*1 a concern importantly, of reasons. Most There are a number type during individual to an proximity my client the close voir dire in a in an individual that occurs questioning of sensitive a more of detrimental is to have going sexual assault case being effect, the individual regarding both potentially prejudicial panel. venire larger and the questioned attorney expressed the “belief court also found that the same they when are persons not be close to venire a defendant should questions.” asked sensitive being that courts should suggest sum, jurisprudence reality both course attorneys during strategic decisions question
not As the in the courtroom. present a trial where defendant State, A.2d at it in Williams Appeals put Maryland Court 1309: and the many criminal trials
Today, complexity with the incarceration, our danger if absolute of counsel there coun- that it is assumption primarily system proceeds upon most of the defendant. “rights” function to assert or waive sel’s out, be bound normally he must speaks Unless Otherwise, decisions, of counsel. actions and inactions the trial Williams, 425 U.S. would not work. Estelle v. system simply why this should proposition has not Petitioner demonstrated present case. apply in the conduct conclude the trial court committed error
We process. voir dire Reversed. Eugene
Linda Lee Earl Hunt Hunt v. [648 843] A.2d No. 93-424 J., Gibson, Dooley, Johnson, Allen, Present: C Morse and JJ. August 5, 1994
Opinion Filed *2 Martin, Support, Office Child L. Waterbury, Appellee for Jeffrey Human Agency of Services. Swantko, Pond, Defendant-Appellant. for A. Island
Jean contempt Hunt was found Allen, Eugene Defendant C.J. He appeals comply with an order
for failure order, underlying support and the finding both the to free exercise violates imposition that their alleging States United by the First Amendment guaranteed religion, We I, Constitution. Article 3 of Vermont Chapter Constitution contempt. judgment but vacate the support, order of affirm the Community Church Kingdom belongs to the Northeast “everlasting an their faith in Pond. In with keeping Island God, members scriptures, in Christian described covenant” all ascetic, Members eschew communal existence. church lead community, benefit of the often and work personal possessions enterprises goods that offer of the various church-run business one recognized church. A income to the public provide all other church taxes and meets corporation, pays nonprofit divi- reporting files tax returns the state. Defendant obligations church, but has no access to the funds dend income from *3 themselves, treasury. in the church In which are retained apparently return, housing living for each member’s and provides the church divorce, in no-fault and The church does believe necessities. an children who live estranged spouse member to forbids a community. outside the past a of the church for the fourteen
Defendant been member a and his years. Except family for brief defendant lived the period, with community community church at Island Pond. Plaintiff left the children but defendant remained. Plaintiff their sometime (ANFC) Aid to with Children began receiving Needy Families benefits, to assigned rights and all child the Vermont into a Department of Social Welfare. Defendant refused enter agreement support payments in an voluntary periodic make satisfactory amount to the Commissioner of Social Welfare. Defen- maintained, maintain, dant and has continued to that he cannot just eyes his wife’s choice to leave him without cause the sanction church, his and therefore cannot children outside the Further, community. defendant contends that because he himself faith, cannot, nothing and consistent with his work outside the owns a money support obligation. cannot earn community he meet Nevertheless, expresses for children and his desire to he concern them, if possible only they for he reside in the care which asserts him. children with shoes from community provided with He has community cobbler he works. shop where early Department sought In Social Welfare child fixing monthly support payment appropriate amount and officer, arrearages. hearing A was Human held before the Services 18,1990, represented himself. the Human April which defendant On pay fifty per Services officer ordered defendant month for dollars children, for pay past of his and amounts due ANFC already benefits received.1 August 1990,
Plaintiff filed for divorce the Office Child (OCS) Support intervened on the issue of child appeared hearings, and testified at the but did not contest divorce. decree, final plaintiff given parental rights full 3, 1991, responsibilities July for the minor children. On the family court, which appellate jurisdiction assumed the former of the Human Board, Services “affirmed” the decision of the Human Services officer. The court ordered fifty-dollar-per-month obligation, liability past year amounts After nearly due. no filed a payments, petition August OCS to find defendant in contempt family 20, 1993, court’s April order. On at a conference the family concerning contempt before court petition, proper contended he never had a opportunity to appeal the Human Service finding officer’s that he had ability payments. make child support granted defendant a novo hearing de on the issue of his ability to support, part on hearing the OCS petition.
