vtcode

Chapter 1. Civil Marriage

History

2009, No. 3 , § 1 provides: “This act [which amended this chapter] may be referred to and cited as ‘An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage.’ ”

Legislative purpose. 2009, No. 2 , § 2 provides: “The purpose of this act is to recognize legal equality in the civil marriage laws and to protect the religious freedom of clergy and religious societies authorized to solemnize civil marriages.”

2009 statutory revision. 2009, No. 3 , § 12a provides: “The staff of the legislative council, in its statutory revision capacity, is authorized and directed to make such amendments to the Vermont Statutes Annotated as are necessary to effect the purpose of this act, including, where applicable, substituting the words ‘civil marriage’ for the word ‘marriage.’ Such changes shall be made when new legislation is proposed, or there is a republication of a volume of the Vermont Statutes Annotated.”

CROSS REFERENCES

Annulment and divorce, see § 511 et seq. of this title.

Antenuptial agreements, see § 181 of Title 12.

Burial rights of husband and wife, see § 5531 of Title 18.

Cause of action for breach of contract to marry abolished, see § 1001 of this title.

Gifts made in contemplation of marriage, see § 1002 of this title.

Husband-wife privilege, see Rule 504, Vermont Rules of Evidence.

Loss of consortium, see § 5431 of Title 12.

Marital status not sole or determinative factor of person’s domicile, see § 177 of Title 1.

Marriage records and licenses, see § 5131 et seq. of Title 18.

Programs and services for displaced homemakers generally, see § 1231 et seq. of Title 21.

Rights of married women, see § 61 et seq. of this title.

ANNOTATIONS

Constitutionality.

Stated governmental purposes underlying Vermont marriage statutes—furthering the link between procreation and child rearing, and promoting commitment between married couples to promote security of their children and community as a whole—provided no reasonable basis for denying legal benefits and protections of marriage to same-sex couples. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

Same-sex couples were entitled, under common benefits clause of Vermont Constitution, to obtain same benefits and protections afforded by Vermont law to married opposite-sex couples; court’s judgment was suspended, however, and current statutory scheme governing marriages was to remain in effect for a reasonable period of time, to enable legislature to consider and enact implementing legislation consistent with court’s constitutional mandate. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

Construction.

Same-sex couples were not entitled to a marriage license under statutory scheme governing marriages in Vermont, since it was not clear that limiting marriage to opposite-sex couples violated legislature’s “intent and spirit”; rather, evidence demonstrated a clear legislative assumption that marriage under statutory scheme consisted of a union between a man and a woman. Baker v. State, 170 Vt. 194, 744 A.2d 864, 1999 Vt. LEXIS 406 (1999).

§ 1. Repealed. 2009, No. 3, § 12.

History

Former § 1, relating to man forbidden to marry relatives, was derived from V.S. 1947, § 3150; P.L. § 3062; G.L. § 3510; P.S. § 3028; V.S. § 2628; R.L. § 2306; G.S. 69, § 1; R.S. 62, § 1; R. 1797, p. 329, § 1; and R. 1787, p. 94 and amended by 1975, No. 28 , § 1.

§ 1a. Person forbidden to marry a relative.

No person shall marry his or her parent, grandparent, child, grandchild, sibling, sibling’s child, or parent’s sibling.

HISTORY: Added 2009, No. 3 , § 3, eff. Sept. 1, 2009.

§ 2. Repealed. 2009, No. 3, § 12.

History

Former § 2, relating to woman forbidden to marry relatives, was derived from V.S. 1947, § 3151; P.L. § 3063; G.L. § 3511; P.S. § 3029; V.S. § 2629; R.L. § 2307; G.S. 69, § 2; R.S. 62, § 2; R. 1797, p. 329, § 1; and R. 1787, p. 94 and amended by 1975, No. 28 , § 2.

§ 3. Bar though civil marriage dissolved.

If the relationship in those cases mentioned in section 1 of this title is founded on a civil marriage, the prohibition shall continue in force notwithstanding the dissolution of such marriage by death or divorce, unless the divorce is for a cause that shows the marriage to have been originally unlawful or void.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3153. P.L. § 3065. G.L. § 3513. P.S. § 3031. V.S. § 2630. R.L. § 2308. G.S. 69, § 3. R.S. 62, § 3.

References in text.

Section 1, referred to in this section, was repealed by 2009, No. 3 , § 12.

§ 4. Civil marriage contracted while one in force.

Civil marriages contracted while either party is legally married or joined in civil union to a living person other than the party to that marriage shall be void.

HISTORY: Amended 1999, No. 91 (Adj. Sess.), § 24; 2009, No. 3 , §§ 4, 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3153. P.L. § 3065. G.L. § 3513. P.S. § 3031. V.S. § 2631. R.L. § 2309. G.S. 69, § 4. R.S. 62, § 4. R. 1797, p. 329, § 1.

Amendments

—2009. Substituted “is legally married or joined in civil union to a living person other than the party to that marriage” for “has a living spouse or a living party to a civil union”.

—1999 (Adj. Sess.). Substituted “has a living spouse or a living party to a civil union shall” for “has another wife or husband living shall”.

1999 (Adj. Sess.) amendment. 1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

ANNOTATIONS

Nature of voidness.

Petition to annul marriage cannot be sustained after death of one of parties to marriage, where cause alleged renders marriage null and void from the beginning, without any such proceeding. Pingree v. Goodrich, 41 Vt. 47, 1868 Vt. LEXIS 74 (1868).

Notes to Opinions

Nature of voidness.

Marriages forbidden by this section are void without any decree of the court. 1928-30 Vt. Op. Att'y Gen. 9.

§§ 5, 6. Repealed. 2009, No. 3, § 12.

History

Former § 5, relating to marriages entered into in another state, was derived from V.S. 1947, § 3154; P.L. § 3066; G.L. § 3514; and 1912, No. 110 , § 1.

Former § 6, relating to marriage void in state of residence, was derived from V.S. 1947, § 3155; P.L. § 3067; G.L. § 3515; and 1912, No. 110 , § 2.

Annotations From Former § 5

Intention as to domicile.

Prior law.

Questions for jury.

Annotations From Former § 5

Intention as to domicile.

If party either did not reside in this state, or, if he resided here, then had no intention of continuing to reside here, this section would have no application. State v. Spencer, 111 Vt. 308, 15 A.2d 582, 1940 Vt. LEXIS 160 (1940).

This section applies when one has his domicile here and at the time an intention to continue his domicile in this state. Wheelock v. Wheelock, 103 Vt. 417, 154 A. 665, 1931 Vt. LEXIS 185 (1931); State v. Spencer, 111 Vt. 308, 15 A.2d 582, 1940 Vt. LEXIS 160 (1940).

Prior law.

Prior to the enactment of this section the only prohibition of the remarriage of persons divorced was found in what is now the provisions of section 560 of this title. Wheelock v. Wheelock, 103 Vt. 417, 154 A. 665, 1931 Vt. LEXIS 185 (1931).

Questions for jury.

Respondent’s motion for a directed verdict in prosecution for adultery, made on ground there was no evidence from which jury could reasonably find she was married woman at time of alleged offense because of provisions of this section was properly denied when there was testimony, which, while conflicting, was not impossible for jury to consider. State v. Spencer, 111 Vt. 308, 15 A.2d 582, 1940 Vt. LEXIS 160 (1940).

§ 7. Affirmance of civil marriage by decree of court.

When the validity of a civil marriage is denied or doubted by either of the parties, the other party may file a libel for affirming the marriage. Upon proof of the validity thereof, it shall be declared valid by a decree of the court. Such decree shall be conclusive upon persons concerned.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3161. P.L. § 3073. G.L. § 3520. P.S. § 3036. V.S. § 2643. R.L. § 2320. G.S. 70, § 17. R.S. 63, § 17.

CROSS REFERENCES

Jurisdiction and power of superior courts to affirm marriage contract, see § 591 of this title.

§ 8. Marriage definition.

Marriage is the legally recognized union of two people. When used in this chapter or in any other statute, the word “marriage” shall mean a civil marriage. Terms relating to the marital relationship or familial relationships shall be construed consistently with this section for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law, or any other source of civil law.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 25; 2009, No. 3 , §§ 5, 12a, eff. Sept. 1, 2009.

History

Amendments

—2009. Substituted “two people” for “one man and one woman” in the first sentence and added the second and third sentences.

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

Chapter 3. Rights of Married Women

History

Subchapter 1. General Provisions

§ 61. Contracts; suits on contracts; partnership with husband.

A married woman may make contracts with any person other than her husband and bind herself and her separate property in the same manner as if she were unmarried. She may sue and be sued as to all such contracts made by her, either before or during coverture, without her husband being joined in the action as plaintiff or defendant, and execution may issue against her and be levied on her sole and separate goods, chattels and estate. Irrespective of the provisions herein, a married woman may enter into a contract of general or limited business partnership in which partnership her husband is also a partner, may contract with him for such purpose and may be a partner with him.

ANNOTATIONS

Ability to contract.
Actions between spouses.
- —Joinder of spouses.
Actions by or against husband.
Actions by or against wife.
Construction with other laws.
- —Capacity to contract.
Contracts with husband.
Estoppel.
Joint property.
Liability on contracts regarding separate property.
Liability on conveyance of property not held to sole and separate use.
Notes between spouses.
Partnership with husband.
Prior law.
- —Action between spouses.
Separate property.
Tenancy by entirety.

Ability to contract.

Common-law disability to make contracts with her husband found still effective, notwithstanding this section permitted her to contract with persons other than husband. Travelers Insurance Co. v. Gebo, 106 Vt. 155, 170 A. 917, 1934 Vt. LEXIS 153 (1934).

At common law, a married woman, having no separate estate nor property of any kind, could not bind herself, either at law or in equity, for the support of her infant child, although she had been abandoned by her husband and left to maintain herself and her child. Valentine v. Bell, 66 Vt. 280, 29 A. 251, 1894 Vt. LEXIS 99 (1894).

Actions between spouses.

A wife can sue her husband for personal injuries received by her during her marriage while riding as a guest in an automobile operated by her husband by reason of his alleged negligence. Richard v. Richard, 131 Vt. 98, 300 A.2d 637, 1973 Vt. LEXIS 274 (1973).

If a woman, who is payee and owner of a valid promissory note, marries maker, she retains all her rights in respect of the note, except right to sue her husband thereon in her own name. Spencer v. Stockwell, 76 Vt. 176, 56 A. 661, 1904 Vt. LEXIS 116 (1904).

If a woman, who is payee and owner of a valid promissory note, marries maker, and subsequently indorses the note to third person for collection only, such person may maintain action thereon in his own name against husband for benefit of wife. Spencer v. Stockwell, 76 Vt. 176, 56 A. 661, 1904 Vt. LEXIS 116 (1904).

—Joinder of spouses.

Husband and wife may join in an action for trespass to the real estate of the wife if the husband has any marital rights therein. Swerdferger v. Hopkins, 67 Vt. 136, 31 A. 153, 1894 Vt. LEXIS 28 (1894).

Husband is properly joined as a coplaintiff and may testify if so joined in suit for injury to realty of wife, which is not held to her sole and separate use; and real estate given by the husband to the wife is not so held. Minard v. Currier, 67 Vt. 489, 32 A. 472, 1893 Vt. LEXIS 5 (1893).

A husband may join as a coplaintiff in suit upon a promissory note payable to wife, in which he has interest by virtue of marital relation. Wright v. Burroughs, 62 Vt. 264, 20 A. 660, 1890 Vt. LEXIS 111 (1890).

A husband may sue alone, or jointly with his wife, in trespass for injuries done to her realty during coverture, where action will survive to either upon death of the other. Smith v. Fitzgerald, 59 Vt. 451, 9 A. 604, 1887 Vt. LEXIS 130 (1887).

Actions by or against husband.

Where wife is operating an automobile as bailee of her husband, husband’s right to bring action, as bailor, against third party for injury to the automobile, is not impaired by relationship of husband and wife. Cashman v. Soulia, 120 Vt. 171, 136 A.2d 355, 1957 Vt. LEXIS 81 (1957).

Actions by or against wife.

To a suit by or against a married woman, brought by virtue of this section, her husband is not a proper party by force of any marital rights. Russell v. Phelps, 73 Vt. 390, 50 A. 1101, 1901 Vt. LEXIS 199 (1901).

Husband should not be joined with his wife as coplaintiff in action by wife for slanderous words spoken of wife. Story v. Downey, 62 Vt. 243, 20 A. 321, 1890 Vt. LEXIS 107 (1890).

Husband should not be joined as codefendant in action against wife for slanderous words spoken by wife, unless they were spoken by wife, unless they were spoken by his authority and direction. Story v. Downey, 62 Vt. 243, 20 A. 321, 1890 Vt. LEXIS 107 (1890).

Whenever, under this section, a married woman can sue alone, she must so sue. Wright v. Burroughs, 61 Vt. 390, 18 A. 311, 1889 Vt. LEXIS 53 (1889).

Construction with other laws.

In determining the liability of a married woman on a note signed by her, the statute relating to the right of married women to contract and the negotiable instruments act must stand together, and each be given its true significance. Barton Savings Bank & Trust Co. v. Bickford, 97 Vt. 166, 122 A. 582, 1923 Vt. LEXIS 226 (1923).

—Capacity to contract.

This section has so enlarged the capacity of a married woman to contract that she may now make contracts generally, except with her husband, and except such as relate to her property not held to her sole and separate use, and her responsibility on her contracts affecting such property remains as at common law, unaffected by this section. French v. Slack, 89 Vt. 514, 96 A. 6, 1915 Vt. LEXIS 238 (1915).

Capacity of married woman to make a contract did not depend on her holding property to her sole and separate use, so that after her death contract obligations were proved and allowed against her estate in the same manner as if she were unmarried at the time of contracting the liability, without any showing that she had separate property and that the avails of the contracts went to the benefit of such property, or to her benefit on the credit of such property. Barron v. Dugan's Estate, 88 Vt. 414, 92 A. 927 (1915).

Contracts with husband.

Statutory disability of contract between husband and wife presented no impediment to action by trustee on separation agreement of husband and wife with him, since undertakings of husband and wife were not between themselves, but severally with trustee, and he could enforce contract at law for benefit of spouse whom he represented. Cleary v. LaFrance, 109 Vt. 422, 199 A. 242, 1938 Vt. LEXIS 150 (1938).

Although contract between married woman and her husband is void and unenforceable at law, it is, if fair and just, valid and enforceable in equity. Travelers Insurance Co. v. Gebo, 106 Vt. 155, 170 A. 917, 1934 Vt. LEXIS 153 (1934).

Married woman is nonetheless sui juris to the extent of her enlarged powers under the statute when contracting with persons other than her husband, though her husband, or her husband and other persons, be joint, or joint and several, contractors with her. Barton Savings Bank & Trust Co. v. Bickford, 97 Vt. 166, 122 A. 582, 1923 Vt. LEXIS 226 (1923).

This section does not recognize contracts between spouses and therefore a wife cannot sue her husband for money loaned to him. In re Hill, 190 F. Supp. 390 (D. Vt. 1911).

Husband who, without indorsement, transfers to his wife, as collateral security for a debt which he owes her, a note owned by him and payable to a third person, or bearer, does not become bound to her in any way thereby. Buck v. Troy Aqueduct Co., 76 Vt. 75, 56 A. 285, 1903 Vt. LEXIS 91 (1903).

Estoppel.

As an incident of the enlarged powers of a married woman under this section, she may be estopped by her acts, conduct, or contracts, as to all things in respect to which she is sui juris, the same as any other person. Locklin v. Davis, 71 Vt. 321, 45 A. 224, 1899 Vt. LEXIS 182 (1899); Barton Savings Bank & Trust Co. v. Bickford, 97 Vt. 166, 122 A. 582, 1923 Vt. LEXIS 226 (1923).

Married woman who contracts debt upon representation that she is carrying on a business in her own name about which indebtedness is being contracted, cannot afterwards sue in defense of such debt that her representations were in fact untrue. Smith & Co. v. Weeks, 65 Vt. 566, 27 A. 197, 1892 Vt. LEXIS 36 (1892).

Joint property.

Married woman is not alone seized of real estate, conveyed to her by deed not made separate use, as of her sole and separate property, nor is her husband alone seized of it, but the two are seized jointly in the wife’s right and as to such property the wife is under the common-law disability. Fadden v. Fadden, 92 Vt. 350, 103 A. 1020, 1918 Vt. LEXIS 180 (1918).

Real estate of married woman not held to her sole and separate use cannot be taken in execution against her. Fadden v. Fadden, 92 Vt. 350, 103 A. 1020, 1918 Vt. LEXIS 180 (1918).

Liability on contracts regarding separate property.

Wife was liable to indorsee as maker on note which she signed with her husband. Wilder v. Budd, 110 Vt. 240, 4 A.2d 348, 1939 Vt. LEXIS 134 (1939).

Married woman may contract with another than her husband, to exchange her separate property for other property, and if, after delivery to her so that title mutually passes, she refuses on demand to make delivery in return, she is liable in trover. Russell v. Phelps, 73 Vt. 390, 50 A. 1101, 1901 Vt. LEXIS 199 (1901).

By virtue of this section, married woman may sue and be sued, in appropriate action, as to any contract, with another than her husband, made by her in relation to her separate property and it is immaterial whether the appropriate action is in form ex contractu or ex delicto. Russell v. Phelps, 73 Vt. 390, 50 A. 1101, 1901 Vt. LEXIS 199 (1901).

A married woman is liable for debts contracted about a business which is in fact hers, although conducted in the name of another person as her agent. Reed v. Newcomb, 64 Vt. 49, 23 A. 589, 1891 Vt. LEXIS 59 (1891).

A married woman carrying on business in her own name may sue and be sued. Holmes v. Reynolds, 55 Vt. 39, 1883 Vt. LEXIS 9 (1883).

Liability on conveyance of property not held to sole and separate use.

Wife who acquired her interest in an estate by the entirety, subsequent to the effective date of section 64 of this title, may join in a covenant of seisin in a warranty deed thereof and is equally liable with her husband for its breach. Sargent v. Platt, 111 Vt. 185, 13 A.2d 195, 1940 Vt. LEXIS 143 (1940).

Where a husband and wife sold and conveyed her farm that was not her separate estate, her responsibility for false representations made to induce the purchase must be measured by the common law, and not by this section, giving married women power to bind themselves and their separate property as if they were unmarried. Rowley v. Shepardson, 83 Vt. 167, 74 A. 1002, 1910 Vt. LEXIS 174 (1910).

Notes between spouses.

A promissory note executed by a husband to his wife at common law is void, and cannot be enforced by an assignee, though a bona fide holder for value. Ellsworth v. Hopkins, 58 Vt. 705, 5 A. 405, 1886 Vt. LEXIS 110 (1886).

Partnership with husband.

Under this section husband and wife may jointly contract and be jointly sued as partners. Lane v. Bishop & Co., 65 Vt. 575, 27 A. 499, 1893 Vt. LEXIS 96 (1893).

Prior law.

Husband of married woman should be joined with her in action upon contract made by her while sole, if marriage occurred prior to January 1, 1885. Valentine v. Bell, 66 Vt. 280, 29 A. 251, 1894 Vt. LEXIS 99 (1894).

Married woman’s promissory note executed prior to Acts of 1884, No. 140 , was void, both in law and equity, when given neither for the benefit of her separate estate nor for her benefit on its credit. Rood v. Willey, 58 Vt. 474, 5 A. 409, 1886 Vt. LEXIS 112 (1886).

—Action between spouses.

At common law, neither spouse could sue other, nor could wife sue or be sued as feme sole. Comstock v. Comstock, 106 Vt. 50, 169 A. 903, 1934 Vt. LEXIS 141 (1934).

Separate property.

Wife’s real estate, or any interest therein, acquired by her before or during coverture, is not held to her sole and separate use unless it is so limited by some provision of the contract or instrument by which she acquires it. Ainger v. White's Administratrix, 85 Vt. 446, 82 A. 666, 1912 Vt. LEXIS 206 (1912).

Tenancy by entirety.

Estate by the entirety.

A wife holding an estate by the entireties, has a real, separate interest in the estate, by virtue of the provisions of this section. Pettengill v. United States, 205 F. Supp. 10, 1962 U.S. Dist. LEXIS 5750 (D. Vt. 1962).

Tenants by the entirety hold the estate with but one title and each has no power without the concurrence of the other to convey the estate to third persons. Pettengill v. United States, 205 F. Supp. 10, 1962 U.S. Dist. LEXIS 5750 (D. Vt. 1962).

By this section married woman has separate estate in property conveyed to herself and her husband as tenants by the entirety. Sargent v. Platt, 111 Vt. 185, 13 A.2d 195, 1940 Vt. LEXIS 143 (1940).

Husband’s interest in wife’s realty.

Husband does not have freehold interest in real estate of his wife not held by her to her sole and separate use, overruling City of Barre v. Town of Bethel (1929) 102 Vt. 22, 145 A. 410, and Roberge v. Town of Troy (1933) 105 Vt. 134, 163 A. 770. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

There is no privity of title between husband and wife as to any real estate held by her in her own name. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Joinder of husband.

Where mutual deeds are necessary to the carrying out of contract and deed of one party is defectively executed, equity will not permit that party to claim under deed of the other if he refuses to remedy defect in his own deed upon demand. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

When husband by virtue of marital relation has freehold interest in his wife’s real estate, in order to make her conveyance thereof good he must be joined with her as grantor in body of deed; it is not enough that he merely join in execution of her deed. Dietrich v. Hutchinson, 73 Vt. 134, 50 A. 810, 1901 Vt. LEXIS 143 (1901). But see Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

If deed of married woman has been defectively executed in that her husband did not join, equity will not decree execution of new conveyance to perfect title, nor if deed by a mortgage, treat it as valid and decree foreclosure. Chapman v. Long, 66 Vt. 656, 30 A. 3, 1894 Vt. LEXIS 146 (1894). But see Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Joinder of wife.

This section did not apply to invalidate a husband’s conveyance of property to his son where the wife had moved out of the house and no longer had a homestead interest in the property. In re Farrar, 219 B.R. 48, 1998 Bankr. LEXIS 403 (Bankr. D. Vt. 1998).

Where debtor conveyed his real estate to husband and wife upon condition that they pay his debts, and husband executed his promissory note to creditor for amount of debt and secured it by mortgage on portion of premises conveyed, wife not signing the mortgage, court of equity would not declare a lien on mortgaged premises as against wife. Town of Ripton v. McQuivey's Administrator, 61 Vt. 76, 17 A. 44, 1888 Vt. LEXIS 114 (1888).

Separate property.

If married woman purchases real estate which is conveyed to her without words of exclusion as to her husband and gives as security for part of purchase price mortgage of the same in which husband does not join, entire transaction cannot be treated as creating valid equitable mortgage. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

If married woman’s sole mortgage of real estate is taken as security for part of the purchase price of such real estate conveyed to her without words of exclusion as to husband, neither she nor her grantee with notice can be considered as trustee of grantor in respect to such property. Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Real estate conveyed to a wife by deed is not her separate property unless the deed contains explicit words excluding the husband from marital rights in such estate. Dietrich v. Hutchinson, 73 Vt. 134, 50 A. 810, 1901 Vt. LEXIS 143 (1901). But see Proulx v. Parrow, 115 Vt. 232, 56 A.2d 623, 1948 Vt. LEXIS 59 (1948).

Cited.

Cited in Curtis v. Simpson, 72 Vt. 232, 47 A. 829, 1900 Vt. LEXIS 120 (1900); R. & E. Builders, Inc. v. Chandler, 144 Vt. 302, 476 A.2d 540, 1984 Vt. LEXIS 455 (1984); Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

§ 65. Name on deed.

When a conveyance of real estate is made by a married woman and such real estate was acquired by her under a name other than her present married name, such conveyance shall set forth both her present married name and the name under which such real estate was acquired. Such conveyance shall be indexed by a town or county clerk receiving the same for record under both her present married name and the name under which such real estate was acquired. However, a deed which fails to describe the grantor, as aforesaid, shall not impair the grantee’s title conveyed by such deed.

History

Source.

V.S. 1947, § 3165. 1939, No. 54 , § 1.

§ 66. Rights in personalty.

All personal property and rights of action acquired by a woman before or during coverture, except by gift from her husband, shall be held to her sole and separate use. Neither a wife’s separate property nor the rents, issues, income and products of the same shall be subject to the disposal of her husband or liable for his debts. Nothing herein contained shall authorize a claim by either husband or wife against the other for personal services.

History

Source.

V.S. 1947, § 3166. P.L. § 3077. G.L. § 3524. P.S. § 3040. V.S. § 2647. 1888, No. 84 , § 1. 1884, No. 140 , § 2. R.L. §§ 2322, 2323, 2324, 2326. G.S. 71, §§ 6, 18, 20. 1867, No. 21 . 1861, No. 25 . 1850, No. 22 . 1847, No. 37 , § 1. R.S. 64, § 6.

ANNOTATIONS

Action by wife against husband.
Burden of proof.
Estate by the entirety.
Evidence.
Gifts from husband.
Property not subject to husband’s debts.
Rights of action.
Separate property.

Action by wife against husband.

Wife suing husband for personal injuries sustained in accident occurring before marriage while wife was a guest in husband’s auto acquired, at time of injury, a right of action under this section, but her subsequent marriage deprived her of a remedy to enforce that right; however, she could bring and maintain an action in equity to recover damages, and equity action sought a new remedy, not a new right. Juaire v. Juaire, 128 Vt. 149, 259 A.2d 786, 1969 Vt. LEXIS 217 (1969).

Burden of proof.

It will be presumed that married woman holds personal property as her separate estate; and it is for him who asserts that such property was acquired by her by gift from her husband to prove it. Stockwell v. Stockwell's Estate, 92 Vt. 489, 105 A. 30, 1918 Vt. LEXIS 204 (1918).

Estate by the entirety.

Property held by the entirety, including a bank account, is protected from the husband’s sole creditors by this section. The Beacon Milling Co., Inc. v. Larose, 138 Vt. 457, 418 A.2d 32, 1980 Vt. LEXIS 1259 (1980).

A wife’s estate and her husband’s interest in any tenancy by the entirety she may have, if validly created, are protected from the husband’s sole creditors. Rose v. Morrell, 128 Vt. 110, 259 A.2d 8, 1969 Vt. LEXIS 208 (1969).

Married woman’s estate by entirety in personal property is property held to her sole and separate use. Swanton Savings Bank & Trust Co. v. Tremblay, 113 Vt. 530, 37 A.2d 381, 1944 Vt. LEXIS 114 (1944).

Estates by entirety may exist in any personal property. George v. Dutton's Estate, 94 Vt. 76, 108 A. 515, 1920 Vt. LEXIS 170 (1920).

Estates by entirety are within provisions of this section, exempting wife’s separate personal property from liability for her husband’s debts. George v. Dutton's Estate, 94 Vt. 76, 108 A. 515, 1920 Vt. LEXIS 170 (1920).

Married woman holds as her separate, or, as is sometimes said, as her quasi-separate property, her interest in property of which she and her husband are tenants by entirety, and her estate so held is held to exclusion of common law marital rights of her husband therein. Citizens' Savings Bank & Trust Co. v. Jenkins, 91 Vt. 13, 99 A. 250, 1916 Vt. LEXIS 215 (1916).

Evidence.

On question whether husband or wife owned certain property, evidence that such property was insured in name of wife, with husband’s acquiescence, was admissible. Fletcher v. Wakefield, 75 Vt. 257, 54 A. 1012, 1903 Vt. LEXIS 125 (1903).

Gifts from husband.

Notwithstanding exception that all personal property acquired by a woman before or during coverture, except by gift from her husband, shall be held to her sole and separate use, husband may confer on his wife full title to personal property by sale, gift, or waiver of his marital rights, unless transaction is impeachable by creditors on ground of fraud. Walston v. Allen, 82 Vt. 549, 74 A. 225, 1909 Vt. LEXIS 325 (1909).

Married woman can hold personal property, acquired by gift from her husband, against attachment of creditors whose claims accrued after such gift. Fletcher v. Wakefield, 75 Vt. 257, 54 A. 1012, 1903 Vt. LEXIS 125 (1903).

Property not subject to husband’s debts.

The common-law necessaries doctrine, which holds that husbands are liable for necessaries such as food, clothing, shelter, and medical care that are provided to their wives, offends the principle of equal protection under the law. The proper remedy for such a violation is not to extend the doctrine to both wives and husbands, but is to abolish the doctrine altogether. Medical Center Hospital of Vermont v. Lorraine, 165 Vt. 12, 675 A.2d 1326, 1996 Vt. LEXIS 27 (1996).

A wife’s property is not subject to debts incurred by her husband, nor can a wife be held liable on a contract between her husband and a third party merely on the basis of the husband-wife relationship. R. & E. Builders, Inc. v. Chandler, 144 Vt. 302, 476 A.2d 540, 1984 Vt. LEXIS 455 (1984).

How far wife’s property, or its income, shall be subject to payment of husband’s debts, is matter of legislative control as a part of marriage relation. Niles v. Hall, 64 Vt. 453, 25 A. 479, 1892 Vt. LEXIS 69 (1892).

Fact that income of wife’s real estate is, at particular period, liable for certain debts of husband in virtue of legislative enactment, does not give creditor, whose debt accrued during that period, any prospective interest in future income of such sale. Niles v. Hall, 64 Vt. 453, 25 A. 479, 1892 Vt. LEXIS 69 (1892).

Husband has no interest in either the fee or usufruct of real estate deeded to himself and wife jointly, which can be taken in execution for his sole debts. Corinth v. Emery, 63 Vt. 505, 22 A. 618, 1891 Vt. LEXIS 142 (1891).

Rights of action.

Woman may maintain action for alienation of her husband’s affections, whereby she is deprived of conjugal society, aid and support of her husband; loss of consortium is gist of the action. Knapp v. Wing, 72 Vt. 334, 47 A. 1075 (1900). But see § 1001 of this title.

Separate property.

Under this section so long as a wife keeps her property separate from that of her husband, it is her separate property. In re Hill, 190 F. 390, 1911 U.S. Dist. LEXIS 163 (D. Vt. 1911).

Married woman living separate from her husband, owning property in her own right, and having kept it in her possession and control, may contract with third party for a life support, and thereby convey her entire estate. Willard v. Dow, 54 Vt. 188, 1881 Vt. LEXIS 90 (1881).

Personal property acquired by married woman during coverture, by inheritance or distribution, is set apart to her sole and separate use. White v. Waite, 47 Vt. 502, 1874 Vt. LEXIS 105 (1874).

Cited.

Cited in Hitchcock Clinic, Inc. v. Mackie, 160 Vt. 610, 625 A.2d 789, 648 A.2d 817, 1993 Vt. LEXIS 153 (1993) (mem.).

§ 67. Estates by entirety.

Real estate and tangible personal property and the products thereof, held and owned by husband and wife by the entirety, are made chargeable during the lifetime of the husband for the debts contracted by him for the necessary upkeep of such property, in the same manner and to the same extent as if owned and held by him in his sole name.

History

Source.

V.S. 1947, § 3167. P.L. § 3078. 1933, No. 157 , § 2863a. 1927, No. 48 .

ANNOTATIONS

Construction.

This section governs only what property is reachable to enforce a judgment; it does not impose liability on a wife for the husband’s debts. Agway, Inc. v. Marotti, 149 Vt. 191, 540 A.2d 1044, 1988 Vt. LEXIS 3 (1988).

Debts incurred by husband.

Only those debts incurred by a husband in the “necessary upkeep” of property he held by the entirety with his wife, or debts incurred for the benefit of his wife’s property, could be charged against the wife’s estate for debts incurred by the husband. In re Estate of Elliott, 149 Vt. 248, 542 A.2d 282, 1988 Vt. LEXIS 14 (1988).

Wife’s estate could not be held liable under this section for claim of hay furnished to her husband where evidence did not establish that the hay was used to feed cattle held by husband and wife as tenants by the entirety or that the haying served to benefit real estate held jointly by husband and wife. In re Estate of Elliott, 149 Vt. 248, 542 A.2d 282, 1988 Vt. LEXIS 14 (1988).

It has long been established that the husband’s interest in an estate by the entireties is not one which can be subjected to claims for his sole debts and hence tax liens asserted by the government arising out of husband’s partnership business were void. Pettengill v. United States, 205 F. Supp. 10, 1962 U.S. Dist. LEXIS 5750 (D. Vt. 1962).

§ 68. Income and monies from sale of real estate.

The rents, issues, and products of the real estate of a married woman, and monies and obligations arising from the sale of such real estate, and the interest of her husband in her right in real estate that belonged to her before marriage, or that she acquires by gift, grant, devise, or inheritance during coverture, shall be exempt during coverture from attachment or levy of execution for the sole debts of her husband. However, such annual products may be attached or levied upon for a debt or liability of her husband for the necessaries for the wife and family of such husband, and for debts for labor or materials furnished upon or for the cultivation or improvement of such real estate.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3168. P.L. § 3079. 1933, No. 157 , § 2864. G.L. § 3525. P.S. § 3041. 1902, No. 45 , § 1.

ANNOTATIONS

Cited.

Cited in Pettengill v. United States, 205 F. Supp. 10, 1962 U.S. Dist. LEXIS 5750 (D. Vt. 1962).

§ 69. Liability for debts or torts of spouse.

A married person shall not be liable for a debt contracted by his or her spouse before marriage, nor for the torts of his or her spouse unless committed by the person’s authority or direction.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3169. P.L. § 3080. 1933, No. 157 , § 2865. G.L. § 3526. P.S. § 3042. V.S. § 2648. 1884, No. 140 , § 3.

ANNOTATIONS

Authority or direction.
Estate by the entirety.
Tort founded on contract.

Authority or direction.

To make husband liable for tort of his wife, authority or direction must be alleged and proved, and his mere knowledge that she had employed another to commit trespass did not make him liable. Fadden v. McKinney, 87 Vt. 316, 89 A. 351, 1914 Vt. LEXIS 240 (1914).

Estate by the entirety.

Wrongful conversion by husband and wife of personal property which they own by the entireties, is tort of both, and their liability is unaffected by marriage relation. Swanton Savings Bank & Trust Co. v. Tremblay, 113 Vt. 530, 37 A.2d 381, 1944 Vt. LEXIS 114 (1944).

Tort founded on contract.

Under this section husband remains liable for common-law torts of his wife, committed by his authority or direction; but she, and not he, is liable for her torts founded on contract, though committed by his authority or direction, since at common law she was incapable of making valid contract, and therefore of committing tort founded on contract. Russell v. Phelps, 73 Vt. 390, 50 A. 1101, 1901 Vt. LEXIS 199 (1901).

Subchapter 2. Wife Deserted or Living Apart from Husband

§ 101. Repealed. 1973, No. 201 (Adj. Sess.), § 12.

History

Former § 101, relating to contracts for labor of minor children, was derived from V.S. 1947, § 3170; P.L. § 3081; G.L. § 3527; P.S. § 3043; V.S. § 2649; 1888, No. 84 ; 1884, No. 140 , § 2; R.L. § 2327; 1870, No. 25 , § 1; 1866, No. 29 ; G.S. 71, § 3; R.S. 64, § 3.

§ 102. Complaint by wife to sell real estate.

When a married man is incapacitated for supporting his family, or deserts, neglects, or abandons his wife, or by ill-usage or criminal conduct gives her cause to live apart from him, or is committed to the Commissioner of Corrections, if the wife is of age, a presiding judge of the Superior Court, upon her complaint for that purpose, may authorize such wife to sell and convey her real estate, or personal property that came to the husband by reason of the civil marriage and that remains in the State undisposed of by him. Such judge may authorize a person holding money or other personal estate, to which the husband is entitled in her right, to pay or deliver the same to the wife. A married woman who is of age and lives apart from her husband and has lived apart from her husband more than one year from any cause other than her adultery, and who has real estate in her own right, may petition a presiding judge of the Superior Court for leave to sell and convey such real estate.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3171. P.L. § 3082. G.L. § 3528. 1915, No. 102 . 1912, No. 108 . P.S. § 3044. V.S. § 2650. R.L. §§ 2328-2332, 2334. 1870, No. 25 . 1869, No. 13 . 1866, No. 28 . G.S. 71, §§ 1, 2, 4, 5, 13, 14, 15. 1858, No. 17 , §§ 1, 2, 3. 1846, No. 31 . R.S. 64, §§ 1, 2, 4, 5.

Revision note—

Substituted “committed to the commissioner of corrections” for “sentenced to or confined in the state prison” in the first sentence pursuant to 1971, No. 199 (Adj. Sess.), § 17.

Substituted “a presiding judge of the county court” for “a chancellor” in the first and third sentences, and “judge” for “chancellor” in the second sentence pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under § 219 of Title 4.

Substituted “complaint” for “petition” in the section heading and in the first sentence to conform language to Rule 3, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under § 219 of Title 4.

Amendments

—1973. Substituted “superior court” for “county court” following “judge of the” in the first and third sentences.

§ 103. Determination of amount contributed to property by husband; sole and separate deed of wife.

If it appears to the presiding judge that such real estate was acquired by such married woman, in whole or in part, otherwise than by gift or conveyance from her husband, and otherwise than as a result of his industry, accumulations, or savings, and that her needs or comforts or the needs or comforts of her minor children require the income or proceeds of such real estate or her interest therein, the judge shall determine what amount, if any, the husband has contributed toward such property. Such judge shall authorize such married woman to sell and convey such real estate by her sole and separate deed upon payment or tender to her husband of such sum, if any, as the judge finds he has contributed to the purchase of such property, to be proportionately increased or decreased to correspond with any material change in value, found by the judge, of such property subsequent to the date of the first contribution, if any made by the husband. Such deed shall have the same effect to pass title to such property as if joined in by the husband.

History

Source.

V.S. 1947, § 3172. P.L. § 3083. G.L. § 3528. 1915, No. 102 . 1912, No. 108 . P.S. § 3044. V.S. § 2650. R.L. §§ 2328-2332, 2334. 1870, No. 25 . 1869, No. 13 . 1866, No. 28 . G.S. 71, §§ 1, 2, 4, 5, 13, 14, 15. 1858, No. 17 , §§ 1, 2, 3. 1846, No. 31 . R.S. 64, §§ 1, 2, 4, 5.

Revision note—

Substituted “presiding judge” for “chancellor” near the beginning of the first sentence, and “judge” for “chancellor” throughout the remainder of the section pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under § 219 of Title 4.

§ 104. Proceedings on complaint and enforcement of orders and decrees; appeal of husband.

The same proceedings shall be had on such complaint and in relation to enforcing orders and decrees as in other proceedings in the Superior Court. An appeal on the part of the husband shall not be allowed to the Supreme Court from an order or decree until he has indemnified the plaintiff for delays and costs as the judge directs.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

V.S. 1947, § 3173. P.L. § 3084. G.L. § 3529. P.S. § 3045. V.S. § 2651. R.L. § 2333. G.S. 71, § 16. 1858, No. 17 , § 3.

Revision note—

Substituted “complaint” for “petition” in the section heading and in the first sentence, and “plaintiff” for “petitioner” in the second sentence to conform language to Rule 3, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Substituted “the county court” for “chancery” in the first sentence pursuant to 1971, No. 185 (Adj. Sess.), § 236. See note set out under § 219 of Title 4.

Amendments

—1973. Substituted “superior court” for “county court” following “proceedings in the” in the first sentence.

Subchapter 3. Life Insurance Policies

§§ 141-144. Repealed. 1967, No. 344 (Adj. Sess.), § 8.

History

Former §§ 141-144, relating to life insurance policies, were derived from V.S. 1947, §§ 3175-3178, P.L. §§ 3086-3089; 1933, No. 157 , § 2871; G.L. §§ 3532-3535; P.S. §§ 3048-3051; V.S. §§ 2654-2657; R.L. §§ 2341-2344; G.S. 71, §§ 21-23; 1880, No. 51 ; 1856, No. 52 , § 1; 1849, No. 23 , §§ 2, 3. The subject matter is now covered by § 3701 et seq. of Title 8.

Chapter 5. Desertion and Support

History

Subchapter 1. Uniform Desertion and Nonsupport Act

History

V.S. 1947, § 3189, derived from P.L. § 3100; 1933, No. 157 , § 2885, provided that this subchapter may be cited as the Uniform Desertion and Nonsupport Act.

CROSS REFERENCES

Civil action for desertion and nonsupport, see Rule 4, Vermont Rules for Family Proceedings.

Locating parents or other persons liable for support of dependent, see § 113 of Title 33.

Support of spouse and care of children, see § 291 et seq. of this title.

§ 201. Definitions.

The word “child,” as used in this subchapter, shall mean a child who is under the age of 18 years, or is under the age of 21 years and is a student regularly attending a school, college or university or their equivalent, or is regularly attending a course of vocational or technical training designed to fit him for gainful employment, and shall include a “stepchild” under such age. The words “adult child,” as so used, shall mean a child over the age of minority.

HISTORY: Amended 1971, No. 98 , § 1, eff. April 22, 1971.

History

Source.

V.S. 1947, § 3179. P.L. § 3090. 1933, No. 157 , § 2875.

Amendments

—1971. Rewrote the first sentence.

§ 202. Penalty for desertion or nonsupport.

A married person who, without just cause, shall desert or willfully neglect or refuse to provide for the support and maintenance of his or her spouse and children, leaving them in destitute or necessitous circumstances or a parent who, without lawful excuse, shall desert or willfully neglect or refuse to provide for the support and maintenance of his or her child or an adult child possessed of sufficient pecuniary or physical ability to support his or her parents, who unreasonably neglects or refuses to provide such support when the parent is destitute, unable to support himself or herself, and resident in this State, shall be imprisoned not more than two years or fined not more than $300.00, or both. Should a fine be imposed, the court may order the same to be paid in whole or in part to the needy spouse, parent,or to the guardian, custodian, or trustee of the child. The Office of Child Support attorneys, in addition to any other duly authorized person, may prosecute cases under this section in Vermont Superior Court.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 2; 2009, No. 146 (Adj. Sess.), § C21.

History

Source.

V.S. 1947, § 3180. P.L. § 3091. 1933, No. 157 , § 2876. 1925, No. 52 . 1921, No. 80 , § 1. G.L. §§ 3536, 6831. 1915, No. 101 , § 1. P.S. § 5726. R. 1906, § 5585. 1902, No. 123 , § 1. V.S. § 5157. 1890, No. 35 , §§ 1, 2.

Revision note

—2019. Substituted “Superior” for “district” pursuant to 2009, No. 154 (Adj. Sess.), § 236.

Amendments

—2009 (Adj. Sess.) Made gender neutral changes, a minor punctuation change, and added the last sentence.

—1973 (Adj. Sess.). Substituted “his or her spouse and children, leaving them” for “his wife” preceding “in destitute or” and “parents” for “parent” preceding “who unreasonably” and deleted “at hard labor” following “imprisoned” in the first sentence and substituted “needy spouse” for “wife” following “part to the” in the second sentence.

ANNOTATIONS

Common law.
Evidence.
Pleading.
Stepparents.
Wilful neglect.

Common law.

At common law, father, if of sufficient ability, is legally bound to support his minor children and this duty is also imposed by this section. Town of Bennington v. Telford, 119 Vt. 397, 127 A.2d 275, 1956 Vt. LEXIS 122 (1956).

Evidence.

Evidence of earnings of respondent was admissible; pecuniary ability of respondent being material in such cases as bearing on question of wilful neglect. State v. Thibedeau, 95 Vt. 164, 113 A. 873, 1921 Vt. LEXIS 197 (1921).

Although respondent conceded that child was unable to take care of itself, evidence that it was injured in accident and was still suffering from injuries was admissible as bearing on question of wilfulness; it being presumed that respondent knew child’s condition, the contrary not appearing. State v. Thibedeau, 95 Vt. 164, 113 A. 873, 1921 Vt. LEXIS 197 (1921).

Pleading.

In prosecution of husband for nonsupport under this section, complaint which fails to allege that refusal to provide, etc., was “wilful” is defective, and defect is not cured by verdict. State v. Palmer, 94 Vt. 278, 110 A. 436, 1920 Vt. LEXIS 202 (1920).

Stepparents.

This is a criminal statute, and while a parent who willfully neglects to provide for the support of his stepchild under sixteen years of age may be liable to prosecution, this section does not, in either express terms or by necessary implication, affect his civil liability for support of a stepchild, and the Vermont common-law rule is that he is not civilly liable for such support; however, a stepfather can create a parental relationship with a stepchild such that he would be responsible civilly for its care as if the child were his own issue or a child he had legally adopted. Borkman v. Commissioner of Social Welfare, 128 Vt. 561, 268 A.2d 790, 1970 Vt. LEXIS 273 (1970).

This section neither in express terms nor by necessary implication affects stepfather’s civil liability with respect to stepchildren. Town of St. Johnsbury v. Town of Sutton, 102 Vt. 451, 150 A. 133, 1930 Vt. LEXIS 146 (1930).

Wilful neglect.

Words “wilful” and “wilfully,” when used with reference to violations of criminal law, mean more than voluntary act and more than an intentional act which is in fact wrongful, and include idea of an act intentionally done with wrongful purpose, bad purpose, or with design to injure another, or one committed out of mere wantonness or lawlessness. State v. Palmer, 94 Vt. 278, 110 A. 436, 1920 Vt. LEXIS 202 (1920).

Cited.

Cited in Quesnel v. Town of Middlebury, 167 Vt. 252, 706 A.2d 436, 1997 Vt. LEXIS 270 (1997).

Notes to Opinions

Classification of crime.

Violation of this section is a misdemeanor. 1942-44 Vt. Op. Att'y Gen. 272.

Costs.

Mittimus, issuing upon conviction under this section, which taxed costs did not authorize warden of state prison to collect the costs, since the item was taxed illegally. 1936-38 Vt. Op. Att'y Gen. 406.

Jurors.

Juror would not be disqualified to act in prosecution under section if he was resident of town where offense was committed. 1938-40 Vt. Op. Att'y Gen. 435.

Stepparents.

Stepfather who, without lawful excuse, deserts or wilfully neglects or refuses to provide for support and maintenance of his stepchild under age of sixteen years violates this section. 1948-50 Vt. Op. Att'y Gen. 219.

§ 203. Institution of proceedings.

Proceedings under this subchapter may be instituted by any prosecuting officer upon complaint made by the deserted married person, child, or by any other person, including a parent in proper cases, against a spouse, parent, or adult child, accused of an offense named in section 202 of this title.

HISTORY: Amended 1965, No. 194 , § 10, operative Feb. 1, 1967; 1973, No. 201 (Adj. Sess.), § 3; 1973, No. 249 (Adj. Sess.), § 68, eff. April 9, 1974; 1987, 1973, No. 174 (Adj. Sess.), § 4.

History

Source.

V.S. 1947, § 3181. P.L. § 3092. 1933, No. 157 , § 2877. G.L. § 3537. 1915, No. 101 , § 2.

Revision note—

Deleted “jurisdiction” in the section heading to conform heading to text of section, as amended by 1973, No. 201 (Adj. Sess.), § 3.

Amendments

—1987 (Adj. Sess.). Substituted “deserted married person” for “wife” following “complaint made by the” and “spouse” for “husband” preceding “parent or adult child”.

—1973 (Adj. Sess.). Act No. 201 substituted “deserted married person” for “wife” following “made by a” and “spouse” for “husband” following “against a”.

Act No. 249 deleted the second sentence.

—1965. Substituted “district” for “municipal” preceding “courts” in the second sentence.

§ 204. Temporary orders.

At any time before the trial, upon application of the complainant and upon notice to the respondent, the court, or a judge thereof in vacation, may enter such temporary order as may seem just providing for the support of the deserted spouse or child, or both, or of such parents, pendente lite, and may punish for violation of such order as for contempt.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 4.

History

Source.

V.S. 1947, § 3182. P.L. § 3093. 1933, No. 157 , § 2877. G.L. § 3538. 1915, No. 101 , § 3.

Amendments

—1973 (Adj. Sess.). Substituted “spouse” for “wife” following “deserted”.

§ 205. Order for payment; probation; recognizance.

