce — Custody — Factor5 Considered</bold> <block_quote> Family court erred in basing its custody determination on its assumption that father would relocate to other town prior to beginning of school year since, rather than giving father choice of specifying facts upon which court should base its custody decision, court imposed on father a deadline by which he was to accomplish what was merely an indefinite ambition to move; because court's error was not harmless, award of parental rights and responsibilities to father was vacated and remanded for further proceedings. <cross_reference>15 V.S.A. § 665</cross_reference>(b).</block_quote><page_number>Page 29</page_number> <bold>3. Divorce — Custody — Factors Considered</bold> <block_quote> Although family court considered mother's behavior during post-separation period in making its custody determination, it also found that father's role as active primary care giver before separation tipped scale in his favor, and therefore court did not erroneously emphasize parties' post-separation conduct. <cross_reference>15 V.S.A. § 665</cross_reference>(b).</block_quote> <bold>4. Divorce — Custody — Factors Considered</bold> <block_quote> In awarding sole parental rights and responsibilities to father, family court did not give undue weight to period during which mother was training for new job; although court's custody determination was based in part on mother's conduct during that period, court also considered individually each of the other requisite statutory factors. <cross_reference>15 V.S.A. § 665</cross_reference>(b).</block_quote> <bold>5. Divorce — Custody — Joint Custody</bold> <block_quote> Family court did not exercise its discretion erroneously in deciding not to award any shared parental rights and responsibilities between parties to divorce; although court found that parties had tremendous difficulty communicating about child's schedule, it also concluded generally that parties could not communicate, cooperate or make joint decisions well enough to share parental rights and responsibilities. <cross_reference>15 V.S.A. § 665</cross_reference>.</block_quote> <bold>6. Divorce — Division of Property — Review</bold> <block_quote> Where family court's award of sole parental rights and responsibilities to father was vacated and remanded, court's $15,000 marital property settlement to father was also required to be vacated and remanded, since this amount was inextricably related to custody award and could not be justified independent of that award. <cross_reference>15 V.S.A. § 751</cross_reference>(b).</block_quote> <bold>7. Divorce — Division of Property — Types of Property</bold> <bold>Interests</bold> <block_quote> Statutory homestead exemption, purpose of which was to protect home ownership from loss to creditors, did not apply in context of divorce, and therefore family court did not err by imposing $15, 000 lien on mother's real estate in course of its division of marital property <cross_reference>15 V.S.A. §§ 751</cross_reference> (a), <cross_reference>754</cross_reference>; <cross_reference>27 V.S.A. § 101</cross_reference>.</block_quote>

<bold>1. Indictment and Information — Amendment — Particular</bold> <bold>Cases</bold> <block_quote> Trial court did not err by allowing State to amend its single-count domestic assault information during trial; although amendment and resulting twelve alternative verdict forms were needlessly complicated, State charged only one crime, and court eliminated any danger of unfair prejudice by giving carefully tailored instructions to jury along with special verdict forms, making it clear to jury that it could only return one guilty verdict if jurors unanimously agreed with any of the verdicts. V.R.Cr.P. 7 (d).</block_quote> <bold>2. Criminal Law — Judgment and Sentence — Presentence</bold> <bold>Investigation Report</bold> <block_quote> Court at sentencing for domestic assault did not err by denying defendant's motion to redact statements he made to probation officer during presentence investigation interview, where defendant presented no legal authority or factual record as to whether Miranda warnings applied in context of interview, nothing in record indicated that defendant's statements were involuntary, and defendant failed to claim his privilege against self.incrimination. U.S. Const. amend. <cross_reference>V</cross_reference>.</block_quote><page_number>Page 51</page_number> <bold>3. Criminal Law — Self-Incrimination — Immunity</bold> <block_quote> Trial court did not err by refusing to grant use immunity to domestic assault defendant before his allocution at sentencing, where defendant failed to demonstrate any plausible theory of how outcome would have been different had he been able to testify with immunity.</block_quote>