At the contempt hearing, the court took testimony plaintiff, defendant, and found, an official of the church. The court as the had, Human Services officer that defendant has a ninth-grade education and physical or mental infirmities that prevent would him from enough earning monthly to meet the support obligation. acknowledged The court defendant’s claim that the church does not sanction no-fault divorce and that working outside community faith, would constitute a breach of and found that his beliefs were *4 1 May 1990, appeal defendant filed a hearing notice the from officer’s decision Board, with the Human Services but no plaintiff further action was taken because interim, jurisdiction had filed for In the support divorce. the Board was divested of 454(1) (family jurisdiction § See 4 support cases. V.S.A. court has exclusive over proceedings pending 1,1990). for all filed or on eases October after given up had found that defendant held. The court further sincerely trial analysis, of its the purposes For the worldly possessions. all his proposition the that defendant’s “at full value” accepted face court independent an to earn church members permit faith does Nevertheless, concluded that defendant the court income. individual, arises incapacity whose claim able-bodied otherwise conscious, religious to certain choice to adhere controllable from a concluded, ability to Therefore, has the court the tenets. “[mjatters of It that “a of law.” also noted child as matter pay support belief, law, exemption furnish an as matter of do not ability pay].” that [to arrearages monthly support court on to find that the went the obligations, that defendant had
were valid enforceable was held comply to with the order. Defendant present ability order. On comply Septem- for willful failure to with the his contempt custody 9,1993, committed the the Commis- ber defendant was $640, approximately pending payment one- sioner Corrections obligation April as of 1993. Defendant of his total quarter appeal. this pending released claims, violations of alleging makes two interrelated and Vermont under United States religion to free exercise First, that invalid
constitutions. he contends finding court hearing family officer and the erred ability any amount pay he has the child whatsoever. Second, court should con- family defendant contends have and incarceration to enforce sidered alternatives support order.
I. validity begin We defendant’s claim regarding support order itself.
A. general of Vermont recognizes duty The State parent: . . finds and declares as part legislature on the of a “The . public have the policy parents responsibility provide § promote ...” 650. To policy, V.S.A. must both ... an amount for parents order “either or child,” 658(a), id. which is allocated between 656(a). incomes, id. respective their parents proportion *5 428
However, parent, in of the noncustodial the the case obligation, determined from the total as depart presumed § 654. guideline adopted the under under If noncustodial available income is less than the parent’s or is figure support guideline in the . . . less than lowest income reserve, the court shall use its discretion self-support in section title support using determine the factors shall a nominal amount. require payment 656(b) added). This has in construing § Id. Court noted (emphasis Legislature “it . . provisions these is clear . intended in require least a nominal child award all cases.” Viskup 208, 210, 400, 150 Vt. 552 A.2d Viskup, In determining support obligation, hearing officer monthly gross calculated a income of accordance $480 653(5): guidelines § of 15 relevant V.S.A. gross parent.
“Gross income” means actual income of a Gross income shall include:
(B) expense payments reimbursements or in-kind received aby parent in the or employment course or self-employment of a operation they personal business if living expenses; reduce (C) discretion, in its the court may gross as income consider the difference between the amount a parent earning and the a parent amount earned cases where parent voluntar- ily unemployed becomes or underemployed, parent unless physically mentally incapacitated. or (C) (1989).2 653(5)(B), § $480,
15V.S.A. Of the was attributed $180 653(5)(B) § payments, in-kind which must be included in gross hearing 653(5)(C) income. The officer exercised § discretion under remaining include the that defendant “could be receiving $300 either through wages, worker’s compensation disability payments.”