Before the trial, with the consent of the respondent, or at the trial on entry of a plea of guilty, or after conviction, instead of imposing the penalty provided in section 202 of this title, or in addition thereto, the court, in its discretion, having regard to the circumstances and to the financial ability or earning capacity of the respondent, may make an order that shall be subject to change by the court from time to time, as circumstances may require, directing the respondent to pay a certain sum periodically to the spouse or to the guardian or custodian of the child or to an organization or individual approved by the court as trustee or to a parent or his or her guardian. Such court may order the respondent released from custody and placed on probation, upon his or her entering into a recognizance, with or without surety, in such sum as the court, or a judge thereof in vacation, may order and approve. The condition of the recognizance shall be such that if the respondent shall make his or her personal appearance in court whenever ordered so to do and shall further comply with the terms of such order of support, or of any subsequent modification thereof, such recognizance shall be void, otherwise in full force and effect.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 5.

History

Source.

V.S. 1947, § 3183. P.L. § 3094. 1933, No. 157 , § 2879. G.L. § 3539. 1915, No. 101 , § 4.

Revision note—

In the first sentence, substituted “the penalty provided in section 202 of this title” for “the penalty hereinbefore provided” for purposes of clarity.

Amendments

—1973 (Adj. Sess.). Substituted “spouse” for “wife” following “periodically to the” in the first sentence.

§ 206. Proceedings on failure to comply.

If the court is satisfied by information and due proof under oath that the respondent has violated the terms of such order, it may forthwith proceed with the trial of the respondent under the original charge, or sentence him or her under the original conviction or enforce the suspended sentence, as the case may be. In case of forfeiture of a recognizance and enforcement thereof by execution, the sum recovered, in the discretion of the court, may be paid in whole or in part to the spouse or to the guardian, custodian or trustee of the child, or to a parent or his or her guardian.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 6.

History

Source.

V.S. 1947, § 3184. P.L. § 3095. 1933, No. 157 , § 2880. G.L. § 3540. 1915, No. 101 , § 5.

Amendments

—1973 (Adj. Sess.). Substituted “spouse” for “wife” following “part to the” and made a minor change in punctuation in the second sentence.

§ 207. Evidence; competency of parties as witnesses.

Other evidence shall not be required to prove the civil marriage of the husband and wife, or that the respondent is the father or mother or stepfather or stepmother of the child, than is or shall be required to prove such facts in a civil action. In a prosecution under this subchapter, any existing statute or rule of law prohibiting the disclosure of confidential communications between husband and wife shall not apply, and both husband and wife shall be competent witnesses to testify against each other to any and all relevant matters, including the fact of the civil marriage and the parentage of the child; provided that neither shall be compelled to give self-incriminating evidence. Proof of the desertion of the husband or wife or child in destitute circumstances or of neglect or refusal to provide for the support and maintenance of the husband, wife, or child shall be prima facie evidence that the desertion, neglect, or refusal is willful.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 7; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

Applicability.

Desertion and nonsupport statutes concern disposition, care and maintenance of children by the state child welfare agency “or to some person or suitable institution, as shall be equitable” where a parent is guilty of nonsupport or desertion; it is not at all plain that the statutes convey standing to any person to assert a custody claim, as opposed to authorizing the court to consider placement with a nonparent in dire circumstances. Even assuming, without deciding, that a mother’s ex-partner, a nonparent, could seek custody of the mother’s children as such a person, the predicates of parental desertion or nonsupport were not presented here. Moreau v. Sylvester, 2014 VT 31, 196 Vt. 183, 95 A.3d 416, 2014 Vt. LEXIS 30 (2014).

§ 210. Construction.

This subchapter shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it.

History

Source.

V.S. 1947, § 3188. P.L. § 3099. G.L. § 3543. 1915, No. 101 , § 8.

Subchapter 2. Uniform Reciprocal Enforcement of Support Act

§§ 231-269. Repealed. 1969, No. 191 (Adj. Sess.), § 4.

History

Former §§ 231-269, relating to uniform reciprocal enforcement of support, were derived from 1953, No. 243 ; 1957, Nos. 18, 73, and amended by 1961, No. 259 ; 1963, No. 173 and 1965, No. 194 , § 10. The subject matter is now covered by § 385 et seq. of this title.

Subchapter 3. Support of Spouse and Care of Children

CROSS REFERENCES

Actions for determination of parentage, see § 301 et seq. of this title.

Custody and support of children, see § 650 et seq. of this title.

Locating person liable for support of dependent, see § 113 of Title 33.

Uniform Desertion and Nonsupport Act, see § 201 et seq. of this title.

ANNOTATIONS

Application.

This subchapter applies only when a couple is married. Lawrence v. Limoge, 149 Vt. 569, 546 A.2d 802, 1988 Vt. LEXIS 71 (1988).

§ 291. When a married person deserts or fails to support his or her spouse.

When a married person without just cause fails to furnish suitable support for that person’s spouse, or has deserted such spouse, or when a married person, for a justifiable cause, is actually living apart from such spouse, on the complaint of either married person, or, if the deserted spouse has a mental condition or psychiatric disability, on the complaint of a guardian or next friend, the Superior Court, by its order, may prohibit either spouse from imposing restraint on the other’s personal liberty for such time as the court in such order directs, or until further order.
Upon the application of the husband or wife, or of the guardian or next friend of either spouse, such court may make such orders as it deems expedient concerning the support of either spouse and the care, custody, education, and maintenance of the minor children of the parties. It may determine with which of the parents the children, or any of them, shall remain, and thereafter, from time to time, on similar application, may revise and alter such order, or make a new order or decree, as the case requires.
The complaint may be brought in the county in which either of the parties resides, except that, if the complainant has left the county in which the parties have lived together, the adverse party still residing therein, the complaint shall be brought in that county.
When complaint is made as provided in this section, a summons shall be issued to the other party directing him or her to cause his or her appearance therein to be entered not later than 21 days after the date of the service thereof and show cause why the prayer of the complaint should not be granted, which summons and the complaint shall be served on such party as provided by section 596 of this title.
After filing such complaint the Superior Court in which the cause is pending, or a Superior judge, on application of either party, may make such order concerning the care and custody of such minor children, or the support of either spouse, during the pendency of the complaint, as is deemed expedient and for the benefit of either spouse or the children.
When filed and recorded in the office of the clerk of a town, or served upon a private corporation, such order shall be a lien upon such of the real estate and personal property of the defendant in such town, and upon the stock of the defendant in such corporation as is mentioned in the order.
For the purposes of this section, “children” shall include stepchildren.

HISTORY: Amended 1971, No. 98 , § 2, eff. April 22, 1971; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1973, No. 201 (Adj. Sess.), § 8; 2013, No. 96 (Adj. Sess.), § 66.

History

Source.

V.S. 1947, §§ 3256, 3257. 1945, No. 29 , § 35. P.L. §§ 3166, 3167. G.L. §§ 3600, 3601. P.S. §§ 3108, 3109. 1906, No. 63 , § 33. V.S. §§ 2701, 2702. 1890, No. 33 , §§ 1, 2.

References in text.

Section 596 of this title, referred to in subsec. (d), was repealed by 1971, No. 185 (Adj. Sess.), § 237. For present provisions relating to service of process, see Rule 4, Vermont Rules of Civil Procedure, and Rule 4, Vermont Rules for Family Proceedings.

Revision note

—2008. Added “or her” to the heading.

Substituted “complaint” for “petition”, “complainant” for “petitioner” and “defendant” for “petitionee” to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure, [for subject matter of Rule 80 now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2013 (Adj. Sess.). Subsec. (a): Substituted “has a mental condition or psychiatric disability” for “is insane” following “deserted spouse”.

—1973 (Adj. Sess.). Act No. 193 substituted “superior court” for “county court” preceding “by its order” in subsec. (a) and preceding “in which the cause” in subsec. (e).

Act No. 201 rewrote subsec. (a), the first sentence of subsec. (b) and substituted “21” for “twenty-one” in subsec. (d) and “either spouse” for “the wife” following “support of” and “either spouse or the” for “the wife or” following “benefit of” in subsec. (e).

—1971. Subsec. (g): Added.

CROSS REFERENCES

Enforcement of liens, see § 711 et seq. of this title.

ANNOTATIONS

Construction with other laws.
Custody.
Duty to support.
Evidence.
Jurisdiction.
Pleading.
Separation of spouses.
Service of process.

Construction with other laws.

As integral parts of the statutory scheme, this section and section 293 of this title, authorizing the superior court to make orders concerning children whose parents are living apart, must be construed in pari materia with other sections of the domestic relations law. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985).

Custody.

This section 293 of this title, authorizing the superior court to make orders concerning children whose parents are living apart, clearly empower the court to award custody of a minor child to a stepparent while the parties are still married and when circumstances warrant. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985).

Duty to support.

Neither agreed separation of husband and wife, nor even their divorce, will relieve him from the duty to support their minor children. Stockwell v. Stockwell, 87 Vt. 424, 89 A. 478, 1914 Vt. LEXIS 250 (1914).

Evidence.

On trial of petition for support, finding of facts made in former divorce proceedings brought by husband, to effect that wife was not guilty of wilful desertion, is inadmissible. Ingram v. Ingram, 75 Vt. 392, 56 A. 5, 1903 Vt. LEXIS 146 (1903).

Jurisdiction.

The fact that a divorce complaint may be pending, or brought at a subsequent time, does not deprive the court of jurisdiction under this section. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985).

Jurisdiction to award support to wife under this section applies only when relationship of husband and wife exists. Loeb v. Loeb, 118 Vt. 472, 114 A.2d 518, 1955 Vt. LEXIS 115 (1955).

Under this section, on petition brought by resident wife against her nonresident husband for separate maintenance of herself and minor children, court has power to make order affecting petitionee’s property within state without acquiring jurisdiction of his person. Wilder v. Wilder, 93 Vt. 105, 106 A. 562, 1919 Vt. LEXIS 143 (1919).

County court in county where parties lived together before they separated, and where husband has lived since separation, has jurisdiction of such petition, though wife and child are living in another state. Stockwell v. Stockwell, 87 Vt. 424, 89 A. 478, 1914 Vt. LEXIS 250 (1914).

Statute prescribing residence necessary to give jurisdiction in divorce proceedings does not apply to petition under this section, by wife against her husband for contribution for care and support of their minor child. Stockwell v. Stockwell, 87 Vt. 424, 89 A. 478, 1914 Vt. LEXIS 250 (1914).

Pleading.

A petition for support need not allege that wife is living apart from husband. Ingram v. Ingram, 75 Vt. 392, 56 A. 5, 1903 Vt. LEXIS 146 (1903).

Separation of spouses.

To warrant court in making order as to the support of the wife upon the ground that wife is living apart from husband who refuses to maintain her, it must appear that she is so separated from her husband through some matrimonial fault of his. Morse. v. Morse, 65 Vt. 112, 26 A. 528, 1893 Vt. LEXIS 39 (1893).

Where husband has always suitably supported his wife, is willing to continue to do so and requests her to remain, it is not justifiable cause for leaving him that her physical condition renders it more agreeable and convenient for her to live apart from him, and he is not in fault for refusing to support her after her departure. Morse. v. Morse, 65 Vt. 112, 26 A. 528, 1893 Vt. LEXIS 39 (1893).

Service of process.

In proceeding under this section, service on guardian alone was not sufficient, notwithstanding section 2799 of title 14, authorizing guardian to maintain and defend actions or suits when necessary for recovery or protection of property or person of ward, and section 2693 of Title 14, authorizing guardian to enter to prosecute or defend pending action against ward. King v. King, 102 Vt. 335, 148 A. 286, 1930 Vt. LEXIS 124 (1930).

Cited.

Cited in In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993); Taylor v. Taylor, 175 Vt. 32, 819 A.2d 684, 2002 Vt. LEXIS 331 (2002).

§ 292. Repealed. 1981, No. 247 (Adj. Sess.), § 18.

History

Former § 292, relating to orders concerning care, custody and maintenance of children when a marriage was annulled or a divorce granted, was derived from V.S. 1947, § 3252; P.L. § 3163; G.L. § 3597; P.S. § 3105; V.S. § 2698; 1882, No. 68 , § 1; R.L. § 2258; G.S. 70, § 31; R.S. 63, § 33. The subject matter is now covered by § 650 et seq. of this title.

§ 293. When parents live separately.

When parents of minor children, or parents and stepparents of minor children, whether said parents are married or unmarried, are living separately, on the complaint of either parent or stepparent or, if it is a party in interest, the Department for Children and Families, the Family Division of the Superior Court may make such decree concerning parental rights and responsibilities and parent-child contact (as defined in section 664 of this title), and the support of the children, as in cases where either parent deserts or without just cause fails to support. Thereafter on the motion of either of the parents, the stepparent, or the Department for Children and Families, the court may annul, vary or modify the decrees.
Any legal presumption of parentage as set forth in section 308 of this title shall be sufficient basis for initiating a support action under this section without any further proceedings to establish parentage. If a party raises an objection to the presumption, the court may determine the issue of parentage as part of the support action. If no written objection to the presumption is raised, an order under this section shall constitute a judgment on the issue of parentage.

HISTORY: Amended 1971, No. 98 , § 3, eff. April 22, 1971; 1973, No. 193 (Adj. Sess.), § 3 eff. April 9, 1974; 1993, No. 228 (Adj. Sess.), § 10; 1995, No. 161 (Adj. Sess.), § 2; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 28; 2009, No. 154 (Adj. Sess.), § 238.

History

Source.

V.S. 1947, § 3253. P.L. § 3164. G.L. § 3598. P.S. § 3106. V.S. § 2699. R.L. § 2259. G.S. 70, § 46. 1856, No. 28 , § 1.

Revision note—

Substituted “Complaint” for “petition” in the first sentence and “motion” for “petition” in the second sentence to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of Rule 80, now see Rule 4, Vermont Rules of Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Substituted “spouse” for “husband” in the first sentence to conform language to section 291 of this title, as amended.

Amendments

—2009 (Adj. Sess.) Subsec. (a): Substituted “family division of the superior court” for “family court”.

—1999 (Adj. Sess.). Subsec. (a): Substituted “department of prevention, assistance, transition, and health access” for “department of social welfare”.

—1995 (Adj. Sess.) Subsec. (a): Rewrote the first sentence.

—1993 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a) and added subsec. (b).

—1973 (Adj. Sess.). Substituted “superior court” for “county court” following “welfare, the” in the first sentence.

—1971. Section amended generally.

ANNOTATIONS

Attorney’s fees.
Construction with other laws.
Contempt.
Jurisdiction.
Purpose.
Revisory power of court.
Stepparents.

Attorney’s fees.

While this section fails to spell out specific authority to award counsel fees, this does not obstruct the award. Loeb v. Loeb, 120 Vt. 489, 144 A.2d 825, 1958 Vt. LEXIS 129 (1958).

Construction with other laws.

As integral parts of the statutory scheme, this section and section 291 of this title, authorizing the superior court to make orders concerning children in cases of desertion and nonsupport, must be construed in pari materia with other sections of the domestic relations law. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985).

It was inappropriate to use a temporary order under section 672 of this title in divorce proceeding to function as an order under this section with respect to support and maintenance of minor children whose parents were living apart. LaVoice v. LaVoice, 125 Vt. 236, 214 A.2d 53, 1965 Vt. LEXIS 231 (1965).

Remedy of this section is same as in actions for divorce, and same rule of construction applies. Loeb v. Loeb, 120 Vt. 489, 144 A.2d 825, 1958 Vt. LEXIS 129 (1958).

Contempt.

Where petitionee, who was summoned to show cause under this section, immediately left state taking children with him, it was error to adjudge him in contempt and not entitled to participate by counsel in hearing until he should be present in person and have children within jurisdiction of the court. Ward v. Ward, 70 Vt. 430, 41 A. 435, 1898 Vt. LEXIS 57 (1898).

Jurisdiction.

This section did not apply in action commenced by the Vermont Office of Child Support (OCS) seeking a judgment in favor of the State of Iowa for past support Iowa provided to mother and the children; although father and mother lived separately as the statute contemplates, neither OCS nor Vermont’s Department of Prevention, Assistance, Transition, and Health Access was a party in interest in the case because neither agency held an assignment of support rights from mother. Office of Child Support ex rel. Melissa Lewis v. Lewis, 2004 VT 127, 178 Vt. 204, 882 A.2d 1128, 2004 Vt. LEXIS 391 (2004).

Where the parties were never married, trial court had no jurisdiction under this section to order visitation privileges to plaintiff who claimed to be the father of defendant’s child. Lawrence v. Limoge, 149 Vt. 569, 546 A.2d 802, 1988 Vt. LEXIS 71 (1988).

Effect of this section is that county court retains jurisdiction of that subject matter which it acquired in a former divorce proceeding, and proceeding under this section will be treated as further proceeding in original case, which should be brought forward on docket. Whittier v. McFarland, 79 Vt. 365, 65 A. 81, 1906 Vt. LEXIS 138 (1906).

Where father and mother of minor child were divorced by county court and in habeas corpus proceeding, subsequently brought before judge of supreme court, custody of child was given to father and it was ordered that “these proceedings shall stand open for such further action as may hereafter be adjudged by this court to be right and proper in relation to the custody of said minor,” said county court had jurisdiction of petition thereafter brought, under this section, by mother against father to obtain custody of child. Whittier v. McFarland, 79 Vt. 365, 65 A. 81, 1906 Vt. LEXIS 138 (1906).

Supreme court is tribunal of law to regulate and control parents who have been divorced in respect to support and education of their minor children, and to determine how much each shall pay therefor and who shall have their care and custody. Buckminster v. Buckminster, 38 Vt. 248, 1865 Vt. LEXIS 93 (1865).

Purpose.

Purpose of this section is to furnish remedy, outside proceeding for divorce, to safeguard welfare of children who are victims of their parents’ separation. Loeb v. Loeb, 120 Vt. 489, 144 A.2d 825, 1958 Vt. LEXIS 129 (1958).

Revisory power of court.

Revisory power of county court under this section is limited to a consideration of change in circumstances and conditions that have developed subsequent to last order. Loeb v. Loeb, 120 Vt. 489, 144 A.2d 825, 1958 Vt. LEXIS 129 (1958).

Stepparents.

This section and section 291 of this title, authorizing the superior court to make orders concerning children in cases of desertion or nonsupport, clearly empower the court to award custody of a minor child to a stepparent while the parties are still married and when circumstances warrant. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985).

Cited.

Cited in In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1988 Vt. LEXIS 183 (1988); Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682, 1997 Vt. LEXIS 16 (1997).

§ 294. Man in the house.

When the mother of minor children is residing within the same household as a man unrelated to her and not otherwise liable for the support of the mother and her children, on the complaint of the mother or, if she is receiving public assistance, the Department for Children and Families, the Superior Court shall make such decree concerning the support of the mother and the care, custody, maintenance, and education of the children as in cases where the husband refuses without just cause to support his wife and children. The decree shall by its terms continue in force for so long as the defendant resides within the household or until further order of the court.
This section shall not apply to persons living in boarding houses.

HISTORY: Added 1971, No. 98 , § 4, eff. April 22, 1971; amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 29.

History

Revision note—

Substituted “complaint” for “petition” in the first sentence and “defendant” for “petitionee” in the second sentence of subsec. (a) to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2005 (Adj. Sess.). Subsec. (a): Substituted “department for children and families” for “department of prevention, assistance, transition, and health access” in the first sentence.

—1999 (Adj. Sess.). Subsec. (a): Substituted “department of prevention, assistance, transition, and health access” for “department of social welfare”.

—1973 (Adj. Sess.). Subsec. (a): Substituted “superior court” for “county court” preceding “shall make” in the first sentence.

Prior law.

15 V.S.A. § 293a .

§ 295. Substitute husband and father.

When complaint is made under section 292, 293 or 294 of this title, a summons shall be issued to the other party directing him to cause his appearance therein to be entered not later than 21 days after the date of the service thereof and show cause why the prayer of the complaint should not be granted, which summons and the complaint shall be served on such party as provided by section 596 or by section 597 of this title. After the filing of such complaint, the Superior Court in which the cause is pending, or any Superior judge, may, on application of either party make such order concerning the care and custody of the minor children during the pendency of the complaint, as is deemed expedient and for the benefit of such children.

HISTORY: Amended 1971, No. 98 , § 5, eff. April 22, 1971; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.

History

Source.

1951, No. 61 , § 1. 1949, No. 67 . V.S. 1947, § 3254. 1947, No. 40 , § 1. 1945, No. 29 , § 34. P.L. § 3165. G.L. § 3599. P.S. § 3107. 1906, No. 63 , § 33. V.S. § 2700. 1882, No. 68 , § 2. R.L. § 2390. G.S. 70, § 47. 1856, No. 28 , § 2.

References in text.

Section 292 of this title, referred to in this section, was repealed by 1981, No. 247 (Adj. Sess.), § 18.

Sections 596 and 597 of this title, referred to in this section, were repealed by 1971, No. 185 (Adj. Sess.) § 237. For present provisions relating to service of process, see Rule 4, Vermont Rules of Civil Procedure, and Rule 4, Vermont Rules for Family Proceedings.

Revision note—

Substituted “complaint” for “petition” throughout the section to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Reference to section “293a” of this title in the first sentence was changed to “294” to conform reference to renumbering of such section.

Amendments

—1973 (Adj. Sess.). Substituted “superior court” for “county court” following “petition, the” in the second sentence.

—1971. Substituted “section 292, 293 or 293a” for “either section 292 or 293” in the first sentence.

Prior law.

15 V.S.A. § 294 .

ANNOTATIONS

Notice.

While section does not specifically provide for notice, in absence of express requirement to contrary it will not be interpreted to authorize judicial proceedings without notice to parties to be affected thereby, since such would not be due process of law. Leonard v. Willcox, 101 Vt. 195, 142 A. 762, 1928 Vt. LEXIS 141 (1928).

Service of notice of petition to modify previous order relating to care and custody of minor child, made in accordance with order setting date of hearing and providing manner of notice, by delivery of copy of such petition and order for hearing by indifferent person named therein to other party outside state, was sufficient under circumstances to give court jurisdiction. Leonard v. Willcox, 101 Vt. 195, 142 A. 762, 1928 Vt. LEXIS 141 (1928).

Orders during pendency.

Where petition was brought under section 292 of this title for modification of previously granted decree in divorce proceeding so far as it related to care and custody of minor child of parties, and provisions of this section with respect to summons, service, and filing had been complied with, the petition for modification was pending within meaning of this section. Leonard v. Willcox, 101 Vt. 195, 142 A. 762, 1928 Vt. LEXIS 141 (1928).

§ 296. Liability of stepparents.

A stepparent has a duty to support a stepchild if they reside in the same household and if the financial resources of the natural or adoptive parents are insufficient to provide the child with a reasonable subsistence consistent with decency and health. The duty of a stepparent to support a stepchild under this section shall be coextensive with and enforceable according to the same terms as the duty of a natural or adoptive parent to support a natural or adoptive child including any such duty of support as exists under the common law of this State, for so long as the marital bond creating the step relationship shall continue.

HISTORY: Added 1971, No. 247 (Adj. Sess.), § 2, eff. April 7, 1972; amended 1985, No. 180 (Adj. Sess.), § 12, eff. April 1, 1987.

History

Amendments

—1985 (Adj. Sess.). Section amended generally.

Prior law.

15 V.S.A. § 295 .

ANNOTATIONS

Construction.

This section creates a general obligation to support stepchildren. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Construction with other laws.

3 V.S.A. § 461(c)(2) is not limited to natural or adopted children; since stepparents have a statutory obligation to support stepchildren, retired state employee was entitled to an extra ten percent of his average final compensation on account of his dependent stepson. Duhaime v. Treasurer, 161 Vt. 157, 636 A.2d 754, 1993 Vt. LEXIS 108 (1993).

Cited.

Cited in Holmberg v. Brent, 161 Vt. 153, 636 A.2d 333, 1993 Vt. LEXIS 104 (1993).

Subchapter 3A. Parentage Proceedings

History

Revision note—

Sections 301-306 were enacted as subchapter 5 but redesignated as subchapter 3A to conform to V.S.A. classification.

CROSS REFERENCES

Procedure in parentage proceedings, see Rules 4 and 9, Vermont Rules for Family Proceedings.

ANNOTATIONS

Attorney’s fees.
Construction.
Jurisdiction.

Attorney’s fees.

Award of attorney’s fees in action under this subchapter was not error even though case was allegedly accepted on pro bono basis and no separate hearing was held on financial circumstances of parties, where attorneys moved for attorney’s fees and court took into account evidence on financial circumstances introduced at hearing on merits. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Construction.

Since this subchapter gives a putative father a cause of action not previously existing, it is in derogation of the common law and must be strictly construed. Lawrence v. Limoge, 149 Vt. 569, 546 A.2d 802, 1988 Vt. LEXIS 71 (1988).

Jurisdiction.

Court could not infer jurisdiction to determine visitation privileges of putative father in an action brought under another statute. Lawrence v. Limoge, 149 Vt. 569, 546 A.2d 802, 1988 Vt. LEXIS 71 (1988).

Cited.

Cited in In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1988 Vt. LEXIS 183 (1988).

§§ 301-308. Repealed. 2017, No. 162 (Adj. Sess.), § 2.

History

Former §§ 301-308. Former § 301, relating to policy, was derived from 1983, No. 231 (Adj. Sess.), § 1 and amended by 2009, No. 3 , § 12a.

Former § 302, relating to standing; limitation, was derived from 1983, No. 231 (Adj. Sess.), § 1 and amended by 1997, No. 63 , § 3.

Former § 303, relating to jurisdiction, was derived from 1989, No. 221 (Adj. Sess.), § 14 and amended by 1995, No. 59 , § 4 and 2009, No. 154 (Adj. Sess.), § 238.

Former § 304, relating to submission to genetic testing and test results, was derived from 1983, No. 231 (Adj. Sess.), § 1 and amended by 1989, No. 120 ; 1989, No. 221 (Adj. Sess.), § 15; 1993, No. 228 (Adj. Sess.), § 11; 1997, No. 63 , § 4 and 2017, No. 11 , § 37.

Former § 305, relating to submission to no judgment with hearing and appearance by defendant, was derived from 1983, No. 231 (Adj. Sess.), § 1 and amended by 1993, No. 105 , § 3.

Former § 306, relating to submission to judgment or order, was derived from 1983, No. 231 (Adj. Sess.), § 1.

Former § 307, relating to submission to voluntary acknowledgment of parentage, was derived from 1989, No. 220 (Adj. Sess.), § 30 and amended by 1993, No. 105 , § 4; 1993, No. 228 (Adj. Sess.), § 12 and 1997, No. 63 , § 5.

Former § 308, relating to submission to presumption of parentage, was derived from 1989, No. 220 (Adj. Sess.), § 31 and amended by 1993, No. 228 (Adj. Sess.), § 13 and 2013, No. 183 (Adj. Sess.), § 3.

For present provisions, see 15C V.S.A. § 101 et seq.

Annotations From Former § 301

Construction with other laws.

Annotations From Former § 302

Constitutionality.

Construction.

Particular cases.

Annotations From Former § 307

Effect on standing.

Fraud on the court.

Annotations From Former § 308

Annotations From Former § 301

Construction with other laws.

Because this section and section 665 of this title governing the division of parental rights and responsibilities in divorce and annulment proceedings and in parentage proceedings involve the same general subject matter where the same policy concerns apply, accordingly, there is no reason why the two statutes should not be read, consistent with rules of construction, in pari materia. Heffernan v. Harbeson, 2004 VT 98, 177 Vt. 239, 861 A.2d 1149, 2004 Vt. LEXIS 282 (2004).

Annotations From Former § 302

Constitutionality.

Requirement that a nonmarital child who seeks to inherit from a putative father must establish paternity through a timely parentage action and motion for genetic testing before the child reaches the age of 21 does not violate the federal constitution or the common benefits clause of the Vermont constitution. In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Construction.

It is logical to conclude that under the statute governing standing in parentage proceedings, a determination of parentage pursuant to “an action under this subchapter” includes the parentage presumption arising from a Voluntary Acknowledgment of Paternity. McGee v. Gonyo, 2016 VT 8, 201 Vt. 216, 140 A.3d 162, 2016 Vt. LEXIS 13 (2016).

Vermont’s parentage statute does not authorize a court to allow a second parentage action involving a particular child brought by or against a different putative parent unless constitutional considerations require the court to entertain the second parentage case. Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, 2013 Vt. LEXIS 4 (2013).

Language of the parentage statute is not ambiguous, and expressly limits the court’s authority to establish parentage pursuant to subchapter 3A of chapter 5 of Title 15 to cases “where parentage has not been previously determined” in one of the listed ways. Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, 2013 Vt. LEXIS 4 (2013).

Particular cases.

Because the presumptive legal determination of parentage created by a Voluntary Acknowledgement of Paternity executed by defendant and the mother remained in effect at the time defendant filed his action to establish parentage, defendant lacked standing to bring that action. McGee v. Gonyo, 2016 VT 8, 201 Vt. 216, 140 A.3d 162, 2016 Vt. LEXIS 13 (2016).

Even if plaintiff, who sought to establish paternity after the mother and her partner had already been determined to be the child’s legal parents, were found by genetic testing to be the child’s biological father, he would not have a constitutionally protected parental interest that trumped the parentage statute’s bar against subsequent parentage cases. Plaintiff did not seek to establish a legal tie to the minor child until more than two years after the child’s birth; he never had any significant custodial, personal, or financial relationship with the minor child; and he had ample opportunity to formally declare and pursue his assertion of parentage through a voluntary acknowledgment of parentage or a parentage action in court. Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, 2013 Vt. LEXIS 4 (2013).

Annotations From Former § 307

Effect on standing.

Fraud on the court.

When the mother and defendant acknowledged that they filed a Voluntary Acknowledgment of Paternity form with the knowledge that defendant was not the child’s biological father, and the mother conceded that until recently the actual biological father did not even know the child existed, this was a fraud on the court, depriving the interested parties, including the child, the biological father, and the State as parens patriae of their day in court. McGee v. Gonyo, 2016 VT 8, 201 Vt. 216, 140 A.3d 162, 2016 Vt. LEXIS 13 (2016).

Cited.

Cited in Lawrence v. Limoge, 149 Vt. 569, 546 A.2d 802, 1988 Vt. LEXIS 71 (1988); Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Annotations From Former § 308

Cited.

Cited in Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Cited.

Cited in Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Cited.

Cited in Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re Estate of Murcury, 2004 VT 118, 177 Vt. 606, 868 A.2d 680, 2004 Vt. LEXIS 388 (2004) (mem.).

Cited.

Cited in Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998).

Cited.

Cited in Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998).

Cited.

Cited in Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989); In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993); Fiske v. Boudreau, 164 Vt. 263, 668 A.2d 1285, 1995 Vt. LEXIS 108 (1995); Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682, 1997 Vt. LEXIS 16 (1997).

Cited.

Cited in Lawrence v. Limoge, 149 Vt. 569, 546 A.2d 802, 1988 Vt. LEXIS 71 (1988); Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Subchapter 4. Maintenance of Bastard Children

Article 1. Prosecution by Mother

§§ 331-345. Repealed. 1983, No. 231 (Adj. Sess.), § 2(1), eff. May 14, 1984.

History

Former § 331, relating to complaint and warrant, was derived from V.S. 1947, § 3265; P.L. § 3174; G.L. § 3608; 1908, No. 62 ; P.S. § 3116; V.S. § 3709; R.L. § 2396; G.S. 74, § 1; R.S. 67, § 1; 1822, p. 6; R. 1797, p. 191, § 1; R. 1797, p. 194, § 3; R. 1787, p. 24, and amended by 1965, No. 194 , § 10.

Former § 332, relating to security for costs, was derived from V.S. 1947, § 3266; P.L. § 3175; G.L. § 3609; P.S. § 3117; V.S. § 2710; R.L. § 2397; G.S. 74, § 2; R.S. 67, § 2; 1822, p. 6.

Former § 333, relating to recognizance for appearance, was derived from V.S. 1947, § 3267; 1945, No. 29 , § 36; P.L. § 3176; 1921, No. 83 ; G.L. § 3610; P.S. § 3118; V.S. § 2711; R.L. § 2398; G.S. 74, § 3; R.S. 67, § 3; 1822, p. 6; R. 1797, p. 191, § 1; R. 1787, p. 24, and amended by 1973, No. 193 (Adj. Sess.), § 3.

Former § 334, relating to commitment in absence of recognizance, was derived from V.S. 1947, § 3268; P.L. § 3177; G.L. § 3611; P.S. § 3119; V.S. § 2712; R.L. § 2399 ; G.S. 74, § 4; R.S. 67, § 4; 1822, p. 6; R. 1797, p. 191, § 1; R. 1787, p. 24, and amended by 1971, No. 199 (Adj. Sess.), § 17 and 1973, No. 193 (Adj. Sess.), § 3.

Former § 335, relating to return of record to clerk of superior court, was derived from V.S. 1947, § 3269; 1945, No. 29 , § 37; P.L. § 3178; G.L. § 3612; P.S. § 3120; V.S. § 2713; R.L. § 2400; G.S. 74, § 5; R.S. 67, § 5, and amended by 1973, No. 193 (Adj. Sess.), § 3.

Former § 336, relating to trial and costs, was derived from V.S. 1947, § 3270; P.L. § 3179; G.L. § 3613; P.S. § 3121; V.S. § 2714; R.L. § 2401; G.S. 74, § 6; R.S. 67, § 6; 1822, p. 7; R. 1797, p. 193, § 2 and amended by 1973, No. 193 (Adj. Sess.), § 3.

Former § 337, relating to testimony of woman, was derived from V.S. 1947, § 3271; P.L. § 3180; G.L. § 3614; P.S. § 3122; V.S. § 2715; R.L. § 2402; G.S. 74, § 15; 1843, No. 24 , § 3; R.S. 67, § 16; 1822, p. 9; R. 1797, p. 194, § 4.

Former § 338, relating to limitation on questions as to pregnancy, was derived from V.S. 1947, § 3272; P.L. § 3181; G.L. § 3615; P.S. § 3123; V.S. § 2716; R.L. § 2403; G.S. 74, § 16; R.S. 67, § 17; 1822, p. 9; R. 1797, p. 195, § 6.

Former § 339, relating to effect of guilty verdict or judgment, was derived from V.S. 1947, § 3273; P.L. § 3182; G.L. § 3616; P.S. § 3124; V.S. § 2717; R.L. § 2404; G.S. 74, § 7; R.S. 67, § 7; 1822, p. 6; R. 1797, p. 191, § 1; R. 1787, p. 24.

Former § 340, relating to recognizance to abide and conform to orders, was derived from V.S. 1947, § 3274; 1947, No. 202 , § 3296; P.L. § 3183; G.L. § 3617; P.S. § 3125; V.S. § 2718; R.L. § 2405; G.S. 74, § 8; R.S. 67, § 2; 1822, p. 6; R. 1797, p. 191, § 1; R. 1787, p. 24.

Former § 341, relating to commitment until recognizance and payments made under orders, was derived from V.S. 1947, § 3275; P.L. § 3184; G.L. § 3618; P.S. § 3126; V.S. § 2719; R.L. § 2406; G.S. 74, § 9; R.S. 67, § 9; 1822, p. 7; R. 1797, p. 191, § 1; R. 1787, p. 24, and amended by 1971, No. 199 (Adj. Sess.), § 17 and 1973, No. 193 (Adj. Sess.), § 3.

Former § 342, relating to judgment on recognizance, was derived from V.S. 1947, § 3276; P.L. § 3185; G.L. § 3619; P.S. § 3127; V.S. § 2720; R.L. § 2407; G.S. 74, § 10; R.S. 67, § 10; 1822, p. 7; R. 1797, p. 191, § 1.

Former § 343, relating to commitment, was derived from V.S. 1947, § 3277; P.L. § 3186; G.L. § 3620; P.S. § 3128; V.S. § 2721; 1884, No. 96 , § 1, and amended by 1971, No. 199 (Adj. Sess.), § 17; 1973, No. 193 (Adj. Sess.), § 3.

Former § 344, relating to new recognizance, was derived from V.S. 1947, § 3278; P.L. § 3187; G.L. § 3621; P.S. § 3129; V.S. § 2722; 1884, No. 96 , § 2, and amended by 1971, No. 199 (Adj. Sess.), § 17; 1973, No. 193 (Adj. Sess.), § 3.

Former § 345, relating to discharge from recognizance or release from custody, was derived from V.S. 1947, § 3279; P.L. § 3188; G.L. § 3622; 1908, No. 62 ; P.S. § 3130; V.S. § 2723; R.L. § 2408; G.S. 74, § 11; R.S. 67, § 11; 1822, p. 7; R. 1797, p. 194, § 5, and amended by 1965, No. 194 , § 10; 1973, No. 193 (Adj. Sess.), § 3; No. 249 (Adj. Sess.), § 69.

Article 2. Powers and Duties of Commissioner of Social Welfare

§§ 371-380. Repealed. 1983, No. 231 (Adj. Sess.), § 2(1), eff. May 14, 1984.

History

Former § 371, relating to prosecution by commissioner of social welfare, was derived from V.S. 1947, § 3280; P.L. § 3189; G.L. § 3623; P.S. § 3131; V.S. § 2724; R.L. § 2409; G.S. 74, § 12; R.S. 67, § 12; 1822, p. 8; R. 1797, p. 191, § 1; R. 1797, p. 194, § 3; R. 1787, p. 25, and amended by 1967, No. 147 , § 22.

Former § 372, relating to certificate of intention, was derived from V.S. 1947, § 3281; P.L. § 3190; G.L. § 3624; P.S. § 3132; V.S. § 2725; R.L. § 2410; G.S. 74, § 13; R.S. 67, § 13; 1822, p. 8, and amended by 1967, No. 147 , § 21; 1973, No. 193 (Adj. Sess.), § 3.

Former § 373, relating to complaint against and warrant for woman, was derived from V.S. 1947, § 3282; P.L. § 3191; G.L. § 3625; 1908, No. 62 ; P.S. § 3133; V.S. § 2726; R.L. § 2411; G.S. 74, § 17; 1843, No. 24 , § 1, and amended by 1965, No. 194 , § 10; 1967, No. 147 , § 21; 1973, No. 249 (Adj. Sess.), § 70.

Former § 374, relating to examination of woman and warrant for man, was derived from V.S. 1947, § 3283; P.L. § 3192; G.L. § 3626; P.S. § 3134; V.S. § 2727; R.L. § 2412; G.S. 74, §§ 18, 19; 1843, No. 24 , §§ 2, 4, and amended by 1967, No. 147 , § 21.

Former § 375, relating to consent of commissioner to compromise with or discharge father, was derived from V.S. 1947, § 3284; P.L. § 3193; G.L. § 3627; P.S. § 3135; V.S. § 2728; R.L. § 2413; G.S. 74, § 20; 1843, No. 24 , § 5; R.S. 67, § 14; 1822, p. 8, and amended by 1967, No. 147 , § 21.

Former § 376, relating to prosecution by commissioner on death of mother, was derived from V.S. 1947, § 3285; P.L. § 3194; G.L. § 3628; P.S. § 3136; V.S. § 2729; R.L. § 2414; 1878, No. 33 , and amended by 1967, No. 147 , § 21.

Former § 377, relating to orders and recognizances in favor of state, was derived from V.S. 1947, § 3286; P.L. § 3195; G.L. § 3629; P.S. § 3137; V.S. § 2730; R.L. § 2415; 1878, No. 33 , and amended by 1967, No. 147 , § 21.

Former § 378, relating to use of sums recovered by state, was derived from V.S. 1947, § 3287; P.L. § 3196; G.L. § 3630; P.S. 3138; V.S. § 2731; R.L. § 2416; 1878, No. 33 , and amended by 1967, No. 147 , § 22a.

Former § 379, relating to costs to defendant found not guilty, was derived from V.S. 1947, § 3288; P.L. § 3197; G.L. § 3631; P.S. § 3139; V.S. § 2732; R.L. § 2417; 1878, No. 33 , and amended by 1967, No. 147 , § 23.

Former § 380, relating to cessation of commissioner’s powers on giving security for support, was derived from V.S. 1947, § 3289; P.L. § 3198; G.L. § 3632; P.S. § 3140; V.S. § 2733; R.L. § 2418; G.S. 74, §§ 14, 21; 1843, No 24, § 6; R.S. 67, § 15; 1822, p. 8, and amended by 1967, No 147, § 21.

Chapter 7. Revised Uniform Reciprocal Enforcement of Support Act

§§ 385-428. Repealed. 1997, No. 11, § 3, eff. January 1, 1998.

History

Former §§ 385-428, the Revised Uniform Reciprocal Enforcement of Support Act, was added by 1969, No. 191 (Adj. Sess.), § 1. Sections 386 and 405 were amended by 1993, No. 105 , §§ 5 and 6. The subject matter is now covered by Title 15B.

Chapter 9. Adoption

History

V.S. 1947, § 9960, derived from 1945, No. 41 , § 23, contained a separability provision applicable to this chapter.

CROSS REFERENCES

Adoption proceedings generally, see Rule 80.5, Vermont Rules of Probate Procedure.

Health insurance adopted child coverage, see § 4100c of Title 8.

ANNOTATIONS

Cited.

Cited in In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993); In re Raymond Estate, 161 Vt. 544, 641 A.2d 1342, 1994 Vt. LEXIS 43 (1994).

§§ 431-454. Repealed. 1995, No. 161 (Adj. Sess.), § 7.

History

The subject matter is now covered by § 1-101 et seq. of Title 15A.

Former § 431, relating to right of adoption, was derived from V.S. 1947, § 9937; 1947, No. 202 , § 7215; 1945, No. 41 , § 1.

Former § 432, relating to agencies authorized to receive custody of minors for adoption, was derived from 1949, No. 229 , § 1; V.S. 1947, § 9938; 1947, No. 202 , § 7216; 1945, No. 41 , § 2 and amended by 1959, No. 48 ; 1969, No. 232 (Adj. Sess.), § 1; 1971, No. 219 (Adj. Sess.), § 1; 1973, No. 152 (Adj. Sess.), § 4; 1977, No. 217 (Adj. Sess.), § 1.

Former § 433, relating to power of department of social welfare, was derived from 1955, No. 216 , § 1 and was previously repealed by 1967, No. 147 , § 53(a).

Former § 434, relating to jurisdiction of petitions for adoption, was derived from V.S. 1947, § 9939; 1945, No. 41 , § 3 and amended by 1971, No. 219 (Adj. Sess.), § 2; 1973, No. 152 (Adj. Sess.), § 4.

Former § 435, relating to consent for adoption of a minor, was derived from 1955, No. 216 , § 2; 1949, No. 299 , § 2; V.S. 1947, § 9940; 1947, No. 139 , § 1; 1945, No. 41 , § 4 and amended by 1971, No. 219 (Adj. Sess.), § 3; 1973, No. 152 (Adj. Sess.), § 4; 1977, No. 217 (Adj. Sess.), § 2.

Former § 435a, relating to acknowledgment of paternity, was derived from 1977, No. 217 (Adj. Sess.), § 3.

Former § 436, relating to petition for adoption of a minor, was derived from 1949, No. 230 , § 1; V.S. 1947, § 9941; 1947, No. 202 , § 7219; 1945, No. 41 , § 5 and amended by 1973, No. 152 (Adj. Sess.), § 4; 1985, No. 219 (Adj. Sess.), § 1.

Former § 437, relating to investigation of conditions and circumstances attending the proposed adoption of a minor, was derived from V.S. 1947, § 9942; 1947, No. 202 , § 7222; 1945, No. 41 , § 6 and amended by 1969, No. 29 ; 1973, No. 152 (Adj. Sess.), § 4; 1993, No. 41 , § 1.

Former § 438, relating to the petition for adoption of persons of full age, was derived from V.S. 1947, § 9951; 1945, No. 41 , § 15.

Former § 439, relating to the investigation of conditions and circumstances attending the proposed adoption of a person of full age, and was derived from V.S. 1947, § 9952; 1945, No. 41 , § 16.

Former § 440, relating to the trial period that a minor stays with the adoptive parents, was derived from V.S. 1947, § 9943; 1947, No. 202 , § 7223; 1945, No. 41 , § 7 and amended by 1959, No. 47 ; 1973, No. 152 (Adj. Sess.), § 4.

Former § 441, relating to notice of the hearing, was derived from V.S. 1947, § 9944; 1945, No. 41 , § 8 and amended by 1973, No. 152 (Adj. Sess.), § 4.

Former § 442, relating to the hearing, was derived from V.S. 1947, § 9945; 1947, No. 202 , § 7225; 1945, No. 41 , § 9 and amended by 1973, No. 152 (Adj. Sess.), § 4.

Former § 443, relating to final decree, was derived from 1955, No. 247 ; 1949, No. 231 , § 1; V.S. 1947, § 9946; 1945, No. 41 , § 10 and amended by 1973, No. 18 ; 1973, No. 152 (Adj. Sess.), § 4.

Former § 444, relating to execution of final adoption decree, was derived from 1949, No. 231 , § 2; V.S. 1947, § 9947; 1947, No. 202 , § 7227; 1945, No. 41 , § 11.

Former § 445, relating to execution of final adoption decree by the department of social and rehabilitation services, was derived from V.S. 1947, § 9948; 1947, No. 202 , § 7228; 1945, No. 41 , § 12 and amended by 1973, No. 152 (Adj. Sess.), § 4.

Former § 446, relating to execution of final adoption decree by a licensed agency, was derived from V.S. 1947, § 9949; 1947, No. 202 , § 7229; 1945, No. 41 , § 13 and amended by 1973, No. 152 (Adj. Sess.), § 4.

Former § 447, relating to form of final adoption decree, was derived from V.S. 1947, § 9950 and 1945, No. 41 , § 14.

Former § 448, relating to the rights, duties and obligations of the person or persons making the adoption, was derived from V.S. 1947, § 9954 and 1945, No. 41 , § 18 and amended by 1963, No. 114 .

Former § 449, relating to new birth certificates, was derived from 1949, No. 230 , § 2; V.S. 1947, § 9957 and 1945, No. 41 , § 21 and amended by 1959, No. 329 (Adj. Sess.), § 27; 1961, No. 170 , § 1; 1979, No.142 (Adj. Sess.), § 21 and 1985, No. 229 (Adj. Sess.), § 1.

Former § 450, relating to filing and force and effect of new birth certificate, was derived from V.S. 1947, § 9958; 1947, No. 140 , § 1; 1945, No. 41 , § 21; 1941, No. 63 , §§ 3, 4 and was previously repealed by 1979, No. 142 (Adj. Sess.), § 26.

Former § 451, relating to fee, forwarding, penalty and placing under seal of new birth certificate, was derived from V.S. 1947, § 9959; 1947, No. 202 , § 7239; 1941, No. 63 , § 5 and amended by 1961, No. 170 , § 2; 1971, No. 84 , § 8; 1973, No. 193 (Adj. Sess.), § 3; 1979, No. 56 , § 3.

Former § 452, relating to the confidential nature of records, was derived from V.S. 1947, § 9953; 1947, No. 202 , § 7233; 1945, No. 41 , § 17 and amended by 1985, No. 219 (Adj. Sess.), § 2.

Former § 452a, relating to penalty for disclosure of confidential adoption information, was derived from 1985, No. 219 (Adj. Sess.), § 3.

Former § 453, relating to parties to proceedings affecting validity of adoption, was derived from 1985, No. 219 (Adj. Sess.), § 3 and amended by 1973, No. 152 (Adj. Sess.), § 4.

Former § 454, relating to dissent from adoption and vacating adoption, was derived from V.S. 1947, § 9956; 1945, No. 41 , § 20 and amended by 1971, No. 179 (Adj. Sess.), § 12.

Chapter 10. Disclosure

§§ 460-465. Repealed. 1995, No. 161 (Adj. Sess.), § 7.

History

Former § 460, relating to definitions, was derived from 1985, No. 219 (Adj. Sess.), § 4.

Former § 461, relating to the release of nonidentifying information, was derived from 1985, No. 219 (Adj. Sess.), § 4.

Former § 462, relating to consent to disclosure of identifying information, was derived from 1985, No. 219 (Adj. Sess.), § 4 and amended by 1993, No. 214 (Adj. Sess.), § 1.

