Mayo v. Mayo
786 A.2d 401
Vt.
2001
Check Treatment

*1 allowing possibility. The trial the counselor to determine when realistic ready grounded suspension of father’s son was for contact with father. Id. parent-child contact on his at 578 A.2d at 120. An akin to inconsistent Given that this would have been well visitation Briana. within contact, discretion, prohibited any of the court’s but court has bounds trial further simply relationship terminating it would be when father improvement positive an or faced with demonstrate such difficult circumstances change in this circumstance such that was not. resumption of visitation would be Because I do not believe that facts facilitating present merited. Rather a rela- case extreme situation child, tionship parent parent between and the where all contact between and severed, suspends court’s order it and should be I simul- child would reverse taneously by its own terms forecloses remand allow trial court possibility hope re- a less father’s craft draconian resolution. I am demption. say authorized that Chief Justice Allen (Ret.) joins In circumstances such as case in this dissent. presents, myriad there are resolutions available short terminating parent-child relationship. anxiety The court’s concern about the Jodi MAYO v. Michael MAYO resumption father’s of visitation with [786 401] provoked Briana in her could have been through counseling. addressed Counsel- No. 99-432 here, ing especially helpful would extremely where have an relationship might acrimonious way helping stand in the mother 2001. Defendant adjust Mayo appeals Briana her reintroduction of Michael the Lamoille Ordering supervision Family father into her life. Court’s qualified, third neutral order for sanctions re- party precisely what trial court sulted in the modification of his Mayo’s stipulated faced with when similar circumstances Jodi final (1) Fenoff, plain- divorce order. Defendant claims Fenoff (1990). Fenoff, In stipulated father and had son tiffs motion to amend the final untimely not visited with beyond one another for three divorce years, part because son had refused time limit for modification 60(b) participate in visitation. Id. at orders under V.R.C.P. when 120. professed grounds A.2d at Son had hatred based modification are (3) (2) deep rule; plain- of his father and harbored a subsection of that animosity real, him; allege toward the trial court also tiff failed substantial and pain experiencing deep unanticipated that was in circumstances parents’ 451-52, sought over his Id. at divorce. when she of the modification Furthermore, agreement 120. con- attempted father visit son tained within the home, (3) order; jurisdiction mother’s she had refused to let the court lacked him Id. in. The court constructed an final divorce order (4) gradual contempt proceeding; order that allowed reestab- in a court’s parenkehild relationship lishment sanction — safe, therapeutic setting ordering in a portion father, counseling error; for both son and order was reversible January contempt is opinion violation the court’s * monthly by adequate findings of supported “order” fact, child on time. upon are maintenance and and the relied alleged at that defend Plaintiff We erroneous. ant was in arrears $850 was erron- eous, imposed payments. In in child $31.64 plaintiff sought punitive motion impermissible modification resulted *2 order, $5,000 damages payable and at the time final divorce sooner, home, if accordingly the sale the not reverse. fees, attorney's the late July plaintiff defend- and interest on and On payment and final divorce order maintenance ant filed family accepted and which the court amounts. day. hearing A was held on this motion on entered that same The parties April and 22 the its provides part in list the on June court filed sale, contempt. in At home and its sale defendant marital for proceeds to distribute of the sale 55% plaintiff and to defendant. Defend- 45% * possession ant was of the home awarded valid The rule for the creation of a provides that until it sold. The order court order is contained in V.R.C.P. pay plaintiff mainte- requires entry judg- that for an years, commencing on for five valid, presiding judge to be the ment $1,000 August 1998 in the amount of it, approve sign and it must must year, decreasing per month one then by then be entered the clerk. Further- per years, month for the next two $750 more, any judgment bewill effective per two and to month the final $500 properly. when it is entered V.R.C.P. See years. 