Defendant contends that imputing gross income was an $300 discretion, abuse of beliefs, choice, not personal bar him from accepting wages state benefits or employment outside the community. Had this included, however, amount not been the mandatory inclusion of in-kind still payments would have resulted in a monthly gross income, § for purposes Since the $180. hearing officer determined that monthly income amount $480 was 653(5) substantially amended, 1, 1990. Section was effective October entitled to under defendant self-support reserve than the less this minimum fall below 653(7), also would § an income $180 income gross has a level. either maintenance reserve, which self-support than the but less greater than zero the factors of discretion, considering court to exercise requires 15 V.S.A. obligation. See monthly support figuring § 656(b). exercising Therefore, officer erred hearing if the 653(5)(C), error is income described to exclude the discretion harmless. construed to *6 may § 659 be also asserts that
Defendant his children. When obligation support the legal him from exempt 659(a) § first obligation computed, was support child read, in part: relevant to be the obligation presumed shall support total
The If finds that child the court amount child needed. support inequi- would be support guidelines on the order based support considering after all table, support the court shall establish not limited to: factors, including but relevant (1) established under sec- support for child guidelines the title; tion 654 of this child;
(2) financial the the resources (3) parent; custodial financial of the the resources (4) had enjoyed standard of the child would have living the discontinued; the marital not been relationship (5) child; of the and emotional condition physical the (6) child; educational needs of the the (7) noncustodial financial resources and needs the the parent; and
(8) cost living. inflation with relation the (1989) added).3 659(a) § (emphasis V.S.A. 659(a) amended, 1,1990: was effective October Section support support obligation presumed shall be to be the amount of child total Upon request party, following the the factors in needed. of a court shall consider factors, If, respect finds parents. after of these the court to both consideration any parties, application guidelines is or to of the the court of the unfair the child adjust may support: the child amount of ' (1) child. The financial resources of the (2) parent. the The financial resources of custodial (3) enjoyed living have had marital the child would the standard of relationship not been discontinued. factors, argues including that the “all relevant language to,” permits ability provide but not limited consideration beliefs, light religious gives family of his the court discretionary powers any to relieve him of We support responsibility. agree plain language that the of the statute flexibility ensures in which parent sug- situations cannot meet the amount gested guideline, and that the nonexclusive list would out relevant factors not rule consideration of beliefs Nevertheless, fixing amount. plain language of statutory at scheme mandates least nominal notwith- payment, standing the court’s conclusions drawn from regarding evidence 656(b). ability regular support § to meet a obligation. See 15 V.S.A. award, Defendant does not contest amount but the fact that any payment all ordered. As a matter fairness, the family presumed court from depart support obligation in cases of but hardship, Legislature has clearly required payment some must be Cf. made. Ainsworth Ainsworth, 103, 109-12, 574 772, 775-78 (1990)(court 154Vt. A.2d has narrow discretion under 659 to depart guideline presump tion). agree We cannot has any if, discretion not support obligation parent gross Therefore, income as defined in 653. the order must stand unless it impermissibly infringes upon defendant’s con stitutional of religion.
B. The First Amendment to the United States Constitution mandates that “Congress shall make law respecting an of establishment Const, religion, or the free prohibiting exercise . .” thereof . . U.S. provision amend. I. This binds states through the Due Process of Clause the Fourteenth Connecticut, Amendment. Cantwell v. 310 (1940). 296, U.S. 303 The Free Exercise Clause all precludes “gov- (4) physical and emotional of condition the child. (5) The educational needs child. (6) parent. The financial resources needs of the noncustodial (7) Inflation. (8) meeting The costs of parent, educational needs of if either are costs purpose increasing earning capacity parent. incurred for the of of (9) Extraordinary expenses exercising periods travel in incurred parent-child visitation or contact. (10) Any other factors the court finds relevant.
431 Verner, Sherbert v. 374 U.S. regulation as such.” ernmental beliefs (1963). 398, however, under certain circum may, 402 Government stances, with those on an individual’s actions accordance impinge See, conduct. exercising power prescribe proscribe beliefs Div., Smith, 494 Dep’t Human Resources v. U.S. e.g., Employment (members 872, (1990) Religion of Native American who smoked 890 general criminal part ceremony exempt of ritual peyote (1982) substance); Lee, 252, 455 261 ban on the United States v. U.S. (Amish Security despite religious must taxes employer pay Social prohibition against participation governmental support programs); (1878) (no States, 145, 166-67 Reynolds exemption v. 98 United U.S. of Mormon faith from laws prohibiting polygamy). adherents Smith, no for determining Before clear standard existed whether governmental legitimate. interference with free exercise See Smith, 494 inconsistent use of strict (discussing U.S. 876-89 standard scrutiny promulgated Sherbert Verner and other eases); Note, approaches to free exercise cf. the Religious Smith and Assessment, Freedom Restoration Act: An Iconoclastic L. Rev. Va. (1992) (agreeing consistently employed, no standard but conclusions). differing with Supreme some Smith’s Court Smith, a uniform attempted forge holding standard “that a law that is neutral of general applicability justified need not compelling governmental if interest even the law has the incidental burdening effect particular religious practice.” Church — Hialeah, —,
Lukumi
Inc. v.