Former § 463, relating to petition and notice for disclosure and withdrawal of consent, was derived from 1985, No. 219 (Adj. Sess.), § 4 and amended by 1993, No. 214 (Adj. Sess.), § 2.

Former § 464, relating to adoptive parents as parties, was derived from 1985, No. 219 (Adj. Sess.), § 4.

Former § 465, relating to fees, was derived from 1985, No. 219 (Adj. Sess.), § 4.

Chapter 11. Annulment and Divorce

History

Subchapter 1. Annulment

§ 511. Void civil marriages; consanguinity, affinity, or living spouse.

Civil marriages prohibited by law on account of consanguinity or affinity between the parties or on account of either party having a wife or husband living, if solemnized within this State, shall be void without decree of divorce or other legal process.
When the validity of a civil marriage is uncertain for causes mentioned in subsection (a) of this section, either party may file a complaint to annul the same. Upon proof of the nullity of the marriage it shall be declared void by a decree of nullity.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, §§ 3190, 3191. P.L. §§ 3101, 3102. G.L. §§ 3544, 3545. P.S. §§ 3052, 3053. V.S. §§ 2658, 2659. R.L. §§ 2346, 2347. G.S. 70, §§ 1, 2. R.S. 63, §§ 1, 2. R. 1797, p. 329, § 1. R. 1787, p. 94.

Revision note—

Substituted “complaint” for “libel” in subsec. (b) to conform language to Rule 3, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

ANNOTATIONS

Competency.
Effect of decree.
Jurisdiction.
Parties.
Void marriages.

Competency.

Person may be competent to marry, change his domicile or make will though under guardianship as being insane. In re Hanrahan's Will, 109 Vt. 108, 194 A. 471, 1937 Vt. LEXIS 123 (1937).

Effect of decree.

A decree of nullity in connection with a marriage that is void will do no more than judicially declare what already exists in fact. Cook v. Cook, 116 Vt. 374, 76 A.2d 593, 1950 Vt. LEXIS 167 (1950), rev'd, 342 U.S. 126, 72 S. Ct. 157, 96 L. Ed. 146, 1951 U.S. LEXIS 1274 (1951).

Jurisdiction.

Court had no power to examine jurisdiction of Florida court in granting a divorce decree, where petitionee in proceeding to amend a subsequent marriage had been personally served in the divorce proceeding or had opportunity to contest jurisdiction therein but did not actually do so. Cook v. Cook, 117 Vt. 173, 86 A.2d 923, 1952 Vt. LEXIS 121 (1952).

The petitioner being domiciled in this state and having been so domiciled at the time of the pretended marriage, the court had jurisdiction to decree the nullity of a marriage solemnized in the state of Massachusetts, upon the ground that the petitioner then had a husband living. Barney v. Cuness, 68 Vt. 51, 33 A. 897, 1895 Vt. LEXIS 12 (1895).

Parties.

In no instance does the statute give any right to the administrator to bring a petition to annul a marriage. Pingree v. Goodrich, 41 Vt. 47, 1868 Vt. LEXIS 74 (1868).

Only relatives of the deceased, interested in contesting the validity of the marriage, are authorized by statute to petition that it may be annulled. Pingree v. Goodrich, 41 Vt. 47, 1868 Vt. LEXIS 74 (1868).

Void marriages.

A marriage by a divorced petitionee in violation of section 560 of this title is void. Ovitt v. Smith, 68 Vt. 35, 33 A. 769, 1895 Vt. LEXIS 8 (1895).

§ 512. Voidable civil marriages—Grounds for annulment generally.

The civil marriage contract may be annulled when, at the time of marriage, either party had not attained the age of 16 years or was physically or mentally incapable of entering into the civil marriage state or when the consent of either party was obtained by force or fraud.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2013, No. 96 (Adj. Sess.), § 67.

History

Source.

V.S. 1947, § 3192. P.L. § 3103. G.L. § 3547. 1915, No. 103 . P.S. § 3055. V.S. § 2661. R.L. § 2349. G.S. 70, § 3. R.S. 63, § 3.

Amendments

—2013 (Adj. Sess.). Deleted “an idiot or lunatic or” following “or was” and inserted “or mentally” following “physically”.

CROSS REFERENCES

Restrictions as to issuance of marriage license to minors and incompetent persons, see § 5142 of Title 18.

§ 513. Party under age of 16 years.

A complaint to annul a civil marriage on the ground that one of the parties was under the age of 16 years may be brought by the parent or guardian entitled to the custody of such minor or by a person admitted by the court to prosecute the same as the next friend of such minor. However, such marriage shall not be annulled on the complaint of a party of legal age at the time it was contracted nor when the parties, after they attained the age of consent, freely cohabited as husband and wife.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3193. P.L. § 3104. G.L. § 3548. 1915, No. 103 . P.S. § 3056. V.S. § 2662. R.L. § 2350. G.S. 70, § 4. R.S. 63, § 4.

Revision note—

Substituted “complaint” for “libel” and “application” to conform language to Rule 3, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

§ 514. Party is mentally incapable of entering into civil marriage.

When a civil marriage is sought to be annulled on the ground of one of the parties’ mental incapability to enter into the civil marriage, it may be declared void on the complaint of a relative of such person at any time during the life of either of the parties.
When a civil marriage is sought to be annulled on the ground of one of the parties’ mental incapability to enter into the civil marriage, on the complaint of a relative of the person, such marriage may be declared void during the continuance of such mental incapacity, or after the death of the person who is mentally incapacitated in that condition and during the lifetime of the other party to the marriage.
The civil marriage of a person who is mentally incapacitated may be declared void upon the complaint of the person after restoration to health, but a decree of nullity shall not be pronounced if the parties freely cohabited as spouses after the spouse who was mentally incapacitated had restored capacity.
If an action is not prosecuted by a relative, the civil marriage of a person who is mentally incapacitated may be annulled during the lifetime of both the parties to the marriage, on the complaint of a person admitted by the court to prosecute as the next friend of such person who is mentally incapacitated.
The phrases “mentally incapacitated,” “incapacitated,” “mental incapacity,” “mentally incapable,” “mental incapability,” and other similar phrases as used in sections 511-514 of this title shall extend only to persons who have a severe psychiatric, cognitive, or other severe mental disability.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2013, No. 96 (Adj. Sess.), § 68.

History

Source.

V.S. 1947, §§ 3194-3197, 3199. P.L. §§ 3105-3108, 3110. G.L. §§ 3549-3552, 3554. P.S. §§ 3057-3060, 3062. V.S. §§ 2663-2666, 2668. R.L. §§ 2351-2354, 2356. G.S. 70, §§ 5-8, 10. R.S. 63, §§ 5-8, 10.

Revision note—

Substituted “complaint” for “application” to conform reference to Rule 3, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2013 (Adj. Sess.). Heading: Substituted “is mentally incapable of entering into civil marriage” for “an idiot or lunatic”.

Subsec. (a): Deleted “the idiocy of” following “ground of” and substituted “parties’ mental incapability to enter into the civil marriage” for “parties” following “one of the” and “person” for “idiot” following “relative of such”.

Subsec. (b): Deleted “the lunacy of” following “ground of” and substituted “parties’ mental incapability to enter into the civil marriage” for “parties” following “one of the”, “person” for “lunatic” following “relative of the”, “mental incapacity” for “lunacy” following “of such”, and “person who is mentally incapacitated” for “lunatic” following “death of the”.

Subsec. (c): Substituted “person who is mentally incapacitated” for “lunatic” following “marriage of a”, “the person” for “a lunatic” following “complaint of”, “health” for “reason” following “restoration to”, and “spouses after the spouse who was mentally incapacitated had restored capacity” for “husband and wife after the lunatic was restored to sound mind” at the end.

Subsec. (d): Substituted “a person who is mentally incapacitated” for “an idiot or a lunatic” following “marriage of” and “person who is mentally incapacitated” for “idiot or lunatic” at the end.

Subsec. (e): Substituted “phrases ‘mentally incapacitated,’ ‘incapacitated,’ ‘mental incapacity,’ ‘mentally incapable,’ ‘mental incapability,”’ for “word ‘lunatic”’ following “The”, “who have a severe psychiatric, cognitive, or other severe mental disability” for “of unsound mind other than idiots” at the end, and inserted “only” following “extend”.

CROSS REFERENCES

Divorce on ground of insanity, see § 631 et seq. of this title.

ANNOTATIONS

Applicability.
Failure to disaffirm.
Settlement.

Applicability.

Annulment of marriage on grounds of lunacy of one of the parties is controlled by subsection (b) of this section, and is not available when both parties to the marriage are dead. Klittner v. Steiner, 158 Vt. 654, 610 A.2d 149, 1992 Vt. LEXIS 71 (1992) (mem.).

Failure to disaffirm.

Where party to a marriage was insane and continued insane till death, it was a marriage in fact although it could have been avoided by judicial proceedings, and the surviving spouse was entitled to a statutory share of the decedent’s estate. Wiser v. Lockwood's Estate, 42 Vt. 720, 1870 Vt. LEXIS 33 (1870).

Settlement.

Marriage of a man to a woman who was before and at the time of the marriage ceremony a lunatic incapable of entering into a valid marriage contract did not confer the settlement of the husband on the wife where the marriage had been decreed a nullity on the ground of such lunacy. Town of Reading v. Town of Ludlow, 43 Vt. 628, 1871 Vt. LEXIS 65 (1871).

§ 515. Party physically incapacitated.

A suit to annul a civil marriage on the ground of the physical incapacity of one of the parties shall be maintained only by the injured party against the party whose incapacity is alleged and shall be brought within two years from the solemnization of the marriage.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3202. P.L. § 3113. G.L. § 3557. P.S. § 3065. V.S. § 2671. R.L. § 2359. G.S. 70, § 14. R.S. 63, § 14.

ANNOTATIONS

Condonation.
Evidence.
Laches.
Physical incapacity.

Condonation.

There can be no condonation where chronic and incurable syphilis rendering wife incapable of bearing healthy children and making it impossible for husband to have intercourse without great danger of infection is found to be such physical incapacity as will be grounds for annulment. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 1892 Vt. LEXIS 2 (1892).

Evidence.

In proceedings alleging impotence as ground for annulment, court had power to compel defendant to submit to a medical examination. LeBarron v. LeBarron, 35 Vt. 365, 1862 Vt. LEXIS 51 (1862).

Laches.

Where husband upon learning that his wife was not cured of syphilis until 16 months after marriage, brought petition for annulment, there was no unreasonable delay. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 1892 Vt. LEXIS 2 (1892).

Physical incapacity.

Chronic and incurable syphilis, which renders the wife incapable of bearing healthy children and which makes it impossible for the husband to have sexual intercourse with her without great danger of infection, is such physical incapacity as will afford a ground for annulling the marriage. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 1892 Vt. LEXIS 2 (1892).

§ 516. Force or fraud.

A civil marriage may be annulled during the lifetime of the parties, or one of them, on the ground that the consent of one of the parties was obtained by force or fraud, or the threat of force, or other forms of coercion or deception on the complaint of the party whose consent was so obtained or of the parent or guardian of such party or of some relative interested to contest the validity of the marriage. When such proceedings have been commenced and the party whose consent was so obtained dies before final decree, a parent or relative interested to contest the validity of the civil marriage may enter and prosecute such complaint.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2017, No. 140 (Adj. Sess.), § 1, eff. May 21, 2018.

History

Source.

V.S. 1947, § 3200. P.L. § 3111. G.L. § 3555. P.S. § 3063. V.S. § 2669. 1882, No. 66 . R.L. § 2357. G.S. 70, §§ 11, 12. R.S. 63, §§ 11, 12.

Revision note—

Substituted “complaint” for “application” to conform language to Rule 3, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2017 (Adj. Sess.) Inserted “or the threat of force, or other forms of coercion or deception” following “force or fraud” in the first sentence and deleted the third sentence.

ANNOTATIONS

Evidence.
Force.
Fraud.
Knowledge.
Review.
Voluntary cohabitation.

Evidence.

A showing that petitionee obtained a marriage certificate by representing to the town clerk that he was a resident of the town where he was not; that he then told the petitioner, who was less than eighteen years of age, that the certificate was all right; that having obtained it they were obliged to get married; and that her parents had no control over her in the matter, was evidence that the consent of the petitioner was obtained by fraud. Parsons v. Parsons, 68 Vt. 95, 34 A. 33, 1895 Vt. LEXIS 21 (1895).

Force.

Marriage was annulled where consent of the petitioner was extorted by bastardy proceedings maliciously instigated by the petitionee without probable cause. Shoro v. Shoro, 60 Vt. 268, 14 A. 177, 1888 Vt. LEXIS 139 (1888).

Fraud.

If the wife, at the time of contracting the marriage relation, conceals from her husband the fact that she has chronic and incurable syphilis, it will amount to a fraud for which the marriage may be annulled. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 1892 Vt. LEXIS 2 (1892).

Marriage was annulled on the ground of fraud, where it appeared that the marriage brought about by the authorities of the town to which she was chargeable as a pauper, by their hiring the petitionee, whose settlement was in a different town, to consent to the form of a marriage without afterwards fulfilling or intending to fulfill its obligations, and with no other object except to impose upon the town of his settlement the expense of the petitioner’s maintenance. Barnes v. Wyethe, 28 Vt. 41, 1855 Vt. LEXIS 132 (1855).

Knowledge.

Upon exceptions to the refusal of county court to grant a petition for the annulment of a marriage where the county court found that the wife had syphilis at the time of the marriage, but did not find whether she had knowledge of that fact, the supreme court did not presume that the wife had such knowledge in order to reverse the judgment. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 1892 Vt. LEXIS 2 (1892).

Source.

V.S. 1947, § 3198. P.L. § 3109. 1921, No. 81 , § 1. G.L. § 3553. P.S. § 3061. V.S. § 2667. R.L. § 2355. G.S. 70, § 9. R.S. 63, § 9.

Subchapter 2. Divorce

Article 1. General Provisions

§ 551. Grounds for divorce from bond of matrimony.

A divorce from the bond of matrimony may be decreed:

for adultery in either party;
when either party is sentenced to confinement at hard labor in the State prison in this State for life, or for three years or more, and is actually confined at the time of the bringing of the libel; or when either party being without the State, receives a sentence for an equally long term of imprisonment by a competent court having jurisdiction as the result of a trial in any one of the other states of the United States, or in a federal court, or in any one of the territories, possessions, or other courts subject to the jurisdiction of the United States, or in a foreign country granting a trial by jury, and is actually confined at the time of the bringing of the libel;
for intolerable severity in either party;
for willful desertion or when either party has been absent for seven years and not heard of during that time;
on complaint of either party when one spouse has sufficient pecuniary or physical ability to provide suitable maintenance for the other and, without cause, persistently refuses or neglects so to do;
on the ground of permanent incapacity due to a mental condition or psychiatric disability of either party, as provided for in sections 631-637 of this title; or
when a married person has lived apart from his or her spouse for six consecutive months and the court finds that the resumption of marital relations is not reasonably probable.

HISTORY: Amended 1969, No. 264 (Adj. Sess.), § 1; 1971, No. 39 , eff. May 1, 1971; 1971, No. 238 (Adj. Sess.), § 1, eff. April 6, 1972; 1973, No. 201 (Adj. Sess.), § 9; 2013, No. 96 (Adj. Sess.), § 69.

History

Source.

V.S. 1947, § 3205. 1941, No. 43 , §§ 1, 2. P.L. § 3116. 1933, No. 157 , § 2901. 1931, No. 44 , § 1. G.L. § 3560. 1915, No. 104 . P.S. § 3068. V.S. § 2674. 1894, No. 50 , § 3. 1886, No. 59 . R.L. § 2362. G.S. 70, §§ 18, 19. R.S. 63, §§ 18, 19. 1836, No. 4 . 1805, p. 164. R. 1797, p. 333, § 10. R. 1787, p. 48.

Revision note—

In subdiv. (5), substituted “complaint” for “petition” to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Editor’s note—

The language “sentenced to confinement at hard labor in the state prison in this state” in subdiv. (2) is obsolete. 1971, No. 199 (Adj. Sess.), § 17 provides that any statutory provision requiring imprisonment or confinement in the state prison shall be deemed to be amended to provide for commitment to the commissioner of corrections.

Amendments

—2013 (Adj. Sess.). Subdiv. (6): Substituted “permanent incapacity due to a mental condition or psychiatric disability” for “incurable insanity” following “ground of”.

—1973 (Adj. Sess.). Subdiv. (5): Substituted “either party when one spouse” for “the wife when the husband” following “petition of” and “the other” for “her” following “maintenance for”.

—1971 (Adj. Sess.). Subdiv. (7): Substituted “six consecutive months” for “two consecutive years”.

—1971. Subdiv. (7): Substituted “two” for “three” preceding “consecutive”.

—1969 (Adj. Sess.). Subdiv. (4): Deleted “for three consecutive years” following “wilful desertion”.

Subdiv. (7): Deleted “without fault on the part of the libelant” following “years”.

CROSS REFERENCES

Condonation, see § 563 of this title.

Divorce on ground of insanity, see § 631 et seq. of this title.

Recrimination, see § 562 of this title.

ANNOTATIONS

Adultery.
Anticipatory separation.
- —Condonation.
Appeals.
Attorney’s fees.
Burden of proof.
Conviction of crime.
Duty of court.
Evidence.
Findings.
Insanity.
Intolerable severity.
Nonsupport.
- —Prior law.
Plain error.
Pleadings.
Recrimination.
Res judicata.
Resumption of marital relations.
Retrial.
Wilful desertion.

Adultery.

Adultery by an insane person is not cause for divorce. Nichols v. Nichols, 31 Vt. 328, 1858 Vt. LEXIS 140 (1858).

Anticipatory separation.

Complaint in divorce action brought by wife, which alleged an anticipatory six months separation without a probability of resumption of the marital relationship under subdivision (7) of this section, was not legally deficient for failure to state the claim with particularity as required by V.R.C.P. 80(b), since husband could have moved for a more particular statement under V.R.C.P. 12(e) and further, since wife complied with his discovery motions, there appeared to be no lack of notice to the husband as to the factual bases for the allegations. Ragosta v. Ragosta, 143 Vt. 107, 465 A.2d 228, 1983 Vt. LEXIS 486 (1983).

—Condonation.

Condonation must be voluntary to be a defense in a divorce suit, and is not effectual where induced by fraud, force or fear. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Intolerable severity is condoned by voluntary marital cohabitation. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Husband could not prevail on claim of condonation as defense to wife’s suit for divorce on grounds of intolerable severity where the continuing sexual relations asserted as the basis for condonation were involuntary on wife’s part and submitted to out of fear of physical reprisal. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Condonation is a doctrine of conditional forgiveness; it is the obligation of the offending partner to refrain from further misconduct, and the innocent partner’s continuing forbearance in the hope of saving the marriage should not work a forfeiture of relief if violations of the marriage covenant persist. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969); Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Husband, having the burden of proof on his defense of condonation in wife’s cross-libel, could not claim fault in lower court’s finding of no condonation where husband produced no evidence of forgiveness by his wife, either actual or by implication. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969).

Where the libelant, being fully aware of misconduct on the part of the libelee, continues marital relations, the previous misconduct is condoned as a matter of law. Padova v. Padova, 123 Vt. 125, 183 A.2d 227, 1962 Vt. LEXIS 209 (1962).

Failure to fulfill the condition of condonation renders it inoperative and nullifies its legal effect. Padova v. Padova, 123 Vt. 125, 183 A.2d 227, 1962 Vt. LEXIS 209 (1962).

The burden of proof on the issue of condonation is on the party seeking the benefit of the doctrine. Padova v. Padova, 123 Vt. 125, 183 A.2d 227, 1962 Vt. LEXIS 209 (1962).

Where acts constituting grounds for divorce have been condoned, but such acts have been continued after the condonation, all such prior misconduct is thereby made available as ground for divorce. Sage v. Sage, 115 Vt. 364, 61 A.2d 557, 1948 Vt. LEXIS 82 (1948).

A husband’s mistreatment of his wife on the last occasion of their cohabitation amounting to intolerable severity nullifies her condonation of his prior misconduct directed against her. Crossman v. Crossman, 115 Vt. 219, 55 A.2d 330, 1947 Vt. LEXIS 104 (1947).

Breaches of the marriage covenant which have been condoned, with no later infraction of the implied condition thereof, are not grounds for divorce. Guibord v. Guibord, 114 Vt. 278, 44 A.2d 158, 1945 Vt. LEXIS 80 (1945).

Sexual intercourse voluntarily engaged in after the libelant has warned the libelee that conditions must be changed and after a series of acts of intolerable severity constitutes condonation. Davidson v. Davidson, 111 Vt. 68, 10 A.2d 197, 1940 Vt. LEXIS 120 (1940).

Intolerable severity is condoned by and the necessary promise of kindly treatment is inferred, from subsequent voluntary marital cohabitation. Davidson v. Davidson, 111 Vt. 68, 10 A.2d 197, 1940 Vt. LEXIS 120 (1940).

A series of acts of intolerable severity, even though occurring at frequent intervals, cannot be said to be continuous in the sense in which infection with disease is continuous and may therefore be condoned. Davidson v. Davidson, 111 Vt. 68, 10 A.2d 197, 1940 Vt. LEXIS 120 (1940).

There was no condonation where wife was incapable of bearing healthy children and it was impossible for the husband to have intercourse without great danger of infection. Ryder v. Ryder, 66 Vt. 158, 28 A. 1029, 1892 Vt. LEXIS 2 (1892).

Appeals.

Libelee’s notice of appeal from divorce decree brought the whole case, including all questions litigated in lower court and affecting the final judgment, if briefed, to supreme court for review. Mandigo v. Mandigo, 128 Vt. 446, 266 A.2d 434, 1970 Vt. LEXIS 252 (1970).

Determination that “none of the alleged statutory grounds for divorce were proved by credible evidence” was for trial court and could not be revised on review. Davis v. Davis, 128 Vt. 495, 266 A.2d 466, 1970 Vt. LEXIS 260 (1970).

In support of a decree it will be presumed on appeal, the contrary not appearing, that all the evidence bearing upon the issues was considered by the trial court with impartial patience and adequate reflection. Ovitt v. Smith, 68 Vt. 35, 33 A. 769, 1895 Vt. LEXIS 8 (1895); Guibord v. Guibord, 114 Vt. 278, 44 A.2d 158, 1945 Vt. LEXIS 80 (1945).

Attorney’s fees.

In suit for divorce, an award of $ 625.00 for expense and attorney’s fee was not so unreasonable and unjust as to amount to an abuse of discretion of the trial court. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

Burden of proof.

The burden is on the libelant to establish persistent conduct, or fault, on the part of the libelee leading to intolerable severity. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

Libelant in suing for a divorce on the ground of living apart had the burden of affirmatively proving that the living apart was without fault on his part. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

Where findings did not establish the reason for, or the basis of, the separation adverse to the libelee, nor that the conduct of the libelee was the real cause of the breakdown of the marriage nor that the living apart was without fault on the part of the libelant, the libelant was not entitled to a divorce on the ground of living apart. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

Party claiming condonation as a defense has the burden of proof on the issue. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969); Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Conviction of crime.

Under this section the term of the sentence fixed by the court controls, regardless of the fact that prisoner is entitled to a deduction from the term of his sentence of five days for each month of good behavior. Sargood v. Sargood, 77 Vt. 498, 61 A. 472, 1905 Vt. LEXIS 144 (1905).

The libelant having married the libelee after he had been convicted of murder in the second degree, but while his case was pending in the supreme court on exceptions, a divorce will not be given upon the ground of his subsequent sentence to the state prison for life. Caswell v. Caswell, 64 Vt. 557, 24 A. 988, 1892 Vt. LEXIS 89 (1892).

A divorce will not be granted for a cause which the libelant knew or ought to have known existed at the time of the marriage. Caswell v. Caswell, 64 Vt. 557, 24 A. 988, 1892 Vt. LEXIS 89 (1892).

Duty of court.

It is the duty of the court in making findings, to sift the evidence and state facts; this means that the court considers all the evidence bearing on the issues with impartial patience and adequate reflection and then formulates the findings couched in its own language. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

It is the duty of a court in divorce cases, where the state is virtually a party with an interest in the maintenance of marital relations, to conduct a trial with utmost fairness and decide the case as it is persuaded by the competent and believable evidence alone. Siebert v. Siebert, 124 Vt. 187, 200 A.2d 258, 1964 Vt. LEXIS 81 (1964).

Evidence.

Trial court’s finding that separation of husband and wife exceeded six months and that the resumption of marital relations was not reasonably probable was fully supported by the evidence that the parties had lived apart for over fifteen years, both had long-term relationships with others and husband made it abundantly clear the marriage was over for him; therefore judgment granting divorce would be upheld. Zweig v. Zweig, 154 Vt. 468, 580 A.2d 939, 1990 Vt. LEXIS 158, cert. denied, 498 U.S. 942, 111 S. Ct. 350, 112 L. Ed. 2d 314, 1990 U.S. LEXIS 5353 (1990).

At divorce proceeding, the evidence did not support the trial court’s finding that the parties had lived separate and apart, albeit under the same roof, for the requisite six-month period within the meaning of relevant statute; although the record supported a finding that they had not engaged in sexual relations in fifteen years and quality of their relationship was poor, the parties continued to sleep in the same bed, held themselves out to others as husband and wife, and engaged in activities together; therefore, remand was required for determination of whether nonsexual elements of the marriage had been abandoned. Scott v. Scott, 155 Vt. 465, 586 A.2d 1140, 1990 Vt. LEXIS 260 (1990).

For purposes of six-month living apart period as grounds for divorce, parties may be deemed to be living apart if evidence establishes they live separate lives albeit under the same roof; continued residence in the same dwelling is but one factor to be considered with others in determining the nature of the relationship between the parties. Scott v. Scott, 155 Vt. 465, 586 A.2d 1140, 1990 Vt. LEXIS 260 (1990).

A court trying an uncontested divorce action is not bound to believe uncontradicted testimony, for the trier has a broad latitude in determining what evidence is worthy of belief. Davis v. Davis, 128 Vt. 495, 266 A.2d 466, 1970 Vt. LEXIS 260 (1970).

The weight and sufficiency of the evidence on the issues of intolerable severity and recrimination is for the trial court. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

If there was any creditable evidence to support finding that separation of husband and wife was fault of husband, supreme court must affirm dismissal of husband’s action for divorce on ground that he had lived apart from wife for more than three consecutive years without fault on his part and that resumption of marital relations was not reasonably probable. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

In an action for divorce, persuasive effect of evidence and credibility of witnesses are for the trier of facts to determine. Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90, 1965 Vt. LEXIS 233 (1965).

In an uncontested action, a trial court is not bound to believe uncontradicted testimony, for the trier has a broad latitude in determining what evidence is worthy of belief, and its findings should be read accordingly. Crossman v. Crossman, 124 Vt. 127, 197 A.2d 818, 1964 Vt. LEXIS 71 (1964).

It is improper and prejudicial for a trier of facts to base a finding on personal knowledge obtained as an observer outside of court, or from a place other than the witness stand. Siebert v. Siebert, 124 Vt. 187, 200 A.2d 258, 1964 Vt. LEXIS 81 (1964).

Where it is apparent that there is no collusion between the parties, the trial court may properly find facts from the uncorroborated testimony of the libelant. Castle v. Castle, 118 Vt. 112, 100 A.2d 574, 1953 Vt. LEXIS 103 (1953).

Adultery may be proved by mere circumstantial evidence; the only requisite being that the proved circumstances be such as to lead the guarded discretion of a reasonable and just man to conclude, with the degree of certainty required by law, that the alleged act was committed. Taft v. Taft, 80 Vt. 256, 67 A. 703, 1907 Vt. LEXIS 99 (1907).

Testimony of private detectives hired by the petitioner to watch her husband with a view to learning facts upon which to base a suit for divorce should be regarded with much suspicion, especially where it does not appear that their pay is not dependent on the effect of their testimony, but it cannot be said that such witnesses are always entitled to only slight credibility, or that a divorce should never be granted upon their uncorroborated testimony. Taft v. Taft, 80 Vt. 256, 67 A. 703, 1907 Vt. LEXIS 99 (1907).

In a suit for divorce on the ground of adultery, evidence of other occasions besides those relied upon, whether prior or subsequent thereto, is admissible to show an adulterous disposition. Taft v. Taft, 80 Vt. 256, 67 A. 703, 1907 Vt. LEXIS 99 (1907).

To justify the granting of a divorce on the ground of adultery the evidence must be sufficient to overcome the presumption of innocence, but need not establish the commission of the crime beyond a reasonable doubt. Lindley v. Lindley, 68 Vt. 421, 35 A. 349, 1896 Vt. LEXIS 96 (1896).

Upon trial of a libel for divorce on the ground of adultery, letters written by the alleged particeps criminis but not known to nor received by the libelee are not admissible in evidence, although they contain a confession of guilt on his part. Tillison v. Tillison, 63 Vt. 411, 22 A. 531, 1891 Vt. LEXIS 124 (1891).

Findings.

Where findings of fact were waived, the court was not bound to reduce its findings to writing and place them on file, or to set forth in its order dismissing libel for divorce the material fact which was the basis for its action. Davis v. Davis, 128 Vt. 495, 266 A.2d 466, 1970 Vt. LEXIS 260 (1970).

In order to support findings as to fault in divorce cases, there must be substantial and credible evidence fairly and reasonably tending to support them. Mandigo v. Mandigo, 128 Vt. 446, 266 A.2d 434, 1970 Vt. LEXIS 252 (1970).

On appeal, interference with findings is justified only when contrary proof so predominates the controversy that the record establishes no reasonable basis upon which the findings can stand, and although supreme court can set the findings aside, it will not do so where the evidence conflicts merely because the evidence preponderates against them. Mandigo v. Mandigo, 128 Vt. 446, 266 A.2d 434, 1970 Vt. LEXIS 252 (1970).

Though the supreme court will presume in favor of lower court’s decree, it cannot supply an omitted essential fact not fairly or reasonably inferable from the facts found. Mandigo v. Mandigo, 128 Vt. 446, 266 A.2d 434, 1970 Vt. LEXIS 252 (1970).

Libelant’s brief pointing directly to error in findings that separation of libelant and his wife was fault of libelant sufficiently presented that question for review, contrary to contention of libelee that libelant’s brief did not specifically put in issue any findings below. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Paragraph of finding summarizing testimony of husband and wife in divorce proceeding as to whether resumption of marital relationship was reasonably probable was not a finding and could not stand. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Statement in finding that court was unable to find upon any credible evidence that separation of husband and wife was fault of libelee wife was a statement that, in trier’s judgment, credible evidence did not produce preponderance of evidence upon the subject for finding to be made to that effect; it did not infer that there was no evidence as wife being at fault for the separation, but did mean that there was not preponderance of evidence upon the subject sufficient for finding to be made to that effect. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Finding to effect that court was unable to find a preponderance of evidence that libelee wife was at fault with respect to husband and wife living apart did not serve to support judgment dismissing husband’s action for divorce on ground that he had lived apart from wife for more than three consecutive years without fault on his part and that resumption of marital relations was not reasonably probable. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Numerous findings reciting substance of certain testimony given by one party or other were immaterial and not for consideration and were insufficient to support judgment dismissing action for divorce. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Where subordinate facts and legitimate findings did not support court’s conclusion that separation of husband and wife was fault of husband who sought divorce on ground that he had lived apart from wife for more than three consecutive years without fault on his part and resumption of marital relations was not reasonably probable, conclusion could not stand. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Inclusion in the record of findings by the court without evidence to support them constitutes prejudicial error. Siebert v. Siebert, 124 Vt. 187, 200 A.2d 258, 1964 Vt. LEXIS 81 (1964).

In absence of findings of fact a divorce decree will be affirmed if evidence discloses sufficient facts to support it. Davis v. Davis, 121 Vt. 242, 154 A.2d 463, 1959 Vt. LEXIS 113 (1959).

Insanity.

Insanity as a defense to a divorce action is an affirmative defense as defined in section 1024 of Title 12 and as such should be pleaded. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Not every mental illness will shield a divorce litigant from responsibility. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Libelee could not prevail on insanity defense to action for divorce brought on grounds of intolerable severity where there was no medical evidence that he did not appreciate the wrongness of his conduct or that he was acting under an irresistible impulse, and his mental condition, diagnosed as a type of schizophrenia, did not account for his persistent and intolerably severe conduct and was not such as to prevent him from making rational judgments, realizing what he was doing, and transacting business and continuing work as a project in design. Gallant v. Gallant, 129 Vt. 16, 270 A.2d 593, 1970 Vt. LEXIS 196 (1970).

Intolerable severity.

Intolerable severity may be established by proof of any line of misconduct persisted in by the offending spouse to such an extent as to cause or threaten injury to the life, limb or health of the other, and it is not necessary that such injury, actual or threatened, should be the direct result of such misconduct; it is sufficient if it is produced by grief, worry or mental distress occasioned by the misconduct. Davis v. Davis, 128 Vt. 495, 266 A.2d 466, 1970 Vt. LEXIS 260 (1970).

The well-established rule in this jurisdiction is that to constitute intolerable severity the acts and conduct of the offending spouse must be of such aggravated nature that the health of the innocent spouse is threatened to the point of present and imminent danger. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

The critical question in determining whether libelant is entitled to divorce on the grounds of intolerable severity is whether there was any misconduct on the part of the libelee and, if so, did it cause or threaten injury to the life, limb, or health of the libelant, either as a direct result of such misconduct, or produced by grief, worry, or mental distress occasioned thereby. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

A finding that libelant became tense, upset, nervous, had stomach pains and jumpy, fell short of showing that libelant’s health was threatened to the point of present or imminent danger, and libelant was not entitled to divorce on ground of intolerable severity. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

To overcome the failure of the trial court to make a determination of an actual or threatened impairment of health favorable to the libelant, the facts and circumstances must be so decisive of such danger to libelant’s health that there can be no difference of opinion that such result will ensue. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

Continuing misconduct of husband producing physical harm, grief and anguish to the point of wife’s physical and mental health, consisting of husband’s indiscretions with other women and severely striking wife twice during arguments over husband’s attention to other women, constituted adequate cause for granting wife a divorce on the ground of intolerable severity. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969).

In divorce case, the weight and sufficiency of evidence is for trial court, on issues of both intolerable severity and recrimination. Tucker v. Tucker, 127 Vt. 252, 246 A.2d 707, 1968 Vt. LEXIS 218 (1968).

Finding of wife’s impairment of health when husband took his departure from the home with statement that he wished to live with another woman had support in evidence adduced in wife’s divorce case. Tucker v. Tucker, 127 Vt. 252, 246 A.2d 707, 1968 Vt. LEXIS 218 (1968).

In presence of conflicting evidence, supreme court could neither dispute trial court’s finding of intolerable severity nor presume to supply a finding of recrimination. Tucker v. Tucker, 127 Vt. 252, 246 A.2d 707, 1968 Vt. LEXIS 218 (1968).

Intolerable severity may be established by proof of misconduct, even if directed toward others, persisted in over the objections of libelant, which misconduct produces grief, worry or mental distress in the libelant or otherwise causes injury to the libelant’s health. Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90, 1965 Vt. LEXIS 233 (1965).

Inclusion in findings that general conduct of husband and display of uncontrollable temper toward wife caused her fear of bodily harm and general impairment of health, although unsupported was not harmful error in that it was only one of several determinations which would constitute intolerable severity. Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90, 1965 Vt. LEXIS 233 (1965).

To warrant the granting of a decree of divorce on the ground of intolerable severity, it is necessary that the court make an affirmative finding that the misconduct of the libelee was such as to impair either the physical or mental health of the libelant and only when the facts and circumstances shown by the record are so decisive of actual or threatened danger to the libelant’s health and that there can be no difference of opinion that such result will ensue can the appellate court overcome this failure of the issue favorable to the libelant. Crossman v. Crossman, 124 Vt. 127, 197 A.2d 818, 1964 Vt. LEXIS 71 (1964).

In absence of showing that defendant was physically able to support plaintiff, his failure or neglect to do so would not constitute intolerable severity, regardless of effect it may have had on her. Beamish v. Beamish, 107 Vt. 263, 178 A. 745, 1935 Vt. LEXIS 171 (1935).

When facts and circumstances are so decisive of actual or apprehended bodily harm resulting from mental suffering that there can be no difference of opinion about it, court may take judicial notice thereof; otherwise, such essential fact must be found in order to warrant decree of divorce. Souther v. Souther, 103 Vt. 48, 151 A. 504, 1930 Vt. LEXIS 111 (1930).

“Intolerable severity” may be established by any line of misconduct persisted in by the offending party to such an extent as to cause injury to the life, limb, or health of the other, or to threaten, or to create a danger of, such injury; and it is not necessary that such injury, present or threatened, should be the direct result of such misconduct, but it is sufficient if it is produced by grief, worry, or mental anguish caused by such misconduct. Mathewson v. Mathewson, 81 Vt. 173, 69 A. 646, 1908 Vt. LEXIS 129 (1908); Whitehead v. Whitehead, 84 Vt. 321, 79 A. 516, 1911 Vt. LEXIS 276 (1911); Carr v. Carr, 100 Vt. 65, 135 A. 5, 1926 Vt. LEXIS 122 (1926); Crossman v. Crossman, 115 Vt. 219, 55 A.2d 330, 1947 Vt. LEXIS 104 (1947).

Nonsupport.

To entitle wife to divorce for nonsupport, pecuniary or physical ability of husband to support her must affirmatively appear. Beamish v. Beamish, 107 Vt. 263, 178 A. 745, 1935 Vt. LEXIS 171 (1935).

Where husband, at time of leaving wife, leased his farm to his son-in-law upon consideration that lessee would provide lessor’s wife with suitable support so far as food, heat, light, and shelter were concerned, but made no provision for her clothing or medical attention, such facts did not show that husband “grossly or wantonly and cruelly” refused or neglected to provide suitable maintenance for his wife, so as to constitute cause for divorce. Carr v. Carr, 100 Vt. 65, 135 A. 5, 1926 Vt. LEXIS 122 (1926).

In order to entitle a wife to a divorce for gross or wanton and cruel failure to support, something more is required than mere desertion, though wilful, or simple neglect or refusal to support; a wife who bases her application upon this ground must establish some circumstance of indignity or aggravation characterizing the husband’s conduct to bring her case with the terms of this section. Mandigo v. Mandigo, 15 Vt. 786 (1843); Farnsworth v. Farnsworth, 58 Vt. 555, 5 A. 401, 1886 Vt. LEXIS 108 (1886); Jewett v. Jewett, 61 Vt. 370, 17 A. 734, 1889 Vt. LEXIS 48 (1889); Cilley v. Cilley, 61 Vt. 548, 18 A. 1120, 1889 Vt. LEXIS 84 (1889); Caswell v. Caswell, 66 Vt. 242, 28 A. 988, 1894 Vt. LEXIS 93 (1894); Whitaker v. Whitaker, 92 Vt. 301, 102 A. 1036, 1918 Vt. LEXIS 169 (1918).

—Prior law.

Libelant seeking divorce on ground of living apart without fault must affirmatively prove absence of fault at time of separation. Mandigo v. Mandigo, 128 Vt. 446, 266 A.2d 434, 1970 Vt. LEXIS 252 (1970).

One of the three essential elements necessary to support a decree on the ground of living apart is that the living apart was without fault on the part of the libelant. Winslow v. Winslow, 127 Vt. 428, 251 A.2d 419, 1969 Vt. LEXIS 251 (1969).

To warrant the granting of a divorce on the ground of living apart for more than three years, each of three essential facts must be affirmatively proved: (1) that the parties have lived apart for more than three years, (2) that the living apart was without fault on the part of the libelant, and (3) that the resumption of marital relations is not reasonably probable; it is the better practice that the trial court make direct findings on each of those points and not leave any of them to inference. West v. West, 115 Vt. 458, 63 A.2d 864, 1949 Vt. LEXIS 82 (1949); Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Plain error.

There was no plain error in finding that the six-month-separation requirement had been satisfied, as the limited circumstances for finding plain error in civil cases were not present; furthermore, the mother, who was the one claiming plain error, had herself alleged that the parties were living separate and apart, and the evidence supported the trial court’s finding. LeBlanc v. LeBlanc, 2014 VT 65, 197 Vt. 17, 100 A.3d 345, 2014 Vt. LEXIS 68 (2014).

Pleadings.

If a party neither pleads nor proves what has been decided by a court of competent jurisdiction in some other case between himself and his antagonist, he cannot insist upon the benefit of res judicata. Chapman v. Chapman, 118 Vt. 166, 102 A.2d 849, 1954 Vt. LEXIS 95 (1954).

In divorce cases a libelee without special plea could show at the trial any fact that would defeat the libelant, such as condonation, recrimination or former adjudication. Tillison v. Tillison, 63 Vt. 411, 22 A. 531, 1891 Vt. LEXIS 124 (1891); Chapman v. Chapman, 118 Vt. 166, 102 A.2d 849, 1954 Vt. LEXIS 95 (1954).

Recrimination.

Acts of physical violence by plaintiff in divorce proceedings toward his wife, consisting in horsewhipping her about six years before trial, and in slapping and choking her on other occasions, there being no act of physical violence on his part for about two years prior to the time he left her, where his wife continued to live with him as such for about five years after horsewhipping incident, and for about two years after last of any act of physical violence, and up to time of his leaving her intended to continue so to live with him, was not sufficient to constitute bar in recrimination. Souther v. Souther, 103 Vt. 48, 151 A. 504, 1930 Vt. LEXIS 111 (1930).

Facts and circumstances were not of such decisive character as to constitute bar in recrimination, in absence of finding that actual or apprehended bodily harm resulted from mental suffering occasioned. Souther v. Souther, 103 Vt. 48, 151 A. 504, 1930 Vt. LEXIS 111 (1930).

No form of the petitioner’s dereliction will afford a complete bar in recrimination unless it is such as the law has made a ground of divorce. McCannon v. McCannon, 73 Vt. 147, 50 A. 799, 1901 Vt. LEXIS 145 (1901).

Desertion on the part of the petitioner is not a bar in recrimination unless it has continued long enough to be a ground for divorce. McCannon v. McCannon, 73 Vt. 147, 50 A. 799, 1901 Vt. LEXIS 145 (1901).

Res judicata.

Notwithstanding the doctrine of res judicata, an action for divorce may be brought on grounds present in the years following a prior, unsuccessful suit; where a particular ground for divorce, such as no-fault provision, requires continuous separation for a specified period of time, the court need only find that the separation has lasted for the requisite period on the date the case comes to trial. Zweig v. Zweig, 154 Vt. 468, 580 A.2d 939, 1990 Vt. LEXIS 158, cert. denied, 498 U.S. 942, 111 S. Ct. 350, 112 L. Ed. 2d 314, 1990 U.S. LEXIS 5353 (1990).

Vermont no-fault divorce action initiated subsequent to dismissal of divorce action brought in New York on grounds of cruelty and constructive abandonment was not barred by the doctrine of res judicata; the grounds were not identical even though New York decision mentioned “dead marriage” doctrine which could be construed as another name for no-fault irreconcilability, because under New York law the dead marriage doctrine makes up part of the grounds for cruelty and cannot stand alone as a distinct no-fault basis for dissolution of a marriage. Zweig v. Zweig, 154 Vt. 468, 580 A.2d 939, 1990 Vt. LEXIS 158, cert. denied, 498 U.S. 942, 111 S. Ct. 350, 112 L. Ed. 2d 314, 1990 U.S. LEXIS 5353 (1990).

Libelee, who had previously petitioned for divorce on grounds of intolerable severity and refusal to support which, after a trial on the merits, had been dismissed, could not give in evidence, or rely upon as a defense, any matter which was or might have been used in the former suit. Tillison v. Tillison, 63 Vt. 411, 22 A. 531, 1891 Vt. LEXIS 124 (1891).

Resumption of marital relations.

The resumption of relations test has a long history in Vermont domestic relations law, has the patina of a phrase of art, does not raise an irrebuttable presumption and is not uncertain; and it is illegal or irrational for the state to require one opposing the divorce to meet the test. Boone v. Boone, 133 Vt. 170, 333 A.2d 98, 1975 Vt. LEXIS 359 (1975).

Husband who left home, lived apart from his wife for six consecutive months and stated that he had no intention of reconciling with his wife and that he did not want a reconciliation, was entitled to a divorce under this section where the court finds that the resumption of marital relations is not reasonably probable. Tabakin v. Tabakin, 131 Vt. 234, 303 A.2d 816, 1973 Vt. LEXIS 297 (1973).

Retrial.

Inasmuch as findings did not settle issues involved in action for divorce under this section, case must be returned for retrial. Krupp v. Krupp, 126 Vt. 511, 236 A.2d 653, 1967 Vt. LEXIS 230 (1967).

Wilful desertion.

Where the desertion had its inception while the parties resided in another state and the three consecutive years ended when the libelant was a bona fide resident of Vermont, the cause of divorce accrued when the libelant was a resident of this state. Newlin v. Newlin, 94 Vt. 26, 108 A. 516, 1920 Vt. LEXIS 163 (1920).

That a wife, without physical excuse and for three consecutive years, refuses to have sexual intercourse with the husband does not entitle him to a divorce for desertion. Pratt v. Pratt, 75 Vt. 432, 56 A. 86, 1903 Vt. LEXIS 155 (1903).

Where the county court found the petitionee guilty of adultery and it appeared that as the parties were leaving the place where the marriage ceremony was performed the petitioner had said to the petitionee, “You go your way and I will go mine,” and had nothing to do with her afterwards, it was presumed on review that the court found the petitioner guilty of wilful desertion for three years, the contrary not appearing. Pierce v. Pierce, 70 Vt. 270, 40 A. 728, 1897 Vt. LEXIS 40 (1897).

A divorce for wilful desertion may be granted upon a petition brought before the expiration of the three years, provided that period has fully run before the trial. Hemenway v. Hemenway, 65 Vt. 623, 27 A. 609, 1893 Vt. LEXIS 104 (1893).

Where wife merely refused to live with her husband in a particular locality “near his relations,” which he persisted in doing, her action, in the absence of proof that this was a mere simulated excuse, would be regarded as made in good faith; and if her refusal to live with him in that locality was because she believed she could not live happily there, it should not be regarded as willful. Powell v. Powell, 29 Vt. 148, 1856 Vt. LEXIS 155 (1856).

A willful desertion must be a desertion without any good reason, or without such a reason as the party upon probable proof believes to be sufficient. Powell v. Powell, 29 Vt. 148, 1856 Vt. LEXIS 155 (1856).

Cited.

Cited in Emmons v. Emmons, 141 Vt. 508, 450 A.2d 1113, 1982 Vt. LEXIS 563 (1982); Costello v. Costello, 142 Vt. 124, 453 A.2d 1107, 1982 Vt. LEXIS 622 (1982); Victor v. Victor, 142 Vt. 126, 453 A.2d 1115, 1982 Vt. LEXIS 627 (1982); Hendrick v. Hendrick, 142 Vt. 357, 454 A.2d 1251, 1982 Vt. LEXIS 652 (1982); Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983); Kaplan v. Kaplan, 143 Vt. 102, 463 A.2d 223, 1983 Vt. LEXIS 474 (1983); Roberts v. Roberts, 146 Vt. 498, 505 A.2d 676, 1986 Vt. LEXIS 318 (1986); DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986); Plante v. Plante, 148 Vt. 234, 531 A.2d 926, 1987 Vt. LEXIS 486 (1987); Philburt v. Philburt, 148 Vt. 394, 533 A.2d 1181, 1987 Vt. LEXIS 520 (1987); Lewis v. Lewis, 149 Vt. 19, 538 A.2d 170, 1987 Vt. LEXIS 577 (1987); Poulin v. Upham, 149 Vt. 24, 538 A.2d 181, 1987 Vt. LEXIS 572 (1987); Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

§ 552. Reconciliation.

If one of the parties had denied under oath or affirmation that the parties have lived apart for the requisite period of time or has alleged that reconciliation is reasonably probable, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the complaint and the prospect of reconciliation, and shall:

make a finding whether the parties have lived apart for the requisite period of time or not and whether the reconciliation of the parties to the civil marriage is reasonably probable or not; or
continue the matter for further hearing not less than 30 or more than 60 days later, and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the parties have lived apart for the requisite period of time or not and whether the reconciliation of the parties to the civil marriage is reasonably probable or not.