79(a) (delineating see also V.R.C.P. January the On procedure entry clerk modify heard defendant’s motion to the orders); Goshen, 169 Baker v. Town of order, plaintiff’s as well as 145, 149-50, 730 A.2d request objection to motion and the requirement (recognizing of a hearing, to enforce the the final At signed judgment). The “order” judge parties recognized the that both (the violated oral claims defendant were fault for the confusion by January judge in statement the the them in conflict had arisen between hearing) writing, reduced to was never divorce, and that contentious signed, approved, by or entered antagonizing to the had been each other — nor, by judge’s own judging judge detriment of their children. The statements, he ever intend there noted that the defendant had been in- resulting hearing. be an order from that tentionally paying spousal main- late in Therefore, not the statements made did that, rectify plaintiff, tenance order, de- constitute valid court ' situation, thing “the first [defendant] fendant’s failure to abide those ought ought he do is place at risk of statements did not him month, alimony every each and found in of court. together support.” with the child At order, however, original discussion, judge of this ad- end could, court, properly entered dressed counsel and stated defendant’s therefore, properly as a basis for serve you don’t need an “I think order.” charge contempt. It set forth February plaintiff signed and On alimony, monthly payment schedule for filed a in then motion hold defendant which all defendant had failed contempt, claiming was in timely in a meet manner. hearing, sanctioning contempt. the court stated to the defendant for his granted contempt process plaintiff’s request that “the not original reworking one for ordered vacate defendant to the home [divorce] convey order.” In its plaintiff. his interest on. charge, owing the court stated that defendant Defendant was to be released from kept up monthly payments plaintiff any pay- had not on his future maintenance August since the final divorce order had been ments from 1999 forward. $2,500 issued and that defendant had testified to Plaintiff was also awarded failure, question attorney’s so there was fees. no This order was followed whether he had violated an amended final order wherein the “equitable powers” order. The court identified issue court used its to set it as parties’ stipulated before whether defendant had aside the final order of appeal not have shown does divorce. This followed. required payments. begins challenge make the It Defendant his proceedings that he did not by assailing have sufficient income to below time- required payments make the liness of the motion to settlement, stipulation presented claiming when the plaintiff’s court, and noted that motion to amend the final order un- that, April hearing timely testified after because it was made more than year entry final divorce order was after the of the final entered, 60(b)(3) his did not income from divorce order. See V.R.C.P. (motion previous Therefore, level. for relief from concluded, fraud, good defendant did not act if based on must be made signed stipulation, faith when he judg- more than one after the failing entered). required make plaintiff’s ment or order was In August regarding acted willful “memorandum *3 60(b)(3) sanctions,” argued violation divorce she final that Rule hearing order. A provide prop- was scheduled for could a means which the August erty revised, 6 to appropriate determine “the be settlement could based “fraud, ensuring compliance of misrepresentation means with the mis- court’s order.” conduct.” Plaintiff offered that “[c]onsid- 5, August factors, ering On filed plaintiff a all of these regarding requests “memorandum sanctions hear- prop- that the court revise the ing” erty wherein he notified the court that he way settlement in such a that may then