Babalu Aye,
City
—,
U.S.
113 S. Ct.
response
Smith’s “virtual elimination” of the
mandate
government
justify burdening religious practice through neutral
laws, the
Congress
United States
passed
Freedom
103-141,
(codified
Restoration Act of
P.L.
107 Stat. 1488
at 5
504;
§§
2000bb,
-4),
U.S.C.
U.S.C.
2000bb-l to
explicitly
overruling Smith. The Act’s stated
purpose
“to restore the
compelling interest test as
forth in
Verner,
set
Sherbert v.
374 U.S.
(1963)
Yoder,
(1972)
and Wisconsin v.
In the Act under religion justified of be the exercise free tially interferes scrutiny analysis.4 strict traditional 1993, in November after passed that the Act The fact issue, prevent does not orders entry of 6, states “Applicability,” entitled in this case.5 Section application its law, implemen and the and State Act to all Federal “applies that the otherwise, and or whether law, statutory of that whether tation 2000bb-3(a) §Id. Act.” th[e] the enactment or adopted of before after added). congressional clear statutory language evinces (emphasis Thus, conclude that we apply retroactively. law intent our of defend analysis Act controls Restoration Religious Freedom See Kaiser claim under the federal constitution. ant’s free exercise (1990) (act 494 U.S. 837 Bonjorno, v. Corp. Aluminum & Chem. clear). retroactively congressional if intent applied must be order, we must first make validity of the child support To assess the substantially it burdens of whether the threshold determination so, If to scrutinize the proceed beliefs. sincerely held to further that and the means used nature of the State’s interest religious practice. on his must show burden interest. Defendant v. 374 223 The State Abington Schempp, Sch. Dist. U.S. the least restrictive means its actions are proving has the burden 2000bb-1(b), §§ 2000bb- advancing compelling interest. U.S.C. 2(3). in which the court considered de contempt hearing,
At the
produced
uncontested
question
ability
pay,
novo the
nature of his
beliefs and life
the commu
evidence
be
emphasize
acceptable,
that matters
faith “need not
nity. We
consistent,
First
to others in order merit
logical,
comprehensible
Empl.
Ind.
Sec.
protection.”
Amendment
Thomas Review Bd. of
overruling
scrutiny
Smith reestablishing the
as the touchstone
strict
standard
rights, Congress
permissible governmental
interference with free exercise
Thus, though
Exercise
States
construed
Free
Clause
United
Constitution.
guides
meaning
analysis,
federal law
our
because the Act defines the
the federal
statutory
our resolution of this case rests on a constitutional as well as
constitution
express
constitutionality
opinion
basis.
on the
the Act.
We
briefs,
The effect of
Freedom Restoration Act was
addressed in the
parties
they
because it became law after
were submitted to this
were
Court.
given
opportunity
positions
light
requirements.
their
review
its
contends,
Act;
contrary
agrees
applicability of
with the retroactive
State
conclusion,
applied only prospectively.
the Act
our
*9
Div.,
accept
It
that the court must
follows
450 U.S.
individual’s
action on an
impact
government
value
asserted
of
face
Lee,
sincerely
are
held.
religion, provided
the beliefs
free exercise
case,
that defendant
In this
the trial court found
We to consider the nature of the State’s interest and the a Unquestionably, means used advance interest. the State has children, significant interest promoting health welfare ensuring parents which includes who separated have bear for 650. responsibility support. support obliga- See V.S.A. tion provide seeks to the children with stability by maintaining their accustomed standard of and to living, public lessen the drain on by public programs. resources caused assistance As a of social matter policy, support also obligation responsibility fosters for parents their children. parental We conclude that support children is state compelling interest.