HISTORY: Added 1971, No. 238 (Adj. Sess.), § 3, eff. April 6, 1972; amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Revision note—

Substituted “complaint” for “petition” to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Prior law.

15 V.S.A. § 551a .

§ 553. Collusion.

The term “collusion,” as used in divorce actions, shall not be construed to include conversations or negotiations of the parties carried on in good faith in an effort to resolve their marital difficulties, where the purpose or result of the conference is not to hinder or obstruct justice or to suppress evidence as to the merits of the case.

History

Source.

V.S. 1947, § 3264. 1941, No. 45 , § 1.

Prior law.

15 V.S.A. § 552 .

ANNOTATIONS

Modification of support order.

In order to justify granting of petition by divorced husband for reduction of support payment ordered by divorce decree in accordance with stipulation of husband and wife permitted under this section, determination that there had been a change in circumstances in relation to parties since issuance of original divorce decree was a prerequisite. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

In order to justify granting of petition by divorced husband for reduction of support payments ordered by divorce decree in accordance with stipulation of husband and wife, findings were required to show that change in circumstances in relation to parties since issuance of original divorce decree was of sufficient material substance to support amendment of decree to allow reduction. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

Conclusions reached by trial court on petition to modify divorce decree to reduce support payments ordered by divorce decree in accordance with stipulation of parties, on ground of change in circumstances of parties, are not to be lightly set aside by reviewing tribunals not exposed to testimony, arguments, and explanations presented to trial court. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

Courts asked to modify divorce decree to reduce support payments ordered by divorce decree in accordance with stipulation of parties should approach matter carefully, requiring a full exposition of facts and a demonstration that, because of change in circumstances of parties, original order has become unfair, unwise, or in some other way inappropriate. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

Where parties enter into stipulation as to amount of allowance for support, and stipulation is incorporated in divorce decree, need for later alteration because of change in circumstances of parties should have especially explicit exposition. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

In order to justify granting of petition by divorced husband for reduction of support payments ordered by divorce decree in accordance with stipulation of husband and wife, burden was on divorced husband to establish change of circumstances. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

In order to justify granting of petition by divorced husband for reduction of support payments ordered by divorce decree in accordance with stipulation of husband and wife, fraud, unconscionable advantage, impossibility of performance, or hampering circumstances intervening beyond the expectation of parties may legitimately appeal to discretion of court in amending decree. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

Fact that divorced wife inherited $10,000 after divorce decree which incorporated stipulation of parties concerning allowance to divorced wife for support did not entitle divorced husband to modification of provisions of divorce decree relating to allowance for support on ground of change of circumstances. Braine v. Braine, 127 Vt. 211, 243 A.2d 797, 1968 Vt. LEXIS 206 (1968).

Right of parties to contract.

Parties to a divorce action are permitted to negotiate for themselves the terms of their marriage dissolution. Morissette v. Morissette, 143 Vt. 52, 463 A.2d 1384, 1983 Vt. LEXIS 471 (1983).

Where parties to divorce action filed a written stipulation distributing certain property and the complaint for divorce listed the same marital property as that enumerated in the stipulation, it was not error for the trial court to accept the stipulation as providing for a fair and equitable distribution of the property. Morissette v. Morissette, 143 Vt. 52, 463 A.2d 1384, 1983 Vt. LEXIS 471 (1983).

In determining fair market value of wife’s ownership equity in a corporation held by parties to a divorce, trial court did not err in deducting hypothetical closing costs where the parties’ written stipulation filed by the parties provided for sale of the wife’s shares. Morissette v. Morissette, 143 Vt. 52, 463 A.2d 1384, 1983 Vt. LEXIS 471 (1983).

Vermont law permits parties to a divorce action to negotiate for themselves the terms of their marriage dissolution: thus, the supreme court recognizes the underlying right of the parties to a divorce action to contract, subject to judicial approval, and to have their agreement honored under the ordinary rules of contract. Duke v. Duke, 140 Vt. 543, 442 A.2d 460, 1982 Vt. LEXIS 445 (1982).

Cited.

Cited in White v. White, 141 Vt. 499, 450 A.2d 1108, 1982 Vt. LEXIS 561 (1982).

§ 554. Decrees nisi.

A decree of divorce from the bonds of matrimony in the first instance shall be a decree nisi and shall become absolute at the expiration of 90 days from the entry thereof but, in its discretion, the court that grants the divorce may fix an earlier date upon which the decree shall become absolute. If one of the parties dies prior to the expiration of the nisi period, the decree shall be deemed absolute immediately prior to death.
Either party may file any post-trial motions under the Vermont Rules of Civil Procedure. The time within which any such motion shall be filed shall run from the date of entry of the decree of divorce and not from the date the nisi period expires. The court shall retain jurisdiction to hear and decide the motion after expiration of the nisi period. A decree of divorce shall constitute a civil judgment under the Vermont Rules of Civil Procedure.
If the stated term at which the decree nisi was entered has adjourned when a motion is filed, the presiding judge of the stated term shall have power to hear and determine the matter and make new decree therein as fully as the court might have done in term time; but, in the judge’s discretion, the judge may strike off the decree and continue the cause to the next stated term.

HISTORY: Amended 1969, No. 264 (Adj. Sess.), § 2; 1989, No. 227 (Adj. Sess.), § 1, eff. June 4, 1990; 1995, No. 94 (Adj. Sess.), § 1; 2018, No. 8 (Sp. Sess.), § 13, eff. June 28, 2018.

History

Source.

V.S. 1947, §§ 3215-3217. P.L. §§ 3127-3129. 1927, No. 50 , § 1.

Revision note—

Substituted “motion” for “application” preceding “of either party” in subsec. (b) and in subsec. (c) to conform language to Rule 7(b), Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2018 (Sp. Sess.). Subsec. (a): Substituted “90 days” for “three months” and “court that” for “court which”.

—1995 (Adj. Sess.) Subsec. (a): Added the second sentence.

—1989 (Adj. Sess.) Subsec. (b): Amended generally.

Subsec. (c): Substituted “a” for “such” preceding “motion”, “the” for “such” preceding “stated term”, “the judge’s” for “his” preceding “discretion” and “the judge” for “he” thereafter.

—1969 (Adj. Sess.). Subsec. (a): Substituted “three” for “six” preceding “months”.

1995 (Adj. Sess.) amendment. 1995, No. 94 (Adj. Sess.), § 2 provided: “This act [which amended this section] shall apply to all final orders entered after July 1, 1996, notwithstanding the date the action was filed.”

Prior law.

15 V.S.A. § 553 .

ANNOTATIONS

Construction.
Death of party during nisi period.
Expiration of decree nisi period.
Modification.
Nunc pro tunc orders.
Power of court.

Construction.

“Decree” and “judgment” are two virtually interchangeable statutory terms. Russell v. Russell, 157 Vt. 295, 597 A.2d 798, 1991 Vt. LEXIS 182 (1991).

Death of party during nisi period.

Court’s decision denying wife’s motion to abate divorce action must be reversed due to husband’s death during nisi period. Estate of Ladd v. Estate of Ladd, 161 Vt. 270, 640 A.2d 29, 1994 Vt. LEXIS 17 (1994). (Decided under prior law.)

Husband’s death during nisi period did not terminate separation agreement which unambiguously indicated the parties’ intention that it stand independent of the divorce decree. Estate of Ladd v. Estate of Ladd, 161 Vt. 270, 640 A.2d 29, 1994 Vt. LEXIS 17 (1994). (Decided under prior law.)

Expiration of decree nisi period.

To the extent that the family court modified parental rights and responsibilities through a 1999 agreement of the parties, it was a valid exercise of the family court’s jurisdiction; however, as an attempt to alter the parentage determination in the original divorce decree, the order was null and void because the family court lost jurisdiction to amend such determinations once the nisi period had run, absent a motion to amend the judgment. Therefore, there was no merit to a father’s argument that the 1999 agreement removed the necessary predicate (parentage) upon which to base an award of college expenses. O'connell-Starkey v. Starkey, 2007 VT 128, 183 Vt. 10, 944 A.2d 897, 2007 Vt. LEXIS 259 (2007).

Where neither party to a divorce sought to amend the original judgment order under either V.R.C.P 60(b) or 59(e), and the judgment was not amended to reflect a stipulated agreement on parentage until more than ninety days after the original order, the amended order was a nullity. Jones v. Murphy, 172 Vt. 86, 772 A.2d 502, 2001 Vt. LEXIS 13 (2001).

Provision of V.R.A.P. 4 that a timely motion to amend a judgment pursuant to V.R.C.P. 59 tolls the period for filing a notice of appeal until the motion to amend is decided could not apply to a motion to amend a divorce decree filed during the nisi period but decided by the superior court after the nisi period expired, because the court was without jurisdiction to rule on the motion after the decree became absolute. Labelle v. Labelle, 149 Vt. 660, 551 A.2d 1195, 1988 Vt. LEXIS 56 (1988) (mem.).

Superior court had no jurisdiction to grant defendant’s motion to reopen the record to introduce new evidence and issue an amended order after the parties’ divorce decree had become absolute. Downs v. Downs, 150 Vt. 647, 549 A.2d 1382, 1988 Vt. LEXIS 119 (1988) (mem.).

After the nisi period expires, a trial court’s order may be changed pursuant to a V.R.C.P. 60(b) motion. Cameron v. Cameron, 150 Vt. 647, 549 A.2d 1043, 1988 Vt. LEXIS 117 (1988) (mem.).

Trial court did not abuse or withhold its discretion by amending judgment and order after the nisi period had expired to correct a mistake with regard to valuation and award of certain stock. Cameron v. Cameron, 150 Vt. 647, 549 A.2d 1043, 1988 Vt. LEXIS 117 (1988) (mem.).

Modification.

Ordinarily trial court’s jurisdiction to amend divorce decree is limited to the nisi period. Slansky v. Slansky, 150 Vt. 627, 556 A.2d 94, 1988 Vt. LEXIS 219 (1988).

Nunc pro tunc orders.

Nisi period could not be backdated by issuance of nunc pro tunc order in divorce action. Estate of Ladd v. Estate of Ladd, 161 Vt. 270, 640 A.2d 29, 1994 Vt. LEXIS 17 (1994).

Trial court could not employ nunc pro tunc divorce order to correct a prior decision by another judge in the same court. Estate of Ladd v. Estate of Ladd, 161 Vt. 270, 640 A.2d 29, 1994 Vt. LEXIS 17 (1994).

Power of court.

Provision in subsection (c) of this section to the effect that the presiding judge of an adjourned term may hear motion to set aside or amend a decree nisi and may make a new order does not give a presiding judge powers of the county court over a motion to change a decree nisi while such court is in session. Ford v. Ford, 125 Vt. 21, 209 A.2d 316, 1965 Vt. LEXIS 192 (1965).

Cited.

Cited in Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419, 1989 Vt. LEXIS 208 (1989); Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

§ 555. Legal separation.

A legal separation forever or for a limited time may be granted for any of the causes for which an absolute divorce may be granted.

HISTORY: Amended 1981, No. 247 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 3218. P.L. § 3130. G.L. § 3564. P.S. § 3072. 1906, No. 51 , § 1.

Amendments

—1981 (Adj. Sess.). Section amended generally.

Prior law.

15 V.S.A. § 554 .

Procedural rules. 1981, No. 247 (Adj. Sess.), § 17, provided: “Nothing in this act [which amended this section and sections 751-758; added sections 594a, 606, 607, 651, 652 and 762; repealed sections 292, 556, 557, 671-675, 760 and 761 of this title; and amended sections 9603 and 10002 of Title 32] or in Title 12 shall prevent the supreme court from adopting rules of procedure consistent with the policies of this act [ 1981, No. 247 (Adj. Sess.)].”

CROSS REFERENCES

Conveyance of realty after legal separation, see § 753 of this title.

Grounds for divorce, see § 551 of this title.

§§ 556, 557. Repealed. 1981, No. 247 (Adj. Sess.), § 18.

History

Former § 556, relating to separate maintenance, was derived from V.S. 1947, § 3219; P.L. § 3131; G.L. § 3565; P.S. § 3073; 1896, No. 51 , § 2. The subject matter is now covered by § 752 of this title.

Former § 557, relating to property of the parties and care and custody of children, was derived from V.S. 1947, § 3220; P.L. § 3132; G.L. § 3566; P.S. § 3074; 1896, No. 51 , § 3 and amended by 1969, No. 264 (Adj. Sess.), § 3. The subject matter is now covered by §§ 751 and 650 et seq. of this title.

§ 558. Woman allowed to take maiden name.

Upon granting a divorce to a woman, unless good cause is shown to the contrary, the court may allow her to resume her maiden name or the name of a former husband.

History

Source.

V.S. 1947, § 3260. P.L. § 3170. G.L. § 3604. P.S. § 3112. V.S. § 2705. R.L. § 2393. G.S. 70, § 43. 1860, No. 37 .

Prior law.

15 V.S.A. § 557 .

ANNOTATIONS

Generally.

Where this section required court, in granting divorce, to favorably consider woman’s request that she be allowed to resume her former name unless good cause be shown to the contrary, judgment order granting divorce but making no reference to the request was insufficient. Elwell v. Elwell, 132 Vt. 73, 313 A.2d 394, 1973 Vt. LEXIS 261 (1973).

Grounds for granting or denying.

Fact that children’s name will be different from that of mother is insufficient basis, standing alone, for denying an unopposed request by woman being granted a divorce to resume a former name. Elwell v. Elwell, 132 Vt. 73, 313 A.2d 394, 1973 Vt. LEXIS 261 (1973).

§ 559. Change of children’s names.

The court may change the names of the minor children of divorced parents when application for that purpose is made in the complaint for divorce.

History

Source.

V.S. 1947, § 3261. P.L. § 3171. G.L. § 3605. P.S. § 3113. V.S. § 2706. R.L. § 2394. 1878, No. 133 .

Revision note—

Substituted “complaint” for “libel” to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Prior law.

15 V.S.A. § 558 .

§ 560. Remarriage.

When a civil marriage is dissolved pursuant to this chapter, the parties shall be deemed single and may lawfully marry again.

HISTORY: Amended 1969, No. 264 (Adj. Sess.), § 4; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3258. 1939, No. 55 , § 2. P.L. § 3168. 1925, No. 53 , § 1. G.L. § 3602. P.S. § 3110. V.S. § 2703. R.L. § 2391. 1878, No. 16 , § 4. G.S. 70, § 42. R.S. 63, § 44. 1807, p. 19. 1805, p. 164. R. 1797, p. 333, § 10. R. 1787, p. 48.

Amendments

—1969 (Adj. Sess.). Section amended generally.

Prior law.

15 V.S.A. § 559 .

Notes to Opinions

Prior law.

For cases construing this section when there was a time limit before remarriage was allowed see Mack v. Jones, 129 Vt. 298, 276 A.2d 626, 1971 Vt. LEXIS 259 (1971); Lunnie v. Lunnie, 127 Vt. 207, 243 A.2d 795, 1968 Vt. LEXIS 204 (1968); State v. Spencer, 111 Vt. 308, 15 A.2d 582, 1940 Vt. LEXIS 160 (1940); Wheelock v. Wheelock, 103 Vt. 417, 154 A. 665, 1931 Vt. LEXIS 185 (1931); Patterson's Administrator v. Modern Woodmen of America, 89 Vt. 305, 95 A. 692, 1915 Vt. LEXIS 221 (1915); State v. Sartwell, 81 Vt. 22, 69 A. 151, 1908 Vt. LEXIS 110 (1908); State v. Bentley, 75 Vt. 163, 53 A. 1068, 1903 Vt. LEXIS 108 (1903); State v. Richardson, 72 Vt. 49, 47 A. 103, 1899 Vt. LEXIS 126 (1899); State v. Shattuck, 69 Vt. 403, 38 A. 81, 1897 Vt. LEXIS 72 (1897) (1897).

§ 561. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 561, relating to penalty for violating terms of order or decree forbidding remarriage for two years, was derived from V.S. 1947, § 3259; 1939, No. 55 , § 3; P.L. § 3169; 1921, No. 82 ; G.L. § 3603; P.S. § 3111; V.S. § 2704; R.L. § 2392; 1878, No. 16 , § 5.

§ 562. Recrimination.

Recrimination shall not constitute a defense or a bar to a complaint for divorce.

HISTORY: Added 1969, No. 264 (Adj. Sess.), § 5; amended 1971, No. 14 , § 3, eff. March 11, 1971.

History

Revision note—

Substituted “complaint” for “libel” to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—1971. Section amended generally.

Prior law.

15 V.S.A. § 561 .

ANNOTATIONS

Property disposition.

Where, in divorce action, defendant entered into evidence facts relating to plaintiff wife’s moral conduct after filing of divorce action and paternity of plaintiff’s children, such evidence was limited to question of property distribution, which is governed by principles of equity regardless of the grounds of divorce, and as such is separate and apart from that portion of the decree which grants divorce, and this section did not apply and evidence was properly admitted. Allen v. Allen, 132 Vt. 182, 315 A.2d 459, 1974 Vt. LEXIS 320 (1974).

§ 563. Condonation.

Condonation shall not constitute a defense or a bar to a complaint for divorce.

HISTORY: Added 1969, No. 264 (Adj. Sess.), § 8; amended 1971, No. 14 , § 4, eff. March 11, 1971.

History

Revision note—

Substituted “complaint” for “libel” to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—1971. Section amended generally.

Prior law.

15 V.S.A. § 562 .

Subchapter 3. Proceedings Generally

Article 1. General Provisions

CROSS REFERENCES

Procedure in divorce actions, see Rule 4, Vermont Rules for Family Proceedings.

§ 591. Jurisdiction and power of courts.

Superior Courts shall hear and determine complaints for divorce and for affirming or annulling the civil marriage contract and may issue process of attachment, execution, and other proper process necessary for the dispatch and final determination of such causes. The judges of the Superior Court shall be triers of questions of fact as well as of law. Their determination of questions of fact shall be final, and exceptions may be taken and questions of law heard in the Supreme Court as in other causes.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 3221. P.L. § 3133. G.L. § 3567. P.S. § 3075. V.S. § 2678. 1894, No. 51 . 1890, No. 76 . 1886, No. 69 . 1884, No. 94 . R.L. § 2368. 1870, No. 27 . G.S. 70, § 21. R.S. 63, § 20. 1805, p. 164.

Revision note—

Substituted “complaints” for “libels” in the first sentence to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—1973 (Adj. Sess.). Substituted “superior courts” for “county courts” preceding “shall hear” in the first sentence and “superior court” for “county court” preceding “shall be triers” in the second sentence.

CROSS REFERENCES

Exceptions unnecessary, see Rule 46, Vermont Rules of Civil Procedure.

ANNOTATIONS

Civil liability of judge for actions.
Findings.
Jurisdiction.
Questions of fact.
Review.
Weight and credibility of evidence.

Civil liability of judge for actions.

Where judge who presided over trial of divorce action was acting within the jurisdiction conferred by this section, he was immune from civil action under 42 U.S.C. § 1983 brought by one of the parties to the divorce who alleged that the judge’s actions violated his constitutional rights. Ragosta v. State, 556 F. Supp. 220, 1981 U.S. Dist. LEXIS 17793 (D. Vt. 1981), aff'd, 697 F.2d 296, 1982 U.S. App. LEXIS 18626 (2d Cir. 1982).

Findings.

Jurisdiction.

Each state, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. Because the court upheld the trial court’s finding that the wife was domiciled in Vermont, the trial court had personal jurisdiction to grant the divorce. Conley v. Crisafulli, 2010 VT 38, 188 Vt. 11, 999 A.2d 677, 2010 Vt. LEXIS 41 (2010).

A finding that divorce proceedings were ex parte overcomes the presumption that the court had full jurisdiction of the parties. Walker v. Walker, 124 Vt. 172, 200 A.2d 267, 1964 Vt. LEXIS 78 (1964).

This section indicates that the jurisdictional limitations of the supreme court are not altered in divorce cases. Davidson v. Davidson, 111 Vt. 24, 9 A.2d 114, 1939 Vt. LEXIS 121 (1939).

Nos. 27 and 28 of the acts of the legislature for 1870 conferred jurisdiction only on the county court in cases thereinafter instituted by libel for divorce or for the annulling of marriages, and to that extent, and not beyond, the jurisdiction is taken from the supreme court. Preston v. Preston, 44 Vt. 630, 1872 Vt. LEXIS 80 (1872).

Questions of fact.

This section and section 605 of this title show the legislative intent to have county courts and not the supreme court be the triers of all questions of fact concerning divorce libels. Davidson v. Davidson, 111 Vt. 24, 9 A.2d 114, 1939 Vt. LEXIS 121 (1939).

Review.

Weight and credibility of evidence.

§ 592. Residence.

A complaint for divorce or annulment of civil marriage may be brought if either party to the marriage has resided within the State for a period of six months or more, but a divorce shall not be decreed for any cause, unless the plaintiff or the defendant has resided in the State one year next preceding the date of final hearing. Temporary absence from the State because of illness, employment without the State, service as a member of the U.S. Armed Forces, or other legitimate and bona fide cause shall not affect the six months’ period or the one-year period specified in the preceding sentence, provided the person has otherwise retained residence in this State.
Notwithstanding provisions to the contrary, a complaint for divorce may be filed in the Family Division of Superior Court in the county in which the marriage certificate was filed by parties who are not residents of Vermont provided all of the following criteria are met:
1. The marriage was established in Vermont.
2. Neither party’s state of legal residence recognizes the couple’s Vermont marriage for purposes of divorce.
3. There are no minor children who were born or adopted during the marriage.
4. The parties file a stipulation together with a complaint that resolves all issues in the divorce action. The stipulation shall be signed by both parties and shall include the following terms:
  1. An agreement that the terms and conditions of the stipulation may be incorporated into a final order of divorce.
  2. The facts upon which the court may base a decree of divorce and that bring the matter before the court’s jurisdiction.
  3. An acknowledgment that:
    1. Each party understands that if he or she wishes to litigate any issue related to the divorce before a Vermont court, one of the parties must meet the residency requirement set forth in subsection (a) of this section.
    2. Neither party is the subject of an abuse prevention order in a proceeding between the parties.
    3. There are no minor children who were born or adopted during the marriage.
    4. Neither party’s state of legal residence recognizes the couple’s Vermont marriage for purposes of divorce.
    5. Each party has entered into the stipulation freely and voluntarily.
    6. The parties have exchanged all financial information, including income, assets, and liabilities.
The court shall waive a final hearing on any divorce action filed pursuant to subsection (b) of this section unless the court determines upon review of the complaint and stipulation that the filing is incomplete or that a hearing is warranted for the purpose of clarifying a provision of the stipulation. Final uncontested hearings in a nonresident divorce action shall be conducted by telephone unless one or both of the parties choose to appear in person.

HISTORY: Amended 1981, No. 2 , eff. Feb. 12, 1981; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2011, No. 92 (Adj. Sess.), § 2.

History

Source.

V.S. 1947, § 3214. 1943, No. 32 , § 1. 1939, No. 55 , § 1. P.L. § 3126. G.L. § 3563. P.S. § 3071. V.S. § 2677. R.L. § 2367. 1878, No. 16 , § 1. R.S. 63, § 21. 1831, No. 8 . 1822, p. 17. 1807, p. 19. 1805, p. 164. 1802, p. 204.

Revision note—

In the first sentence, substituted “complaint” for “libel”, “plaintiff” for “libelant” and “defendant” for “libelee” to conform language to Rule 3, Vermont Rules of Civil Procedure pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2011 (Adj. Sess.) Added the subsec. (a) designation, and added subsecs. (b) and (c).

—1981. Substituted “if either party to the marriage” for “by a person who” following “brought” and inserted “or the libelee” following “libelant” in the first sentence and deleted “his” preceding “residence” in the second sentence.

Legislative intent. 2011, No. 92 (Adj. Sess.), § 1 provides: “(a) On July 1, 2000, Vermont became the first state to provide same-sex couples the opportunity to obtain the same benefits and protections afforded by state law to married opposite-sex couples by enacting civil unions. In 2009, Vermont extended the right to establish a civil marriage to same-sex couples.

“(b) Today, the United States is a patchwork of laws regarding the recognition of legally joined same-sex couples. While several states now recognize civil unions and same-sex marriage, most do not.

“(c) Vermont law requires a person to have resided in Vermont for at least six months prior to filing a complaint for an annulment, divorce, or dissolution of a civil union. This long-standing rule is commonplace among the states and prevents parties from choosing a jurisdiction most likely to provide a favorable judgment. However, while an opposite-sex out-of-state couple who marries in Vermont can get divorced in the state of residence of either party, most same-sex out-of-state couples joined in a Vermont civil union or marriage do not have this option. Thus, there are many same-sex couples who established a civil union or married in Vermont who are no longer together, yet they continue to be legally bound with no recourse other than moving to Vermont and becoming residents.

“(d) It is the intent of the general assembly in this act to provide access to a civil union dissolution or a divorce to nonresident couples joined in a Vermont civil union or Vermont marriage who are legally barred from dissolving the union in their state of residence, provided that the parties file a stipulation outlining an agreement executed by both parties that sets out the terms and conditions of resolution for all issues in the dissolution or divorce action. The provisions of this act pertaining to a divorce for nonresident couples shall apply to both same-sex and opposite-sex couples.”

CROSS REFERENCES

Residence requirement for divorce on ground of insanity, see § 631 of this title.

ANNOTATIONS

Constitutionality.
Findings.
Immigration status.
Jurisdiction without residence.
Requirements.
Residency requirement not satisfied.
Retroactive effect.
Unity of spouses.

Constitutionality.

Residency requirement of this section does not deny a libellant equal protection or due process of law. Place v. Place, 129 Vt. 326, 278 A.2d 710, 1971 Vt. LEXIS 265 (1971).

Findings.

Although the trial court found that a wife openly acknowledged that her sole reason for coming to Vermont was to take advantage of Vermont’s no-fault divorce law, that she had family and a job in New York, and that she spent two nights per week at her mother’s home in Albany after teaching exercise classes, the trial court properly held that she gave up her New York domicile and intended to remain in Vermont indefinitely. In reaching this conclusion, it relied on its findings that the wife had lived in Vermont since June 2008, had a Vermont operator’s license, voted in Vermont in 2008 and 2009, paid Vermont taxes, and currently leased a residence in Vermont which she intended to renew; additionally, the wife stated that she had no current plans to move out of Vermont and had no plans to move following the divorce. Conley v. Crisafulli, 2010 VT 38, 188 Vt. 11, 999 A.2d 677, 2010 Vt. LEXIS 41 (2010).

Finding that both parties had lived on farm in county where suit was brought for many years prior to the bringing of the suit was sufficient to establish residence. Pacquin v. Pacquin, 125 Vt. 243, 214 A.2d 90, 1965 Vt. LEXIS 233 (1965).

On the trial of a libel for divorce, the court’s failure to find that the libelant had the residence within the county essential to jurisdiction of the case, was error only if the evidence was such as to entitle the libelant to such a finding as matter of law, the question being one of fact. Taylor v. Taylor, 95 Vt. 94, 112 A. 355, 1921 Vt. LEXIS 180 (1921).

Immigration status.

In a divorce case, the husband, a native of India, had shown domicile in Vermont when he had resided in Vermont since 2011, paid state and federal taxes, maintained continuous employment in Vermont, had a Vermont driver’s license with a vehicle registered in Vermont, used a local bank account and United States-issued credit card, and made only three brief trips to India. His status as a nonimmigrant alien did not undermine this conclusion in that while in Vermont on a temporary H-1B visa, he took substantial steps toward obtaining a permanent resident visa by applying for, and receiving, his I-140 status. Maghu v. Singh, 2018 VT 2, 206 Vt. 413, 181 A.3d 518, 2018 Vt. LEXIS 2 (2018).

Jurisdiction without residence.

Whether libelee who had left Vermont after establishing residence intended to return was not of controlling significance with respect to her right to have her cross-libel heard and determined, because when she was called upon to answer the complaint of the resident libelant, she acquired standing to maintain the cross-libel. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969).

Requirements.

Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

The concept of residency in a divorce proceeding is encompassed within the legal definition of domicile: an abode animo manendi, a place where a person lives or has his home, to which, when absent, he intends to return and from which he has no present purpose to depart. Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Availability of statutory remedy of divorce is closely conditioned upon meeting procedural requirements outlined in this chapter. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973).

The two elements of domicile are residence and intention, and to make a change in domicile effective there must be a move to the new residence and dwelling there, coupled with an intention of remaining there indefinitely and neither residence alone, nor intention, without more, is enough. Walker v. Walker, 124 Vt. 172, 200 A.2d 267, 1964 Vt. LEXIS 78 (1964).

Domicile, in divorce matters, is the place where a person lives or has his home, to which, when absent, he intends to return, and from which he has no present purpose to depart. Walker v. Walker, 124 Vt. 172, 200 A.2d 267, 1964 Vt. LEXIS 78 (1964).

While the reason for a change in domicile will have no bearing if there is a valid intention to establish a new domicile, such purpose may well bear on the question of the validity of the intention to unconditionally assume the new domicile. Walker v. Walker, 124 Vt. 172, 200 A.2d 267, 1964 Vt. LEXIS 78 (1964).

A bona fide residence under statutes in order to confer jurisdiction in divorce proceedings is within the legal meaning of domicile, that is, an abode animo manendi, a place where a person lives or has his home, to which, when absent, he intends to return and from which he has no present purpose to depart. Tower v. Tower, 120 Vt. 213, 138 A.2d 602, 1958 Vt. LEXIS 96 (1958).

To constitute domicile essential to give jurisdiction of a libel for divorce, not only residence by the libelant in the county was necessary, but also an intention to remain therein. Taylor v. Taylor, 95 Vt. 94, 112 A. 355, 1921 Vt. LEXIS 180 (1921).

It is sufficient if the libelant has her domicile in this state for the prescribed period, though she is actually living without this state. Miller v. Miller, 88 Vt. 134, 92 A. 9, 1914 Vt. LEXIS 200 (1914).

Residency requirement not satisfied.

Husband who filed a divorce complaint failed to satisfy the residency requirement. The fact that the husband, while living in Germany, surrendered his Vermont driver’s license and obtained a Georgia license supported the trial court’s finding that although the parties intended to return to the United States at some point, they did not intend to return specifically to Vermont; furthermore, although the husband offered evidence that the parties’ relocation to Germany was not permanent, he offered no evidence that the family moved for a definite period, limited either in duration or by the occurrence of specific events. Gosbee v. Gosbee, 2015 VT 82, 199 Vt. 480, 125 A.3d 514, 2015 Vt. LEXIS 61 (2015).

Retroactive effect.

This section was retroactively applied to permit New York resident to sue Vermont resident for divorce; language did not preclude such application. Zweig v. Zweig, 154 Vt. 468, 580 A.2d 939, 1990 Vt. LEXIS 158, cert. denied, 498 U.S. 942, 111 S. Ct. 350, 112 L. Ed. 2d 314, 1990 U.S. LEXIS 5353 (1990).

Unity of spouses.

The identity of the wife’s domicile and that of her husband, arising out of the common-law rule as to the unity of the spouses, is subject to an exception where the unit is no longer a fact because of separate residences of the spouses under hostile circumstances and there is no fault on the part of the wife. Tower v. Tower, 120 Vt. 213, 138 A.2d 602, 1958 Vt. LEXIS 96 (1958).

Cited.

Cited in In re B.J.C., 149 Vt. 196, 540 A.2d 1047, 1988 Vt. LEXIS 4 (1988).

§ 593. Place for bringing action; caption of divorce action.

Except as provided in subsection (b) of this section, complaints for divorce for any cause and for affirming or annulling the civil marriage contract shall be brought in the county in which the parties or one of them resides. Petitions directed to a Superior judge for temporary orders under the provisions of Vermont Rule of Civil Procedure 80(c) may be heard within or without the county where the cause is pending at a place convenient for the parties and the judge hearing the same.
A complaint for divorce or dissolution of a civil union shall be brought in the county in which the marriage certificate or the civil union certificate was filed if neither of the parties resides in Vermont.
An action for divorce or annulment may be captioned as follows:
Complaint for Divorce [Annulment]-Involving: [Names of Parties]

HISTORY: Amended 1995, No. 59 , § 13; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2011, No. 92 (Adj. Sess.), § 3.

History

Source.

V.S. 1947, § 3213. 1947, No. 202 , § 3236. 1935, No. 58 , § 1. P.L. § 3125. G.L. § 3562. P.S. § 3070. V.S. § 2676. R.L. § 2366. G.S. 70, § 21. R.S. 63, § 20.

References in text.

The reference to Vermont Rule of Civil Procedure 80(c) in subsec. (a) is obsolete. Provisions relating to temporary orders are contained in Rule 4 of the Vermont Rules for Family Proceedings.

Revision note—

Substituted “complaints” for “libels” at the beginning of the section to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Reference to “sections 671 and 672 of this title” was changed to “Vermont Rule of Civil Procedure 80(c)” to conform reference to repeal of those sections and adoption of rules covering the same subject matter.

Amendments

—2011 (Adj. Sess.) Inserted “Except as provided in subsection (b) of this section,” preceding “complaints”, added new subsec. (b), and redesignated former subsec. (b) as (c).

—1995. Added “caption of divorce action” following “bringing action” in the section heading, designated the existing provisions of the section as subsec. (a) and added subsec. (b).

ANNOTATIONS

Change of residence.
Construction with other laws.
Dismissal.
Purpose.
Requirements.
Residence of wife.
Situs of marriage.
Validity.
Waiver.

Change of residence.

County court of Washington County had jurisdiction of divorce suit brought by woman residing in Washington County at time she brought her action, and fact that woman may have removed from Washington County after bringing of divorce petition did not remove jurisdiction of Washington county court. Morse v. Morse, 126 Vt. 290, 229 A.2d 228, 1967 Vt. LEXIS 186 (1967).

Where, after bringing of divorce petition, both parties removed from the county in which the petition was brought, the court still had jurisdiction to hear the cause. Sage v. Sage, 115 Vt. 364, 61 A.2d 557, 1948 Vt. LEXIS 82 (1948).

Construction with other laws.

This section was provided by legislature entirely separately from general venue statute, thereby showing intention to distinguish between them. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973).

Dismissal.

Dismissal of divorce complaint on ground that it was not filed in county where parties, or one of them, resided, as required by this section, was proper. Conolly v. Conolly, 132 Vt. 65, 313 A.2d 12, 1973 Vt. LEXIS 258 (1973).

Purpose.

This section recognizes and indicates that the libelant and libelee may reside in different counties and that the libelant, if the wife, need not rely upon a constructive residence with her husband in the county where he resides, if both are residents of the state. Tower v. Tower, 120 Vt. 213, 138 A.2d 602, 1958 Vt. LEXIS 96 (1958).

Requirements.

Availability of statutory remedy of divorce is closely conditioned upon meeting procedural requirements outlined in this chapter. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973); Ragosta v. Ragosta, 143 Vt. 107, 465 A.2d 228, 1983 Vt. LEXIS 486 (1983).

Residence of wife.

Where a husband, having long resided with his wife in this state, gives her cause for divorce, he forfeits his right to determine her residence, and she may thereupon leave him and acquire an independent residence in another county in this state, and then the county court within that county has jurisdiction to grant her a divorce, although her husband continues to reside where she left him. Patch v. Patch, 86 Vt. 225, 84 A. 815, 1912 Vt. LEXIS 172 (1912).

Situs of marriage.

As an in rem action, proper court for divorce is determined by situs of marriage itself rather than location or residence of parties. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973).

Validity.

Legislature has power to apportion jurisdiction among its courts, and it clearly has the right to give venue statute such a “jurisdictional flavor” as would require divorcing parties to bring action in appropriate county court even if they mutually agreed to do otherwise. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973).

Waiver.

Venue provision governing all divorce actions is a jurisdictional requisite, nonwaivable and binding. Ragosta v. Ragosta, 143 Vt. 107, 465 A.2d 228, 1983 Vt. LEXIS 486 (1983).

Legislature has specifically provided that divorce actions will be brought in a specific county, and this section cannot be lightly ignored, nor can policies or doctrines be applied which support view that general venue statutes are waivable. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973).

Existence of this special section governing place of bringing divorce action, side by side with venue statutes, shows legislative intention that place of divorce action be more than a mere waivable venue question. Gerdel v. Gerdel, 132 Vt. 58, 313 A.2d 8, 1973 Vt. LEXIS 257 (1973).

Cited.

Cited in Ragosta v. State, 556 F. Supp. 220, 1981 U.S. Dist. LEXIS 17793 (D. Vt. 1981).

§ 594. Representation and testimony of child.

The court may appoint an attorney to represent the interests of a minor or dependent child with respect to child support and the allocation of parental rights and responsibilities.
The court shall appoint an attorney for a minor child before the minor child is called as a witness in a proceeding under this chapter. The child may only be called as a witness if the court finds after hearing that:
1. the child’s testimony is necessary to assist the court in determining the issue before it;
2. the probative value of the child’s testimony outweighs the potential detriment to the child; and
3. the evidence sought is not reasonably available by any other means.
The examination of the child may be conducted by the court in chambers in the presence of such other persons as the court may specify and shall be recorded by a court reporter.
The court shall enter an order for costs, fees, and disbursements in favor of the child’s attorney. The order shall be made against either or both parents, except that, if the responsible party is indigent, the costs, fees, and disbursements shall be borne as provided by rule of court.

HISTORY: 1971, No. 238 (Adj. Sess.), § 2, eff. April 6, 1972; amended 1985, No. 181 (Adj. Sess.), § 9.

History

Amendments

—1985 (Adj. Sess.). Section amended generally.

Prior law.

15 V.S.A. § 593a .

CROSS REFERENCES

Appointment of guardian ad litem in cases involving parental rights and responsibilities, see § 669 of this title.

Rules governing assignment and payment of counsel in family and probate cases, see Administrative Order No. 32, Administrative Orders of the Supreme Court.

ANNOTATIONS

Appointment of attorney.
Child as witness.
Disposition recommendation.

Appointment of attorney.

In a divorce action, husband did not demonstrate that the court abused its discretion in declining to appoint counsel for the parties’ child. Without determining whether the court was correct in finding collusion, the assumption that neither parent was thinking of the best interests of their son did not necessarily follow from such a finding. Furthermore, regardless of whether the child was foremost in the parties’ thoughts, the court appointed a guardian ad litem (GAL) to protect the child’s best interests, and husband did not show that the GAL failed to protect those interests. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996).

Child as witness.

There is nothing to indicate that the Legislature intended a broader definition of “minor” in 15 V.S.A. § 594(b) (testimony of child) than in § 594(a) (representation of child), which plainly refers only to minors who are the subject of a support and custody proceeding. The purpose of the provision is to protect children faced with the dilemma of testifying simultaneously for one parent and against the other. Thus, the statute does not apply broadly to any child witness, but only to those minors who are the subject of the custody dispute. Davis v. Hunt, 167 Vt. 263, 704 A.2d 1166, 1997 Vt. LEXIS 274 (1997).

Disposition recommendation.

Where court allowed attorney appointed to represent children in divorce action to make written and oral recommendation to the court as to the disposition of the child custody issue, based on attorney’s independent investigation, and court adopted the recommendation verbatim in its order, acceptance of the recommendation was reversible error. Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139, 1978 Vt. LEXIS 659 (1978).

Cited.

Cited in Berlin v. Berlin, 139 Vt. 339, 428 A.2d 1113, 1981 Vt. LEXIS 465 (1981); Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Law Reviews —

For note relating to procedures for determination of best interests of child in divorce custody disputes, see 9 Vt. L. Rev. 311 (1984).

§ 594a. Temporary relief.

Either party or both parties to a civil marriage may apply for temporary relief at any time following the separation of the parties to the marriage coincidental with, or subsequent to the filing of complaint for absolute divorce or legal separation. The court to which the cause is returnable, or a Superior judge, on such notice to the adverse party as the court or judge directs, may make such orders pending final hearing and further order of the court as the court would be authorized to make upon final hearing. A prompt hearing will be held, and the evidence shall be recorded by a court reporter. The court or judge shall issue an order within 14 days from the date of the hearing. Failure of the court or judge to issue an order within 14 days shall not affect the validity of any order issued after the 14-day period.

HISTORY: Added 1981, No. 247 (Adj. Sess.), § 2; amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2017, No. 11 , § 38.

History

Revision note—

Substituted “complaint” for “petition” in the first sentence to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2017. Substituted “14” for “10” preceding “days” in the fourth and fifth sentences and “14-day” for “10-day” preceding “period” in the fifth sentence.

ANNOTATIONS

Construction with other laws.
Maintenance.
Possession of marital home.
Separation.

Construction with other laws.

There is no necessary relationship between the abuse prevention provisions of chapter 21 of this title and the statutes and rules governing divorce proceedings. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Nothing in the language of the statute regarding magistrates’ findings and of the statute regarding temporary relief in divorce proceedings suggests that findings or conclusions of a magistrate in a temporary order are binding upon the family court when it makes a final determination. Thus, there was no merit to a mother’s argument that the trial court was bound by the findings of a temporary order. Frazer v. Olson, 2015 VT 84, 200 Vt. 13, 127 A.3d 86, 2015 Vt. LEXIS 67 (2015).

Maintenance.

Trial court erred in continuing the husband’s temporary maintenance obligation while an appeal was pending. That obligation terminated with the entry of the final divorce order. Camara v. Camara, 2010 VT 53, 188 Vt. 566, 998 A.2d 1058, 2010 Vt. LEXIS 50 (2010) (mem.).

Maintenance order which calculated arrearage due from date of temporary order when final order that superseded it was held to be of no effect, but which lacked evidence that trial court knowingly exercised its discretion in establishing the effective date of the permanent award, was remanded, and since the court had offset arrearages against equity in marital home, affected property award was also remanded. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

Possession of marital home.

Factors relevant to a court’s determination of temporary possession of the marital home during divorce proceedings might include the determination as to who is to have custody of the children and what will be in their best interests as to place of residence, the emotional consequences to the parties and/or the children of continuing to share the same residence, the economic status of each party, and the cost and availability of alternative housing to each party. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Factors other than physical harm, fear of imminent serious physical harm and abuse to children are relevant considerations to a court’s determination of temporary possession of the marital home during divorce proceedings. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

The best interests of the children is a valid factor to consider in a final divorce order concerning award of the family home, and the same factor may be considered in rendering a temporary order. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Trial court had authority in divorce action to issue an order awarding temporary possession of the marital home to plaintiff wife in the absence of a finding either of spouse abuse under chapter 21 of this title or intolerable severity. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Findings in divorce action that the continued residence of both parties under the same roof was causing “considerable tension and emotional distress” which was not in the best interests of the children were sufficient to support court’s order awarding temporary possession of the marital home to plaintiff wife. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Separation.

For purposes of temporary orders in matrimonial matters, “separation of the parties” does not mean that one of the parties must have vacated the home premises; the essential thing is not separate roofs, but separate lives. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Parties were separated within the meaning of this section and court had jurisdiction to issue order awarding temporary possession of the marital home to plaintiff wife where although the parties lived under the same roof, they were not living as husband and wife, divorce proceedings had commenced and the evidence indicated the existence of the kind and degree of interpersonal tension and friction necessary to justify the issuance of temporary relief. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

§§ 595-602. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 595, relating to form and contents of libel, was derived from V.S. 1947, § 3222; 1941, No. 43 , § 3; P.L. § 3134; G.L. § 3568; 1915, No. 103 , § 1; P.S. § 3076; V.S. § 2679; R.L. § 2369; G.S. 70, § 22; R.S. 63, § 24 and amended by 1965, No. 112 , § 1.

Former § 596, relating to signature on summons, was derived from V.S. 1947, § 3224; P.L. § 3136; G.L. § 3570; 1915, No. 1 , § 106; 1908, No. 76 ; P.S. § 3078; V.S. § 2681; R.L. § 2371; 1880, No. 39 , § 1 and amended by 1969, No. 119 , § 2 and 1969, No. 264 (Adj. Sess.), § 6. The subject matter is now covered by Rule 4(b), Vermont Rules of Civil Procedure.

Former § 597, relating to service of libel and form of summons, was derived from V.S. 1947, § 3223; 1945, No. 29 , § 32; P.L. § 3135; G.L. § 3569; P.S. § 3077; V.S. § 2680; R.L. § 2370; G.S. 70, §§ 23, 24; R.S. 63, §§ 25, 26; 1805, p. 165; R. 1797, p. 334, § 11 and amended by 1969, No. 264 (Adj. Sess.), § 7.

Former § 598, relating to publication of notice when libelee was out of state, was derived from V.S. 1947, § 3225; 1947, No. 202 , § 3248; 1945, No. 29 , § 33; 1937, No. 53 ; P.L. § 3137; G.L. § 3571; 1910, No. 101 , § 1; P.S. § 3079; 1906, No. 63 , § 33; V.S. § 2682; R.L. § 2372; 1870, No. 28 , § 2; 1866, No. 31 ; G.S. 70, § 25; R.S. 63, § 27; 1805, p. 165; R. 1797, p. 334, § 11. The subject matter is now covered by Rule 4(g), Vermont Rules of Civil Procedure.

Former § 599, relating to further notice, was derived from V.S. 1947, § 3226; P.L. § 3138; G.L. § 3572; 1915, No. 105 ; 1910, No. 101 , § 2; P.S. § 3080; V.S. § 2683; R.L. § 2373; G.S. 70, § 26; R.S. 63, § 28.

Former § 600, relating to guardian for insane libelee, was derived from V.S. 1947, § 3227; P.L. § 3139; G.L. § 3573; P.S. § 3081; V.S. § 2684; R.L. § 2374; G.S. 70, § 27; R.S. 63, § 29. The subject matter is now covered by Rule 17(b), Vermont Rules of Civil Procedure.

Former § 601, relating to time for hearing where custody of children was involved, was derived from 1951, No. 61 , § 2; V.S. 1947, § 3255; 1947, No. 40 , § 1; 1945, No. 29 , § 34; P.L. § 3165; G.L. § 3599; P.S. § 3107; 1906, No. 63 , § 33; V.S. § 2700; 1882, No. 68 , § 2; R.L. § 2390; G.S. 70, § 47; 1856, No. 28 , § 2.

Former § 602, relating to testimony of witnesses and exclusion of persons from trial, was derived from V.S. 1947, § 3228; P.L. § 3140; G.L. § 3574; P.S. § 3082; V.S. § 2685; R.L. § 2375; 1870, No. 27 , § 2.

§ 603. Contempt.

