Weaver v. Weaver

191 A.3d 978
CourtSupreme Court of Vermont
DecidedJune 1, 2018
DocketNo. 17–402
StatusPublished
Cited by2 cases

This text of 191 A.3d 978 (Weaver v. Weaver) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weaver v. Weaver, 191 A.3d 978 (Vt. 2018).

Opinion

SKOGLUND, J.

¶ 1. Mother appeals an order of the family court holding her in contempt for willful failure to comply with a ruling that placed the parties' minor son in his father's physical custody and temporarily suspended mother's contact with the child. We affirm the contempt order, but remand the matter for the family court to consider whether father's attorney, who is also his wife, should be disqualified from further representing father in this case.

¶ 2. In May 2017, the court temporarily suspended all contact between mother and the parties' son N.W., who was then sixteen years old, after mother repeatedly violated prior parent-child contact orders issued by the court that gave father legal and physical rights and responsibilities for N.W.1 Despite the order, N.W. remained at mother's home. Father moved to hold mother in contempt. See *98015 V.S.A. § 603(a) ; Wells v. Wells, 150 Vt. 1, 6, 549 A.2d 1039, 1043 (1988) (noting "obstruction of court-ordered visitation can be redressed by means of contempt proceedings"). Following a hearing, the court found mother in contempt for willfully failing to comply with the May 2017 order. It ordered mother to pay $100 for each day that N.W. remained at mother's home after October 31, 2017. The court stated that the fine was intended to compensate father for lost contact with his son. It therefore permitted father to deduct any fines incurred from his maintenance payments to mother.2 Mother appealed.

¶ 3. We review an order of contempt solely for abuse of discretion. Hunt v. Hunt, 162 Vt. 423, 436, 648 A.2d 843, 853 (1994). We find none here. The family court found by clear and convincing evidence that mother had willfully violated the May 2017 order by failing to do anything to ensure that N.W. lived with father. Instead of complying with the order, she wrote to the parties' three older sons to ask them to intervene in the dispute, telling them that father was trying to make them homeless, lying about her in court, and bullying and abusing N.W. She also attempted to sign school forms for N.W. that she had no right to sign, threatened to ruin the reputations of father and his wife in the community, told father to "enjoy your piece of paper" when the May 2017 order was issued, and said that he would never come between her and her sons. Although mother wrote to father that she could not force N.W. to go to father's and that she was going to call the police to have them take N.W. to father's home, there was no evidence that she ever did so. The court found that she was "merely making a record and bluffing." The record supports these findings, and the findings in turn support the court's conclusion that mother willfully violated the parent-child contact order.3 See 15 V.S.A. § 603(f)(3) (providing that violation of court order is willful if person "had the ability to comply with the order and failed to do so").

¶ 4. Moreover, the court did not exceed its discretion by ordering mother to pay a compensatory fine to father. Such a sanction is expressly permitted by law. See V.R.F.P. 16(c)(3) (providing that person *981found in contempt may be ordered to pay fine to aggrieved party to compensate for loss or injury caused by contemnor). While "purely prospective fines are not favored in Vermont," we have upheld the imposition of prospective civil contempt fines when necessary to compensate complainants or as a coercive sanction. Vt. Women's Health Ctr. v. Operation Rescue, 159 Vt. 141, 151, 617 A.2d 411, 417 (1992). The record supports the family court's determination that prospective fines were warranted by the "extreme and extraordinary" circumstances of this case, namely, mother's continual and unrepentant disregard of the court's custody orders and by extension, her son's best interests, and the resulting harm to father's relationship with N.W. The sanction was not impermissibly punitive because mother could avoid the fines by complying with the May 2017 order and returning N.W. to his father. See DeGrace v. DeGrace, 147 Vt. 466, 471, 520 A.2d 987, 991 (1986) (affirming $10,000 fine imposed by court for father's contempt in interfering with visitation rights; fine was not punitive sanction because it was reducible to judgment only if father failed to comply with visitation rights in future). Nor was it improper for the court to order that any fines accrued by mother be offset from father's maintenance obligation; the court has discretion to impose the equitable remedy of setoff in such situations. See Schwartz v. Haas, 169 Vt. 612, 614-15, 739 A.2d 1188, 1191 (1999) (mem.) (holding that family court appropriately ordered $50,000 sum owed by wife for wrongfully diverting assets from marital estate to be offset from husband's maintenance obligation in order to avoid multiplicity of actions); cf. Weaver, 2017 VT 58, ¶ 42, 171 A.3d 374 (holding that family court may not offset maintenance overpayment against either past or future child support obligations).

¶ 5. While we affirm the contempt ruling, we remand the matter for the family court to consider whether father's wife should be disqualified from further representing him in this case because her continued involvement may run afoul of at least two ethical rules.4 Under Vermont Rule of Professional Conduct 3.7, a lawyer is generally prohibited from acting "as advocate at a trial in which the lawyer is likely to be a necessary witness." V.R.Pr.C. 3.7(a); Lumbra v. Lumbra, 136 Vt. 529, 533, 394 A.2d 1139

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Bluebook (online)
191 A.3d 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-weaver-vt-2018.