current on his child be absolved from all obligations, suggested maintenance payments plaintiff, future maintenance plaintiff may the creation of escrow an account to move back into the guard against arrearages. children, On homestead residence with the 11, August plaintiff possession submitted a “memo- and be awarded full regarding randum ownership sanctions” which of the residence.” This con- requested different sanctions than sought stituted the first time punitive damages originally modify and interest the final order or raised claim Rather, sought in her motion. while she of fraud. sought fees, attorney’s still procedure modifying she asked the a property arising court revise and mainte- from a divorce settlements, absolving proceeding [family] is well settled. “[T]he from all future maintenance cannot awarding possession disposition aspects and full of a divorce decree ownership circumstances, of the marital home. absent On such as fraud or 3, coercion, the court its issued that would warrant relief from 462 clearly reviewing a judgment generally.” Boisselle v. are erroneous. When a 240, 388,

Boisselle, 242, will A.2d trial court’s of “we 162 Vt. 648 (1994) Viskup, judgment (citing Viskup not disturb unless 389 v. 149 (1987)). 89, 554, entirely 90, court’s discretion was withheld 539 A.2d clearly grounds, exercised on providing relief or was rules from Vermont Women’s Health are contained in V.R.C.P. untenable.” divorce decrees 141, Rescue, 60, generally Operation Ctr. 159 Vt. provides for relief v. (citation 147, A.2d 411, 414 (1992) judgments. 617 from civil When relief omitted); fraud, quotations upon allegations see sought is internal based 52(a)(2) (when reviewing a trial misrepresentation, or other misconduct V.R.C.P. fact, alleged by findings we set party, will not as was adverse here, they sought are be them aside unless the relief must erroneous). year entry a We review trial within one findings light of fact in a most favorable or order at issue. V.R.C.P. 60(b)(3). by plaintiff party, disregarding sought prevailing The relief evidence, modifying presented the court more burden here entry appellant to that is no after the of the order show there revise, findings. sought final credible evidence to she such, Phelps, v. 647 divorce As her motion to Mullin 162 Vt. (1994). uphold will “[W]e revise the long untimely, depriving trial court as there is ability grant substantial them her motion. evidence argues although contradicted Defendant next erred are evidence,” rely upon the award. credible and we maintenance weighing of a factfinder’s evidence. Modification Ctr., real, showing a Vt. at requires award “a Vermont Women's Health substantial, unanticipated change A.2d 414. contempt proceedings § see also In civil where circumstances.” V.S.A 598, 599, Gil, questions regarding Gil v. defendant’s financial comply (noting showing ability are that such is a with a raised, “jurisdictional prerequisite”). The “the court must find burden from establishing change that the defendant such has evidence not place seeking party taken is on the refused but also was under Gil, present duty and had the modification. Vt. at being party’s payments.” at 625.A found in make the ordered Steele Steele, existing of an order does 142Vt. (1982) (internal punctuation necessarily give rise to the citations and conclusion real, “[Cjontempt by very been a nature there has also substantial, powerless unanticipated change inapplicable is one who comply with the court order. It circumstances. The court made no would who, against only person change that such in circum utilized contumaciously place. comply, plain has able to stances had taken Nor tiff, by, proof disobeys, or refuses to abide who bears the burden of on this Hunt, issue, Spabile v. has order.” 134Vt. offered such *4 omitted). (1976) (citation Therefore, 51, 360 52 occurred. it was incorrect for A.2d noneompliance to a to the maintenance “In cases due inability, agreement. the court must claimed financial ability challenges finding present to Defendant next find a before may claiming contempt.” contempt, be found in that the defendant Hunt, 423, 436, contempt finding 648 A.2d fact in of the Hunt v. 162 Vt.