Nonfinancial obligations. If a person disobeys a lawful order of the Family Division made under the provisions of this chapter and the order does not relate to payment of a financial obligation, the person may be subject to proceedings for civil contempt as provided by 12 V.S.A. § 122 .
Financial obligations. If a person disobeys a lawful order of the Family Division made under the provisions of this chapter and the order creates a financial obligation, including payment of child support, spousal maintenance, or a lump sum property settlement, the person may be subject to proceedings for civil contempt as provided by 12 V.S.A. § 122 and the provisions set forth herein.
Parties. The Office of Child Support may institute proceedings in all cases in which the Office provides services under Title IV-D of the Social Security Act to either or both parties.
Notice of hearing. The person against whom the contempt proceedings are brought shall be served with a notice of a hearing ordering the person to appear at the hearing to show cause why he or she should not be held in contempt. The notice shall inform the person that failure to appear at the hearing may result in the issuance of an arrest warrant directing a law enforcement officer to transport the person to court.
Rebuttable presumption of ability to comply. A person who is subject to a court-ordered financial obligation and who has received notice of such obligation shall be presumed to have the ability to comply with the order. In a contempt proceeding, the noncomplying party may overcome the presumption by demonstrating that, due to circumstances beyond his or her control, he or she did not have the ability to comply with the court-ordered obligation.
Finding of contempt. A person may be held in contempt of court if the court finds all of the following:
1. The person knew or reasonably should have known that he or she was subject to a court-ordered obligation.
2. The person has failed to comply with the court order. If the failure to comply involves a failure to pay child support or spousal maintenance, the person who brings the action has the burden to establish the total amount of the obligation, the amount unpaid, and any unpaid surcharges or penalties.
3. The person has willfully violated the court order in that he or she had the ability to comply with the order and failed to do so.
Findings of fact. The court shall make findings of fact on the record based on the evidence presented that may include direct or circumstantial evidence.
Order upon finding of contempt. Upon a finding of contempt, the court shall determine appropriate sanctions to obtain compliance with the court order. The court may order any of the following:
1. The person to perform a work search and report the results of his or her search to the court or to the Office of Child Support, or both.
2. The person to participate in an employment services program, which may provide referrals for employment, training, counseling, or other services, including those listed in section 658 of this title. Any report provided from such a program shall be presumed to be admissible without the appearance of a witness from the program in accordance with the provisions in 4 V.S.A. § 466(f) .
3. The person to appear before a reparative board. The person shall return to court for further orders if:
  1. the reparative board does not accept the case; or
  2. the person fails to complete the Reparative Board Program to the satisfaction of the board in a time deemed reasonable by the board.
4. Incarceration of the person unless he or she complies with purge conditions established by the court. A court may order payment of all or a portion of the unpaid financial obligation as a purge condition, providing that the court finds that the person has the present ability to pay the amount ordered and sets a date certain for payment. If the purge conditions are not met by the date established by the court and the date set for payment is within 30 days of finding of ability to pay, the court may issue a mittimus placing the contemnor in the custody of the Commissioner of Corrections.
  1. As long as the person remains in the custody of the Commissioner of Corrections, the court shall schedule the case for a review hearing every 15 days.
  2. The Commissioner shall immediately release such a person from custody upon the contemnor’s compliance with the purge conditions ordered by the court.
  3. The Commissioner may, in his or her sole discretion, place the contemnor on home confinement furlough or work crew furlough without prior approval of the court.
5. Orders and conditions as the court deems appropriate.
  1. Finding of present ability to pay. A finding of present ability to pay a purge condition shall be effective for up to 30 days from the date of the finding. In determining present ability to pay for purposes of imposing necessary and appropriate coercive sanctions to bring the noncomplying person into compliance and purge the contempt, the court may consider:
    (1) A person’s reasonable ability to use or access available funds or other assets to make all or a portion of the amount due by a date certain set by the court.
    
    (2) A person’s reasonable ability to obtain sufficient funds necessary to pay all or a portion of the amount due by a date certain set by the court, as demonstrated by the person’s prior payment history and ability to comply with previous contempt orders.

HISTORY: Amended 1969, No. 141 , § 1; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 30; 2009, No. 146 (Adj. Sess.), § C15; 2011, No. 119 (Adj. Sess.), § 2.

History

Source.

V.S. 1947, § 3262. 1947, No. 202 , § 3284. P.L. § 3172. G.L. § 3606. P.S. § 3114. V.S. § 2707. 1890, No. 33 , § 2. R.L. § 2378. 1866, No. 32 . G.S. 70, § 45. 1855, No. 11 .

Amendments

—2011 (Adj. Sess.). Section amended generally.

—2009 (Adj. Sess.) Amended generally and added subdiv. (b)(3).

—2005 (Adj. Sess.). Substituted “department for children and families” for “department of prevention, assistance, transition, and health access” in the second sentence, and deleted “of prevention, assistance, transition, and health access” following “department” in two places in the third sentence.

—1999 (Adj. Sess.). Substituted “department of prevention, assistance, transition, and health access” for “department of social welfare”.

—1969. Added the second and third sentences.

Prior law.

15 V.S.A. § 602 .

CROSS REFERENCES

Access to financial records of persons owing overdue child support, see § 115 of Title 33.

ANNOTATIONS

Constitutional issues.
Discretion of court.
Extended noncompliance.
Failure to pay alimony or support.
Obstruction of visitation.
Present ability to pay.
Procedure.
Temporary alimony.

Constitutional issues.

Contempt proceedings are excluded from condemnation of unrestricted process involving restraint of the person in civil litigation, but they must be kept closely under the scrutiny of the court in order that any confinement of the person meet constitutional standards. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971).

Discretion of court.

Family Court properly held the mother in contempt when instead of doing anything to ensure that the child lived with the father, the mother attempted to get the parties’ older sons to intervene in the dispute, signed school forms for the child that she had no right to sign, threatened to ruin the reputations of the father and his wife in the community, told the father to “enjoy your piece of paper” when the order giving him physical custody was issued, and said that he would never come between her and her sons. Weaver v. Weaver, 2018 VT 56, 207 Vt. 564, 191 A.3d 978, 2018 Vt. LEXIS 59 (2018).

In the adjudication of contempt, the court has the duty to exercise discretion in making a ruling. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971).

The power of contempt is, in the main, discretionary, and when the court is called upon to exercise its discretion in the matter, the moving party is entitled to have the issue settled. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962).

Extended noncompliance.

Where libelant did not inform court of long continued noncompliance by libelee, contempt order could compel payment of less than total due in recognition that complete performance had become an impossible requirement. LaVoice v. LaVoice, 125 Vt. 236, 214 A.2d 53, 1965 Vt. LEXIS 231 (1965).

Failure to pay alimony or support.

Where libellee reduced support payments without obtaining modification of support order, libellant could either reduce amount overdue to judgment or bring a petition for contempt. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971).

If, in a contempt proceeding brought for failure to comply with child support order, circumstances justify penalty of imprisonment, the findings should so show, but such punishment is to be for contemptuous conduct, not merely a debt-collecting device. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971).

Libellant should not have been found in contempt and placed under penalty of confinement unless he should pay forthwith the sum by which he had reduced child support payments without obtaining a modification of support order where findings supported his claim that he had reduced payments by one fifth because one of the five children had become self-supporting. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971).

That a support order has not been modified does not restrict a court, in which a contempt proceeding based on failure to comply with the order is brought, in its consideration of the circumstances and assessment of the penalty. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971).

Obstruction of visitation.

The family court did not abuse its discretion in finding mother in contempt of a parent-child contact order where it found that she failed to engage in required mediation before moving out of the state, and where the court was unpersuaded by her claim that she was completely unable to comply with the order due to her financial circumstances. Root v. Root, 2005 VT 93, 178 Vt. 634, 882 A.2d 1202, 2005 Vt. LEXIS 233 (2005) (mem.).

Obstruction of court-ordered visitation can be redressed by means of contempt proceedings. Wells v. Wells, 150 Vt. 1, 549 A.2d 1039, 1988 Vt. LEXIS 108 (1988).

Present ability to pay.

In a child support case, it was an error to order a husband’s incarceration for failure to pay the purge amount. Because the family court failed to give the husband a hearing, there was no basis upon which it could find that he had the present ability to pay the purge amount, as it was required to do before he could be held in civil contempt. Krochmalny v. Mills, 2009 VT 106, 186 Vt. 645, 987 A.2d 318, 2009 Vt. LEXIS 129 (2009) (mem.).

Procedure.

Where county court, upon finding prisoner in contempt of court for failure to make support payments provided for in divorce decree, made new order of payment for support including payments on amounts in arrears and provided that upon affidavit of noncompliance with terms of new order mittimus should issue to imprison defendant for term of not less than one year nor more than two years, and mittimus which issued granted no opportunity to prisoner to purge himself of contempt and no opportunity was given prisoner to be present with counsel to be heard on matter of noncompliance with new order, prisoner was entitled to be discharged on writ of habeas corpus. Allen v. Smith, 126 Vt. 546, 237 A.2d 354, 1967 Vt. LEXIS 238 (1967).

A party to a divorce proceeding cannot be adjudged in contempt for an out-of-court failure to abide by a court order without an order to show cause and an opportunity to be heard. Walker v. Walker, 123 Vt. 430, 192 A.2d 460, 1963 Vt. LEXIS 111 (1963).

Temporary alimony.

County court has implied jurisdiction to enforce order for payment of temporary alimony by proceedings for contempt, and such jurisdiction has been expressly granted to superior judge by section 122 of Title 12 and this section. Cutting v. Cutting, 101 Vt. 381, 143 A. 676, 1928 Vt. LEXIS 166 (1928).

Cited.

Cited in Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994); Hixson v. Plump, 167 Vt. 202, 704 A.2d 1159, 1997 Vt. LEXIS 261 (1997).

§ 604. Costs on motion to revise.

Upon a motion to revise and alter a decree made by force of this chapter and sections 291-294 of this title, the court may award costs to either party as equity requires.

History

Source.

V.S. 1947, § 3250. P.L. § 3161. G.L. § 3596. P.S. § 3104. V.S. § 2697. R.L. § 2387. G.S. 70, § 40. R.S. 63, § 42.

References in text.

Section 292, referred to in this section, was repealed by 1981, No. 247 (Adj. Sess.), § 18.

Revision note—

Substituted “motion” for “petition” to conform language to Rule 80(j), Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Prior law.

15 V.S.A. § 603 .

§ 605. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

History

Former § 605, relating to cases where the mode of procedure was not prescribed, was derived from V.S. 1947, § 3263; P.L. § 3173; G.L. § 3607; P.S. § 3115; V.S. § 2708; R.L. § 2395; G.S. 70, § 41; R.S. 63, § 43.

§ 606. Action to recover maintenance, child support, and suit money; sanction for noncompliance.

When a judgment or order for the payment of either temporary or permanent maintenance, child support, or suit money has been made by the Family Division of the Superior Court, and personal jurisdiction of the person liable for the payment of money under the judgment or order has been obtained, the party entitled by the terms of the judgment or order to payment thereunder, or the Office of Child Support in all cases in which the party or dependent children of the parties are the recipients of financial assistance from the Department for Children and Families, may file a motion in the Family Division of the Superior Court asking for a determination of the amount due. Upon notice to the other party and hearing thereon, the Family Division of the Superior Court shall render judgment for the amount due under the judgment or order; the court may order restitution to the Department, order that payments be made to the Office of Child Support for distribution, or make such other orders or conditions as it deems proper. The judgment shall be as binding and as enforceable in all respects as though rendered in any other civil action. Notice shall be given in such manner as the Supreme Court shall by rule provide. An additional motion may be brought at any time for further unpaid balances. The Family Division of the Superior Court in which the cause was pending at the time the original judgment or order was made shall have jurisdiction of motions under the provisions of this section, irrespective of the amount in controversy or the residence of the parties. The motions may be brought and judgment obtained on judgments, decrees, and orders previously rendered and still in force.
For the purpose of enforcing child support orders under this title and Title 33, any support payment or installment shall become a judgment on the date it becomes due.
An action to enforce a judgment under subsection (b) of this section may be brought no later than six years after the youngest child covered by the support order attains the age of majority or no later than six years after a child covered by subsection 659(b) of this title is no longer covered.
1. In lieu of interest on unpaid child support that has accrued under a child support order, a child support surcharge shall be imposed on past-due child support. Beginning on July 1, 2004, the surcharge shall be computed and assessed monthly at a rate of one percent or an annual rate of 12 percent and shall not be compounded. Beginning on January 1, 2012, the surcharges shall be computed and assessed monthly at a rate of one-half percent or an annual rate of six percent and shall not be compounded. All surcharges shall be deemed principal and not interest. Payments received for child support obligations shall be allocated and distributed as follows: (d) (1) In lieu of interest on unpaid child support that has accrued under a child support order, a child support surcharge shall be imposed on past-due child support. Beginning on July 1, 2004, the surcharge shall be computed and assessed monthly at a rate of one percent or an annual rate of 12 percent and shall not be compounded. Beginning on January 1, 2012, the surcharges shall be computed and assessed monthly at a rate of one-half percent or an annual rate of six percent and shall not be compounded. All surcharges shall be deemed principal and not interest. Payments received for child support obligations shall be allocated and distributed as follows:
  1. first to current support obligations;
  2. second to arrearages; and
  3. third to surcharge arrears.
2. In the interests of justice, the court may discharge all or part of a surcharge that accrued subsequent to the date of the last judgment upon a finding that since that date, the obligated parent became unable to comply with the underlying support obligation. The obligated parent shall bear the burden of proving inability to comply.

HISTORY: Added 1981, No. 247 (Adj. Sess.), § 3; amended 1995, No. 59 , § 7; 1997, No. 63 , § 6, eff. Sept. 1, 1997; 1999, No. 147 (Adj. Sess.), § 4; 2003, No. 159 (Adj. Sess.), § 4; 2005, No. 174 (Adj. Sess.), § 31; 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 32 , § 1.

History

Amendments

—2011. Subsec. (d): Amended generally.

—2009 (Adj. Sess.) Subsec. (a): Substituted “family division of the superior court” for “family court” four times.

—2005 (Adj. Sess.). Subsec. (a): Substituted “department for children and families” for “department of prevention, assistance, transition, and health access” in the first sentence, and deleted “of prevention, assistance, transition, and health access” following “department” in the second sentence.

—2003 (Adj. Sess.). Subsec. (d): Added.

—1999 (Adj. Sess.). Subsec. (a): Substituted “department of prevention, assistance, transition, and health access” for “department of social welfare”.

—1997. Subsec. (b): Amended generally.

—1995. Section amended generally.

Applicability.

Attorney’s fees.

Defenses.

Discretion of court.

Enforcement of previously rendered court order.

Hearing.

Judgment for amount due.

Service of original order.

Applicability.

Although pursuant to subsec. (b) of this section, child support amounts become judgments against a parent as they come due under an existing child support order when arrears are actually reduced to a judgment, that judgment takes on legal significance distinct from that of the original child support order. Desrochers v. Desrochers, 173 Vt. 312, 795 A.2d 1171, 2002 Vt. LEXIS 11 (2002).

Attorney’s fees are recoverable in a divorce action in the form of suit money. Downs v. Downs, 159 Vt. 467, 621 A.2d 229, 1993 Vt. LEXIS 8 (1993).

Attorney’s fees.

Following its grant of the father’s motion to modify parental rights and responsibilities and parent-child contact, the trial court did not err in denying the mother’s request for attorney’s fees when it found that the father could not pay the mother’s attorney without liquidating his assets, that the mother might be able to pay her attorney due to her business interest, the value of which was unknown, and that the concerns which led the father to seek modification were justified and stemmed from the mother’s behavior. Randall v. Hooper, 2020 VT 32, 212 Vt. 216, 234 A.3d 971, 2020 Vt. LEXIS 35 (2020).

Following its grant of the father’s motion to modify parental rights and responsibilities and parent-child contact, the trial court did not err in denying the mother’s request for attorney’s fees. Its factual findings were supported by the record; the mother had not challenged below the specific expenses she now stated were exaggerated; the trial court had not punished the mother for her mental health issues, but recognized that her parenting behavior was relevant to the father’s actions in the proceeding; and while the trial court would have been within its discretion in awarding some suit money to the mother, it was not required to do so. Randall v. Hooper, 2020 VT 32, 212 Vt. 216, 234 A.3d 971, 2020 Vt. LEXIS 35 (2020).

Trial court erred in concluding that there was no general right to attorney’s fees in a divorce action and in declining to evaluate the parties’ financial needs and ability to pay because, while the court has discretion in awarding attorney’s fees, its misapprehension of the proper standard for evaluating such a request requires that its partial award of attorney’s fees be reversed and remanded for reconsideration. Turner v. Turner, 2004 VT 5, 176 Vt. 588, 844 A.2d 764, 2004 Vt. LEXIS 10 (2004).

It would be abuse of discretion for trial court to award attorney’s fees without knowing financial obligations and resources of parties, after finalization of property settlement and support and maintenance awards. Cleverly v. Cleverly, 151 Vt. 351, 561 A.2d 99, 1989 Vt. LEXIS 71 (1989).

No separate hearing need be held in cases involving child support in order to award attorney’s fees pursuant to this section. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Award of attorney’s fees in action under section 301 et seq. of this title was not error even though case was allegedly accepted on pro bono basis and no separate hearing was held on financial circumstances of parties, where attorneys moved for attorney’s fees and court took into account evidence on financial circumstances introduced at hearing on merits. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Defenses.

Laches and the doctrine of equitable estoppel are not available affirmative defenses in an action brought pursuant to this section to secure enforcement of a child support order. Lyon v. Lyon, 143 Vt. 458, 466 A.2d 1186, 1983 Vt. LEXIS 553 (1983).

On appeal of an order which assessed a money judgment against former husband for arrearages owed for child support payments under a divorce order where the former husband argued that the former wife was barred from recovering arrearages by her laches and/or the doctrine of equitable estoppel, since the child was not guilty of laches or acquiescence and the supreme court would not attribute any such guilt on the part of the mother to the child for whose benefit the original support award was made, the judgment would be affirmed. Lyon v. Lyon, 143 Vt. 458, 466 A.2d 1186, 1983 Vt. LEXIS 553 (1983).

Discretion of court.

Court does not have discretion over the repayment of arrearages under a support order. Callaert v. Callaert, 156 Vt. 265, 591 A.2d 99, 1991 Vt. LEXIS 52 (1991).

Trial court’s order relieving defendant of duty of paying accumulated support arrearages was reversed and remanded because trial court was required to render judgment for the amount due. Callaert v. Callaert, 156 Vt. 265, 591 A.2d 99, 1991 Vt. LEXIS 52 (1991).

Order of the superior court on former wife’s motion to enforce an order for child support contained in the parties’ divorce decree which ordered the former husband to pay an amount of arrearages that was less than was due under the decree was not supported in law or fact and could not stand since this section did not grant the court such discretion. Forte v. Forte, 143 Vt. 518, 468 A.2d 561, 1983 Vt. LEXIS 561 (1983).

Enforcement of previously rendered court order.

When a party seeks to enforce a previously rendered court order for payment of child support, the applicable provision is 15 V.S.A. § 606(a) , under which actions to enforce judgments by the court may be brought “at any time,” as opposed to subsections (b) and (c), which establish a time limit for bringing actions on unpaid balances under the terms of divorce or separation agreements. “Judgments” arising under § 606(b) are amounts owed between the parties that have not been adjudged by a court and arise automatically by law. Hixson v. Plump, 167 Vt. 202, 704 A.2d 1159, 1997 Vt. LEXIS 261 (1997).

Hearing.

In awarding attorney’s fees in divorce proceedings, consideration should be given to the parties’ ability to pay. However, the family court is not required to conduct a separate hearing and take additional evidence about the relative financial positions of the parties because those positions have typically been subject to extensive judicial scrutiny during the hearing on the merits. Willey v. Willey, 2006 VT 106, 180 Vt. 421, 912 A.2d 441, 2006 Vt. LEXIS 310 (2006).

Judgment for amount due.

When the family court entered judgment regarding father’s arrears, including the portion to be paid to the mother and its priority to amounts owed the Office of Child Support because of previous benefits paid to her, and it was not appealed, it became a final judgment on the merits. The mother’s mere act of reapplying for benefits did not undo the effect of the court’s judgment, nor her rights under the judgment. Desrochers v. Desrochers, 173 Vt. 312, 795 A.2d 1171, 2002 Vt. LEXIS 11 (2002).

Family court has no authority to relieve obligor spouse of duty to pay any accumulated child support arrearages. St. Hilaire v. DeBlois, 168 Vt. 445, 721 A.2d 133, 1998 Vt. LEXIS 351 (1998).

A monthly child support payments order was not invalid even though the court did not enter judgment on the total amount due, as the court based its order on a prior underlying court order which had entered judgment against defendant in favor of plaintiff for a specific amount. Defendant’s stipulation to the prior judgment, and the court’s entry of that judgment, gave him clear notice of the amount he owed plaintiff, and he suffered no prejudice as a result of the payments order. Hixson v. Plump, 167 Vt. 202, 704 A.2d 1159, 1997 Vt. LEXIS 261 (1997).

Service of original order.

Since this section does not require service of the original order, nonservice does not excuse a person from liability for the payment of arrears under a child support order. Lyon v. Lyon, 143 Vt. 458, 466 A.2d 1186, 1983 Vt. LEXIS 553 (1983).

Cited.

Cited in Towne v. Towne, 150 Vt. 286, 552 A.2d 404, 1988 Vt. LEXIS 158 (1988); Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

Cited.

Cited in Davis v. Davis, 141 Vt. 398, 449 A.2d 947, 1982 Vt. LEXIS 544 (1982); Forte v. Forte, 143 Vt. 518, 468 A.2d 561, 1983 Vt. LEXIS 561 (1983).

Cited.

Cited in Condosta v. Grussing, 144 Vt. 454, 479 A.2d 149, 1984 Vt. LEXIS 497 (1984).

Annotations From Former § 760

Attorney’s fees.

In a divorce action, the financial circumstances of the parties have an important bearing on the award of attorney fees, and the needs of the wife and ability of the husband to meet them are the primary considerations. Ely v. Ely, 139 Vt. 238, 427 A.2d 361, 1981 Vt. LEXIS 444 (1981).

In divorce and similar proceedings there need not be a separate hearing or the taking of particular evidence on attorney fees, and the award need not be supported by evidence of reasonableness. Ely v. Ely, 139 Vt. 238, 427 A.2d 361, 1981 Vt. LEXIS 444 (1981).

Burden of proof.

If compliance with a support order becomes impossible or excusable by special circumstances, the burden is on the party required to perform to establish facts to justify his failure to comply. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962).

Enforcement of decree.

This section requires that libelee receive notice of decree by having it “legally served” upon him where he has not accepted service, and unless this is done, an action for enforcement of decree under this section does not lie. Gates v. Gates, 122 Vt. 371, 173 A.2d 161, 1961 Vt. LEXIS 85 (1961).

Jurisdiction.

Service of a divorce decree, made in conformance with sections 911 to 913 of Title 12, on libelee who has left the state, is sufficient to confer jurisdiction to hear the libellant’s petition to recover past due alimony. Gates v. Gates, 122 Vt. 371, 173 A.2d 161, 1961 Vt. LEXIS 85 (1961).

Service of process.

Phrase “legally served with notice” as used in this section means personal service, that is, delivery of copy of process to be served by person authorized by law to make service. Gates v. Gates, 120 Vt. 505, 144 A.2d 782, 1958 Vt. LEXIS 131 (1958).

Proper method of serving process must be adopted in order to render service effective, and it must be served by proper officer or person. Gates v. Gates, 120 Vt. 505, 144 A.2d 782, 1958 Vt. LEXIS 131 (1958).

This section makes legal service of decree or order a prerequisite to bringing of petition thereunder, and in absence of such service court is without jurisdiction of subject matter. Gates v. Gates, 120 Vt. 505, 144 A.2d 782, 1958 Vt. LEXIS 131 (1958).

Annotations From Former § 761

Award of Attorney’s fees—Criteria.

Hearing and Evidence.

§ 607. Action by attorney to recover suit money.

When a final order has been made providing for the payment by either party of suit money to the attorney for the opposite party or for a minor child of the parties, and service of the order has been made or accepted, the attorney may recover the suit money by a civil action on this section or by contempt proceedings brought in the attorney’s own name, either with or without the consent of the client.

HISTORY: Added 1981, No. 247 (Adj. Sess.), § 4.

ANNOTATIONS

Applicability.

Attorney’s fees are recoverable in a divorce action in the form of suit money. Downs v. Downs, 159 Vt. 467, 621 A.2d 229, 1993 Vt. LEXIS 8 (1993).

Cited.

Cited in Cleverly v. Cleverly, 151 Vt. 351, 561 A.2d 99, 1989 Vt. LEXIS 71 (1989).

Article 2. Divorce on Ground of Mental Incapacity

History

Amendments

—2013 (Adj. Sess.). Heading: Act No. 96 substituted “Mental Incapacity” for “Insanity”.

CROSS REFERENCES

Annulment on ground of idiocy or lunacy, see § 514 of this title.

§ 631. Generally.

A divorce may be granted forthwith when either spouse has become permanently incapacitated due to a mental condition or psychiatric disability. A divorce shall not be granted under these provisions unless such person who is permanently incapacitated due to a mental condition or psychiatric disability shall have been duly and regularly confined in a psychiatric hospital, wherever located, for at least five years next preceding the commencement of the action for divorce, nor unless it shall appear to the court that such mental condition or psychiatric disability is permanent. No action shall be maintained under the provisions hereof unless the libelant is an actual resident of this State and shall have resided therein for two years next preceding the commencement of such action.

HISTORY: Amended 2013, No. 96 (Adj. Sess.), § 70.

History

Source.

1949, No. 66 . V.S. 1947, § 3206. P.L. § 3117. 1931, No. 44 , § 1.

Amendments

—2013 (Adj. Sess.). Substituted “spouse” for “husband or wife” following “either”, “permanently incapacitated due to a mental condition or psychiatric disability” for “incurably insane” following “become”, “person who is permanently incapacitated due to a mental condition or psychiatric disability” for “insane person” following “unless such”, “psychiatric hospital” for “mental institution” following “confined in a”, “mental condition or psychiatric disability” for “insanity” following “that such”, and “permanent” for “incurable” at the end of the second sentence.

§ 632. Jurisdiction; guardian ad litem for libelee with a mental incapacity.

The Superior Courts of the several counties of this State shall have jurisdiction of such an action. Upon the filing by the plaintiff of a complaint, duly verified, showing that such cause of action exists, a Superior judge shall appoint some person to act as guardian ad litem of such person with a mental incapacity in such action. The complaint and summons in such action shall be served upon the defendant by delivering a copy thereof to such guardian and another to the State’s Attorney of the county in which such action is brought.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2013, No. 96 (Adj. Sess.), § 70.

History

Source.

V.S. 1947, § 3207. 1947, No. 202 , § 3230. 1945, No. 39 , § 1. P.L. § 3118. 1933, No. 157 , § 2903. 1931, No. 44 , § 2.

Revision note—

Substituted “plaintiff” for “libelant” and “complaint” for “petition” in the second sentence and “defendant” for “libelee” in the third sentence to conform language to Rules 3 and 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2013 (Adj. Sess.). Heading: Substituted “libelee with a mental incapacity” for “insane libelee”.

Substituted “person with a mental incapacity” for “insane person” following “ad litem of such”.

—1973 (Adj. Sess.). Substituted “superior courts” for “county courts” preceding “of the several” in the first sentence.

CROSS REFERENCES

Expenses and fees of guardian ad litem, see § 637 of this title.

§ 633. Duty of State’s Attorney.

The State’s Attorney upon whom the complaint and summons in such action shall be served shall appear for such defendant and defend the same. No divorce shall be granted unless the provisions of this section have been complied with.

History

Source.

V.S. 1947, § 3208. P.L. § 3119. 1933, No. 157 , § 2904. 1931, No. 44 , § 3.

Revision note—

Substituted “defendant” for “libelee” in the first sentence to conform language to Rule 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

CROSS REFERENCES

Expenses of state’s attorney, see § 637 of this title.

§ 634. Alimony; distribution of property; care and custody of children.

In actions brought for the cause of mental incapacity, the courts and the judges thereof shall possess all the powers relative to the payment of alimony, the distribution of property, and the care and custody of the children of the parties, that such courts now have, or may hereafter have, in other actions for divorce.
The court may make such orders for the division of property held by the parties as tenants by the entirety as may be proper.
No order shall be made providing for continued support of a spouse without a mental condition or psychiatric disability from the estate of a spouse with a mental condition or psychiatric disability after the remarriage of the spouse who does not have a mental condition or a psychiatric disability.

HISTORY: Amended 1987, No. 174 (Adj. Sess.), § 5; 2013, No. 96 (Adj. Sess.), § 70.

History

Source.

V.S. 1947, §§ 3209, 3211. P.L. §§ 3120, 3122. 1933, No. 157 , § 2907. 1931, No. 4 , § 4; No. 44, § 5.

Amendments

—2013 (Adj. Sess.). Subsec. (a): Substituted “mental incapacity” for “insanity” following “cause of”.

Subsec. (c): Substituted “spouse without a mental condition or psychiatric disability” for “sane spouse” following “support of a”, “a spouse with a mental condition or psychiatric disability” for “an insane spouse” following “estate of”, and “spouse who does not have a mental condition or a psychiatric disability” for “sane spouse” at the end.

—1987 (Adj. Sess.). Subsec. (c): Substituted “spouse” for “wife” preceding “from the estate of an insane”, for “husband” thereafter, and “the sane spouse” for “such wife” following “remarriage of”.

CROSS REFERENCES

Property settlement and maintenance, see § 751 et seq. of this title.

§ 635. Support of defendant.

At the time of granting a divorce on the grounds of a permanent mental condition or psychiatric disability or any time thereafter, on motion of either party, or of the guardian of the spouse with a mental condition or psychiatric disability, or of any other person, town, or municipality charged with the support of the spouse with a mental condition or psychiatric disability, the court may make such orders requiring support of the defendant or security for such support as may be proper.
An order for the support of the party with a mental condition or psychiatric disability shall be enforceable in the same manner as orders relating to alimony.
On motion of either party or of the guardian of the spouse with a mental condition or psychiatric disability, or of any person, town, or municipality charged with the support of such defendant, an order relating to such support may be reviewed and altered at any time thereafter in such manner as to the court may seem just and proper.

HISTORY: Amended 2013, No. 96 (Adj. Sess.), § 70.

History

Source.

V.S. 1947, §§ 3209, 3210. P.L. §§ 3120, 3121. 1931, No. 44 , § 4.

Revision note—

Substituted “defendant” for “libelee” and “motion” for “application” to conform language to Rule 80, Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2013 (Adj. Sess.). Subsec. (a): Substituted “a permanent mental condition or psychiatric disability” for “incurable insanity” following “grounds of” and “spouse with a mental condition or psychiatric disability” for “insane spouse” twice.

Subsec. (b): Substituted “party with a mental condition or psychiatric disability” for “insane party” following “support of the”.

Subsec. (c): Substituted “spouse with a mental condition or psychiatric disability” for “insane spouse” following “guardian of the”.

ANNOTATIONS

Income.

Family court properly declined to impute income to mother for stocks that father contended were performing poorly and stocks that were not producing income because it was undisputed that mother’s investments were income producing assets, and the provision of this section defining gross income applies only to nonincome producing assets. Clark v. Clark, 172 Vt. 351, 779 A.2d 42, 2001 Vt. LEXIS 182 (2001).

Amount of trust income expended to pay the costs of administration of mother’s trust were not imputable to her as income, and thus was not to be considered in determining her child support obligation. Clark v. Clark, 172 Vt. 351, 779 A.2d 42, 2001 Vt. LEXIS 182 (2001).

Family court did not err in imputing $600 per month in income to father based upon the monthly rental value of a cottage in which his employer allowed him to live free of charge, and which he occupied approximately fourteen nights a month. Clark v. Clark, 172 Vt. 351, 779 A.2d 42, 2001 Vt. LEXIS 182 (2001).

§ 636. Filing certified copies of orders with court which committed party with a mental condition or psychiatric disability.

If the party with a mental condition or psychiatric disability was committed by a court of competent jurisdiction, the clerk of the court shall file a certified copy of all orders entered in proceedings brought under these provisions.

HISTORY: Amended 2013, No. 96 (Adj. Sess.), § 70.

History

Source.

V.S. 1947, § 3210. P.L. § 3121. 1931, No. 44 , § 4.

Amendments

—2013 (Adj. Sess.). Heading: Substituted “party with a mental condition or psychiatric disability” for “insane party”.

Substituted “party with a mental condition or psychiatric disability” for “insane party” following “If the” and deleted “then” following “jurisdiction,” and “with such court which committed such insane party” following “shall file”.

§ 637. Costs and expenses.

All the costs in such action, as well as the actual expenses of the state’s attorney therein, together with the expenses and fees of the guardian therein, shall be paid by the plaintiff. Such expenses of the state’s attorney and expenses and fees of the guardian shall be fixed and allowed by the court. The court or the judge thereof may make such order relative to the payment of such fees and expenses as to the court or judge may seem proper.

History

Source.

V.S. 1947, § 3212. P.L. § 3123. 1931, No. 44 , § 6.

Revision note—

At the end of the first sentence, substituted “plaintiff” for “libelant” to conform language to Rule 80, Vermont Rules of Civil Procedure [for subject matter of Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

ANNOTATIONS

Particular cases.

Although defendant contended that the trial court abused its discretion in awarding plaintiff attorney’s fees and support arrearages from defendant’s share of the boat proceeds, the award of attorneys fees and costs is a matter of judicial discretion and given defendant’s refusal to pay the court-ordered support in the past, there was no problem with the court anticipating difficulty in the future. Kohut v. Kohut, 164 Vt. 40, 663 A.2d 942, 1995 Vt. LEXIS 60 (1995).

Subchapter 3A. Child Custody and Support

History

Child support order and jurisdiction of human services board on and after October 1, 1990. 1989, No. 221 (Adj. Sess.), § 22(c), (d) provided:

“(c) An order of the human services board for the establishment, modification or enforcement of child support shall be treated as an order of the family court on and after October 1, 1990.

“(d) The human services board shall have jurisdiction to hear and determine any motion for establishment, modification or enforcement of child support filed prior to October 1, 1990 and still pending on that date.”

CROSS REFERENCES

Uniform Child Custody Jurisdiction Act, see § 1031 et seq. of this title.

Law Reviews —

For note analyzing the 1986 amendments to the child custody laws, see 11 Vt. L. Rev. 671 (1986).

§ 650. Legislative findings and purpose.

The legislature finds and declares as public policy that after parents have separated or dissolved their civil marriage, it is in the best interests of their minor child to have the opportunity for maximum continuing physical and emotional contact with both parents, unless direct physical harm or significant emotional harm to the child or a parent is likely to result from such contact. The legislature further finds and declares as public policy that parents have the responsibility to provide child support, and that child support orders should reflect the true costs of raising children and approximate insofar as possible the standard of living the child would have enjoyed had the family remained intact.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 1; amended 2003, No. 159 (Adj. Sess.), § 5; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Amendments

—2003 (Adj. Sess.). Substituted “family remained intact” for “marriage not been dissolved” at the end of the section.

ANNOTATIONS

Judicial discretion.
Life insurance.
Particular cases.
Purpose.
Rights of custodial parent.
Visitation.

Judicial discretion.

Granting, modifying, or denying noncustodial parent’s visitation is within discretion of trial court, and will not be reversed unless discretion was exercised upon unfounded considerations or to an extent clearly unreasonable upon the facts presented. Gates v. Gates, 168 Vt. 64, 716 A.2d 794, 1998 Vt. LEXIS 149 (1998).

Although trial court has discretion to modify a child support obligation when the income of the parties is so great that child support guidelines do not apply, the amount of support should be based on the policy of meeting the needs of the children and having them share in family income. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Under provision of child support guidelines that permits trial court to fashion a just support order where support order based on the guidelines would be inequitable, the legislature intended that judicial discretion be narrowly exercised so as not to undermine the goal of standardization and predictability evidence in the statutory scheme as a whole. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Life insurance.

The family court’s order directing husband to maintain an existing life insurance policy to secure continued child support in the event of his death was proper. There is no express or implied statutory inhibition against a divorce judgment requiring a parent to maintain life insurance to secure child support. The fundamental goal of the child support statute, to protect and support the children of divorced parents to the same extent as the children of intact marriages, applies with no less force where the divorced parent dies before the children attain their majority, and the children in such a case should be afforded no less financial security. Knowles v. Thompson, 166 Vt. 414, 697 A.2d 335, 1997 Vt. LEXIS 38 (1997).

Particular cases.

In its parental rights and responsibilities order, the family court clearly acted within its discretion in relying on the factors of the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, the ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities were to be shared or divided, and the legislative policy that it was in the best interests of the parents’ minor children to have the opportunity for maximum continuing physical and emotional contact with both parents. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

Purpose.

Vermont child support guidelines were adopted to ensure adequate child support orders, eliminate discrepancies in awards between children in similar circumstances and increase the efficiency of child support adjudication. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

The three main purposes of Vermont child support guidelines are to (1) ensure that support orders provide the child or children of divorce the same approximate standard of living enjoyed prior to the divorce, (2) to standardize awards of similarly situated parties, and (3) to encourage parties to settle cases because of the predictability of awards. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

In divorce proceeding in which mother was granted sole legal custody of children, visitation schedule which granted to father fifty percent of the children’s time on weekends and vacations and approximately twenty-five percent of time overall was within policy favoring maximum continuing physical and emotional contact with both parents. Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114, 1990 Vt. LEXIS 113 (1990).

Rights of custodial parent.

Policy on parent-child contact does not supersede custodial parent’s reasonable decision to relocate to another state. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Visitation.

In awarding visitation, the trial court did not violate the Legislature’s directive that children should have the opportunity for maximum continuing physical and emotional contact with both parents. While the mother, who was awarded three days of visitation per week, might not have as much time with the children as the father did, she had been granted ample contact, consistent with what the trial court found appropriate under all of the circumstances. LeBlanc v. LeBlanc, 2014 VT 65, 197 Vt. 17, 100 A.3d 345, 2014 Vt. LEXIS 68 (2014).

Trial court properly refused to order a father to take the parties’ child to a gymnastics class during his visitation period; doing so did not violate the mother’s right to choose the child’s activities. To allow a custodial parent to schedule the child for time that was supposed to be spent with the noncustodial parent would make the contact with the noncustodial parent little more than a baby-sitting function and ignore the statutory mandate that children should continue to have the opportunity for maximum continuing physical and emotional contact with both parents; it would also bring the parties back before the trial court with an endless string of disputes over the reasonableness and value of activities. Miller v. Smith, 2009 VT 120, 187 Vt. 574, 989 A.2d 537, 2009 Vt. LEXIS 143 (2009) (mem.).

Family court abused its discretion by conditioning father’s visitation with his children upon his payment of half of mother’s attorney’s fees and court costs; although order was an effective method of ensuring that father would pay mother’s bills and was also a punishment for father’s contempt of court’s earlier order, the order was unreasonable and had no rational relationship to best interests of children. Gates v. Gates, 168 Vt. 64, 716 A.2d 794, 1998 Vt. LEXIS 149 (1998).

Visitation should function to foster beneficial relations between children and noncustodial parent, but visitation does not warrant nullification of custodial parent’s reasonable decisions. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

While policy promoting visitation must be considered when deciding motion for modification of custody, concerns relating to it must not overshadow proper role of custodial parent. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Cited.

Cited in Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400, 1988 Vt. LEXIS 150 (1988); Cleverly v. Cleverly, 151 Vt. 351, 561 A.2d 99, 1989 Vt. LEXIS 71 (1989); Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994); Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997); Cabot v. Cabot, 166 Vt. 485, 697 A.2d 644, 1997 Vt. LEXIS 101 (1997); Tetreault v. Coon, 167 Vt. 396, 708 A.2d 571, 1998 Vt. LEXIS 8 (1998); Shea v. Metcalf, 167 Vt. 494, 712 A.2d 887, 1998 Vt. LEXIS 169 (1998); Fournier v. Fournier, 169 Vt. 600, 738 A.2d 98, 1999 Vt. LEXIS 215 (1999); Cantin v. Young, 171 Vt. 659, 770 A.2d 449, 2000 Vt. LEXIS 443 (2000); Rogers v. Parrish, 2007 VT 35, 181 Vt. 485, 923 A.2d 607, 2007 Vt. LEXIS 58 (2007) (mem.).

Law Reviews —

For note, “Gender Bias Against Fathers in Custody? The Important Difference Between Outcome and Process,” see § 18 Vt. L. Rev. 215 (1993).

§ 651. Repealed. 1985, No. 180 (Adj. Sess.), § 14, eff. April 1, 1987.

History

Former § 651, relating to requests for support, factors to be considered in resolving issues of support, orders for support and modification of support orders, was derived from 1981, No. 247 (Adj. Sess.), § 5 and amended by 1985, No. 63 , § 4. For present provisions relating to child support, see §§ 653-663 of this title.

§ 652. Repealed. 1985, No. 181 (Adj. Sess.), § 10.

History

Former § 652, relating to requests for support, factors to be considered in resolving issues of support, orders for support and modification of child custody orders, was derived from 1981, No. 247 (Adj. Sess.), § 5. For present provisions relating to child custody generally, see § 664 et seq. of this title.

§ 653. Definitions.

As used in this subchapter:

“Available income” means gross income, less:
1. the amount of spousal support or preexisting child support obligations, including any court-ordered periodic repayment toward arrearages, actually paid;
2. Subdivision (1)(B) shall apply to child support cases filed before July 1, 2010.
  
  the actual cost to a parent of providing adequate health insurance coverage for the children who are the subject of the order;
  
  (B)
  
  Subdivision (1)(B) as amended by 2009, Act No. 156 (Adj. Sess.), § E.319.2 shall apply to child support cases filed on or after July 1, 2010.
  
  the actual cost to a parent of providing adequate health insurance coverage or a cash contribution as provided for in section 658 of this title for the children who are the subject of the order;
3. FICA taxes (7.65 percent for regular wage earners and 15.3 percent for self-employed, or any amount subsequently set by federal law as FICA tax);
4. State and federal income taxes, calculated as follows:
  1. for custodial parents, using the standard deduction, head of household filing status and exemptions for the parent and for each of the children who are the subject of the order (not to exceed five children), plus earned income tax credits if applicable;
  2. for noncustodial parents, using the standard deduction, single filing status and one exemption;
  3. for parents who share custody as defined in section 657 of this title, using the standard deduction, head of household filing status and one exemption for the parent and an equal share of the exemptions attributable to the children who are the subject of the order, plus earned income tax credits if applicable;
5. in cases where a child is in the custody of the Department for Children and Families:
  1. the additional housing costs necessary to allow for the child’s return where the Department for Children and Families plan is for reunification with the parents;
  2. Family Division of the Superior Court or Department for Children and Families mandated out-of-pocket expenses necessary to comply with the child’s case plan.
“Child care costs” means the actual child care costs reasonably incurred by a parent on behalf of the children due to employment or employment related education. Monthly child care costs shall be calculated based on an annualized amount. Child care costs shall not include the amount of child care subsidies or child care tax credits if available.
“Court” means the court with jurisdiction over a child support proceeding.
“Extraordinary expenses” means any extraordinary medical or education expenses, including expenses related to the special needs of a child, incurred on behalf of involved children. Extraordinary medical expenses shall include but not be limited to uninsured annual medical expenses in excess of $200.00.
“Gross income” means actual gross income of a parent.
1. Gross income shall include:
  1. income from any source, including, but not limited to, income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and spousal support actually received. Income at the current rate for long-term U.S. Treasury Bills shall be imputed to nonincome producing assets with an aggregate fair market value of $10,000.00 or more, other than a primary residence and not more than $15,000.00 of the value of a motor vehicle;
  2. expense reimbursements or in-kind payments received by a parent in the course of employment or self-employment or operation of a business if they reduce personal living expenses;
  3. the potential income of a parent who is voluntarily unemployed or underemployed, unless:
    1. the parent is physically or mentally incapacitated; or
    2. the parent is attending a vocational or career technical education or CTE program related to current employment, or a job training program sponsored by the Department of Labor, the Department of Economic Development, or the Agency of Human Services; or
    3. the unemployment or underemployment of the parent is in the best interest of the child;
  4. gross receipts minus ordinary and necessary expenses where a party is self-employed or derives income from proprietorship of a business, joint ownership of a partnership or a closely held business operation; and rents, minus ordinary and necessary expenses. In determining ordinary and necessary expenses, the court may exclude amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses. The court may also determine that other business expenses are inappropriate for determining gross income for purposes of calculating child support.
2. Gross income shall not include the amount of money received from means tested public assistance programs, including Temporary Assistance for Needy Families, Supplemental Income, the Supplemental Nutrition Assistance Program, and General Assistance.
“Parental support obligation” means the proportion of total support obligation a parent is ordered to pay in money as child support.
“Self-support reserve” means the needs standard established annually, and calculated at 120 percent of the U.S. Department of Health and Human Services poverty guideline per year for a single individual.
“Support guideline” means the guideline for child support established by the Secretary of Human Services under section 654 of this title.
“Total support obligation” means the sum of money determined by adding:
1. amounts derived from the support guideline appropriate to the parties’ available income;
2. child care costs; and
3. extraordinary expenses.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 1, eff. April 1, 1987; amended 1987, No. 54 , § 4, eff. May 15, 1987; 1989, No. 220 (Adj. Sess.), § 16; 1991, No. 204 (Adj. Sess.), § 8; 1993, No. 106 (Adj. Sess.), § 16; 1995, No. 63 , § 139c; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2005, No. 174 (Adj. Sess.), § 32; 2009, No. 154 (Adj. Sess.), § 238; 2009, No. 156 (Adj. Sess.), § E.319.2; 2011, No. 119 (Adj. Sess.), § 3; 2013, No. 92 (Adj. Sess.), § 302, eff. Feb. 14, 2014; 2013, No. 131 (Adj. Sess.), § 110, eff. May 20, 2014.

History

Revision note

—2013. In subdiv. (5)(B), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

Amendments

—2013 (Adj. Sess.). Subdiv. (5)(A)(iii)(II): Act No. 92 substituted “career technical education or CTE” for “technical education” preceding “program”.

Subdiv. (5)(B): Act No. 131 substituted “Temporary Assistance for Needy Families” for “Aid to Families with Dependent Children” following “including” and “the Supplemental Nutrition Assistance Program” for “Food Stamps” following “Supplemental Income,”.

—2011 (Adj. Sess.). Subdiv. (1)(A): Inserted “including any court-ordered periodic repayment toward arrearages” following “preexisting child support obligations”.

Subdiv. (7): Substituted “and calculated at 120 percent of the United States Department of Health and Human Services poverty guideline per year for a single individual” for “by the commissioner for children and families which shall be an amount sufficient to provide a reasonable subsistence compatible with decency and health. The needs standard shall take into account the available income of the parent responsible for payment of child support” following “established annually”.

—2009 (Adj. Sess.) Subdiv. (1)(B): Act No. 156 inserted “or a cash contribution as provided for in section 658 of this title”.

Subdiv. (1)(E)(ii): Act No. 154 substituted “family division of the superior court” for “family court”.

—2005 (Adj. Sess.). Subdiv. (5)(A)(iii)(II): Act No. 103 substituted “department of labor” for “department of employment and training”.

Subdiv. (7): Act No. 174 substituted “commissioner for children and families” for “commissioner of prevention, assistance, transition, and health access”.

—1999 (Adj. Sess.). Subdiv. (7): Substituted “commissioner of prevention, assistance, transition, and health access” for “commissioner of social welfare”.

—1995. Subdiv. (1)(E): Added.

—1993 (Adj. Sess.) Subdiv. (5)(A)(iii)(b): Added “or a job training program sponsored by the department of employment and training, the department of economic development, or the agency of human services; or” following “current employment”.

—1991 (Adj. Sess.) Subdiv. (5)(A)(iii)(b): Inserted “or technical” following “vocational”.

—1989 (Adj. Sess.) Subdiv. (1): Amended generally.

Subdiv. (2): Added the second and third sentences.

Subdiv. (3): Substituted “the court with jurisdiction over a child support proceeding” for “an issuing authority, including the human services board, having jurisdiction to issue a child support or maintenance order” following “means”.

Subdiv. (5): Amended generally.

Subdiv. (7): Added the second sentence.

Subdiv. (9): Substituted “available” for “gross” preceding “income”.

—1987. Subdiv. (5)(E): Deleted former subdiv. (iii) and redesignated former subdiv. (iv) as subdiv. (iii).

Effective date of amendments—

1993 (Adj. Sess.). 1993, No. 106 (Adj. Sess.), § 17, provided that the amendment to this section by section 16 of the act shall take effect on or after July 1, 1994, as determined by the secretary of human services.

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 16, shall take effect on October 1, 1990.

Applicability of subdiv. (1)(B). 2009, No. 156 (Adj. Sess.), § G.100(d) provides: “Secs. E.319.1 (OCS medical support) [which amended 15 V.S.A. § 658(f) ] and E.319.2 (OCS definitions) [which amended subdiv. (1)(B) of this section] of this act shall apply to child support cases filed on or after July 1, 2010.”

ANNOTATIONS

Discretion of court.
Expenses.
Income.
Underemployment.

Discretion of court.

The family court reviewing a child-support determination correctly decided not to require the imputation of income to stay-at-home mother for work that could be performed consistent with caring for the children; the court acted within its discretion to require consideration of actual availability of employment and the expenses involved in producing income. Tetreault v. Coon, 167 Vt. 396, 708 A.2d 571, 1998 Vt. LEXIS 8 (1998).