The child if support order is valid the order to pay support is the least restrictive means to further the state interest. 42 U.S.C. 2000bb-l(b)(2). undisputed evidence is the State re- quested that voluntarily defendant portion assume his of the total responsibility, and that defendant refused for the same religious reasons he contends render him any unable meet payment obligations. Leaving aside question arrearages, of his son6 custody prevents lack of of his in accordance with tenets him in future
providing require state to for the has no established means other faith. Vermont practical other Lacking any obligations. their parents to meet the least obligation, a court impose means to further the state’s obligation such an means establish restrictive in child interest conclude, then, imposed, despite was legitimately that the order
We of religion by it defendant’s free exercise fact that burdens obligation him with enforceable saddling legally community. church The order marriage children outside state to further means for the the least restrictive represents obligation their having parents recognize interest in paramount Therefore, the for their children. order does provide material *10 First under the Amend- to free exercise right not offend defendant’s to the United States Constitution. ment
C. order, however, of scrutiny our because This does end rights under imposition also that its .violates claims In I, part, 3 Constitution. relevant Article of the Vermont Chapter Article 3 establishes: and right, worship
That all men
a natural
unalienable
have
God,
own
to the dictates of their
consciences
Almighty
according
opinion
regulated by
in their
shall be
understandings,
God;.
can,
ought
.
that no
be vested
authority
word of
. and
in
whatever,
shall
in,
any power
any
or assumed
case
by,
conscience,
with,
of
rights
or in
manner control the
any
interfere
free
of religious worship.
in the
exercise
Const.,
I,
First
ch.
art.
bear mind that
Amendment
Vt.
3. We
on the state
a construction Article 3 that
preclude
restrictions
to free
protection
would afford
individual less
of the
exercise
guaranteed
than that
under
religion
the federal constitution. See
(1982).
E.T.C.,
378,
course,
375,
937,
141
449 A.2d
Of
re
Vt.
939
greater protections to this
may
right.
state constitution
afford
See
430, 449, 450
336, 347
But
Badger,
light
v.
Vt.
A.2d
State
children,
only
youngest
is still
the three
a minor. The court
not order
6 Of
payments
age majority
after
or has
a child has attained
terminated
education,
658(c).
secondary
whichever is later. V.S.A.
under
Act,
protection
greater
Freedom Restoration
Religious
of the
action
to state
obstacles
greater
even
require
charter would
the state
scrutiny test.
the strict
those raised
than
to construe
opportunities
had
Court has
few
Though State
cases,
more recent
find one
guarantee,
Article 3
DeLaBruere,
(1990),
instructive
particularly
A.2d
154 Vt.
provision.
free exercise
of Vermont’s
analysis
comprehensive
for its
under the state
challenge
DeLaBruere concerned
a free exercise
law. The
compulsory education
constitutions to the state’s
federal
constitutional
claim for
state
greater
their
supported
had
defendants
historical
approaches:
variety
interpretational
with a
protection
text,
interpretations
other states’
analysis, examination
constitutions,
materi
sociological
own
their
provisions
similar
at
262-63,
“that
least
als. Id. at
construe Article 3 Varnum, 376, Varnum v. 155 scrutiny. Vt. by afforded strict See (1990) (post-DeLaBruere 1107, 1110-13 case with no 381-87, 586 A.2d Amendment, of Article 3 and distinct from First analysis, separate rights court free exercise family claim that violated mother’s 436 custody determi- into child practices religious beliefs
factoring nation). greater deference guarantees 3 evidence that Article As Albans, City v. St. Beauregard points religious liberty, defendant with free exercise interference” found “mere in which this Court religious provision a will that restricted to invalidate sufficient 632, 624, 141 450 board. Vt. public of a school of members affiliation (1982). Beaure- 1148, But in DeLaBruere we scrutinized 1152 A.2d pronouncement, that its broad despite and concluded gard within anti- “fell squarely real analysis lacked decision DeLaBruere, 265, 154Vt. construction of Article 3.” discrimination at 270. 577 A.2d on an challenge founded
Therefore, in the context of I, Chapter Article 3 support, hold pay order to to the same extent religious liberty protects Constitution Vermont Act governmental Restoration restricts Freedom under the United States Constitution. with free exercise interference valid the First result, pay support, under As a the court order Amendment, Constitu- scrutiny also withstands under Vermont tion.