463 (1994). Notwithstanding holding 853 We are mindful our finding to burden is on establish court erred in its in inability pay, contempt, that he has the also to rather we address defendant’s ordering than on to defend claim that the erred in show Russell present ability pay. conveying ant has a to sanction of defendant’s inter 392, 401, Armitage, v. 166 Vt. 697 A.2d est in the marital to (1997) (citing Spabile, 636 134 Vt. at and otherwise 52). at final divorce order. We have on numer recognized The court that at ous found no after occasions the coercive mechanism, entered civil contempt final divorce order was nature of the which, have the financial in contrast criminal obligations plaintiff. punishment meet his focuses not on but on com pelling Defendant compliance preexisting informed the court that his with a Ryea, post-stipulation inability court order. Sheehan v. was events, (2000) (mem.); unanticipated result of several 468 Russell, including expected growth see the lack 166 Vt. at 334-35, Spabile, propane his business to a mild attributed Vt. at winter, “[Cjivil inability against penalties his contempt borrow his A.2d at 52. equity in the marital home caused are assessed to coerce the defendant plaintiff’s permit refusal to do some such borrow act ordered the court for the ing, advantage opposite failure of home sell soon benefit or market, Hinesburg Dunkling, going party.” after Town on the and his incurring greater-than-antieipated child Vt. (1998) (internal omitted). expense quotations care after one of their sons The basis, began living scope with him on a full-time of civil sanctions part-time provided rather “compensatory as in the limited to fines or coer stipulated final divorce cive imprisonment order. Defendant as sanctions” such Sheehan, admitted that he had period. made error in an indeterminate (citation calculating his financial Vt. at 757 A.2d at 468 omitted). purposes abilities of the divorce Such fines or sanctions must settlement, attributing similarly i.e., “purgeable, this error to the must be undergoing capable stress he was as result of avoided defendants highly through emotional divorce. 'While we adherence to the court’s order.” (citation recognize Id. that defendant had role in the crafting divorce order court’s use of the process which contained the pur- schedule he case defeated these to, First, inability poses. unable to altering preexisting adhere pay has attempt not been shown to-be an the court made it disobey or otherwise comply avoid order. for defendant judgment, sugges Mistaken without the order of he which was found be in deceit, tion of contempt. cannot be the basis for a Defendant was not coerced — contempt. complying As the court found a into original with the present, past, inability act, pay, as well as compelled to his detriment favor, recognized that plaintiffs it defendant was in a manner con- to, powerless trary with, to adhere to the terms of the rather than in accordance original he was be in modification of Therefore, contempt. original terms of the also made Further, impossible. erroneous. See its enforcement Spabile, 334-35, 360 imposed purgeable, A.2d at 52. were not *5 property defend- tion of the distribution off-limits was no means which the there remedy contempt power. underlying the comply with the or- as a under ant could acknowledge was While I Court has der which the purposes previously served held that modification of None the to be based. a a property is not available as were served here. contempt, Viskup Viskup, reasons, for modifi- sanction the aforementioned For (1987), I property distribution award cation of the wrongly that case was decided. proper a sanction in this civil con- believe is not property generally should tempt proceeding. a decree While final, ongoing in eases be considered and order for noncomplianee a divorce it with sanations are reversed. far sense to the makes more Morse, J., dissenting. legal relationship to parties’ I ensure that dissent The opinion signals procedural party wronged made trouble is whole than imprison the is parties who not receiv- debtor until maintenance for divorced are repeat again process ing judgment. paid over their due under majority severely again opinion limits when husband’s recalcitrance addressing options request to be returns. — request, by equi court’s broad assured maintenance Under unreasonable, remedy way, powers bad the Court finds not table husband’s (and court) attain, yet deceiving makes but faith in his wife all given controversy. entering the amount in into the divorce settle Court, ment, may acknowledged by impri The facts it order relief short of given weight standard of coercive See but not sonment other measures. C.W., demands, In re review are defendant-hus- (1999) (“The power, paid plaintiff-wife partic band maintenance “in- ular, tentionally punish judicial to mainte- disobedience to late” and regarded as the is he could not make orders essential ensuring Judiciary determining has a means result of bad faith. In (internal authority.”) agreement to vindicate its own husband entered into faith, punctuation his ex- citation and That bad determined pay- power agreeing include cuses should redistribute financially parties’ incapable property ments he was within the control meeting unsatisfactory. remedy The court conse- for the term, quently prevent division short also to ordered but long term. modified and eliminated maintenance recurrence remedy keep bad faith and husband’s I would affirm. litigation over from paying recalcitrance in maintenance. agree do not I are erroneous. Husband E. v. Jill M. Allen PIGEON PIGEON promised in return equity the marital share in the [782 1236] house, knowing he would be able No. portion only a He as much. of it. admitted finding that acted in bad The court’s supported evidence. faith Contempt proper remedy. is the appeals 2001. Father Further, do not I Family the Franklin from order of approach, which makes modifica- Court’s modifying parental rights Court