<bold>1. Corporations — Shareholders — Dissent By Minority Shareholders</bold> <block_quote> Basic concept of "fair value" under dissenters' rights statute is that stockholder is entitled to be paid for his or her proportionate interest in a going concern; focus of valuation is not on stock as a commodity, but rather stock as it represents proportionate part of enterprise as a whole. 11 V.S.A. § 13.01(3).</block_quote> <bold>2. Corporations — Shareholders — Dissent By Minority</bold> <bold>Shareholders</bold> <block_quote> Determination of fair value for corporation's shares in a dissenters' rights case is necessarily a fact-specific process, and trial court's findings of fact will not be set aside unless clearly erroneous. 11 V.S.A. § 13.01 (3); V.R.C.P 52 (a).</block_quote> <bold>3. Corporations — Shareholders — Dissent By Minority</bold> <bold>Shareholders</bold> <block_quote> Trial court in dissenters' rights action did not err in relying exclusively on testimony of dissenters' expert in valuing corporation's shares and rejecting testimony of corporation's expert, where use of discounted-cash-flow valuation method was within court's discretion, growth and discount rates employed were reasonable, and elimination of extraordinary nonrecurring expenses was a generally-accepted adjustment for business valuation; court's finding that fair value of stock was $63.44 per share was thus supported by evidence and not clearly erroneous. 11A V.S.A. §§ 13.02, 13.30.</block_quote><page_number>Page 83</page_number> <bold>4. Corporations — Shareholders — Dissent By Minority</bold> <bold>Shareholders</bold> <block_quote> That court in dissenters' rights action correctly determined that no tax consequences of sale of corporate assets should be considered in valuing corporation's shares, where no such sale was contemplated as of date of valuation. <cross_reference>11A V.S.A. § 13.02</cross_reference>, <cross_reference>13.30</cross_reference>.</block_quote> <bold>5. Corporations — Shareholders — Dissent By Minority</bold> <bold>Shareholders</bold> <block_quote> Valuation of corporate stock under shareholders' restriction agreement did not apply to fair value determination pursuant to dissenters' rights statute, because agreement did not contemplate establishing share values for a corporate merger; moreover, "agreed values" in agreement for 1992 and 1993 were not required to be considered because they were no longer in effect, and because they were based on fair market value of a minority interest rather than fair value of shares in January 1995. <cross_reference>11A V.S.A. §§ 13.02</cross_reference>, <cross_reference>13.30</cross_reference>.</block_quote> <bold>6. Corporations — Shareholders — Dissent By Minority</bold> <bold>Shareholders</bold> <block_quote> Trial court in dissenters' rights action did not err in applying a thirty percent "control premium" to corporation's shares, to account for value of control in owning resort complex as a whole, where premium was used to adjust a valuation that reflected publicly traded minority interests, and evidence supported court's finding that thirty percent was a reasonable figure. <cross_reference>11A V.S.A. §§ 13.02</cross_reference>, <cross_reference>13.30</cross_reference>.</block_quote>

<bold>1. Judges — Disqualification — Particular Cases</bold> <block_quote> Disqualification of trial judge was not required in dispute concerning access to adoption records, where adult adoptee offered no evidence that judge's status as an adoptive parent made her partial, and adoptee made no showing of improper motivation behind judge's disputed rulings. Code of Jud. Cond., A.O. 10, Canon 3E(1).</block_quote> <bold>2. Statutes — Maxims and Rules of Construction — Generally</bold> <block_quote> In construing statutes, court's task is to look first at statutory language itself to determine whether its meaning is plain; if language is unclear and ambiguous, legislative history may be used to determine intent of legislature.</block_quote><page_number>Page 253</page_number> <italic>3. Statutes — Maxims and Rules of Construction — Giving</italic> <italic>Effect to Every Part</italic> <block_quote> Court will avoid a statutory construction that would render part of statutory language superfluous.</block_quote> <bold>4. Adoption — Statutes — Construction</bold> <block_quote> Balance of statutory factors in § 6-112(b) of Vermont Adoption Act authorized superior and probate courts to order disclosure of records sought by adult adoptee, even if such relief was not authorized by § 6-104(b), and therefore trial court's grant of summary judgment to private adoption agency, without considering those factors, was error, and the case was remanded for evidence and findings. <cross_reference>15A V.S.A. §§ 6-104</cross_reference>(b), <cross_reference>6-112</cross_reference>(b).</block_quote> <bold>5. Adoption — Statutes — Construction</bold> <block_quote> Plain meaning of term "detailed summary" in statute governing release of adoption information did not include photocopies of original records. <cross_reference>15A V.S.A. § 6-104</cross_reference>(b).</block_quote> <bold>6. Adoption — Statutes — Construction</bold> <block_quote> Although statute governing release of adoption information does not authorize access to records in their original form, it also does not authorize custodian to censor nonidentifying information provided. <cross_reference>15A V.S.A. § 6-104</cross_reference>.</block_quote> <bold>7. Adoption — Statutes — Construction</bold> <block_quote> Where records of adoption proceedings are sought pursuant to Vermont Adoption Act, adoption agency cannot use statutory requirement to provide only "summaries" to omit information the disclosure of which might be detrimental to the agency. <cross_reference>15A V.S.A. § 6-104</cross_reference>.</block_quote> <bold>8. Adoption — Statutes — Construction</bold> <block_quote> Private adoption agency had no legitimate interest in withholding information about its activities in preparing detailed summary of nonidentifying information in accordance with Vermont Adoption Act, and summary provided by agency to adult adoptee was insufficient to comply with statutory requirement. <cross_reference>15A V.S.A. § 6-104</cross_reference>.</block_quote>