Family court does not have the discretion not to order any support obligation if the parent has gross income as defined in 15 V.S.A. § 653 . Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994).

Under child support guidelines, the trial court may find that calculating a support order based on the guidelines would be inequitable because of a parent’s expenses in supporting other dependents; although the language specifically excludes from gross income other support obligations pursuant to a court order only, it would be unfair to exclude consideration of support obligations not under court order and therefore the legislature must have intended that the trial court’s discretion extend to consideration of such obligations. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Expenses.

Evidence sufficiently substantiated the actual cost of child care, as reported by a mother and accepted by the magistrate in a father’s child-support modification proceeding, despite that the mother did not provide receipts substantiating her testimony that she paid the child-care costs identified in her testimony. Merchant v. Merchant, 2015 VT 72, 199 Vt. 406, 124 A.3d 443, 2015 Vt. LEXIS 52 (2015).

“Extraordinary expenses” are included within statutory definition of “basic support obligation,” but only extraordinary education expenses are included, and private school tuition does not typically fall within this definition. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

Income.

Magistrate properly declined to perform the alternate calculation advocated by a father in his request for child-support modification, based on the clear and unambiguous statutory terms regarding the calculation of available income by use of state and federal income taxes using the standard deduction, single filing status, and one exemption. Merchant v. Merchant, 2015 VT 72, 199 Vt. 406, 124 A.3d 443, 2015 Vt. LEXIS 52 (2015).

Magistrate’s findings regarding the calculation of a father’s income in his child-support modification proceeding were supported by the evidence regarding the father’s businesses, his seasonal work based on pay stubs, and the tax return from the father’s new business. Merchant v. Merchant, 2015 VT 72, 199 Vt. 406, 124 A.3d 443, 2015 Vt. LEXIS 52 (2015).

Income is meant to reflect each parent’s actual capacity to pay child support. Both the terms “available” and “actual” indicate that the Legislature intended for the child-support calculation to be based on income that is actually being received by the parent at that point in time; to use income remote in time would not promote the legislative policy of approximating the standard of living that would have been experienced by the family if intact and would not be “actual” or “available” income. Patnode v. Urette, 2015 VT 70, 199 Vt. 306, 124 A.3d 430, 2015 Vt. LEXIS 49 (2015).

To the extent proceeds from a 2008 sale of real property were reinvested in the father’s company and converted to assets, there was no basis under the child support statute to impute prospective income from the proceeds because they were invested in income-producing assets, the income from which was already part of the father’s gross income. Patnode v. Urette, 2015 VT 70, 199 Vt. 306, 124 A.3d 430, 2015 Vt. LEXIS 49 (2015).

When defendant in a child support case worked as a paraprofessional and custodian at the children’s private school in order to obtain a tuition benefit, it was error to include the benefit in her gross income. The benefit was not gross income because it did not reduce defendant’s personal living expenses. Kelly-Whitney v. Kelly-Whitney, 2011 VT 12, 189 Vt. 572, 15 A.3d 138, 2011 Vt. LEXIS 19 (2011).

Fact that tuition is an expense item for those families who voluntarily choose to pay private school tuition does not convert an employer’s tuition credit into an item that reduces necessary personal living expenses. To construe an employer’s tuition benefit that has no impact on gross income and may be used or not, at the employee’s election, as a personal living expense is inconsistent with fairly allocating the children’s actual living expenses between the parents. Kelly-Whitney v. Kelly-Whitney, 2011 VT 12, 189 Vt. 572, 15 A.3d 138, 2011 Vt. LEXIS 19 (2011).

The amount of any social security disability payments received directly by the children must first be added to father’s income, and then be treated as child support payments to the children, creating a credit against father’s child support obligation. Cantin v. Young, 171 Vt. 659, 770 A.2d 449, 2000 Vt. LEXIS 443 (2000) (mem.).

In a divorce action, the court was required to include, as part of husband’s gross income in determining his child support obligation, the “mortgage” payments that husband was required to pay wife, which represented one-half of the net value of the parties’ commercial real estate. Under the child support statute, “gross income” includes the gross receipts of a closely held business operation, minus ordinary and necessary business expenses, and although wife held a mortgage on the real estate, the mortgage payments were part of the property settlement and could not be considered business expenses. The child support statute requires that all of the parents’ income be accounted for first in calculating support under the guidelines before any deviation from the guidelines is permitted. Tracey v. Gaboriault, 166 Vt. 269, 691 A.2d 1056, 1997 Vt. LEXIS 14 (1997).

Although defendant contended that the court erred in failing to consider the fair rental value of subject property, in which plaintiff and son resided, when calculating plaintiff’s gross income, the record of the proceedings before the magistrate did not support the argument because the magistrate found that equitable title to the property was disputed and that plaintiff purchased the property originally, and deeded her interest to defendant in order to qualify for federal housing benefits; and, despite findings indicating that defendant’s claim to equitable ownership was uncertain, the court in effect credited defendant with a $300-per-month share of the fair rental value of the property, computing the maintenance supplement at $250 if plaintiff remained in the house and $550 if she did not. Fiske v. Boudreau, 164 Vt. 263, 668 A.2d 1285, 1995 Vt. LEXIS 108 (1995).

In determining child support, income generally would not include proceeds from sale of an asset. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

While capital gains are considered income for purposes of determining child support, amounts received in exchange for an asset are not. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

For purposes of child support, capital gains does not include all capital gains realized for federal income tax purposes, but only those actually realized following the property division. Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162, 1992 Vt. LEXIS 130 (1992).

Trial court erred when it modified man’s child support obligation based on an increase in his income due to capital gains realized in sale of property he received pursuant to a divorce decree, where property was awarded based on its then-present value, meaning that any capital gain resulting from pre-property-division value appreciation was an asset, not income. Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162, 1992 Vt. LEXIS 130 (1992).

Underemployment.

When the mother testified that she was laid off and was looking for work, the trial court’s decision not to make a finding that mother was voluntarily underemployed was supported by sufficient evidence in the record. LaMothe v. LeBlanc, 2013 VT 21, 193 Vt. 399, 70 A.3d 977, 2013 Vt. LEXIS 17 (2013).

Cited.

Cited in Stocker v. Stocker, 155 Vt. 652, 586 A.2d 548, 1990 Vt. LEXIS 249 (1990); Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994); Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002); Office of Child Support, ex rel. Stanzione v. Stanzione, 2006 VT 98, 180 Vt. 629, 910 A.2d 882, 2006 Vt. LEXIS 259 (2006) (mem.).

§ 654. Support guideline.

The Secretary of Human Services shall prescribe by rule a guideline for child support that reflects the percent of combined available income that parents living in the same household in Vermont ordinarily spend on their children. The rule shall be based on the concept that children should receive the same proportion of parental income after separation or divorce of their parents as they would receive if their parents were living together in one household. The rule shall be based on the financial needs of Vermont children, established by such reliable data as most accurately reflect their needs. The amounts of child support determined under the guideline shall be expressed in dollars and shall be presumed to be the total support obligation of parents. The Secretary may amend the guideline from time to time as may be necessary, but not less than once every four years. The Secretary shall also prepare and make available forms suitable for calculating amounts payable under this section.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 2, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 17.

History

Amendments

—1989 (Adj. Sess.) Substituted “available” for “gross” in the first sentence.

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 17, shall take effect on October 1, 1990.

Rule for support guidelines—Approval prior to adoption. 1985, No. 180 (Adj. Sess.), § 13, eff. April 1, 1987, provided: “Prior to prescribing the rule for support guidelines under this act, the secretary of human services shall obtain the approval of the administrative trial judge and the advice of the Family Proceedings Advisory Committee.”

1985, No. 180 (Adj. Sess.), § 15, eff. April 1, 1987, provided in part: “Rulemaking procedures authorized under this act may commence immediately, provided that the effective date of such rules shall be after March 31, 1987.”

CROSS REFERENCES

Procedure for adoption of administrative rules, see § 801 et seq. of Title 3.

ANNOTATIONS

Generally.
Gross income.
Life insurance.

Generally.

Child support guidelines are the appropriate tools for calculating child support obligations when modifying a divorce stipulation or final order. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

The guidelines were designed to ensure that children receive the same proportion of parental income after separation/divorce as they would have received if parents had remained together, to eliminate discrepancies in awards between children in similar circumstances, and to improve efficiency of child support adjudication. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

Vermont child support guidelines are embodied in tables, promulgated by the secretary of human services, reflecting the percentage of the combined parental income that should be spent on the children and an allocation between the parents for the payment of that amount. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

Gross income.

In a divorce action, the court was required to include, as part of husband’s gross income in determining his child support obligation, the “mortgage” payments that husband was required to pay wife, which represented one-half of the net value of the parties’ commercial real estate. Under the child support statute, 15 V.S.A. § 653(5)(D) , “gross income” includes the gross receipts of a closely held business operation, minus ordinary and necessary business expenses, and although wife held a mortgage on the real estate, the mortgage payments were part of the property settlement and could not be considered business expenses. The child support statute requires that all of the parents’ income be accounted for first in calculating support under the guidelines before any deviation from the guidelines is permitted. Tracey v. Gaboriault, 166 Vt. 269, 691 A.2d 1056, 1997 Vt. LEXIS 14 (1997).

Life insurance.

Cited.

Cited in Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400, 1988 Vt. LEXIS 150 (1988); McCormick v. McCormick, 150 Vt. 431, 553 A.2d 1098, 1988 Vt. LEXIS 185 (1988); Stocker v. Stocker, 155 Vt. 652, 586 A.2d 548, 1990 Vt. LEXIS 249 (1990); Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162, 1992 Vt. LEXIS 130 (1992); McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993); Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994); Miller v. Miller, 2005 VT 89, 178 Vt. 273, 882 A.2d 1196, 2005 Vt. LEXIS 172 (2005) (mem.).

§ 655. Total child support obligation.

In any proceeding to establish or modify child support, the total support obligation shall be presumed to be the amount of child support needed, from which a parental support obligation shall be calculated and ordered to be paid unless support is established under section 659 of this title. The court shall review the adequacy of a child support amount agreed to by the parties with reference to the total support obligation.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 3, eff. April 1, 1987.

History

Revision note—

At the end of the first sentence, substituted “section 659 of this title” for “section 659” to conform reference to V.S.A. style.

ANNOTATIONS

Guidelines.

Guidelines calculation is presumed to reflect the amount of child support needed, and is unquestionably an important factor in the overall child support order even in the case of an order deviating from the guidelines. It is not a bursting bubble that ceases to have significance once a court deviates. LaMothe v. LeBlanc, 2013 VT 21, 193 Vt. 399, 70 A.3d 977, 2013 Vt. LEXIS 17 (2013).

Purpose.

Consistent with the purposes of the Vermont child support guidelines, the legislature has required the court to review any parental agreement on child support for adequacy in relation to the guidelines. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

§ 656. Computation of parental support obligation.

Except in situations where there is shared or split physical custody, the total child support obligation shall be divided between the parents in proportion to their respective available incomes and the noncustodial parent shall be ordered to pay, in money, his or her share of the total support obligation to the custodial parent. The custodial parent shall be presumed to spend his or her share directly on the child.
If the noncustodial parent’s available income is less than the lowest income figure in the support guideline adopted under section 654 of this title or is less than the self-support reserve, the court shall use its discretion to determine support using the factors in section 659 of this title and shall require payment of a nominal support amount.
If the noncustodial parent’s available income is greater than the self-support reserve but payment of a child support order based on application of the guideline would reduce the noncustodial parent’s income below the self-support reserve, the noncustodial parent’s share of the total support obligation shall be presumed to be the difference between the self-support reserve and his or her available income. If the noncustodial parent owes arrears to the custodial parent, the court shall not order the payment of arrears in an amount that, by itself or in combination with the noncustodial parent’s share of the total support obligation, would reduce the noncustodial parent’s income below the self-support reserve, unless the custodial parent can show good cause why the payment of arrears should be ordered despite the fact that such an order would drop the noncustodial parent’s income below the self-support reserve. Such arrears shall remain the responsibility of the noncustodial parent and be subject to repayment at a time when the noncustodial parent’s income is above the self-support reserve.
The court may use its discretion in determining child support in circumstances where combined available income exceeds the uppermost levels of the support guideline adopted under section 654 of this title.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 4, eff. April 1, 1987; amended 1987, No. 54 , § 5, eff. May 15, 1987; 1989, No. 220 (Adj. Sess.), § 18; 2003, No. 159 (Adj. Sess.), § 1.

History

Amendments

—2003 (Adj. Sess.). Subsec. (c): Added the second and third sentences.

—1989 (Adj. Sess.). Subsec. (a): Rewrote the former first and second sentences as the first sentence.

Subsec. (b): Substituted “available” for “gross” following “parent’s” and deleted “gross” following “lowest”.

Subsec. (c): Substituted “available” for “gross” wherever it appears.

Subsec. (d): Substituted “available” for “gross” following “combined”.

—1987. Inserted “or is less than the self-support reserve” preceding “the court” and “of this title” following “659” in subsec. (b), added present subsec. (c), and redesignated former subsec. (c) as subsec. (d).

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 18, shall take effect on October 1, 1990.

ANNOTATIONS

Generally.
Award of support required.
Contents of support order.
Factors considered.
Judicial discretion.
Payment of support.
Self-support reserve.

Generally.

Award of support required.

The legislature intended to require at least a nominal child support award in all cases. Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400, 1988 Vt. LEXIS 150 (1988).

Contents of support order.

Support order which required husband to give the parties’ children their allowances and support them as he had been doing was unenforceably vague. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Factors considered.

If the available income of custodial and noncustodial parents “exceeds the uppermost levels of the support guideline,” pursuant to subsection (d) of this section, trial courts have discretion to establish child support obligations, but this discretion is not boundless; courts are required to justify and explain their child support orders according to factors laid out in 15 V.S.A. § 659(a) , and when a court decides to deviate from the guidelines, its findings and conclusions must show it considered the specified factors as well as other relevant factors. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

In cases where child support obligation is not established from guideline table, there is no formula for calculating or dividing child support between the parents. Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 1998 Vt. LEXIS 160 (1998).

The need of the child is not the sole criterion for determining the child support obligation for an above-guideline-income case; moreover, the term “need” must be used broadly to reflect the general standard of living of the family, and the children are entitled to share in family income if it grows after the parents separate, since the children are not expected to live at a minimal level of comfort while one or more parents enjoy a luxury lifestyle. Smith v. Stewart, 165 Vt. 364, 684 A.2d 265, 1996 Vt. LEXIS 85 (1996).

In cases where a support obligation is not established from child support guidelines, trial court must consider all relevant factors, including the financial resources of the child and the financial resources of the custodial parent. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Judicial discretion.

Magistrate did not abuse her discretion in modifying noncustodial father’s child support obligation without extrapolating from child support guidelines, after concluding that parties’ available income exceeded highest income in the guidelines; statute does not require a particular methodology, and where mother was unable to support children at same standard of living they would have enjoyed had family remained intact and, even after paying maintenance and child support, father lived on more than twice as much as mother, there was no error in ordering child support that exceeded an extrapolation from the guidelines. Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 1998 Vt. LEXIS 160 (1998).

In a divorce action, the relatively small temporary deviation from the child support guidelines fell within the court’s discretion, where, during the parties’ extended period of separation, defendant had no access to his interest in the marital property and did not receive the tax benefits of his ownership of the property or his support of the children, and where the parties had stipulated to the temporary payment level. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

This section gives the trial court discretion to set a support level above that provided for at the highest income of the Child Support Guidelines, based on factors in 15 V.S.A. § 659(a) . Smith v. Stewart, 165 Vt. 364, 684 A.2d 265, 1996 Vt. LEXIS 85 (1996).

Where there was no indication that the family court, which awarded increased child support, considered the factors in 15 V.S.A. § 659(a) and there was no explanation of why the court adopted certain child support calculations, the court’s decision did not reflect the principles behind the guidelines of 15 V.S.A. § 656 and had to be reversed. Smith v. Stewart, 165 Vt. 364, 684 A.2d 265, 1996 Vt. LEXIS 85 (1996).

15 V.S.A. § 659 mandates at least a nominal payment, notwithstanding the court’s conclusions drawn from evidence regarding the ability to meet a regular support obligation. Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994).

Where the income of the parties is so great that child support guidelines do not apply, trial court has discretion in determining the proper child support obligation. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Payment of support.

Child support should ordinarily be paid through the custodial parent. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Self-support reserve.

In finding that the father had the ability to pay $50 per month toward child support arrearages, the trial court erred. The father’s monthly income was $201 less than the statutory self-support reserve; furthermore, the fact that the father was making regular payments was not evidence of ability to pay, as the payments were automatically withdrawn from his Social Security disability benefits and he testified to difficulty paying for his other expenses and his reliance on a local food pantry. Leitgeb v. Leitgeb, 2016 VT 97, 203 Vt. 89, 152 A.3d 1177, 2016 Vt. LEXIS 95 (2016).

Remand was required for the magistrate to evaluate a father’s motion to modify a child support order that related solely to outstanding arrearages owed for surcharges. The magistrate made no findings that the mother had shown good cause why the payment of arrears should be ordered notwithstanding that the father’s monthly income fell below the self-support reserve, nor were there findings from which one might infer good cause. Leitgeb v. Leitgeb, 2016 VT 97, 203 Vt. 89, 152 A.3d 1177, 2016 Vt. LEXIS 95 (2016).

Cited.

Cited in Viskup v. Viskup, 149 Vt. 89, 539 A.2d 554, 1987 Vt. LEXIS 586 (1987); Stocker v. Stocker, 155 Vt. 652, 586 A.2d 548, 1990 Vt. LEXIS 249 (1990); McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993); Tetreault v. Coon, 167 Vt. 396, 708 A.2d 571, 1998 Vt. LEXIS 8 (1998) (mem.).

§ 656a. Adjustment for additional dependents.

As used in this section, “additional dependents” means any natural and adopted children and stepchildren for whom the parent has a duty of support.
In any proceeding to establish or modify child support, the total child support obligation for the children who are the subject of the support order shall be adjusted if a parent is also responsible for the support of additional dependents who are not the subject of the support order. The adjustments shall be made by calculating an amount under the guidelines to represent the support obligation for additional dependents based only upon the responsible parent’s available income, without any other adjustments. This amount shall be subtracted from that parent’s available income prior to calculating the total child support obligation based on both parents’ available income as provided in section 655 of this title.
The adjustment for additional dependents shall not be made to the extent that it contributes to the calculation of a support order lower than a previously existing support order for the children who are the subject of the modification hearing at which the adjustment is sought.
A motion for modification may not be dismissed or denied solely because the adjustment for additional dependents results in an increase of child support of ten percent or less if the increase without the adjustment is greater than ten percent.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 19.

1989, No. 221 (Adj. Sess.), § 25(d), provided that this section, as added by 1989, No. 220 (Adj. Sess.), § 19, shall take effect on October 1, 1990.

ANNOTATIONS

Noncustodial parents.

Noncustodial parents are not eligible for an income adjustment for additional dependents because this section allows only custodial parents who provide primary child support and spend the child-support guideline amount to receive an adjustment. Miller v. Miller, 2005 VT 89, 178 Vt. 273, 882 A.2d 1196, 2005 Vt. LEXIS 172 (2005).

Cited.

Cited in Stocker v. Stocker, 155 Vt. 652, 586 A.2d 548, 1990 Vt. LEXIS 249 (1990); Tetreault v. Coon, 167 Vt. 396, 708 A.2d 571, 1998 Vt. LEXIS 8 (1998) (mem.).

§ 657. Shared or split physical custody.

When each parent exercises physical custody for 30 percent or more of a calendar year, the total child support obligation shall be increased by 50 percent to reflect the additional costs of maintaining two households. Each parental support obligation shall be determined by dividing the total support obligation between the parents in proportion to their respective available incomes and in proportion to the amount of time each parent exercises physical custody. The parental support obligations shall then be offset, with the parent owing the larger amount being required to pay the difference between the two amounts to the other parent.
When one parent exercises physical custody for 25 percent or more but less than 30 percent of a calendar year, each parent’s respective share of the total support obligation shall be determined in accordance with a shared costs table adopted by the Agency of Human Services by rule. The shared costs table shall be developed in such a way as to minimize economic disputes over parent-child contact or visitation and shall reflect the additional costs of maintaining two households by increasing the total support obligation by 50 percent.
In no event shall a parent be required to pay child support under subsection (a) or (b) of this section in an amount greater than the amount that would have been ordered under the support guidelines.
For purposes of this section, “physical custody” means keeping the children overnight. The parent having custody for the greater period of time shall be considered the custodial parent for the purposes of section 661 of this title.
When each parent has physical custody of at least one of the children, a theoretical support payment shall be determined for each parent for the children in the custody of the other, prorating the obligations among all children in the household. The obligations shall then be offset, with the parent owing the larger amount being required to pay the difference between the two amounts to the other parent.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 5, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 20.

History

Amendments

—1989 (Adj. Sess.). Section amended generally.

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 20, shall take effect on October 1, 1990.

ANNOTATIONS

Construction.

Voluntary expenditures by the spouse paying support should not be permitted as a credit against support payments mandated by order. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

Where father was obligated to make support payments through the mother and where there was no basis to conclude that mother consented or would have consented to any offset against support for the amount of father’s voluntary payments for the children, father was not entitled to credit against any back support award payments made by him for the benefit of the children. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

Cited.

Cited in McCormick v. McCormick, 150 Vt. 431, 553 A.2d 1098, 1988 Vt. LEXIS 185 (1988); Nevitt v. Nevitt, 155 Vt. 391, 584 A.2d 1134, 1990 Vt. LEXIS 242 (1990).

§ 658. Support.

In an action under this chapter or under chapter 21 of this title, the court shall order either or both parents owing a duty of support to a child to pay an amount for the support of the child in accordance with the support guidelines as set forth in this subchapter, unless otherwise determined under section 659 of this title.
A request for support may be made by either parent, a guardian, or the Department for Children and Families or the Department of Vermont Health Access, if a party in interest. A court may also raise the issue of support on its own motion.
The court may order support to be continued until the child attains the age of majority or terminates secondary education, whichever is later.
The court or magistrate may order an obligor or a parent who will become the obligor pending an anticipated child support order to participate in employment, educational, or training-related activities if the court finds that participation in such activities would assist in providing support for a child, or in addressing the causes of the default. The court may also order the parent to participate in substance abuse or other counseling if the court finds that such counseling may assist the parent to achieve stable employment. Activities ordered under this section shall be consistent with, and may be more rigorous than, any requirements of a state or federal program in which the parent is participating. For the purpose of this subsection, “employment, educational, or training-related activities” shall mean:
1. Unsubsidized employment.
2. Subsidized private sector employment.
3. Subsidized public sector employment.
4. Work experience (including work associated with the refurbishing of publicly assisted housing) if sufficient private sector employment is not available.
5. On-the-job training.
6. Job search and job readiness assistance.
7. Community service programs.
8. Vocational educational training (not to exceed 12 months with respect to any individual).
9. Job skills training directly related to employment.
10. Education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency.
11. Satisfactory attendance at secondary school or in a course of study leading to a certificate of general equivalence, in the case of a recipient who has not completed secondary school or received such a certificate.
12. The provision of child care services to an individual who is participating in a community service program.
13. An employment services program, which may provide referrals for employment, training, counseling, or other services. Any report provided from such a program shall be presumed to be admissible without the appearance of a witness from the program in accordance with the provisions in 4 V.S.A. § 466(f) .
A consent to the adoption of a child or the relinquishment of a child, for the purpose of adoption, covered by a child support order shall terminate an obligor’s duty to provide future support for the adopted child without further order of the court. Unpaid support installments accrued prior to adoption are not discharged and are subject to the jurisdiction of the court. In a case involving a child covered by a Vermont child support order, the Probate Division of the Superior Court shall also file the consent or relinquishment with the Family Division of the Superior Court in the case in which the support order was issued and shall notify the Office of Child Support of any order terminating parental rights and of the final adoption decree. Upon receipt of the consent or relinquishment, the Office of Child Support shall terminate the obligor’s duty to provide further support.
1. (f) (1)
2. If private health insurance or an employer-sponsored health benefit plan is not available at a reasonable cost, the court may order one or both parents owing a duty of support to contribute a cash contribution of up to five percent of gross income toward the cost of health care coverage of a child under public or private health insurance or a health benefit plan. A cash contribution under this section shall be considered child support for tax purposes. When calculating the contribution of a parent whose child receives coverage under Medicaid, a Medicaid waiver program, or Dr. Dynasaur, the court shall not order a contribution greater than the premium amount charged by the Agency of Human Services for the child’s coverage.
  (f) (1)
  
  Subsection (f) as amended by 2009, Act No. 156 (Adj. Sess.), § E.319.1 shall apply to child support cases filed on or after July 1, 2010.
  
  The court shall order either or both parents owing a duty of support to provide a cash contribution or medical coverage for a child, provided that medical coverage is available to the parent at a reasonable cost. Medical coverage is presumed to be available to a parent at a reasonable cost only if the cost of adding the child to an existing insurance or health benefit plan or the difference between providing coverage to the individual alone and family coverage under an existing insurance or health benefit plan is five percent or less of the parent’s gross income.
  
  (2) If private health insurance or an employer-sponsored health benefit plan is not available at a reasonable cost, the court may order one or both parents owing a duty of support to contribute a cash contribution of up to five percent of gross income. the court also may order a cash contribution if a child receives coverage or health benefits under Medicaid, a Medicaid waiver program, Dr. Dynasaur, or is uninsured. A cash contribution under this section shall be considered child support for tax purposes.
3. The court, in its discretion, may order a parent to provide a cash contribution or coverage under a public or private insurance or health benefit plan even if the cost exceeds five percent of the parent’s gross income, if the cost is deemed reasonable under the totality of the circumstances after considering the factors pursuant to section 659 of this title.
Subsection (f) shall apply to child support cases filed before July 1, 2010.

The court shall order either or both parents owing a duty of support to provide a cash contribution or medical coverage for a child, provided that medical coverage is available to the parent at a reasonable cost. Medical coverage is presumed to be available to a parent at a reasonable cost only if the amount payable for the individual’s contribution to the insurance or health benefit plan premium is five percent or less of the parent’s gross income. the court, in its discretion, retains the right to order a parent to obtain medical coverage even if the cost exceeds five percent of the parent’s gross income if the cost is deemed reasonable under all the circumstances after considering the factors pursuant to section 659 of this title.
[Repealed.]

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 6, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 21; 1993, No. 228 (Adj. Sess.), § 7; 1995, No. 59 , § 5; 1995, No. 161 (Adj. Sess.), § 3; 1997, No. 63 , § 7, eff. Sept. 1, 1997; 2003, No. 159 (Adj. Sess.), § 6; 2005, No. 174 (Adj. Sess.), § 33; 2005, No. 215 (Adj. Sess.), § 131; 2007, No. 118 (Adj. Sess.), § 1, eff. July 1, 2012; 2009, No. 154 (Adj. Sess.), §§ 126, 126a; 2009, No. 156 (Adj. Sess.), §§ E.319.1, I.18; 2011, No. 119 (Adj. Sess.), § 4.

History

Amendments

—2011 (Adj. Sess.) Subsec. (d): Substituted “an obligor or a parent who will become the obligor pending an anticipated child support order” for “a parent who is in default of a child support order,” following “order”; “training-related” for “training related” preceding “activities”; inserted “providing support for a child, or in” preceding “addressing”; deleted “not” following “shall”; substituted “consistent” for “inconsistent” following “be”; inserted “, and may be more rigorous than” following “with” and “substituted “training-related” for “training related” following “educational, or”.

Subdiv. (d)(13): Added.

—2009 (Adj. Sess.) Subsec. (b): Act No. 156 substituted “department of Vermont” for “office of Vermont” in the first sentence.

Subsec. (d): Act No. 154, § 126 substituted “superior court” for “family court” in the first sentence of the introductory paragraph.

Subsec. (e): Act No. 154, § 126 deleted “family” preceding “court” in the first and second sentences, and rewrote the third sentence.

Act No. 154, § 126a, eff. February 1, 2011, inserted “division of the superior” preceding “court shall” and inserted “also” thereafter, and “family division of the” preceding “superior court” in the third sentence.

Subsec. (f): Rewritten by Act No. 156.

—2007 (Adj. Sess.) Subsec. (g): Added.

—2005 (Adj. Sess.). Subsec. (b): Act No. 174 inserted “or the office of Vermont health access” following “families”.

Subsec. (f): Added by Act No. 215.

—2003 (Adj. Sess.). Subsec. (b): Deleted “by” following “parent” “or by” following “guardian”; substituted “department” for “departments”, “prevention, assistance, transition, and health access” for “social welfare” and deleted “by” following “or”.

—1997. Subsec. (d): Inserted “or magistrate” following “family court judge” in the first sentence and added the fourth sentence.

—1995 (Adj. Sess.) Subsec. (e): Rewrote the first sentence, inserted “the consent or relinquishment” following “court shall file” and “of” following “parental rights and” in the third sentence and added the fourth sentence.

—1995. Added subsecs. (d) and (e).

—1993 (Adj. Sess.) Subsec. (a): Inserted “or under chapter 21 of this title” following “chapter”.

—1989 (Adj. Sess.) Subsec. (b): Substituted “or by the office of child support, if” for “if either department is” following “welfare” in the first sentence.

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 21, shall take effect on October 1, 1990.

Prospective repeal of subsec. (g). 2007, No. 118 (Adj. Sess.), § 2 provides that this act [which added subsec. (g)] shall be repealed effective July 1, 2012.

Applicability of subsec. (f). 2009, No. 156 (Adj. Sess.), § G.100(d) provides: “Secs. E.319.1 (OCS medical support) [which amended subsec. (f) of this section] and E.319.2 (OCS definitions) [which amended 15 V.S.A. 653(1)(B)] of this act shall apply to child support cases filed on or after July 1, 2010.”

CROSS REFERENCES

Action to recover child support, see § 606 of this title.

Civil provisions of general application, see § 301 et seq. of Title 15B.

Definitions, see § 101 et seq. of Title 15B.

Enforcement and modification of support order after registration, see § 601 et seq. of Title 15B.

Enforcement of support generally, see § 3901 et seq. of Title 33.

Penalties and proceedings for desertion and nonsupport of spouse and children, see § 201 et seq. of this title.

Proceedings involving two or more states, see § 203 et seq. of Title 15B.

Wage assignment for support, see § 780 et seq. of this title.

Agreement of parties.

Award of support generally.

Duration of support order.

Party in interest.

Retroactivity.

Agreement of parties.

Court had power to increase amount of child support, even though stipulation incorporated in divorce judgment provided that support at agreed amount would extend beyond majority, where there was no indication in the stipulation that the parties intended the post-majority support to be a quid pro quo for reduced amounts of support. Bradley v. Bradley, 154 Vt. 304, 575 A.2d 190, 1990 Vt. LEXIS 67 (1990).

Award of support generally.

Parents do not control the initial child-support order in divorce cases. Under the support statute, a family court is required to include a child-support order as part of the adjudication of a divorce proceeding; this requirement is consistent with the general policy that parents cannot waive child support for their children. Bergman v. Marker, 2007 VT 139, 183 Vt. 68, 944 A.2d 265, 2007 Vt. LEXIS 341 (2007).

Duration of support order.

Because subsection (c) refers exclusively to “the child” and requires an individual award for each child, the trial court lacked statutory authority to order father to make payments for his older daughter beyond the termination of her secondary education. Morancy v. Morancy, 173 Vt. 609, 800 A.2d 435, 2001 Vt. LEXIS 418 (2001) (mem.).

The noncustodial parent is not free to unilaterally terminate an unallocated child support obligation on a pro rata basis as each child turns eighteen or graduates from secondary school; the parent’s proper remedy is to seek a modification of the judgment in the trial court. Morancy v. Morancy, 173 Vt. 609, 800 A.2d 435, 2001 Vt. LEXIS 418 (2001) (mem.).

Support may be allowed to continue past the eighteenth birthday when the child is either still in school or has ceased schooling for a temporary period but intends to continue. Morancy v. Morancy, 173 Vt. 609, 800 A.2d 435, 2001 Vt. LEXIS 418 (2001) (mem.).

Where parties to New York custody decree moved to Vermont, Vermont’s lower age of majority was a change of circumstances sufficient to justify modification of father’s child support obligation; indeed, under Vermont law, family court had no jurisdiction to enforce child support order beyond eighteenth birthday of child or child’s graduation from secondary school. Cavallari v. Martin, 169 Vt. 210, 732 A.2d 739, 1999 Vt. LEXIS 86 (1999).

Absent an agreement to the contrary, the court does not have authority to enter a support order effective beyond the later of a child’s majority or termination of secondary education. Knowles v. Thompson, 166 Vt. 414, 697 A.2d 335, 1997 Vt. LEXIS 38 (1997).

Trial court correctly concluded that it lacked authority to enter a support order effective beyond the later of a child’s majority or termination of secondary education. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

Party in interest.

Proviso in subdivision (b) of this section allowing Office of Child Support to make a request for support “if a party in interest” is limited to cases in which it holds an assignment of support rights from support obligee. Cantin v. Young, 170 Vt. 563, 742 A.2d 1246, 1999 Vt. LEXIS 330 (1999) (mem.).

Holding that an order initially establishing child support in a divorce case may be retroactive to the date that the divorce petition is filed merely establishes the outer limit on the discretion of the trial court. The exercise of this discretion must be based on the circumstances of the parties during the period for which retroactivity could be imposed. Bergman v. Marker, 2007 VT 139, 183 Vt. 68, 944 A.2d 265, 2007 Vt. LEXIS 341 (2007).

Retroactivity.

Order initially establishing child support in a divorce case may be retroactive to the date that the divorce petition is filed even if there is a gap between the divorce order and the support order and/or between the divorce petition and any request of a party for a support order. Therefore, a child-support order could be retroactive to the date the divorce petition was filed, and the family court erred in holding that retroactivity could go back only to the date that the father filed his motion to establish child support. Bergman v. Marker, 2007 VT 139, 183 Vt. 68, 944 A.2d 265, 2007 Vt. LEXIS 341 (2007).

Cited.

Cited in Tetreault v. Tetreault, 148 Vt. 448, 535 A.2d 779, 1987 Vt. LEXIS 540 (1987); Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994); Tetreault v. Coon, 167 Vt. 396, 708 A.2d 571, 1998 Vt. LEXIS 8 (1998); State v. Fontaine, 167 Vt. 529, 711 A.2d 667, 1998 Vt. LEXIS 156 (1998).

Annotations From Former §§ 292, 557, 651

Agreement of parties.

Incorporation of the parties’ arrangement regarding child support into the court’s decree does not affect the court’s later ability to modify its order when equitable under the circumstances. White v. White, 141 Vt. 499, 450 A.2d 1108 (1982), overruling Hoffman v. Hoffman (1975) 133 Vt. 179, 333 A.2d 94 and Duke v. Duke (1982) 140 Vt. 543, 442 A.2d 460 to the extent of inconsistency. (Decided under former § 292.).

Award of support generally.

The statute requires an individual award for each child based upon all relevant factors. Cleverly v. Cleverly, 147 Vt. 154, 513 A.2d 612, 1986 Vt. LEXIS 376 (1986). (Decided under former § 651.) .

Discretion of court.

Trial courts have wide discretion in determining child support payments. Berard v. Berard, 140 Vt. 537, 442 A.2d 49, 1982 Vt. LEXIS 441 (1982). (Decided under former § 292.) .

The problem of custody of children and provision for their support involves a decision that must be entrusted to the sound discretion and perceptive sense of justice of the tribunal confronted with these issues, and the final result is not subject to revision by appellate review except where the bounds of judicial discretion have been exceeded. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962). (Decided under former § 557.) .

Duration of support.

A court is not required to order that child support payments be continued until the child’s eighteenth birthday since the language in the statute is discretionary in nature. Osborn v. Osborn, 147 Vt. 432, 519 A.2d 1161, 1986 Vt. LEXIS 439 (1986). (Decided under former § 651.) .

Failure to comply with order.

Failure to raise issue of support.

Trial court was not required to raise the issue of child support on its own motion where the issue was not raised by the parties. Peckham v. Peckham, 149 Vt. 388, 543 A.2d 267, 1988 Vt. LEXIS 24 (1988). (Decided under former § 651.) .

§ 659. Child support order.

The total support obligation shall be presumed to be the amount of child support needed. Upon request of a party, the court shall consider the following factors in respect to both parents. If, after consideration of these factors, the court finds that application of the guidelines is unfair to the child or to any of the parties, the court may adjust the amount of child support:
1. The financial resources of the child.
2. The financial resources of the custodial parent.
3. The standard of living the child would have enjoyed had the marital relationship not been discontinued.
4. The physical and emotional condition of the child.
5. The educational needs of the child.
6. The financial resources and needs of the noncustodial parent.
7. Inflation.
8. The costs of meeting the educational needs of either parent, if the costs are incurred for the purpose of increasing the earning capacity of the parent.
9. Extraordinary travel and other travel-related expenses incurred in exercising the right to parent-child contact.
10. Any other factors the court finds relevant.
If the parties agree, the court may include in the child support order an additional amount designated for the purpose of providing for postsecondary education.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 7, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 22; 1995, No. 59 , § 6.

History

Amendments

—1995. Subdiv. (a)(9): Inserted “and other travel-related” preceding “expenses” and deleted “periods of visitation or” following “right to”.

—1989 (Adj. Sess.) Subsec. (a): Amended generally.

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 22, shall take effect on October 1, 1990.

Award mandatory.

Discretion of court.

Educational costs.

Financial resources of noncustodial parent.

Findings.

Guidelines.

Other relevant factors.

Presumptions.

Second family obligations.

Stipulations.

Tax exemption.

Award mandatory.

At least a nominal child support award is required in all cases. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Discretion of court.

In a divorce action, the court was required to include, as part of husband’s gross income in determining his child support obligation, the “mortgage” payments that husband was required to pay wife, which represented one-half of the net value of the parties’ commercial real estate. Under the child support statute, 15 V.S.A. § 653(5)(D) , “gross income” includes the gross receipts of a closely held business operation, minus ordinary and necessary business expenses, and although wife held a mortgage on the real estate, the mortgage payments were part of the property settlement and could not be considered business expenses. The child support statute requires that all of the parents’ income be accounted for first in calculating support under the guidelines before any deviation from the guidelines is permitted. Tracey v. Gaboriault, 166 Vt. 269, 691 A.2d 1056, 1997 Vt. LEXIS 14 (1997).

This section gives the trial court discretion to set a support level above that provided for at the highest income of the Child Support Guidelines. Smith v. Stewart, 165 Vt. 364, 684 A.2d 265, 1996 Vt. LEXIS 85 (1996).

Family court’s award of nominal child support to be paid by father was within its discretion where children’s income exceeded their need and was almost as great as their father’s income. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Under child support guidelines, the trial court may find that calculating a support order based on the guidelines would be inequitable because of a parent’s expenses in supporting other dependents; although the statutory language specifically excludes from gross income other support obligations pursuant to a court order only, it would be unfair to exclude consideration of support obligations not under court order and therefore the legislature must have intended that the trial court’s discretion extend to consideration of such obligations. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Educational costs.

Order placing proceeds from defendant’s annuity in divorce matter in trust fund for daughters’ educational costs was improper, since agreement parties had to provide education to daughters was not recognized by subsection (b) of this section, governing agreements to place postmajority support provisions in orders, and court had no authority to create educational trust for use beyond children’s age of majority. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

Financial resources of noncustodial parent.

In assessing the financial resources of a noncustodial parent under subdivision (a)(7) of this section, court properly decided to disregard an agreement that would have conveyed marital assets in contemplation of divorce in return for little or no consideration; such an agreement was unenforceable as a fraudulent transfer. Clayton v. Clayton, 153 Vt. 138, 569 A.2d 1077, 1989 Vt. LEXIS 226 (1989).

Any difficulty that plaintiff would encounter in paying child support award because of voluntary reduction of his assets was not a proper defense or excuse for not complying with court’s order. Clayton v. Clayton, 153 Vt. 138, 569 A.2d 1077, 1989 Vt. LEXIS 226 (1989).

Findings.

If the available income of custodial and noncustodial parents “exceeds the uppermost levels of the support guideline,” pursuant to 15 V.S.A. § 656(d) , trial courts have discretion to establish child support obligations, but this discretion is not boundless; courts are required to justify and explain their child support orders according to factors laid out in subsection (a) of this section, and when a court decides to deviate from the guidelines, its findings and conclusions must show it considered the specified factors as well as other relevant factors. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

Trial court’s child support calculations reversed and remanded for the court to determine mother and father’s available income using 15 V.S.A. § 653 , and to make a finding on whether their combined available income falls within the child support guidelines. If their combined income is within the guidelines, the court must determine child support consistent with the guidelines. If their combined income exceeds the levels covered by the guidelines, the court must explain how it considered the factors listed in subsection (a) of this section and the principles behind the guidelines in making its award. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

Trial court’s findings and conclusions for child support order must show consideration of the statutory factors and the reasons for the amount of support ordered. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

The trial court’s findings and conclusions pursuant to an order for child support under child support guidelines must show that the court considered the factors specified as well as other relevant factors and must show the reasons for deviation from the guidelines and the amount of support ordered. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Child support order which did not follow guidelines was reversed and remanded where findings and conclusions lacked adequate specificity with regard to defendant’s second-family support obligations, income and resources, and order failed to demonstrate consideration of statutory factors as specifically required by child support guidelines. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Guidelines.

Trial court properly deviated from the guidelines and concluded that neither party should pay child support, as it was proper for the trial court to consider all of the resources available to his father and the higher standard of living at his home, and it addressed the contribution of the mother’s boyfriend to her household but nonetheless concluded that she could not afford to pay child support. Lamothe v. Leblanc, 2015 VT 78, 199 Vt. 448, 124 A.3d 817, 2015 Vt. LEXIS 58 (2015).

Other relevant factors.

Where father’s credit card obligations were discharged when he filed for bankruptcy after the divorce and, because mother’s name remained on the account, the credit card company sought repayment from her, the trial court could not reinstate discharged debt by ordering father to pay mother the entire amount in an award separate from its general maintenance and child support order. On remand, however, the court is not precluded from taking the fact that mother must pay off the debt into account in calculating father’s modified child support and maintenance obligations. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

The plain language of 15 V.S.A. § 659 ensures flexibility in situations in which a parent cannot meet the support amount suggested in the child support guidelines, and the nonexclusive list of relevant factors would not rule out consideration of religious beliefs in fixing the amount. Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843, 1994 Vt. LEXIS 82 (1994).

Presumptions.

Under child support guideline system, it is presumed that a child support award will be based on the guidelines unless court finds that result “inequitable.” Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

Where combined available income is within child support guidelines, presumption applies that guidelines should be used unless court finds them to be unfair to the children or the parties. McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993).

Second family obligations.

Presence of additional children from a relationship subsequent to the parties’ relationship did not authorize the court to deviate from child-support guidelines and reduce the support obligation of noncustodial father. Such a rationale would mean that allowing the custodial parent to stay at home to care for her children would always, under 15 V.S.A. § 659(a) , place an “unfair burden” on the obligor parent, thereby eliminating the policy that allows custodial parents to remain at home in certain circumstances. Tetreault v. Coon, 167 Vt. 396, 708 A.2d 571, 1998 Vt. LEXIS 8 (1998).

Where a trial court has found it would be inequitable to order an amount of child support based solely on the mathematical formula of child support guidelines, it must consider all relevant factors; the voluntary nature of second-family obligations and consideration of second-family income and resources are relevant factors. Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772, 1990 Vt. LEXIS 45 (1990).

Stipulations.

Because determining which of two rates of premodification support were owed by father during the period in dispute required an analysis of the legal effect of the stipulation between mother and father, remand was necessary because the trial court failed to make adequate findings on the question. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

On motion for modification, where it appeared that court had confined its inquiries to whether plaintiff had proved a “change in circumstances” pursuant to parties’ stipulation incorporated in divorce judgment, and findings did not indicate whether court considered any of the evidence presented in light of the factors set out in this section, court was directed to hold new hearing. Bucholt v. Bucholt, 152 Vt. 238, 566 A.2d 409, 1989 Vt. LEXIS 153 (1989).

Tax exemption.

Trial court erred in reallocating two of four dependency exemptions to mother based on her unexpected return to the workplace because the decision contradicted the court’s refusal to set aside the final divorce order, under which father received all four dependency exemptions. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

A court may, in a divorce action, allocate income tax dependency exemptions despite the Tax Reform Act of 1984, 26 U.S.C. § 152(e) (1), which creates a presumption that the parent with custody of a child is entitled to the exemption for that child. Where the court found that both parties contributed about equally to the support of their children, it properly awarded one dependency exemption to each of the parties. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Cited.

Cited in Nevitt v. Nevitt, 155 Vt. 391, 584 A.2d 1134, 1990 Vt. LEXIS 242 (1990); Miller v. Miller, 2005 VT 89, 178 Vt. 273, 882 A.2d 1196, 2005 Vt. LEXIS 172 (2005).

Annotations From Former § 651

Financial resources of noncustodial parent.

Where noncustodial parent just barely had the personal resources to care for herself, trial court did not abuse its discretion by failing to require her to pay child support. Lalumiere v. Lalumiere, 149 Vt. 469, 544 A.2d 1170, 1988 Vt. LEXIS 49 (1988).

Provision in order for cost of living adjustments.

An automatic adjustment provision in an order for spousal maintenance or child support, which provides for changes in the cost of living, does not constitute an invalid modification of that order; rather, it is merely a practical means of assuring that the buying power of the original orders continues to be available. Roya v. Roya, 145 Vt. 488, 494 A.2d 132, 1985 Vt. LEXIS 321 (1985).

When an order for child support or spousal maintenance contains an automatic adjustment provision providing for changes in the cost of living, failure to set forth a basis for arriving at the change in the cost of living is fatal, because instead of promoting judicial economy by avoiding the necessity of modification proceedings, it may instead require judicial resources to resolve how the change in the cost of living is to be determined. Roya v. Roya, 145 Vt. 488, 494 A.2d 132, 1985 Vt. LEXIS 321 (1985).

An adequately clear order for child support or spousal maintenance which includes an automatic adjustment provision providing for changes in the cost of living should set forth a simple and workable formula which can be used each year to determine what the change in the payments will be; the formula must provide for adjustments to be made in a manner which is based on readily obtainable information, and should also provide for situations in which the payor’s income does not keep pace with inflationary increases in the cost of living. Roya v. Roya, 145 Vt. 488, 494 A.2d 132, 1985 Vt. LEXIS 321 (1985).

§ 660. Modification.