II. order, the does not contempt contrast to the constitution, or state scrutiny stand under either the federal up has not shown to the least restrictive the order been be their parents supporting the state’s interest furthering means children. 603, disobeys who lawful order or person “[a]
Under 15V.S.A. for judge may against decree a court or . . . be proceeded valid, subject of a Upon determining . . . .” contempt so, do capable complying order is but refuses to enforceable its may impose exercise discretion to sanctions Andrews, 47, 49, 239, v. A.2d 241 See Andrews 134 Vt. 349 contempt. (1975). to a noncompliance inability, In cases due claimed financial find the court must before the defendant present ability Steele, 112, 114, found in 142Vt. A.2d contempt. Steele (1982). power subject Ordinarily, use to review Brown, 56, 58, only for an abuse of discretion. Brown v. 140 Vt. A.2d
In defendant contends he failed to comply inability of financial order because beliefs —that preclude personal ownership property employment him *12 the trial proceeding, contempt As of the community. part outside to meet the ability novo on defendant’s hearing conducted a de court hearing contempt of the both at the time obligation, Conceding order was entered. original support at the time the nothing beliefs, found that religious sincerity of defendant’s either earning enough, him from prevented than those beliefs other of the or at the time originally imposed was the time the order that Concluding obligation. to meet a contempt hearing, comply willfully failed defendant, of had capable compliance, and ordered order, contempt found him the court a valid court incarceration. and subsequent contends To assess the merit rights. violated
incarceration Amendment, the frame again employ First his claim under the Act: the state Restoration Freedom work demon liberty only after religious substantially burden defendant’s the least to defendant are regard its actions with strating that interest. U.S.C. advancing compelling state means restrictive 2000bb-1(b). that re from differs argument regarding enforcement obligation. Defendant’s original support garding imposition from how that which is distinct objection support obligation, to the enforced, proscription from the church’s obligation proceeds se obligation per is no that the no-fault divorce. There evidence of enforce of his faith. The state’s manner any offends other tenet ment, however, jail time choose between compelled an independent not earn religious violation of another belief: he would result community. option outside church Either income Therefore, the order and community. from the separation free substantially of incarceration burdened defendant’s possibility religion. exercise of same policies of child orders furthers the
Enforcement above, As noted by imposition original obligation. promoted securing support has a children compelling state interest and incar- longer sharing Contempt the same household. parents interest, but the Reli- furthering represent ceration means burden the State to puts upon Freedom Restoration Act gious of defendant’s they show that are the means least restrictive freedom. it offered no evidence that contempt hearing, the State Essentially, the State alternative. pursuing the least restrictive argument At oral income. imputed a case
sought a harsh sanction office that his acknowledged Court, for OCS counsel before obligors. delinquent in pursuing discretion considerable exercises possibility” with a “reasonable on cases up follows generally OCS *13 as- without obligors delinquent not generally, successful collection— contempt to establish has failed The State or employment. sets compel- state’s to further the means least restrictive jail and are the Contempt and support obligation. child enforcing the ling interest in on free not, se, infringements impermissible per are incarceration requisite makes the exercise, the State imposed provided and InAct. Restoration Religious Freedom by as mandated showing showing, this however, has failed to make this the State free burdens defendant’s contempt impermissibly therefore the constitution. by the federal rights guaranteed as exercise III. order, a though child support hold that summary, In religion of to free exercise rights on defendant’s substantial burden Constitutions, is least and Vermont States under the United interest. compelling governmental of furthering restrictive means order, however, because the State must be vacated contempt to are the means contempt and incarceration not demonstrated free exercise of defendant’s order least restrictive support enforce the States Constitution. rights under the United imposing monthly the Human Services The order officer of is arrearages obligation requiring payment affirmed. contempt finding court The order to the least hearing as and the matter is remanded vacated for obligation. restrictive means enforce defendant’s Morse, J., view this case does dissenting. my concurring a clash present between the necessarily I on a child’s would therefore reverse and a religion and not ground narrower remand. is no different had he child inability pay
Defendant’s compensation other any employer any paid for who for reason worked Dooley I money. agree “[i]n than with with the dissent Justice sense, and that the employer” the church is defendant’s economic cases like this burden should be on the State collect I benefit. believe money from custodian of the held for defendant’s garnish- the church under directly against the State could proceed 780(9), or in 15 V.S.A. “wages” ment, broad definition given is the contempt imprisonment The sanction process. trustee if of discretion is an abuse imposition and its remedy, drastic most Spallone See reasonably available. are remedies alternative effective (in (1990) civil selecting States, 493 U.S. v. United desired to achieve power sanctions, possible must use least premature religion end). exercise based on free challenge point. would leave the State which contempt, the order I would reverse wishes, alternative remedies. if it pursue, free that the order J., I do not believe Dooley, dissenting. First Amendment consistent with in this can stand case Two Act of 1993. Restoration Religious Freedom interpreted my critical to view.