1. On motion of either parent, the Office of Child Support, any other person to whom support has previously been granted, or any person previously charged with support, and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary, or modify a child support order, whether or not the order is based upon a stipulation or agreement. If the child support order has not been modified by the court for at least three years, the court may waive the requirement of a showing of a real, substantial, and unanticipated change of circumstances. (a) (1) On motion of either parent, the Office of Child Support, any other person to whom support has previously been granted, or any person previously charged with support, and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary, or modify a child support order, whether or not the order is based upon a stipulation or agreement. If the child support order has not been modified by the court for at least three years, the court may waive the requirement of a showing of a real, substantial, and unanticipated change of circumstances.
2. The Office of Child Support may independently file a motion to modify child support or change payee if providing services under Title IV-D of the Social Security Act, if a party is or will be incarcerated for more than 90 days, if the family has reunited or is living together, if the child is no longer living with the payee, or if a party receives means-tested benefits.
A child support order, including an order in effect prior to adoption of the support guideline, which varies more than ten percent from the amounts required to be paid under the support guideline, shall be considered a real, substantial, and unanticipated change of circumstances.
The following shall be considered a real, substantial, and unanticipated change of circumstances:
1. Receipt of workers’ compensation, disability benefits, or means-tested public assistance benefits.
2. Unemployment compensation, unless the period of unemployment was considered when the child support order was established.
3. Incarceration for more than 90 days, unless incarceration is for failure to pay child support.
A motion to modify a support order under subsection (b) or (c) of this section shall be accompanied by an affidavit setting forth calculations demonstrating entitlement to modification and shall be served on other parties and filed with the court. Upon proof of service, and if the calculations demonstrate cause for modification, the magistrate shall enter an order modifying the support award in accordance with the calculations provided, unless within 15 days of service of, or receipt of, the request for modification, either party requests a hearing. The court shall conduct a hearing within 20 days of the request. No order shall be modified without a hearing if one is requested.
An order may be modified only as to future support installments and installments which accrued subsequent to the date of notice of the motion to the other party or parties. The date the motion for modification is filed shall be deemed to be the date of notice to the opposing party or parties.
Upon motion of the court or upon motion of the Office of Child Support, the court may deem arrears judicially unenforceable in cases where there is no longer a duty of support, provided the court finds all of the following:
1. The obligor is presently unable to pay through no fault of his or her own.
2. The obligor currently has no known income or has only nominal assets.
3. There is no reasonable prospect that the obligor will be able to pay in the foreseeable future.
Upon motion of an obligee or the Office of Child Support, the court may set aside a judgment that arrears are judicially unenforceable based on newly discovered evidence or a showing of a real, substantial, and unanticipated change in circumstances, provided the court finds any of the following:
1. The obligor is presently able to pay.
2. The obligor has income or has only nominal assets.
3. There is a reasonable prospect that the obligor will be able to pay in the foreseeable future.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 8, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 23; 1995, No. 59 , § 8; 1997, No. 63 , §§ 6a, 8, eff. Sept. 1, 1997; 2003, No. 159 (Adj. Sess.), § 7; 2011, No. 119 (Adj. Sess.), § 5.

History

Revision note—

In subsecs. (a) and (c), substituted “motion” for “petition” to conform language to Rule 80(j), Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2011 (Adj. Sess.) Section amended generally.

—2003 (Adj. Sess.). Subsec. (f): Deleted.

—1997. Subsec. (a): Added the second sentence.

Subsec. (f): Added.

—1995. Subsec. (d): Substituted “15” for “20” in the second sentence.

—1989 (Adj. Sess.) Substituted “ten” for “15” preceding “percent” in subsec. (b), added a new subsec. (c), redesignated former subsec. (c) as subsec. (d) and added subsec. (e).

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 23, shall take effect on October 1, 1990.

Application.

Attorney’s fees.

Change of circumstances.

Discretion.

Legislative intent.

Retroactive modification.

Stipulations.

Application.

Modification of child support must be initiated by a motion from a party; irrespective of the interests of the child, no modification can occur without such a request. This initiation requirement is an exception to the general policy that parents cannot waive child support for their children, and it is consistent with the exception that retroactivity cannot go back before the date of the motion to modify. Bergman v. Marker, 2007 VT 139, 183 Vt. 68, 944 A.2d 265, 2007 Vt. LEXIS 341 (2007).

Subsection (b) of this section provides jurisdiction to modify child support whenever an order deviates more than ten percent from the guidelines, regardless of whether the order deviated by more than ten percent at the time it went into effect or whether any actual change in circumstances had since taken place. Coyle v. Coyle, 2007 VT 21, 181 Vt. 583, 925 A.2d 996, 2007 Vt. LEXIS 47 (2007) (mem.).

Office of Child Support did not have power to pursue modification of a support order irrespective of wishes of parents. Cantin v. Young, 170 Vt. 563, 742 A.2d 1246, 1999 Vt. LEXIS 330 (1999) (mem.).

Consideration of the interests of the children may require a reduction in a child support obligation in some circumstances. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

Legislature did not distinguish between downward and upward modifications of child support orders; the policy of uniformity of awards controls in either case. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

The legislature intended this section to apply even where there had been no previous award of child support. Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400, 1988 Vt. LEXIS 150 (1988).

Attorney’s fees.

In a case concerning child support, the question of which parent substantially prevails does not determine which parent pays attorney fees; the primary consideration is the ability of the supporting party to pay and the financial needs of the party receiving the award. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

Change of circumstances.

As a father moved for modification of child-support within three years of the order, the requirement of a real, substantial, and unanticipated change of circumstances was not waived. Merchant v. Merchant, 2015 VT 72, 199 Vt. 406, 124 A.3d 443, 2015 Vt. LEXIS 52 (2015).

As a stipulated child-support order filed contemporaneously with the parties’ final divorce order included consideration of the parties’ respective child-care costs in the guideline calculation, the parties did not clearly seek to stipulate that child-care costs would not be taken into account in the child-support guideline calculation. Merchant v. Merchant, 2015 VT 72, 199 Vt. 406, 124 A.3d 443, 2015 Vt. LEXIS 52 (2015).

Father, as the party seeking a modification of child-support, had the burden to show a real, substantial and unanticipated change of circumstances, and the magistrate’s findings that he failed to do so were not erroneous based on the evidence presented, including calculation of the father’s various income sources. Merchant v. Merchant, 2015 VT 72, 199 Vt. 406, 124 A.3d 443, 2015 Vt. LEXIS 52 (2015).

The family court may modify a child support or spousal maintenance order only upon a showing of real, substantial, and unanticipated change of circumstances. A change in circumstances is a jurisdictional prerequisite to such modifications, and the burden is on the moving party to establish the requisite change. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

Where husband’s income history showed great volatility from year to year, but on average husband earned far more than the income figure on which the court set the maintenance and child support awards, the family court acted well within its discretion to rule that husband’s proffer of reduced income was more a challenge to the divorce decision than a demonstration of changed circumstances and, as a demonstration of changed circumstances, was inadequate. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

The family court properly denied husband’s motion to modify his child support obligations on the basis that his eldest son made an “unanticipated permanent move to California” greatly increasing his expenses and reducing wife’s expenses. The additional expenses for the child were not unanticipated and should have been shown at the divorce hearing. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

Under subsection (b) of this section, because the child support order mother sought to modify deviated from the guidelines by more than ten percent, the court had jurisdiction to modify the order. Clark v. Clark, 172 Vt. 351, 779 A.2d 42, 2001 Vt. LEXIS 182 (2001).

A change in circumstances is a jurisdictional prerequisite to modification of a child support order. Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 1998 Vt. LEXIS 160 (1998).

Father’s bad faith in failing to use alternative-dispute-resolution procedures mandated in existing child support order constituted a change in circumstances sufficient to confer jurisdiction to modify his child support obligation. Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 1998 Vt. LEXIS 160 (1998).

A change of circumstances is a jurisdictional prerequisite to consideration of a motion to modify child support; therefore, where there was no real change in the physical custody situation of children since 1991, when divorce was ordered, the family court acted within its discretion in refusing to grant motion to modify child support filed by defendant-father. Smith v. Stewart, 165 Vt. 364, 684 A.2d 265, 1996 Vt. LEXIS 85 (1996).

The legislature has authorized modification of child support orders where there is a “real, substantial and unanticipated change of circumstances,” including where the child support amount varies more than 10% from that calculated under the guidelines, and the power to modify an order exists “whether or not the order is based upon a stipulation or agreement”; the statutes do not specify, however, whether a parental waiver of the right to seek modification pursuant to the statutory standards is effective. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

Ordinarily, in order to reach the merits of a petition to modify a child support obligation, moving party must first prove that there exists a real, substantial and unanticipated change of circumstances. Bucholt v. Bucholt, 152 Vt. 238, 566 A.2d 409, 1989 Vt. LEXIS 153 (1989).

A voluntary reduction in income available for child support does not constitute a change in circumstances warranting modification of child support order. Isham v. Isham, 152 Vt. 637, 568 A.2d 421, 1989 Vt. LEXIS 202 (1989).

Trial court properly found defendant husband in contempt for failure to pay back child support, and properly denied his motion to “annul” his child support obligations retroactively, based on finding that neither second family expenses nor loss of employment was unanticipated and that the combined income of defendant and his second wife was sufficient to meet their living expenses and allow defendant to discharge his support obligation. Isham v. Isham, 152 Vt. 637, 568 A.2d 421, 1989 Vt. LEXIS 202 (1989).

Discretion.

Once the evidence supports a finding that statutory child support threshold has been met, trial court has discretion to determine whether it will modify a support order. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Legislative intent.

Legislative policy is to allow modification of child support obligations to standardized norms, whatever may have been the agreement of the parties in the past. C.D. v. N.M., 160 Vt. 495, 631 A.2d 848, 1993 Vt. LEXIS 71 (1993).

Retroactive modification.

When the mother received a Social Security disability insurance (SSDI) derivative benefit on behalf of the parties’ child through the father’s own SSDI benefit and the father concurrently paid the mother child support through wage withholding, the mother had been receiving a double payment. Therefore, the trial court properly ordered her to reimburse the father for the child-support payments he made, and this was not an impermissible retroactive modification under federal or state law; furthermore, there was no merit to the mother’s argument that the entirety of the SSDI derivative benefit should be treated as a gratuity. Rathbone v. Corse, 2015 VT 73, 199 Vt. 364, 124 A.3d 476, 2015 Vt. LEXIS 53 (2015).

It was proper to make the revised child support order effective from September 16, 2008, because pursuant to the modification statute the date of notice was the date of filing the motion to modify. Since the father left the children with the mother in 2000, the ruling that he had to pay support commencing in 2008 was neither unfair nor surprising. Pahnke v. Pahnke, 2014 VT 2, 195 Vt. 394, 88 A.3d 432, 2014 Vt. LEXIS 3 (2014).

Allowing a father to credit a lump-sum Social Security Disability Insurance payment towards his child support arrearages during the time of his disability did not retroactively modify his child support obligation; instead, such a credit resulted merely in a change in the identity of the payor. The benefit that the mother received on behalf of the parties’ children was a substitute for the father’s income during the time he was disabled and therefore should be credited to satisfy his child support arrearages during that period. Louko v. McDonald, 2011 VT 33, 189 Vt. 426, 22 A.3d 433, 2011 Vt. LEXIS 32 (2011).

Pursuant to subsection (e) of this section, modification of father’s child support obligation was effective only as to his obligations after the date he filed a request for a new child support calculation. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

Where the trial court did not offer any explanation for its choice of the date to which its child support order was made retroactive, remand of case was required for further findings of fact and reconsideration of the date upon which child support would be retroactively modified. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

Family court has no authority to relieve obligor spouse of duty to pay any accumulated child support arrearages. St. Hilaire v. DeBlois, 168 Vt. 445, 721 A.2d 133, 1998 Vt. LEXIS 351 (1998).

Husband’s fraud action in superior court was an impermissible collateral attack on validity of child support order in parties’ divorce judgment, a subject committed to exclusive jurisdiction of family court, and superior court was without jurisdiction to modify or annul husband’s previously paid child support installments. St. Hilaire v. DeBlois, 168 Vt. 445, 721 A.2d 133, 1998 Vt. LEXIS 351 (1998).

Magistrate did not abuse her discretion by making new child support obligation effective from date mother filed her motion to modify, and then awarding over $30,000 in arrearages against father, since modification of a child support order may take effect at any time on or after filing date of motion to modify, at discretion of the trial court. Harris v. Harris, 168 Vt. 13, 714 A.2d 626, 1998 Vt. LEXIS 160 (1998).

Any modification of former husband’s child support obligations could not go back earlier than date of husband’s petition to “annul” his support obligation. Isham v. Isham, 152 Vt. 637, 568 A.2d 421, 1989 Vt. LEXIS 202 (1989).

A modification of a child support obligation may be ordered to take effect retroactively. Towne v. Towne, 150 Vt. 286, 552 A.2d 404, 1988 Vt. LEXIS 158 (1988).

Retroactive modification of child support payments may be allowed as of any reasonable date on or after the date of filing of a motion to amend the support order, within the sound discretion of the trial court. Towne v. Towne, 150 Vt. 286, 552 A.2d 404, 1988 Vt. LEXIS 158 (1988).

Modification of child support orders may be made retroactive to the date of filing of the motion seeking modification, at the discretion of the trial court. Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400, 1988 Vt. LEXIS 150 (1988).

Stipulations.

The fact that an original child support obligation is set by a stipulation does not affect the court’s prerogative to modify the child support order. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

Stipulation between parents modifying child support could not conclude interests of the children, nor could it take away the court’s continuing jurisdiction over child support; although the agreement represented consideration of the children’s interests, recognition of a stipulation that required court to ignore extent of deviation from child support guidelines would undercut statutory policy. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

Stipulation of parents’ waiving their right to seek modification of child support pursuant to statutory standards was ineffective, and where prior order modifying child support set the amount of the obligation to more than 10% above the guideline amount, court did not err in modifying that order. Grimes v. Grimes, 159 Vt. 399, 621 A.2d 211, 1992 Vt. LEXIS 202 (1992).

On motion for modification, where it appeared that court had confined its inquiries to whether plaintiff had proved a “change in circumstances” pursuant to parties’ stipulation incorporated in divorce judgment, and findings did not indicate whether court considered any of the evidence presented in light of factors set out in section 659 of this title, court was directed to hold new hearing. Bucholt v. Bucholt, 152 Vt. 238, 566 A.2d 409, 1989 Vt. LEXIS 153 (1989).

Cited.

Cited in Richwagen v. Richwagen, 149 Vt. 72, 539 A.2d 540, 1987 Vt. LEXIS 598 (1987); Lalumiere v. Lalumiere, 149 Vt. 469, 544 A.2d 1170, 1988 Vt. LEXIS 49 (1988); Bradley v. Bradley, 154 Vt. 304, 575 A.2d 190, 1990 Vt. LEXIS 67 (1990); Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162, 1992 Vt. LEXIS 130 (1992); Knowles v. Thompson, 166 Vt. 414, 697 A.2d 335, 1997 Vt. LEXIS 38 (1997).

Annotations From Former §§ 292, 557, 651

Change of circumstances.

The presence of a change in circumstances is a jurisdictional prerequisite to consideration of a petition to modify a child support order. McCormick v. McCormick, 150 Vt. 431, 553 A.2d 1098, 1988 Vt. LEXIS 185 (1988). (Decided under former § 651.) .

The loss of an anticipated employment qualifies as an unanticipated change of circumstances. Sylvia v. Sylvia, 146 Vt. 596, 508 A.2d 708, 1986 Vt. LEXIS 346 (1986). (Decided under former § 651.) .

Changes in circumstances of either party, affecting either necessity and amount of support or change in ability to provide it, may properly be brought to attention of court at any time during minority of children by petition to modify. Beaudry v. Beaudry, 132 Vt. 53, 312 A.2d 922, 1973 Vt. LEXIS 256 (1973). (Decided under former § 292.) .

Changes in circumstances of either party to a divorce, affecting either the necessity and amount of support, or the ability to provide it, are properly brought to the court’s attention by a petition to modify. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971). (Decided under former § 292.) .

To justify a modification of an order for child support there must have been a substantial change in the material circumstances since the original order was made. Miller v. Miller, 124 Vt. 76, 197 A.2d 488, 1963 Vt. LEXIS 34 (1963). (Decided under former § 292.) .

Where plaintiff was unemployed at the time of the parties’ divorce and trial court ordered defendant to provide rehabilitative maintenance for a two-year period in order to facilitate plaintiff’s return to the workforce, plaintiff’s full employment did not constitute an unanticipated and substantial change of circumstances, since it was apparent that the court fully expected plaintiff to begin full time employment within two years of the divorce order. Viskup v. Viskup, 149 Vt. 89, 539 A.2d 554, 1987 Vt. LEXIS 586 (1987). (Decided under former § 651.) .

Discretion of court.

Once a court finds that changed circumstances are present, it has broad discretion to determine whether it will modify the child support order and the extent of the modification. McCormick v. McCormick, 150 Vt. 431, 553 A.2d 1098, 1988 Vt. LEXIS 185 (1988). (Decided under former § 651.) .

Where the evidence clearly indicated that the needs of the minor children had increased since the original support order was made, a reduction of such order exceeded the bounds of judicial discretion. Miller v. Miller, 124 Vt. 76, 197 A.2d 488, 1963 Vt. LEXIS 34 (1963). (Decided under former § 557.) .

Foreign divorce.

While in a technical sense one state cannot directly modify a decree of a sister state relating to child support, if there is personal jurisdiction of the parties, the state may enter a new order for such support, which supersedes in that respect, the decree of the foreign state, if a substantial change in circumstances is established. Miller v. Miller, 124 Vt. 76, 197 A.2d 488, 1963 Vt. LEXIS 34 (1963). (Decided under former § 557.) .

When divorce is granted in foreign state, and decree therein makes orders as to custody and support of minor children, such orders will be respected as res judicata in Vermont; if, however, it appears that conditions relating to custody or support have since changed, Vermont courts having jurisdiction may act in these matters in light of changed conditions, notwithstanding foreign decree. Miller v. Miller, 124 Vt. 76, 197 A.2d 488, 1963 Vt. LEXIS 34 (1963). (Decided under former § 557.) .

Modification of order by action of party.

An unmodified support order remains in effect and cannot be modified by the unilateral action of one of the parties to the order. Forte v. Forte, 143 Vt. 518, 468 A.2d 561, 1983 Vt. LEXIS 561 (1983). (Decided under former § 651.) .

Libellee subject to payment of child support under divorce decree departed from support order at his peril when he reduced payments by one fifth on ground that one of his five minor children, on former wife’s custody, was self-supporting. Randall v. Randall, 129 Vt. 432, 282 A.2d 794, 1971 Vt. LEXIS 285 (1971). (Decided under former § 292.) .

Provision in order for cost of living adjustments.

An automatic adjustment provision in an order for spousal maintenance or child support, which provides for changes in the cost of living, does not constitute an invalid modification of that order; rather it is merely a practical means of assuring that the buying power of the original orders continues to be available. Roya v. Roya, 145 Vt. 488, 494 A.2d 132, 1985 Vt. LEXIS 321 (1985). (Decided under former § 651.) .

Welfare of child paramount.

The welfare of minor children is the first consideration in considering a motion to reduce support payments to such children. Miller v. Miller, 124 Vt. 76, 197 A.2d 488, 1963 Vt. LEXIS 34 (1963). (Decided under former § 557.) .

§ 661. Child support maintenance supplement.

A party may request a child support maintenance supplement to be paid while a child support obligation arising out of an action for support exists. After considering the respective financial circumstances of the parties, including gross income, assets, liabilities, including tax liabilities, and the obligation to pay child support, the court shall order payment of a child support maintenance supplement to the obligee to correct any disparity in the financial circumstances of the parties if the court finds that the disparity has resulted or will result in a lower standard of living for the child than the child would have if living with the noncustodial parent.
Any sum awarded under this section shall be taken into consideration in making an order under section 752 of this title.
On motion of either parent, a person to whom a child support maintenance supplement has previously been granted, a person previously charged with paying a child support maintenance supplement, and upon a showing of a real, substantial, and unanticipated change of circumstances, the court may annul, vary, or modify a supplement order, whether or not the order is based on a stipulation or agreement. A real, substantial, unanticipated change of circumstances shall be deemed to exist if the proportion of income of the parties varies more than 15 percent from the time the order was issued, or if either parent’s gross income changes by more than 15 percent.
This section shall not apply to orders or modifications made prior to April 1, 1987.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 9, eff. April 1, 1987; amended 2003, No. 159 (Adj. Sess.), § 8.

History

Revision note—

In subsec. (c), substituted “motion” for “petition” to conform reference to Rule 80(j), Vermont Rules of Civil Procedure [for subject matter of former Rule 80, now see Rule 4, Vermont Rules for Family Proceedings], pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2003 (Adj. Sess.). Section heading: Inserted “Child support” preceding “maintenance”.

Subsec. (a): Inserted “child support” preceding “maintenance” twice in the subsec.; substituted “support” for “divorce” in the first sentence and “obligee” for “custodial parent” in the second sentence.

Subsec. (c): Substituted “a” for “or any other” and for “or any” preceding “person and”; inserted “child support” for “maintenance” in two places.

CROSS REFERENCES

Parent considered custodial parent when physical custody shared or split, see § 657 of this title.

ANNOTATIONS

Computation of supplement.
Construction.
Out-of-wedlock situation.
When available.

Computation of supplement.

Where defendant did not argue that a determination of ownership of subject property was essential to the magistrate’s maintenance supplement computation and defendant enjoyed a $300 monthly credit on account of the fair rental value of the property, magistrate’s determination was more than generous to defendant, based on the magistrate’s findings as to who contributed to the purchase of the house and payment of the mortgage on it. Fiske v. Boudreau, 164 Vt. 263, 668 A.2d 1285, 1995 Vt. LEXIS 108 (1995).

Although defendant contended that the magistrate erred in assessing a maintenance supplement in the absence of any evidence as to the cost of repairs or improvements to property in which plaintiff and son lived and although the poor condition of the house was a salient fact, the magistrate properly determined the amount of maintenance supplement under the support guidelines based on the financial circumstances of the parties as specified by 15 V.S.A. § 661(a) . Fiske v. Boudreau, 164 Vt. 263, 668 A.2d 1285, 1995 Vt. LEXIS 108 (1995).

Construction.

Both express terms and legislative history of maintenance supplement statute limited availability of such supplements to the custodial parent, defined as parent having custody “for the greater period of time”; family court therefore erred in awarding maintenance supplement to mother, where decree provided that parents would share custody equally. Leas v. Leas, 169 Vt. 364, 737 A.2d 889, 1999 Vt. LEXIS 206 (1999).

Out-of-wedlock situation.

Although defendant distinguished the divorce situation, where there is usually a history of the standard of living experienced by the child in the intact family, from the out-of-wedlock situation, where there is no such history and urged the court to set forth a separate calculus in parentage cases, based either on the child’s living standard during the parents’ active relationship or on the standard experienced by the child when the parentage action is brought, defendant’s theory conflicted with 15 V.S.A. § 301 , which mandates the same benefits for children regardless of whether the child is born during marriage or out of wedlock and, moreover, 15 V.S.A. § 661(a) directs the court to order payment of a maintenance supplement to the custodial parent to correct any disparity in the financial circumstances of the parties and does not imply a less generous standard of support where the parents’ relationship was brief. Fiske v. Boudreau, 164 Vt. 263, 668 A.2d 1285, 1995 Vt. LEXIS 108 (1995).

When available.

Statute governing maintenance supplements did not preclude establishment of such a supplement post-divorce; however, mother seeking to establish a supplement was required to make a showing of real, substantial, and unanticipated change of circumstance. Roddy v. Roddy, 168 Vt. 343, 721 A.2d 124, 1998 Vt. LEXIS 344 (1998).

Cited.

Cited in Richwagen v. Richwagen, 149 Vt. 72, 539 A.2d 540, 1987 Vt. LEXIS 598 (1987); Nevitt v. Nevitt, 155 Vt. 391, 584 A.2d 1134, 1990 Vt. LEXIS 242 (1990); Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991); Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37 (1993), Boisselle v. Boisselle, 162 Vt. 240, 648 A.2d 388, 1994 Vt. LEXIS 79 (1994); Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002).

§ 662. Income statements.

A party to a proceeding under this subchapter shall file an affidavit of income and assets which shall be in a form prescribed by the court administrator. A party shall provide the affidavit of income and assets to the court and the opposing party on or before the date of the case management conference scheduled or, if no conference is scheduled, at least five business days before the date of the first scheduled hearing before the magistrate. Upon request of either party, or the court, the other party shall furnish information documenting the affidavit. The court may require a party who fails to comply with this section to pay an economic penalty to the other party.
If a party fails to provide information as required under subsection (a) of this section, the court shall use the available evidence to estimate the noncomplying parent’s income. Failure to provide the information required under subsection (a) of this section may create a presumption that the noncomplying parent’s gross income is 150 percent of the most recently available annual average covered wage for all employment as calculated by the Department of Labor.
1. Upon a motion filed by either party or the Office of Child Support, the court may relieve a party from a final judgment or child support order upon a showing that the income used in a default child support order was inaccurate by at least 10 percent. A showing that the court used incorrect financial information shall be considered a mistake for the purposes of Rule 60 of the Vermont Rules of Civil Procedure. (c) (1) Upon a motion filed by either party or the Office of Child Support, the court may relieve a party from a final judgment or child support order upon a showing that the income used in a default child support order was inaccurate by at least 10 percent. A showing that the court used incorrect financial information shall be considered a mistake for the purposes of Rule 60 of the Vermont Rules of Civil Procedure.
2. The motion in subdivision (1) of this subsection shall be filed within one year of the date the contested order was issued.

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 10, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 24; 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2011, No. 119 (Adj. Sess.), § 6.

History

Amendments

—2011 (Adj. Sess.) Section amended generally.

—2005 (Adj. Sess.). Subdiv. (b)(1): Substituted “department of labor” for “department of employment and training”.

—1989 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), deleted the former fourth sentence of that subsec., and added subsec. (b).

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 24, shall take effect on October 1, 1990.

§ 663. Support orders; required contents.

Every order for child support made or modified under this chapter shall be issued in a standardized format and sent to the Registry in the Office of Child Support. The order shall include:
1. The name, address, e-mail address, Social Security number, and employer of both parents.
2. The name and address of children who are the subject of the order.
3. An annualized amount of child support.
4. Frequency of the child support payment.
5. Total arrearages, if any, and the periodic amount ordered for payment of arrearages.
6. Any other information that may affect the obligation to pay child support.
Child care costs shall be specifically stated in the order for the purpose of providing information on the amount of child care costs used to compute the total support obligation.
Every order for child support made or modified under this chapter on or after July 1, 1990 shall:
1. include an order for immediate wage withholding or, if not subject to immediate wage withholding, include a statement that wage withholding will take effect under the expedited procedure set forth in section 782 of this title;
2. require payments to be made to the Registry in the Office of Child Support unless subject to an exception under 33 V.S.A. § 4103 ;
3. require that every party to the order must notify the Registry in writing of their current mailing address, current e-mail address, and current residence address and of any change in any address within seven business days of the change, until all obligations to pay support or support arrearages or to provide for visitation are satisfied;
4. include in bold letters notification of remedies available under section 798 of this title; and
5. include in bold letters notification that the parent may seek a modification of his or her support obligation if there has been a showing of a real, substantial and unanticipated change of circumstances.
The parent under a medical support order shall notify his or her employer of such obligation in writing within 10 days of the date of the order. If the parent is not employed or is self-employed, the parent shall notify his or her insurer of such obligation in writing within 10 days of the date of the order. If a parent under a medical support order fails to give notice as provided in this subsection, he or she shall be liable for all health care expenses of the child subsequent to the date of the order until the order is modified by the court with respect to medical support.
A child support order shall include the following language: “A PARENT OR ANY OTHER PERSON TO WHOM SUPPORT HAS BEEN GRANTED, OR ANY PERSON CHARGED WITH SUPPORT, MAY FILE A MOTION FOR A MODIFICATION OF A CHILD SUPPORT ORDER UNDER 15 V.S.A. § 660 . A MODIFICATION MAY BE GRANTED UPON A REAL, SUBSTANTIAL, AND UNANTICIPATED CHANGE OF CIRCUMSTANCES, INCLUDING LOSS OF EMPLOYMENT OR A CONSIDERABLE REDUCTION OR INCREASE IN SALARY OR WAGES. AN OBLIGOR IS RESPONSIBLE FOR ANY REQUIRED PAYMENTS SET FORTH IN AN ORDER UNLESS THE ORDER IS VACATED OR MODIFIED BY A COURT. THUS, ANY SUBSEQUENT AGREEMENT BETWEEN THE PARTIES THAT DIFFERS FROM THE ORDER IS NOT LEGALLY BINDING, AND THE OBLIGOR IS STILL LEGALLY REQUIRED TO PAY THE AMOUNT ORDERED BY THE COURT.”

HISTORY: Added 1985, No. 180 (Adj. Sess.), § 11, eff. April 1, 1987; amended 1989, No. 220 (Adj. Sess.), § 25; 1993, No. 231 (Adj. Sess.), § 3; 1995, No. 59 , § 9; 2003, No. 159 (Adj. Sess.), § 2; 2017, No. 11 , § 39; 2019, No. 154 (Adj. Sess.), § E.319, eff. October 2, 2020; 2019, No. 167 (Adj. Sess.), § 18, eff. October 7, 2020.

History

Revision note—

Substituted “section 4103” for “section 3753” in subdiv. (c)(2) in view of the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Editor’s note

—2020. The text of this section is based on the harmonization of two amendments. During the 2019 Adjourned Session, this section was amended twice, by Act Nos. 154 and 167, resulting in two versions of this section. In order to reflect all of the changes enacted by the Legislature during the 2019 Adjourned Session, the text of Act Nos. 154 and 167 was merged to arrive at a single version of this section. The changes that each of the amendments made are described in the amendment notes set out below.

Amendments

—2019 (Adj. Sess.). Subdiv. (a)(1): Act No. 154 inserted “e-mail address” following “address”.

Subdiv. (c)(3): Act No. 154 inserted “current e-mail address” following “mailing address” and substituted “any” for “either” following “change in”.

Subdiv. (c)(4): Act No. 167 inserted “and” following “798 of this title;”.

—2017. Subdiv. (c)(3): Inserted “business” following “within seven”.

—2003 (Adj. Sess.). Subsec. (e): Added.

—1995. Subsec. (c): Added subdivs. (4) and (5).

—1993 (Adj. Sess.) Subsec. (d): Added.

—1989 (Adj. Sess.) Section amended generally.

Effective date of amendments—

1989 (Adj. Sess.). 1989, No. 221 (Adj. Sess.), § 25(d), provided that the amendment to this section by 1989, No. 220 (Adj. Sess.), § 25, shall take effect on October 1, 1990.

1993 (Adj. Sess.) amendment. 1993, No. 231 (Adj. Sess.), § 8, provided that the amendment to this section by section 3 of the act shall apply to support orders entered or modified on or after July 1, 1994. 1993, No. 231 (Adj. Sess.), § 7, provided: “The provisions of this act [which amended this section and added sections 4080d and 4100b-4100d of Title 8 and sections 1906, 1907 and 4109 of Title 33] shall be subject to any waivers obtained by the state of Vermont or any of its agencies from federal requirements under the Medicaid program.”

Application of federal program waivers. 1993, No. 231 (Adj. Sess.), § 7, provided: “The provisions of this act [which amended this section and added sections 4080d and 4100b-4100d of Title 8 and sections 1906, 1907 and 4109 of Title 33] shall be subject to any waivers obtained by the state of Vermont or any of its agencies from federal requirements under the Medicaid program.”

§ 664. Definitions.

As used in this subchapter:

“Parental rights and responsibilities” means the rights and responsibilities related to a child’s physical living arrangements, education, medical and dental care, religion, travel, and any other matter involving a child’s welfare and upbringing.
1. “Legal responsibility” means the rights and responsibilities to determine and control various matters affecting a child’s welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared.
2. “Physical responsibility” means the rights and responsibilities to provide routine daily care and control of the child subject to the right of the other parent to have contact with the child. Physical responsibility may be held solely or may be divided or shared.
“Parent child contact” means the right of a parent who does not have physical responsibility to have visitation with the child.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 2; amended 2019, No. 167 (Adj. Sess.), § 19, eff. October 7, 2020.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (1): Deleted “parent child contact” preceding “education.”

ANNOTATIONS

Activities during visitation.
Legal responsibility.
Physical custody.

Activities during visitation.

Legal responsibility.

Because the family court made no findings to support its restrictions on the right of the mother, the noncustodial parent, to communicate with school and medical personnel, the court could not affirm this portion of the family court’s order. Weaver v. Weaver, 2018 VT 38, 207 Vt. 236, 186 A.3d 1119, 2018 Vt. LEXIS 38 (2018).

In a divorce action, the family court’s division of discrete legal rights and responsibilities between the parties — father having exclusive authority for health care and education, and mother having exclusive authority for, inter alia, religion and travel — satisfied the statutory requirements that “when the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent,” as the order avoided the problems of joint decision-making while satisfying the Legislature’s intent that children retain “the opportunity for maximum continuing physical and emotional contact with both parents.” Shea v. Metcalf, 167 Vt. 494, 712 A.2d 887, 1998 Vt. LEXIS 169 (1998) (mem.).

The requirement, in a divorce decree, that plaintiff, who was awarded legal rights and responsibilities for the children, confer with defendant before making any “major decisions,” was not sufficiently specific, and was broad and vague to the point that it was not enforceable. If the court was to make such an order, it had to specify the decisions involved and craft some ascertainable standard to determine when a decision was so important as to invoke the consultation requirement. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

In a divorce action, portions of the order that prohibited plaintiff, the custodial parent, from imposing “any limitations on who the children see or what the children do when they are having parent-child contact with the Defendant” and from “exercising any control over the Defendant’s parent-child contact,” were overly broad to the extent that they interfered with the award of parental rights and responsibilities to plaintiff. Plaintiff was, pursuant to 15 V.S.A. § 664(1)(A) , awarded the right to control at least the “education, medical and dental care, religion and travel arrangements” of the children, subject to the order’s specific provisions on travel arrangements and plaintiff’s obligation to consult with defendant. Although defendant was entrusted the routine daily care and control of the child during visitation, this visitation right could not be used to nullify plaintiff’s rights and responsibilities. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Physical custody.

Because an award of physical custody to a parent implies that the child will spend at least 50 percent of the time with that parent, the trial court’s order awarding the father primary physical rights and responsibilities but the mother nearly two-thirds of the time with the child was internally inconsistent. Barrows v. Easton, 2020 VT 2, 211 Vt. 354, 227 A.3d 1030, 2020 Vt. LEXIS 3 (2020).

Physical custody is not simply about the time a child spends with a parent; physical responsibility means the rights and responsibilities to provide routine daily care and control of the child subject to the right of the other parent to have contact with the child. Although the father, who had been awarded legal custody, had substantial contact with the boys, the mother, who had been awarded physical custody, was still the custodial parent and retained authority regarding the boys’ routine daily care and control, even while they were in the physical company of their father. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

Cited.

Cited in Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

§ 665. Rights and responsibilities order; best interests of the child.

In an action under this chapter, the court shall make an order concerning parental rights and responsibilities of any minor child of the parties. The court may order parental rights and responsibilities to be divided or shared between the parents on such terms and conditions as serve the best interests of the child. When the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.
In making an order under this section, the court shall be guided by the best interests of the child and shall consider at least the following factors:
1. the relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection, and guidance;
2. the ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs, and a safe environment;
3. the ability and disposition of each parent to meet the child’s present and future developmental needs;
4. the quality of the child’s adjustment to the child’s present housing, school, and community and the potential effect of any change;
5. the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent;
6. the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
7. the relationship of the child with any other person who may significantly affect the child;
8. the ability and disposition of the parents to communicate, cooperate with each other, and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and
9. evidence of abuse, as defined in section 1101 of this title, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
The court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.
The court may order a parent who is awarded responsibility for a certain matter involving a child’s welfare to inform the other parent when a major change in that matter occurs.
The jurisdiction granted by this section shall be limited by the Uniform Child Custody Jurisdiction and Enforcement Act, if another state has jurisdiction as provided in that act. For the purposes of interpreting that act and any other provision of law which refers to a custodial parent, including 13 V.S.A. § 2451 , the parent with physical responsibility shall be considered the custodial parent.
The State has a compelling interest in not forcing a victim of sexual assault or sexual exploitation to continue an ongoing relationship with the perpetrator of the abuse. Such continued interaction can have traumatic psychological effects on the victim, making recovery more difficult, and negatively affect the victim’s ability to parent and to provide for the best interests of the child. Additionally, the State recognizes that a perpetrator may use the threat of pursuing parental rights and responsibilities to coerce a victim into not reporting or not assisting in the prosecution of the perpetrator for the sexual assault or sexual exploitation, or to harass, intimidate, or manipulate the victim.
1. The court may enter an order awarding sole parental rights and responsibilities to a parent and denying all parent-child contact with the other parent if the court finds by clear and convincing evidence that the nonmoving parent was convicted of sexually assaulting the moving parent and the child was conceived as a result of the sexual assault, or that the nonmoving parent was convicted of human trafficking pursuant to 13 V.S.A. § 2652 , and the moving parent was the trafficked victim. As used in this subdivision, sexual assault shall include sexual assault as provided in 13 V.S.A. § 3252 (a), (b), (d), and (e), aggravated sexual assault as provided in 13 V.S.A. § 3253 , aggravated sexual assault of a child as provided in 13 V.S.A. § 3253 a , lewd and lascivious conduct with a child as provided in 13 V.S.A. § 2602 , and similar offenses in other jurisdictions.
2. The court may enter an order awarding sole parental rights and responsibilities to one parent and denying all parent-child contact between the other parent and a child if the court finds by clear and convincing evidence that the child was conceived as a result of the nonmoving parent sexually assaulting or sexually exploiting the moving parent, or that the moving parent was trafficked by the nonmoving parent pursuant to 13 V.S.A. § 2652 and the court finds by a preponderance of the evidence that such an order is in the best interests of the child. A conviction is not required under this subdivision, and the court may consider other evidence of sexual assault or sexual exploitation in making its determination. For purposes of this subdivision:
  1. sexual assault shall include sexual assault as provided in 13 V.S.A. § 3252 , aggravated sexual assault as provided in 13 V.S.A. § 3253, aggravated sexual assault of a child as provided in 13 V.S.A. § 3253a , lewd and lascivious conduct with a child as provided in 13 V.S.A. § 2602 , and similar offenses in other jurisdictions; and
  2. sexual exploitation shall include sexual exploitation of an inmate as provided in 13 V.S.A. § 3257 , sexual exploitation of a minor as provided in 13 V.S.A. § 3258 , sexual abuse of a vulnerable adult as provided in 13 V.S.A. § 1379 , and similar offenses in other jurisdictions.
3. Issuance of an order pursuant to this subsection shall not affect the right of the custodial parent to seek child support from the noncustodial parent.
4. Upon issuance of a rights and responsibilities order pursuant to this subsection, the court shall not issue a parent-child contact order and shall terminate any existing parent-child contact order concerning the child and the nonmoving parent. An order issued in accordance with this subdivision shall be permanent and shall not be subject to modification.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 3; amended 1993, No. 228 (Adj. Sess.), § 6; 2011, No. 29 , § 3; 2013, No. 197 (Adj. Sess.), § 1; 2017, No. 44 , § 7, eff. May 23, 2017; 2017, No. 140 (Adj. Sess.), § 2, eff. May 21, 2018.

History

References in text.

The Uniform Child Custody Jurisdiction Act, referred to in subsec. (e), is codified as § 1031 et seq. of this title.

Revision note

—2013. In subsec. (e), deleted “but not limited to” following “including” in accordance with 2013, No. 5 , § 4.

—2002. Added the word “and” to the end of subdiv. (8) and deleted the language “in addition, the court shall consider” from the beginning of subdiv. (9) for purposes of clarity.

Amendments

—2017 (Adj. Sess.) Subdiv. (f)(1): Added “, or that the nonmoving parent was convicted of human trafficking pursuant to 13 V.S.A. § 2652 , and the moving parent was the trafficked victim” following “sexual assault” in the first sentence.

Subdiv. (f)(2): Added “, or that the moving parent was trafficked by the nonmoving parent pursuant to 13 V.S.A. § 2652 ” preceding “and the court finds” and substituted “interests” for “interest” preceding “of the child” in the first sentence and deleted “(f)(2)” following “this subdivision” in the third sentence.

—2017. Subsec. (f): Amended generally.

—2013 (Adj. Sess.). Added subsec. (f).

—2011. Subsec. (e): Inserted “and Enforcement” preceding “Act”.

—1993 (Adj. Sess.) Subdiv. (b)(9): Added.

Constitutionality.

Application.

Automatic custody change.

Award upheld.

Best interests.

Construction.

Construction with prior law.

Discretion of court.

Division of rights and responsibilities.

Evidence.

Findings.

Grounds for reversal.

Joint custody.

Particular cases.

Relationship of child with parent.

Required consultation with noncustodial parent.

Visitation rights.

Constitutionality.

In divorce proceeding, trial court’s award of sole custody to mother was justified on basis that animosity between parents strongly dictated against joint custody and mother had been the primary nurturing parent; therefore, the court would not address whether irrebuttable statutory presumption against joint custody without agreement of the parties was unconstitutional. Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114, 1990 Vt. LEXIS 113 (1990).

Application.

Where parties in a parentage action were unable to agree to share or divide legal rights and responsibilities for their child, under these circumstances, this section, while not requiring an “all or nothing” approach, did not prohibit a court-ordered sharing arrangement; therefore, in light of the conclusion that the statute applies to parentage actions, and in the absence of any argument on appeal that the award of sole legal custody to mother was not in the best interests of the child, the family court’s order with respect to assignment of parental rights and responsibilities was affirmed. Heffernan v. Harbeson, 2004 VT 98, 177 Vt. 239, 861 A.2d 1149, 2004 Vt. LEXIS 282 (2004).

When the family court finds that there has been a real, substantial and unanticipated change of circumstances, it must consider if a change in parental responsibilities is in the children’s best interests; in conducting its analysis, the court must consider the statutory factors set forth in subsection (b) of this section. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

Where this section became effective after divorce action was filed, but seventeen days before the final hearing, since no pre-existing vested rights were involved and this section worked no fundamental change in the standards under which custody is considered, this section applied to the case. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

The child custody standards of this section apply only in divorce or annulment proceedings, and not in a case where a grandparent seeks custody of a child. In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1988 Vt. LEXIS 183 (1988).

Automatic custody change.

Distinction between anticipated and unanticipated events that trigger an automatic custody change provision is one that should not impact a court’s analysis. Courts lack the power to order an automatic change of custody operative solely on the occurrence of a birthday, the end of a school year or any other such happening, and further, it is doubtful that a court could ever provide for an automatic change of custody on the happening of any general or specific event; whatever a jurisdiction’s rule regarding automatic change provisions, that rule is applied uniformly regardless of whether the contingency triggering the automatic change is certain to occur or speculative. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Award upheld.

Trial court’s findings supported its decision awarding custody of the parties’ children to the father. The trial court recognized that this was a close case, but ultimately decided that the father, whose residence had been stable and who had extended family in the area, could offer the children more stability than the mother, who had no extended family in the area, who had moved from place to place, and who did not know where she would be living next. LeBlanc v. LeBlanc, 2014 VT 65, 197 Vt. 17, 100 A.3d 345, 2014 Vt. LEXIS 68 (2014).

Trial court did not err in its parent-child contact award. Although the husband argued that the trial court intended to leave in place the schedule set forth in a temporary order, the trial court specifically stated that it was adopting the schedule the wife proposed at the final hearing, not the schedule set forth in the temporary order. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

Evidence supported a family court’s findings that due to a mother’s unreasonableness and lack of insight, as well as the father’s efforts to minimize stress for the parties’ daughter, the daughter’s best interests were served by modifying the mother’s contact with her, and summertime contact was properly limited. Chickanosky v. Chickanosky, 2012 VT 52, 192 Vt. 627, 54 A.3d 162, 2012 Vt. LEXIS 52 (2012) (mem.).

Trial court’s award of primary custody to the father was supported by the evidence, which included the mother’s “less than positive” conduct toward the father, her lack of interest in the father-child relationship, and the father’s willingness to promote the mother-child relationship. Knutsen v. Cegalis, 2011 VT 128, 191 Vt. 68, 35 A.3d 1059, 2011 Vt. LEXIS 131 (2011) (mem.).

Trial court did not err in awarding a father primary physical and legal rights and responsibilities for the couple’s minor daughter. The trial court appropriately considered the mother’s continued drug use and apparently routine decision to drive without a license; it noted the potential risk of the mother’s leaving drug paraphernalia within easy reach of children and the father’s discovery in the mother’s partially open purse of what the father believed to be LSD; and it was appropriate for the trial court to consider the paternal grandparents’ relationship with the child and their contribution to her care. Thompson v. Pafundi, 2010 VT 80, 188 Vt. 605, 8 A.3d 476, 2010 Vt. LEXIS 80 (2010) (mem.).

Family court did not err in assigning physical rights and responsibilities for both of the couple’s minor children to father, and in assigning legal rights and responsibilities for the youngest child to mother and legal rights and responsibilities for the oldest child to father. Kasper v. Kasper, 2007 VT 2, 181 Vt. 562, 917 A.2d 463, 2007 Vt. LEXIS 2 (2007) (mem.).

Family court did not err in concluding that transferring custody to father was best for children, even though mother had maintained physical custody of them prior to the final divorce order. Payrits v. Payrits, 171 Vt. 50, 757 A.2d 469, 2000 Vt. LEXIS 166 (2000).

In a divorce action, the court did not err in awarding wife sole legal and physical responsibility for the parties’ child where wife was better able to provide the child with guidance, meet his present and future developmental needs, and apply a perspective in tune with the child’s needs, and wife was the primary care provider. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996).

In a divorce action, the court did not err in awarding wife sole legal and physical responsibility for the parties’ child. While wife intentionally declined to maximize the time allotted to her by the temporary custody agreements, she did so because of the negative effect shared custody was having on the child and should not have been penalized for placing the mental and physical health of her child above her own self-interest. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996).

In a divorce action, the court did not err in awarding wife sole legal and physical responsibility for the parties’ child, despite husband’s argument that the court gave too much weight to the testimony of a clinical psychologist who recommended that wife provide primary care for the child, and not enough weight to the testimony of a day care provider who testified that husband acted like a loving father who knew his child’s needs. Such weighing of evidence was well within the court’s discretion. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996).

There was no finding, and none could be made on this record, that total denial of contact with the mother was warranted and in the children’s best interest. The trial court was thus bound to fulfill its statutory role by crafting a contact schedule and could not delegate this task to another agency or individual. Engel v. Engel, 2012 VT 101, 193 Vt. 19, 71 A.3d 1124, 2012 Vt. LEXIS 97 (2012).

Trial court’s order providing a mother parent-child contact in three phases, with the determination to advance from one phase to another to be made by the children’s treatment team, impermissibly allowed other individuals to make critical decisions regarding the mother’s contact with her children without court oversight. There were two main deficiencies in the delegation order: it allowed the treatment team unchecked authority to modify the type and frequency of the mother’s contact, and there were no specific, ascertainable standards governing the exercise of the treatment team’s discretion. Engel v. Engel, 2012 VT 101, 193 Vt. 19, 71 A.3d 1124, 2012 Vt. LEXIS 97 (2012).

Best interests.

Given the change of circumstances and the parents’ shared custody of daughter, the family court was correct to apply the best interests of the child standard upon the father’s motion to modify parental rights and responsibilities. Chickanosky v. Chickanosky, 2011 VT 110, 190 Vt. 435, 35 A.3d 132, 2011 Vt. LEXIS 110 (2011).

Trial court properly awarded primary custody to a mother in a father’s request to modify parental rights and responsibilities, as the mother had previously been the primary caregiver and she had a limited ability to foster a positive relationship between the child and the father. Hazlett v. Toomin, 2011 VT 73, 190 Vt. 563, 27 A.3d 328, 2011 Vt. LEXIS 77 (2011).

Changes in custody must be based on real-time determinations of a child’s best interests. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Construction.

Because this section and section 301 of this title governing the division of parental rights and responsibilities in divorce and annulment proceedings and in parentage proceedings involve the same general subject matter where the same policy concerns apply, accordingly, there is no reason why the two statutes should not be read, consistent with rules of construction, in pari materia. Heffernan v. Harbeson, 2004 VT 98, 177 Vt. 239, 861 A.2d 1149, 2004 Vt. LEXIS 282 (2004).

Although a finding that a party has been a child’s primary care provider is entitled to great weight, there is no rule that the primary custodian is to be awarded custody as long as that person is fit. Payrits v. Payrits, 171 Vt. 50, 757 A.2d 469, 2000 Vt. LEXIS 166 (2000).

Under subdivision (b) of this section, court is required to consider each factor listed when making a determination of parental rights and responsibilities, and subdivision imposes no specific requirement on how this consideration is to be manifested in court’s findings and conclusions. Trahnstrom v. Trahnstrom, 171 Vt. 507, 756 A.2d 1242, 2000 Vt. LEXIS 163 (2000) (mem.).

Legislature did not intend for courts to consider children’s relationship with daycare providers in awarding custody to one parent or another. Trahnstrom v. Trahnstrom, 171 Vt. 507, 756 A.2d 1242, 2000 Vt. LEXIS 163 (2000) (mem.).