factors are living is the communal controversy First, source of the the real Community Kingdom Northeast by the arrangement required church cobbler and salesman works as a Church. directly to the goes work effort All income from his shop. cobbler *14 church. Defendant turn, by are met the and, in all of his needs church living arrange- communal or assets. This no individual income has a church doctrine; cannot be church defendant by is commanded ment community participating church residing without the member in its economy. pay
Second, required can be the issue is whether defendant calculation though guideline amount of child the support nominal even obligor an guideline system, him. Under our exempt would otherwise reserve,” amount which is “an is spouse assigned “self-support with de- compatible a reasonable subsistence provide sufficient 653(7). self-support § of the cency point and health.” 15 V.S.A. obligor which the represents is that it an income floor beneath reserve Thus, when the in order to pay should not be taken reserve, support but a self-support income is above the obligor’s guidelines obligor would leave the with order calculated under the reserve, amount is self-support support pre- the the income below obligor’s income and the sumed to be the difference between the 656(c). id. This the obligor rule leaves the self-support reserve. See own the amount of the reserve to meet his her needs. When reserve, policy obligor’s self-support income starts out below the that court must essentially except “require payment the same 656(b). amount.” Id. of a nominal support is under- payment nominal of at least a requirement Although income leaving the lowest standable, effect perverse it has the an obligor with that retained income than with a smaller obligor it also creates In this guidelines. slightly above the income income, so is well no cash he has conflict. Defendant constitutional income imputed trial courts self-support reserve. below the skills history and current employment he outside the his children him to work and would allow that income tax individual noted that defendant’s They also church. that $2,300 represented which per year, income of reflected returns church to defendant. assigned by church income of total portion falls however, income imputation, income Even after reserve. self-support below the Freedom purpose
As
majority recognizes,
test as set
interest
compelling
Act was to restore
Restoration
(1963),
v.
Verner,
398, 403
and Wisconsin
v.
374 U.S.
forth
Sherbert
Yoder,
205, 214
noted that “a rational
Sherbert
U.S.
insufficient; instead,
to some colorable state interest”
relationship
interests,
abuses,
give
endangering paramount
“‘[o]nly
gravest
Sherbert,
at 406
limitation.’”
374 U.S.
permissible
occasion
(1945)).
Collins,
Yoder explained
323 U.S.
(quoting Thomas
and those not other
“only
highest
those interests
claims to the free exercise
legitimate
wise served can overbalance
Yoder,
I with the about the emphatically agree honor parents them. support obligations requiring Therefore, I find that child laws further a ordinarily would case, however, have a compelling governmental interest. virtually clash of no economic or social substance. The principles with a child policy requires every parent sole issue income, obligation, no matter how low his or at least a small her I obligation. amount of child to maintain that sense of I policy, but can not that it involves a state accept “paramount” very interest or an “of of First highest interest order.” The nature Amendment us to about balancing requires discerning the inter- *15 Yoder, ests involved and 406 at 221 employed. the methods See U.S. (when Amish to public beyond refused send children to school eighth grade, accept “sweeping Court could not claim” of compelling education; interest in compulsory “searchingly Court must examine” in in policy dispute). symbolism state interest The of a “nominal” child support order does not rise to the to necessary level state interest substantially burden a parent’s religion.
441 how here, instructive it is involved evaluating the state interest support in child the federal handled payment of nominal is the issue states, have like Vermont in which and the other scheme enforcement Act Family Support Pursuant to the guidelines. support child adopted and guidelines support child 1988, required adopt to states are in individual case each presumption a rebuttable adopt guidelines. See be based on the ordered will support of child amount (1993). is no (1988); 45 302.56 There § 667 42 C.F.R. U.S.C. at least a nominal law that courts order federal requirement low the income and case, no matter how every amount I do not have an exact parent. Although of the obligor resources Vermont, most count, that unlike reported suggest decisions obligors low child very pay do not income require states 1991) 1125, (Ala. Hannah, App. v. 2d 1126 Civ. Hannah 582 So. See (when to order ability improper it is parent pay, noncustodial Schneider, 329, v. 473 N.W.2d parent pay Schneider support); 1991) (absent faith, (Minn. can finding bad trial court App. 332 Ct. against not unable because parent order 256, Strand, 258 rel. v. 442 N.W.2d unemployment); State ex Wilcox (S.D. 1989) trial court to order child (upholding refusal of pay); limited against parent parent’s ability because Glenn 1993) (incarcerated Glenn, 819, (Wyo. parent P.2d without 848 822 order). subject or assets not to child The different income on is demonstrated obtaining support every attitudes orders case Wilcox, by attempt against which an the state to obtain an by a parent voluntarily she was but was capable working a hostile court: burden unemployed brought reaction “[t]he on judicial action is by appeal caseload enhanced sort of Wilcox, not appreciated.” N.W.2d 258.
Although the have raised this there parties point, is a serious question whether requirement Vermont’s for a order from every noncustodial parent consistent the federal requirement take into income of guidelines consideration the the absent parent operate as rebuttable See 42 U.S.C. presumptions. 667(b)(2). York, which litigated issue New statute child, of at requires award least month New per per $25 York Court of Appeals struck down the nominal amount requirement 378, inconsistent with federal Rose v. Moody, law. See 629 N.E.2d — (1993), denied, —, N.Y.S.2d cert\. U.S. 114 S. Ct. judicial court reasoned: “For a decree declare . . . parent] [the owes what cannot realistically she legally pay *16 Thus, it is a Id. unjust legal pretense.” only inappropriate, requirement the federal that the provision nominal-amount violated or amount when he she can show obligor guideline be able to rebut the “unjust or guidelines inappropriate” would be application that in a case. Id. particular policy Appeals
I ironic that a the New York Court of found think it by this to involve a legally not to be sustainable is found Court a claim of religious liberty. state interest that overrides compelling it is that can right wrong, the New York court is clear Whether that majority’s only by accepting virtually any reach the result state is claim trump religious liberty interest sufficient under the and Yoder Act Sherbert decisions. The Freedom Restoration than this plainly lip-service demands more tribute the free exercise religion. if I agreed Even that a child order in this case advanced interest, I compelling agree state cannot that it advances the “interest possible.” the least restrictive means Whatever income is earned from defendant’s labor is by retained the church. an economic sense, the church is defendant’s employer. By requiring wage with- holding most child support involving employed obligors, cases 781(a), V.S.A. employers the state has found that an obliga- have tion to help system create workable of child support enforcement. I why see reason could not legislate state the income flows the church from defendant’s labor is encumbered defend- Thus, ant’s obligation payment obligation would church, on placed which has the income and assets which collection is achievable. This obligation is no different from those placed on the church by taxation or Security Social laws with which it See, comply. must e.g., Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S.
Although the majority remanding to determine whether there is a less restrictive than alternative contempt, there is no indication of Thus, alternative present under law. it is highly likely, if not inevitable, that again we will imprison in an defendant attempt him pay make what he does not have. The dispute real here church, between the State and the and I do not believe that we are justified in holding a church member hostage to this dispute. If State is correct that its interests are so fundamental that they must be enforced in circumstances, these this Court should they insist that be enforced directly against the church that retains the income in issue. nominal I would hold reasons
For the above consistent against can not be enforced payment I religion. dissent. exercise free v. Ronald Combs Cooperative Fire Ass’n Insurance Weise, Dudley Coy and F. Christine Estate Co-Executors Coy Lee Felch *17 857] A.2d [648 No. 93-435 Johnson, Gibson, Allen, CJ., Dooley, Morse and JJ. Present: Opinion August Filed Foote,
Charity Conley A Downs & Middlebury, for Plaintiff- Appellant. (On & Gregory Rainville of Farrar Rainville and Michael Rose
A. Brief), Albans, F. Intervenors-Appellees Dudley Coy St. Weise, Coy. Christine Co-Executors the Estate Lee Felch