Court would not interpret custody and custodial interference statutes so as to permit existence of only one lawful custodian at any one time, since such an interpretation was in derogation of State’s avowed policy of encouraging joint custody. State v. Wootten, 170 Vt. 485, 756 A.2d 1222, 2000 Vt. LEXIS 41, cert. denied, 531 U.S. 934, 121 S. Ct. 320, 148 L. Ed. 2d 257, 2000 U.S. LEXIS 6752 (2000).

In considering religion and religious practices in child custody cases, the state and federal right to free exercise of religion may be implicated; therefore, in balancing the relevant interests, the supreme court must minimize the degree of interference with religious liberty and use the least restrictive means to accomplish the legitimate objectives that warrant the interference. Varnum v. Varnum, 155 Vt. 376, 586 A.2d 1107, 1990 Vt. LEXIS 255 (1990).

In order for a religious practice to be considered in determining child custody, the practice must have a direct and immediate negative impact on the physical or mental health of the child. Varnum v. Varnum, 155 Vt. 376, 586 A.2d 1107, 1990 Vt. LEXIS 255 (1990).

Consideration of the factors provided in subsection (b) of this section is not discretionary. Poulin v. Upham, 149 Vt. 24, 538 A.2d 181, 1987 Vt. LEXIS 572 (1987).

Construction with prior law.

Award of custody must be based on the best interests of the child; in determining the best interests of the child, the court must take into account all relevant evidence, including statutory factors. Cloutier v. Blowers, 172 Vt. 450, 783 A.2d 961, 2001 Vt. LEXIS 267 (2001).

Nothing in 15 V.S.A. § 664(1)(A) suggests that children may determine their religious upbringing; this is a decision that belongs to the custodial parent, and thus an order allowing children’s veto of their religious upbringing was inappropriate and would be stricken. Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261, 1995 Vt. LEXIS 57 (1995).

It is more appropriate to view this section as an amendment of former section 652 of this title, the custody statute which this section replaced, than as a new law. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

Error in applying former section 652 of this title, the custody statute which this section replaced, was harmless where the change in the law had no impact on the outcome of the case. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

In a divorce action involving a child, the trial court must award parental rights and responsibilities to one parent when the parties cannot agree to divide or share these responsibilities or when the court determines that a parental agreement is not in the child’s best interests, basing the award on the best interests of the child, considering all relevant evidence, including the enumerated statutory factors; a proper decision requires a complete and balanced analysis, comparing the relevant attributes of each parent as they relate to the best interests of the child. Gilbert v. Gilbert, 163 Vt. 549, 664 A.2d 239, 1995 Vt. LEXIS 61 (1995).

Discretion of court.

As with the decision on whether there were changed circumstances, the trial court’s best-interest determination lay within its broad discretion. While the mother disagreed with the weight to be assigned to the various factors and the trial court’s determination of which favored a particular parent, the appellate court could not conclude that there was an abuse of discretion in awarding legal responsibilities to the father. Wener v. Wener, 2016 VT 109, 203 Vt. 582, 157 A.3d 1108, 2016 Vt. LEXIS 109 (2016).

Family court did not abuse its discretion in awarding father primary parental rights and responsibilities based on its findings that, considering all time periods of the marriage, the parties shared primary care of the children, and that, while many of the factors set forth in subsection (b) of this section favored neither party, three of them favored awarding father primary rights and responsibilities. Chick v. Chick, 2004 VT 7, 176 Vt. 580, 844 A.2d 747, 2004 Vt. LEXIS 9 (2004).

Because the family court’s ruling awarding custody to father reflected its reasoned judgment in light of the record evidence, therefore, its decision could not be disturbed. Porcaro v. Drop, 175 Vt. 13, 816 A.2d 1280, 2002 Vt. LEXIS 344 (2002).

Family court has broad discretion in awarding custody of children, and its findings will not be overturned unless clearly erroneous. Payrits v. Payrits, 171 Vt. 50, 757 A.2d 469, 2000 Vt. LEXIS 166 (2000).

The trial court has broad discretion in a custody matter and the Supreme Court cannot set aside its decision because it would have reached a different conclusion from the facts; the trial court made an extensive review of the custody factors set out in 15 V.S.A. § 665(b) in evaluating the best interests of the children, acknowledging the heavy burden on the noncustodial parent and requiring him to meet it. deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843, 1994 Vt. LEXIS 55 (1994).

Trial court has broad discretion in custody matters in divorce cases; findings of fact will not be set aside unless clearly erroneous. Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331, 1992 Vt. LEXIS 33 (1992).

Trial judge has broad discretion in determining what is in the best interest of children and in many instances will be able to draw upon his own common sense, his experience in life, and the common experience of mankind and be able to reach a reasoned judgment. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Trial court has broad discretion in a custody matter, and supreme court must affirm unless the discretion was erroneously exercised, or exercised upon unfounded considerations or to an extent clearly unreasonable in light of the evidence. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

Division of rights and responsibilities.

Best interests determination cannot be made in the absence of all the necessary facts, and speculation is not a substitute for complete analysis of all existing circumstances when and if a change in a child custody arrangement becomes necessary. By reference to the statutory factors, a family court must decide what custody arrangement serves the best interests of a child given the circumstances that exist at that time; after that, the family court’s role is extinguished unless and until presented with the changed circumstances needed to support its jurisdiction to modify the award. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Despite the legislature’s determination that an agreement between the parties on the issue of parental rights and responsibilities is presumptively in the best interests of children, a court is not bound by that agreement when the evidence demonstrates that the best interests of a child requires a different result. Because automatic changes concerning who has primary rights and responsibilities were not in the best interests of children, it mattered little to what extent the trial court relied on father’s concession in crafting its order. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Difference between automatic custody change provisions involving definite versus indefinite dates is not critical, and both are unlawful. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Custody change is a significant and confusing change for a child, and when a court shifts rights and responsibilities between parents, every aspect of a child’s life is subject to change—including everything from how much television the child watches to what school the child attends; thus, stability in custody arrangements is desirable due to the potential harm that inures to children as a result of shuttling them between their parents. Automatic change provisions build instability into a child’s life, and this is so whether the automatic change is premised on an anticipated or unanticipated event. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Blanket rejection of automatic custody change provisions is consistent with the policy against forcing shared custody onto parents who are at war with each other. A court risks placing a child in the middle of constant disputes by forcing unwilling parents to share parental rights and make joint decisions; the evil the legislature sought to avoid by preventing courts from ordering parents to share rights and responsibilities in the absence of agreement was the negative effect the resulting animosity has on children. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Credibility determinations are for the trial court, not the appellate court. In a case where a father was awarded legal responsibility over the parties’ children, the court was unwilling to second-guess the trial court’s credibility determination as to the father. Solsaa v. Solsaa, 2008 VT 138, 185 Vt. 587, 969 A.2d 116, 2008 Vt. LEXIS 201 (2008) (mem.).

Routine splitting of physical and legal rights and responsibilities can be unwise; however, in some situations it is appropriate to grant one parent legal rights and the other physical rights. Here, the trial court awarded legal responsibility to the father on the ground that he was better suited to make the children’s legal decisions in view of the events after the divorce, while the mother retained physical responsibility, and this ruling reflected the trial court’s reasoned judgment in light of the evidence. Solsaa v. Solsaa, 2008 VT 138, 185 Vt. 587, 969 A.2d 116, 2008 Vt. LEXIS 201 (2008) (mem.).

Trial court’s decision reflected that the trial court understood the parties’ strained relationship and considered this in weighing the children’s best interest. Thus, the court could not conclude that even considering the inability of the parents to cooperate, the trial court abused its discretion in awarding legal responsibility to the father while the mother retained physical responsibility. Solsaa v. Solsaa, 2008 VT 138, 185 Vt. 587, 969 A.2d 116, 2008 Vt. LEXIS 201 (2008) (mem.).

Family court’s custody order did not violate the rights and responsibilities statute because it did not force the parents to share decision-making authority. The trial court granted the father legal rights and responsibilities, and the mother physical rights and responsibilities; the order strived to give each parent some control over the children’s lives without forcing the parents to share authority over a particular area. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

When the trial court found that the parties were equally qualified to provide for the children’s best interests under all but one of the statutory factors, the court could not say that the trial court abused its discretion in choosing to award physical rights to the mother and legal rights to the father. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

Evidence.

Any error in a child custody case in allowing the father, a former security guard, to testify as an expert about deficiencies in a Department for Children and Families (DCF) investigation was irrelevant because evidence of DCF’s substantiation of sexual abuse allegations against the father could not prove the allegations before the court. The DCF’s substantiation, and whatever investigative effort it represented, constituted no actual proof of any issue to be decided by the family court. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

That a Department for Children and Families (DCF) investigator believed a stepdaughter who alleged that the father had sexually abused her, and not the father, was ultimately irrelevant in a child custody case since it had no tendency to make more or less probable the existence of any fact consequential to the court’s determination of the best interests of the children. Even if the DCF investigator’s opinion merited any weight, it remained entirely within the domain of the trial court to give more credit to the father’s testimony. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

While the parties may agree to follow the custody recommendation of a jointly selected mental health expert, the court cannot be bound by that agreement or the by expert’s recommendation when the evidence demonstrates that the best interests of the child requires a different result. Luce v. Cushing, 2004 VT 117, 177 Vt. 600, 868 A.2d 672, 2004 Vt. LEXIS 329 (2004) (mem.).

The court’s decision to exclude father’s proffered evidence was not a clear and prejudicial abuse of discretion because, while the court may have relied too heavily on the parties’ agreement as a basis for exclusion, it was correct in observing that the proffered material added little to an expert’s report with which the court was familiar, and even if the materials in question had been admitted, they would not have affected the award of parental rights and responsibilities to mother. Luce v. Cushing, 2004 VT 117, 177 Vt. 600, 868 A.2d 672, 2004 Vt. LEXIS 329 (2004) (mem.).

Where, in a consolidated parentage and relief-from-abuse proceeding, mother sought to call her 13-year-old daughter as a witness to rebut father’s denial that he had abused his son, the witness was competent to testify, the evidence was not cumulative, and there was no other apparent means of eliciting the same evidence, there was no sound basis for its exclusion. Evidence of abuse of siblings in child custody and visitation proceedings does not run afoul of V.R.E. 404(b) because the issue is not whether the parent acted in conformity with a particular character trait, but rather whether the child will have proper care and protection. Davis v. Hunt, 167 Vt. 263, 704 A.2d 1166, 1997 Vt. LEXIS 274 (1997).

In a proceeding to determine child custody, the family court should use its authority to order home studies under V.R.F.P. 5, and should control the direction of the testimony in custody matters to obtain the most relevant evidence. Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149, 1995 Vt. LEXIS 44 (1995).

Although the trial court has broad discretion in awarding parental rights and responsibilities, it may not rest its decision entirely on improperly admitted evidence. Gilbert v. Gilbert, 163 Vt. 549, 664 A.2d 239, 1995 Vt. LEXIS 61 (1995).

In a proceeding to determine child custody, parties’ evidence and court’s findings and conclusions should focus on the general parenting skills of the parties and the likely effect a transfer of custody might have on a child, not on a few negative incidents involving one of the parties. Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149, 1995 Vt. LEXIS 44 (1995).

While ordinarily, given the wide discretion the court has in custody matters to determine the credibility of witnesses and the weight of evidence, the appellate court would affirm the family court’s custody decision, the family court’s having compared the attributes of each parent in light of the factors enumerated in 15 V.S.A. § 665(b) and not relied solely on a showing that one parent’s actual or expected performance was inadequate with respect to one factor, where that procedure was not followed and where there was very little evidence to support the court’s findings regarding the father’s ability to provide for his daughter’s physical and emotional needs, the case would be remanded for a new hearing. Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149, 1995 Vt. LEXIS 44 (1995).

Religious practices may be considered in custody and visitation decisions if they have a direct and immediate negative impact on the physical and mental health of the child. Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261, 1995 Vt. LEXIS 57 (1995).

In a proceeding involving custody and visitation decisions, religious practices were an appropriate area for consideration where the evidence, including psychiatric opinion and Social and Rehabilitation Services intervention, supported, and the court found, direct and immediate negative impacts on the physical and mental health of the children as a result of the father’s religious faith. Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261, 1995 Vt. LEXIS 57 (1995).

Trial court’s consideration of the factors enumerated in subsection (b) of this section requires comparison of the attributes of each parent for the enumerated qualities and cannot be decided solely upon a showing that the other parent’s actual or expected performance with respect to that factor is inadequate. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Award of custody premised, in part, on wife’s misconduct was abuse of discretion where there was no support for determination that wife’s extramarital affair had adverse impact on best interests of children. Hansen v. Hansen, 151 Vt. 506, 562 A.2d 1051, 1989 Vt. LEXIS 92 (1989).

Under V.R.E. 103(a)(1), a party must object to the admission of evidence under subsection (a) of this section in order to raise claim of error on appeal. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

A parent cannot claim the benefit of a factor listed in subsection (b) of this section solely by showing that the other parent’s actual or expected performance with respect to that factor is inadequate: each parent must show his or her relationship with the child in light of the statutory factors. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Trial court erred in awarding custody where evidence presented on each of the factors listed in subsection (b) of this section related to only one of the parents. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Evaluation of the effect that a party’s sexual conduct has on the children does not require expert testimony. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Where defendant’s lover was present in her home enough so that the court could find him to be a person who could significantly affect the parties’ children within the meaning of subdivision (b)(7) of this section, evidence of defendant’s relationship with her lover was relevant and admissible under section 667(a) of this title. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Findings.

While the trial court made findings regarding the statutory best-interests factors, its analysis when determining legal parental rights and responsibilities was simply too conclusory to provide a full explanation as to how the factors were applied to the facts. This was particularly the case with aspects of legal responsibility beyond medical and dental decisions, which the trial court awarded to the mother without discussion beyond merely stating that the mother had lost confidence in the father’s decision-making abilities due to his alcoholic relapses. Lee v. Ogilbee, 2018 VT 96, 208 Vt. 400, 198 A.3d 1277, 2018 Vt. LEXIS 137 (2018).

To the extent a mother argued that the family court erred by failing to discuss each of the individual statutory best-interests factors in considering the parties’ cross-motions to modify parental rights and responsibilities, the court disagreed, as the plain language of the statute requires that the court “consider,” but not necessarily expound upon, each of the nine statutory factors. As long as the court considers each factor, the statute imposes no specific requirement on how this consideration is to be manifested in the court’s findings and conclusions; upon consideration of all of the factors and its election to render findings, the court need only make findings on those factors that inform its decision. Parker v. Parker, 2012 VT 20, 191 Vt. 222, 45 A.3d 48, 2012 Vt. LEXIS 17 (2012).

Trial court properly considered the mother’s potential abuse of alcohol during several family conflicts as it made its decision to award her primary custody of the parties’ child. Hazlett v. Toomin, 2011 VT 73, 190 Vt. 563, 27 A.3d 328, 2011 Vt. LEXIS 77 (2011).

Trial court properly considered the various statutory factors in determining that a mother should be awarded primary custody of the parties’ child; the finding that the child had long-term ties to the mother as the primary caregiver for most of her life was sufficient to support the award, even without expressly analyzing the quality of their relationship. Hazlett v. Toomin, 2011 VT 73, 190 Vt. 563, 27 A.3d 328, 2011 Vt. LEXIS 77 (2011).

In a case where a father was awarded legal responsibility over the parties’ two children, the court rejected the mother’s argument that the trial court failed to make findings on evidence favorable to her. On the contrary, the findings were very detailed and specific, and covered all the disputed issues; the findings were supported by the evidence, and there was no indication that they were based on any prejudices against the mother. Solsaa v. Solsaa, 2008 VT 138, 185 Vt. 587, 969 A.2d 116, 2008 Vt. LEXIS 201 (2008) (mem.).

Mother failed in her assertion that the family court made no finding identifying the primary care giver where it found that mother was the primary care giver during the child’s first two years of life, but this changed over time to become more equal between the parties; even though it did not state precisely whether mother remained the primary care provider or whether both parties were entitled to that label, its finding, nevertheless, plainly addressed the issue and reasonably conveyed the dynamic of the evolving family relationship as revealed through the testimony and exhibits and this was is all that was required for purposes of appellate review. Porcaro v. Drop, 175 Vt. 13, 816 A.2d 1280, 2002 Vt. LEXIS 344 (2002).

Court’s conclusion that statutory factor regarding “the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent” weighed in favor of awarding custody to mother was unsupported by the findings, and required reversal because its findings that mother was frustrated by father’s desire to be involved in child’s life, and thus made unsubstantiated allegations against father, did not support such conclusion, and, further, the court made no finding regarding father’s ability and disposition to foster a positive relationship and contact with mother. Cloutier v. Blowers, 172 Vt. 450, 783 A.2d 961, 2001 Vt. LEXIS 267 (2001).

In its consideration of the statutory factor regarding “the ability and disposition of each parent to meet the child’s present and future development needs,” court’s finding that father’s age was a negative factor was unsupported by the evidence, and its conclusion that the factor weighed in favor of awarding custody to mother was erroneous and required reversal. Cloutier v. Blowers, 172 Vt. 450, 783 A.2d 961, 2001 Vt. LEXIS 267 (2001).

Family court did not err in determining that both parents had been primary care providers for their children, based on its finding that both parents spent approximately equal time with the children. Payrits v. Payrits, 171 Vt. 50, 757 A.2d 469, 2000 Vt. LEXIS 166 (2000).

Family court did not err by granting father sole legal and physical custody of children, since evidence supported court’s factual findings that parties shared custody up to time mother moved children out of state, that father was more engaged in and committed to children’s lives, and that best interests of children favored their living in Vermont with their father over living in Connecticut with their mother. Hoover v. Hoover, 171 Vt. 256, 764 A.2d 1192, 2000 Vt. LEXIS 296 (2000).

Family court performed requisite analysis under subdivision (b) of this section, where court considered all nine factors in reaching its conclusion that interests of children would be best served if defendant were given legal and physical responsibility for them. Mansfield v. Mansfield, 167 Vt. 606, 708 A.2d 579, 1998 Vt. LEXIS 18 (1998) (mem.).

In divorce action in which there was no dispute between the parties as to who was the primary care provider, it was not essential for the trial court to specifically state this obvious fact where record otherwise demonstrated proper consideration was given to statutory factor. Varnum v. Varnum, 155 Vt. 376, 586 A.2d 1107, 1990 Vt. LEXIS 255 (1990).

Test for whether custody order was sufficient involves review of explanation of how trial court applied statutory criteria to facts of case; if explanation indicates that misapplication may have occurred, order is insufficient. Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331, 1992 Vt. LEXIS 33 (1992).

In awarding custody of couple’s daughter to father, trial court did not adequately explain its application of primary care provider criterion to facts of case. Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331, 1992 Vt. LEXIS 33 (1992).

Findings on the factors enumerated in subsection (b) of this section will not be set aside upon appeal unless, taking the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, they are clearly erroneous. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Trial court making custody decision must consider the factors enumerated in subsection (b) of this section and make findings on as many of those factors as the evidence will support. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

When making a determination of parental rights and responsibilities, trial court is not required to make a specific finding on each of the factors listed in subsection (b) of this section, nor specifically address each factor; it is sufficient if the findings as a whole reflect that the court had taken the factors into consideration, insofar as they are relevant, in reaching its decision. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

While it would be preferable for a trial court making a determination of parental rights and responsibilities to structure its findings and conclusions to show the findings relevant to each factor listed in subsection (b) of this section together with a conclusion as to each fact, no specific form i required. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

In order for a trial court to state in its findings, pursuant to V.R.C.P. 52(a), the facts essential to the disposition of parental rights and responsibilities under this section, the trial court must address each of the factors listed in this section. Poulin v. Upham, 149 Vt. 24, 538 A.2d 181, 1987 Vt. LEXIS 572 (1987).

Grounds for reversal.

Although the trial court’s statement that his father could teach his son “things a young boy should know” does not warrant a reversal in the context of the whole transcript, if the custody determination was based on the idea that a male child should remain with his father then it would require reversal under 15 V.S.A. § 665(c) . Harris v. Harris, 162 Vt. 174, 647 A.2d 309, 1994 Vt. LEXIS 67 (1994).

Joint custody.

In a divorce action, the court exceeded its authority by ordering joint legal parental rights and responsibility absent consent of the parties. By enacting § 666(b)(6) and (7), which requires parents who do agree to share or divide parental rights and responsibilities to nonetheless complete an agreement that addresses procedures for communicating about the child’s welfare and for resolving disputes, the Legislature recognized the difficulties inherent in shared-parenting arrangements and, in light of these provisions, it seems unlikely that the Legislature intended to allow courts to force such an arrangement on parents. Cabot v. Cabot, 166 Vt. 485, 697 A.2d 644, 1997 Vt. LEXIS 101 (1997).

Particular cases.

Trial court properly found that granting defendant’s motion to modify the parenting schedule was in the child’s best interests. Its finding that the child had loving and supportive relationships with both parents and that a basic schedule of reasonable time with defendant would offer an undisputed path that both parents and the child could rely and plan on was supported by the record, and the trial court stated that in applying the factors, there was no significant distinction between the parties except the ability and disposition of each parent to foster a positive relationship with the other, which plaintiff had not demonstrated. Fabiano v. Cotton, 2020 VT 85, 213 Vt. 236, 249 A.3d 1268, 2020 Vt. LEXIS 95 (2020).

Because the trial court, having made an award of parental rights and responsibilities that was internally inconsistent, would have to fashion a new parenting plan, it would be allowed on remand to consider both its assignment of physical rights and responsibilities and its parent-child contact schedule, as the court could not discern whether the trial court would revise its parent-child contact schedule or its award of physical rights and responsibilities in light of the court’s conclusion that these disparate aspects of the trial court’s final order could not both stand in their current form. Barrows v. Easton, 2020 VT 2, 211 Vt. 354, 227 A.3d 1030, 2020 Vt. LEXIS 3 (2020).

In denying the father’s motion to modify legal and physical parental rights and responsibilities, the trial court improperly applied the statutory best-interests factors in that it allowed the maternal grandfather’s relationship with the child to permeate other best-interests factors that were limited by their plain terms to an evaluation of the parents’ capacities, and it also failed to fairly account for the mother’s egregious behavior toward the father and explain the basis for its belief that the mother’s behavior would change going forward. Bratton v. Holland, 2018 VT 54, 207 Vt. 517, 192 A.3d 1257, 2018 Vt. LEXIS 56 (2018).

Trial court properly denied a mother’s motion to modify parental rights and responsibilities on the ground that transferring custody would not be in the child’s best interest. While the father had tried to alienate the child from the mother, the critical factors for the trial court were the child’s engagement in his local school and community and his strong bond with the father, and the trial court appeared to have essentially provided the father with a final opportunity to modify his behavior by including a strict warning about the consequences of any deviation from his testimonial promise to promote the child’s reunification with the mother. Knutsen v. Cegalis, 2017 VT 62, 205 Vt. 144, 172 A.3d 180, 2017 Vt. LEXIS 141 (2017).

Trial court did not err in modifying a father’s parent-child contact, as the father still had a significant amount of time with the children and the decision, which sought to lessen the number of transitions and to best accommodate the children’s changing schedule now that they were in school and had outside activities, was based on appropriate considerations of the children’s best interests and not motivated solely by an attempt to accommodate extracurricular activities. Kessler v. Whitaker, 204 Vt. 658, 159 A.3d 1098 (2017).

In its best-interests analysis, the trial court did not determine that the primary-caretaker factor favored the father solely because he had physical custody of daughter at the time of the custody modification hearing, but appropriately considered the roles that both parents had played during the crucial period between the initial parenting order and the filing of the motion to modify; it noted the bond that had developed between the father and the daughter, which need not necessarily result simply from having primary custody of the child for a period of time. Clark v. Bellavance, 2016 VT 124, 204 Vt. 111, 162 A.3d 679, 2016 Vt. LEXIS 131 (2016).

In a custody modification case, there was sufficient evidence to support the trial court’s conclusion that it was in the daughter’s best interests that the father have custody. The trial court found that the daughter seemed more relaxed and happy in her father’s custody and that she had grown comfortable with the father as the primary caretaker; moreover, the mother’s persistent belief that the father molested the daughter formed the basis for its best-interests analysis, and the trial court relied heavily on the report of an expert who found, inter alia, that the mother needed the daughter to play the role of an injured child with severe emotional problems. Clark v. Bellavance, 2016 VT 124, 204 Vt. 111, 162 A.3d 679, 2016 Vt. LEXIS 131 (2016).

Trial court did not err in denying a mother’s motion to modify parental rights and responsibilities and in not allowing the mother any rights of parent-child contact until August 2016 unless the child’s trauma therapist recommended contact earlier. Although the trial court recognized that the father and the stepmother had alienated the child from the mother, it credited expert testimony that the child would be at significant risk of mental health problems if efforts at reunification continued, it found that the child would experience “violent dislocation” if the mother were awarded custody, and it considered all of the statutory best-interest criteria and provided a reasoned basis for its conclusions. Knutsen v. Cegalis, 2016 VT 2, 201 Vt. 138, 137 A.3d 734, 2016 Vt. LEXIS 6 (2016).

Findings supported the trial court’s conclusion that the fifth statutory best-interests factor, fostering a relationship between the child and the other parent, favored the father. The trial court found that mother opposed increasing contact between the children and the father and that she opposed him discussing anything of import with the children without discussing it with her first. Frazer v. Olson, 2015 VT 84, 200 Vt. 13, 127 A.3d 86, 2015 Vt. LEXIS 67 (2015).

Although the trial court was inconsistent in its findings under the sixth best-interests factor as to whether the mother was the primary caregiver, this discord did not affect the legal rights of the mother, who was ultimately awarded custody. Frazer v. Olson, 2015 VT 84, 200 Vt. 13, 127 A.3d 86, 2015 Vt. LEXIS 67 (2015).

Trial court properly awarded the mother sole parental rights and responsibilities. Regarding the father’s ability to provide the child with guidance as well as his ability to meet the child’s present and future developmental needs, it found that the father had deceived the mother about his professional status for five years; in relation to the quality of the child’s relationship with the primary care provider, it observed that the mother had had primary responsibility for the child since the parties separated and had played a larger role in caring for the child prior to the separation. MacCormack v. MacCormack, 2015 VT 64, 199 Vt. 233, 123 A.3d 383, 2015 Vt. LEXIS 41 (2015).

Family court did not err in concluding that the mother had made a firm decision to move and basing its custody decision in part on her anticipated relocation. Her representations to the family court from the outset of the divorce proceeding until the last day of trial indicated that she intended to leave Vermont. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

Family court’s decision to assign legal custody to the father was supported by its findings, which led the family court to conclude that the mother’s proposed relocation would be unduly disruptive for the children. Moreover, the family court explicitly considered other factors besides the proposed relocation and found that the father was better able and disposed than the mother to foster a positive relationship and frequent and continuing contact with the other parent. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

In finding in a custody case that the wife engaged in a pattern of conduct to exclude the husband from interaction and contact with the child, the findings that the trial court made as to the wife’s filing of a relief-from-abuse (RFA) petition were sufficient. The trial court found that there was no credible evidence of abuse, that the wife “embellished minor accidental injuries” into abuse, and that the wife did not consult with any professionals before filing the RFA petition; further, the wife’s action in embellishing the evidence that did exist suggested that she knew that the facts alone without the embellishment were insufficient to show abuse. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 193 Vt. 490, 70 A.3d 1036, 2013 Vt. LEXIS 27 (2013).

In a custody case, the evidence supported the trial court’s conclusion that the child’s support system and educational environment were stronger in Vermont than in Maryland, even though the support system in Maryland was temporarily aided by the visits of the wife’s mother. The trial court could give less weight to the wife’s statement that the child was doing well in her educational environment absent neutral evidence to this effect. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 193 Vt. 490, 70 A.3d 1036, 2013 Vt. LEXIS 27 (2013).

Because of the active parenting of both parties, the evidence of the environment in Vermont, and the father’s effort to keep physical contact with the child, the trial court in its custody decision could determine the likely effect of the change of custodian. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 193 Vt. 490, 70 A.3d 1036, 2013 Vt. LEXIS 27 (2013).

Court could not reverse the trial court’s custody decision because of the errors in the findings supporting its conclusion that the wife engaged in a pattern of conduct to exclude the husband from interaction and contact with the child. The majority of the findings were correct, and the decision was not controlled by the erroneous findings. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 193 Vt. 490, 70 A.3d 1036, 2013 Vt. LEXIS 27 (2013).

Statutory factors used in a custody determination necessarily involve a comparison, and the trial court did not err in viewing the fourth factor so. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 193 Vt. 490, 70 A.3d 1036, 2013 Vt. LEXIS 27 (2013).

In finding in a modification of custody case that a father moved to Missouri to be near family, the family court did not err. The family court stated that its finding was supported by the credible testimony of both the father and the father’s wife, and the appellate court relied on the family court’s determinations of credibility and would not overturn findings if credible evidence supported them. Chickanosky v. Chickanosky, 2011 VT 110, 190 Vt. 435, 35 A.3d 132, 2011 Vt. LEXIS 110 (2011).

In a modification of custody case, independent evidence supported the family court’s finding that the mother did not foster independence in the parties’ daughter. The family court noted that the mother had a history of interfering with the daughter’s schooling, that she did not allow the daughter to be alone at extracurricular activities when the father and his wife were present, and that the mother’s husband testified that he believed that the mother would re-apply for a teaching position at the high school the daughter would attend if she remained in Vermont. Chickanosky v. Chickanosky, 2011 VT 110, 190 Vt. 435, 35 A.3d 132, 2011 Vt. LEXIS 110 (2011).

In a modification of custody case, the family court’s application and analysis of the best interests of the child standard was well within its broad discretion when of the seven applicable factors, the family court concluded that four favored the father, one favored the mother, and two did not favor either parent. In its discretion, the family court concluded that the father should be awarded primary physical rights and responsibilities because this would best allow the daughter to maintain relationships with both parents and families and to develop independence and autonomy. Chickanosky v. Chickanosky, 2011 VT 110, 190 Vt. 435, 35 A.3d 132, 2011 Vt. LEXIS 110 (2011).

Family court properly ordered a transfer of child custody when the second partner in a former civil union had been interfering with the first partner’s visitation rights. The evidence supported the family court’s conclusion that the first partner had been acting in the child’s best interests, while the second partner had shown contempt for the law. Miller-Jenkins v. Miller-Jenkins, 2010 VT 98, 189 Vt. 518, 12 A.3d 768, 2010 Vt. LEXIS 100 (2010).

In rejecting a partner’s proffered justifications for denying parent-child contact with the other partner to a former civil union, the family court properly found that the other partner’s sexual orientation was irrelevant. Because same-sex couples had the same rights and responsibilities as opposite-sex couples, the sexual orientation of the parents was irrelevant in a custody determination. Miller-Jenkins v. Miller-Jenkins, 2010 VT 98, 189 Vt. 518, 12 A.3d 768, 2010 Vt. LEXIS 100 (2010).

Trial court did not err in not applying the law of relocation when the mother planned to move to California. The case was not a relocation case, but a final determination of parental rights and responsibilities following a temporary order which the parents had verbally amended as the father became increasingly involved in the child’s life. Thompson v. Pafundi, 2010 VT 80, 188 Vt. 605, 8 A.3d 476, 2010 Vt. LEXIS 80 (2010) (mem.).

In a parental rights and responsibilities case, there was no merit to the mother’s argument that the trial court abused its discretion by not setting a parent-child contact schedule for the infant and the mother. In the final order, the judge specifically instructed the parties to meet and work out an appropriate schedule in light of mother’s move to California; if the parties were unable to reach an agreement, the trial court indicated it would conduct a separate hearing. Thompson v. Pafundi, 2010 VT 80, 188 Vt. 605, 8 A.3d 476, 2010 Vt. LEXIS 80 (2010) (mem.).

In awarding custody to plaintiff, the trial court properly considered defendant’s role as caregiver. Though the trial court acknowledged that defendant usually cooked for the children and bought their clothes, it found that both parents were very involved in the children’s lives, shared the bedtime rituals, and took the children to their medical appointments; in addition, the trial court noted that while defendant cared for the children at night, plaintiff cared for them in the morning. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

Though the family court relied upon defendant’s animosity toward plaintiff, defendant’s lack of communication with plaintiff about the children, and defendant’s propensity to act in a controlling manner in awarding plaintiff custody, it did so only to weigh the parties’ conduct in relation to the statutory factors and whether that conduct adversely or positively affected the interests of the children. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

Plaintiff’s statements that the best interests of the children would be served by equal parent-child contact and her request that the court divide parent-child contact accordingly were merely part of a record that was replete with other evidence that the trial court could and did consider in determining the best interests of the children. In view of the evidence and the broad discretion afforded to the trial court, the trial court did not abuse its discretion in reaching a decision on parent-child contact different from that recommended by either of the parties. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

Automatic change provision that shifted custody from the mother to the father on March 1, 2010, subjected any child-rearing decision made by mother to veto by father starting on March 1, 2010. The provision bred increased opportunity for animosity between the parents of the kind the legislature sought to avoid, not to mention confusion for the child. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Neither proceedings on appeal nor remand constituted a second suit for purposes of res judicata; thus, there was no merit to a mother’s argument that the portion of a child custody award awarding her temporary custody should not be disturbed. The family court made a comprehensive ruling in which the temporary award of custody to mother was premised on the eventual, indefinite award to father; thus, there was no basis in logic for prohibiting the family court from reevaluating the entire custody award on remand, and in order to safeguard the best interests of the child, the family court had to be given the latitude to make another comprehensive order, consistent with law. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Provision automatically shifting rights and responsibilities to the father six months before the child entered kindergarten was unlawful. Knutsen v. Cegalis, 2009 VT 110, 187 Vt. 99, 989 A.2d 1010, 2009 Vt. LEXIS 145 (2009).

Mother’s contention that she was prejudiced by not receiving notice of the father’s motion for sole custody was unfounded because her own motion to modify put the custody and contact order, as well as her parenting ability, in issue. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

In a custody case involving a couple’s boys, there was no merit to the argument by the boys’ attorney that the prohibition on the presence of young females during the father’s contact with the boys was inconsistent with the evidence and with professional opinion. An investigator’s belief that the father was an untreated child molester depended entirely on an accusation not proven to the family court, and the investigator described no risk to the boys other than the patently obvious concern about the parental judgment of a father who would molest his stepdaughter while his other children slept in the same room, an allegation the family court found unsupported by the evidence. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

In its best-interests analysis, the trial court did not err in finding that the father was more involved with the education of the parties’ boys. The trial court’s decision on this factor was not limited to the amount of time the father spent with the children, but focused on his demonstrated interest in the boys’ education and development. Chase v. Bowen, 2008 VT 12, 183 Vt. 187, 945 A.2d 901, 2008 Vt. LEXIS 12 (2008).

Where evidence was sufficient to support the family court’s finding that father’s care of the children nearly approximated mother’s in the qualitative sense, there was no basis to disturb its conclusion that mother’s proposed relocation, combined with her disinclination to abide by father’s interest and rights to parent-child contact, would likely erode or destroy the children’s relationship with their father. Rogers v. Parrish, 2007 VT 35, 181 Vt. 485, 923 A.2d 607, 2007 Vt. LEXIS 58 (2007).

Relocation, by itself, is no basis to reassign custody; however, when combined with disruption of the children’s stability and the likely substantial, if not total, loss of relationship with their father, the anticipated moves by mother were fairly considered. That repetitive relocation was required to be balanced against an arguably more stable “quality of the child’s adjustment to . . . present housing, school and community,” the child’s established relationships with father and other significant family and friends, leavened, or not, by the parents’ relationship with one another, as well as “the quality of the child’s relationship with the primary care provider,” are all a function of the statute and not merely the court’s predilection. Likewise, the court’s weighing of mother’s decision to follow her husband’s career at the expense of the children’s relationship with their father was also a requirement of the statute’s mandate to consider the relative merits of the parents’ “ability and disposition . . . to meet the child’s present and future developmental needs,” as well as “foster a positive relationship” with the other parent. Rogers v. Parrish, 2007 VT 35, 181 Vt. 485, 923 A.2d 607, 2007 Vt. LEXIS 58 (2007).

Transfer of physical custody of the children to father was supported by the court’s findings and balancing of the statutory factors. Boiled down, the court explained that after weighing the evidence and balancing the factors, father could be relied upon to maintain the children’s contact with the other parent, but mother could not be relied upon to do the same. Thus, custody with father was more likely to accomplish continuing maximum contact with both parents, while maintaining custody with mother was less likely to achieve that goal considering the risk, based on history that even minimum contact with father would have withered on mother’s watch. Because the court’s findings, conclusions and exercise of discretion thereon were all tenable, at the least, no abuse of discretion appears. Rogers v. Parrish, 2007 VT 35, 181 Vt. 485, 923 A.2d 607, 2007 Vt. LEXIS 58 (2007).

In a divorce action, the family court’s assessment of the factors contained in subsection (b) of this section supported its conclusion that it was in the child’s best interests to remain with mother as she relocated to their native Bosnia. Osmanagic v. Osmanagic, 2005 VT 37, 178 Vt. 538, 872 A.2d 897, 2005 Vt. LEXIS 77 (2005) (mem.).

In a proceeding on mother’s motion to modify parental rights and responsibilities so that she could relocate to another state with the parties’ minor child, where the family court found that father had demonstrated a greater ability to meet the child’s developmental needs, a factor that all parties viewed as especially important for the child, and that none of the statutory factors weighed decidedly in mother’s favor, the court properly exercised its discretion by concluding that the factors warranted a reallocation of primary legal and physical parental rights and responsibilities to father. Sochin v. Sochin, 2005 VT 36, 178 Vt. 535, 872 A.2d 373, 2005 Vt. LEXIS 144 (2005) (mem.).

Based on the evidence of father’s substantial involvement in all aspects of his child’s life, and the mutual devotion of father and child, the family court did not err in failing to give additional weight to the finding that mother was, at one time, the primary care provider. Porcaro v. Drop, 175 Vt. 13, 816 A.2d 1280, 2002 Vt. LEXIS 344 (2002).

Where the family court’s findings indicated that the parties’ circumstances since their separation had evolved to become a de facto shared custody arrangement, the court was not required to defer to mother’s custodial status under a prior temporary order in evaluating the impact of her move out of state on the child’s best interests. Porcaro v. Drop, 175 Vt. 13, 816 A.2d 1280, 2002 Vt. LEXIS 344 (2002).

Where the family court primarily relied upon the second, fifth, and seventh factors in subsection (b) of this section, as well as reviewing additional evidence, it made the appropriate inquiry regarding the factors and did not abuse its discretion by concluding that a grant of custody to father would serve the best interests of the children. Habecker v. Giard, 2003 VT 18, 175 Vt. 489, 820 A.2d 215, 2003 Vt. LEXIS 16 (2003).

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. Pearson v. Pearson, 169 Vt. 28, 726 A.2d 71, 1999 Vt. LEXIS 12 (1999).

In a divorce action, the family court did not abuse its discretion by awarding father responsibility for medical care, as mother had consistently made decisions in the past which seemed to reflect personal whim, and the desire to be different or all-controlling, rather than a willingness to follow generally accepted, sound medical practice. Shea v. Metcalf, 167 Vt. 494, 712 A.2d 887, 1998 Vt. LEXIS 169 (1998) (mem.).

In a divorce action, the family court did not abuse its discretion by awarding father responsibility for education, as mother’s home schooling had failed to properly educate her children, demonstrated by the fact that the couple’s eldest child could not read even simple words like “cat” nearly two years after he had been ready to start reading. Shea v. Metcalf, 167 Vt. 494, 712 A.2d 887, 1998 Vt. LEXIS 169 (1998) (mem.).

In a divorce, father was properly awarded parental rights and responsibilities, even though mother was the primary caretaker for most of the child’s life. While this criterion should be given great weight unless the primary custodian is unfit, it does not create a presumption that the primary caretaker should be awarded custody. The court examined the quality of care provided by each parent at all relevant periods of the child’s life and weighed the statutory factors in father’s favor more heavily, including his successful completion of a parenting course; his provision of suitable and adequate nutrition, clothing, cleanliness, and other physical and emotional care for the child; and his dedication to his son’s need for consistency, structure, intellectual stimulation, and continuity of environment. Hubbell v. Hubbell, 167 Vt. 153, 702 A.2d 129, 1997 Vt. LEXIS 248 (1997).

In a divorce action, the court did not abuse its discretion by granting sole physical rights and responsibilities to wife, despite its conclusion that, if awarded primary legal rights and responsibilities, husband would have been much more likely to support and foster the child’s relationship with mother than mother would have been to encourage the child’s relationship with husband. The court recognized and considered mother’s attempts to exclude husband from the child’s life, but on balance concluded that mother’s role as primary care provider and the need to preserve the resulting “close, warm, nurturing, and consistent relationship” between mother and her daughter outweighed other concerns. Cabot v. Cabot, 166 Vt. 485, 697 A.2d 644, 1997 Vt. LEXIS 101 (1997).

Relationship of child with parent.

Mother failed in her claim that the trial court’s conclusion that she was trying to alienate the children from their father was refuted by the simple fact that the relationship had slowly, but steadily improved because there was ample evidence showing that mother and her family repeatedly acted to prevent the children from forming a positive relationship with father — both at the time of separation and the time of trial. Bell v. Squires, 2003 VT 109, 176 Vt. 557, 845 A.2d 1019, 2003 Vt. LEXIS 359 (2003).

Mother failed in her claim that the trial court erred by not giving sufficient weight to her role as the children’s sole caregiver because the court found that although mother and the children had a close bond, the quality of their relationship was negatively affected by mother’s quick temper, her habit of negative interactions with others in front of the children, the extreme disproportion between her fears and actual circumstances, her apparent inability to draw appropriate boundaries between herself and her extended family in making decisions about her children, and her failure to focus on the children’s needs as opposed to her own or those of her extended family. Bell v. Squires, 2003 VT 109, 176 Vt. 557, 845 A.2d 1019, 2003 Vt. LEXIS 359 (2003).

Where extensive testimony supported family court’s finding that although mother was initially the primary parent, father had taken an increasingly substantial role in caring for the minor, there was no basis to disturb the court’s finding that the division of responsibilities had evolved over time to become more equal between the parties. Porcaro v. Drop, 175 Vt. 13, 816 A.2d 1280, 2002 Vt. LEXIS 344 (2002).

In applying the best-interests test, the court should focus on the best interest of the child, not the best interest of the parent; thus, to the extent that the court considered mother’s best interests in making its custody determination, the court was in error. Cloutier v. Blowers, 172 Vt. 450, 783 A.2d 961, 2001 Vt. LEXIS 267 (2001).

Because court’s conclusion that statutory factors one, two, four, and six favored awarding custody to father was not supported by the findings, and its failure to conclude that factor nine favored mother was erroneous, award of parental rights and responsibilities required reversal and remand of the case for reconsideration of that issue. Spaulding v. Butler, 172 Vt. 467, 782 A.2d 1167, 2001 Vt. LEXIS 268 (2001).

Custody award in favor of father was reversed and remanded for reconsideration, where mother had been primary caretaker before parties’ separation, father had been principal cause of children’s estrangement from mother, and every other consideration rendered mother the more suitable custodian. Begins v. Begins, 168 Vt. 298, 721 A.2d 469, 1998 Vt. LEXIS 254 (1998).

Family court did not abuse its discretion in awarding custody of minor child to mother despite express finding that mother had undermined child’s relationship with father by filing excessive and baseless abuse allegations, where court found that change of custody would be highly detrimental to child and that mother would be able to foster a healthy father/child relationship within a reasonable period of time, and court also awarded father extremely liberal visitation, resulting in nearly equal sharing of time with child. Renaud v. Renaud, 168 Vt. 306, 721 A.2d 463, 1998 Vt. LEXIS 257 (1998).

In a divorce, the court erred in finding that one advantage of awarding custody to father would be “primary caretaking by a parent of the same sex, with positive gender identification consequences,” contrary to 15 V.S.A. § 665(c) , necessitating remand to the trial court to reconsider the custody issue without regard to the sex of the child or the parents. Hubbell v. Hubbell, 167 Vt. 153, 702 A.2d 129, 1997 Vt. LEXIS 248 (1997).

In a child custody dispute, the family court improperly awarded custody to the father on the grounds that, given the mother’s work schedule, the child would have more total time with a parent and less time in day care if the father were awarded custody, because the court’s conclusions, which declared that the mother’s role as caregiver is significant and the quality of the child’s relationship with the primary care provider should be given great weight unless the primary custodian is unfit, and which determined that there existed a more substantial bond between mother and son, stronger than that of son and father, militated against or failed to support a change in custodial status quo. Brennan v. Brennan, 165 Vt. 525, 685 A.2d 1104, 1996 Vt. LEXIS 97 (1996).

The exact weight of the primary-caregiver factor depends on the quality of the relationship between the child and the custodian and on the likely effect the change of custodian would have on the child and the family; absent evidence on the likely effect of the change of custodian, the court should ordinarily find that the child should remain with the primary custodian if that parent is fit. Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149, 1995 Vt. LEXIS 44 (1995).

A parent may not claim the benefit of a statutory factor solely by showing that the other parent’s actual or expected performance with respect to that factor is inadequate; rather, parents must present evidence regarding their relationship with the child in light of the relevant statutory factors. Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149, 1995 Vt. LEXIS 44 (1995).

The quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development, is one of the nonexclusive statutory factors the court must consider in making a custody award; however, while the court has recognized that this factor is entitled to great weight, it has declined to adopt a rule that the primary custodian will be awarded custody as long as the parent is fit. Harris v. Harris, 162 Vt. 174, 647 A.2d 309, 1994 Vt. LEXIS 67 (1994).

15 V.S.A. § 665(b)(6) directs the court to give some weight to continuation of the primary custodian with the weight to be determined by the quality of the relationship; the court must consider whether breaking, or even loosening, the bond with the primary parent will be detrimental to the child’s physical and mental well-being or to the child’s need for a stable and secure environment. Harris v. Harris, 162 Vt. 174, 647 A.2d 309, 1994 Vt. LEXIS 67 (1994).

When applying primary care provider criterion to case facts to determine custody, attention should be directed to children’s needs, rather than parents’ actions, and inquiry should focus on all relevant periods of child’s life, not just period immediately preceding trial. Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331, 1992 Vt. LEXIS 33 (1992).

Mere physical custody by one of two fit parents during time spouses live apart to satisfy no-fault divorce requirements should not in itself cause former primary care provider to lose that status. Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331, 1992 Vt. LEXIS 33 (1992).

Primary care provider criterion should be entitled to great weight unless primary custodian is unfit; however, this does not create presumption in favor of that provider, but rather allows court to give due consideration to primary custodian in evaluating child’s best interests. Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331, 1992 Vt. LEXIS 33 (1992).

Where finding that one parent is primary caretaker is supported in record, it is not error to diminish to some degree the importance of other tangible considerations. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Award of custody to mother was not error where mother was primary care provider, despite evidence of mother’s animosity and rebuff of father’s participation, and evidence of father’s potential parenting skills and experience with child. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

The quality of the child’s relationship with the primary custodian should be entitled to great weight in determining custody unless there is evidence that the primary custodian is unfit. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Required consultation with noncustodial parent.

Visitation rights.

Trial court’s parent-child contact order was proper when the trial court made findings regarding each of the statutory best-interests factors and provided clear and articulable reasons for structuring the contact schedule as it did. The trial court explained that it fashioned the parent-child contact order in the manner it did based on father’s history of alcoholic relapses, secret drinking, and putting the child at risk while intoxicated. Lee v. Ogilbee, 2018 VT 96, 208 Vt. 400, 198 A.3d 1277, 2018 Vt. LEXIS 137 (2018).

Trial court did not err in not granting a mother more visitation time than the three days per week it did award her. The trial court sought to impose a schedule that relieved the father from providing childcare, and also allowed the mother appropriate time with the children as well as adequate time to continue to recover from her depression. LeBlanc v. LeBlanc, 2014 VT 65, 197 Vt. 17, 100 A.3d 345, 2014 Vt. LEXIS 68 (2014).

There was no error in the family court’s application of a best-interests-of-the-child standard to a father’s motion to reinstate parent-child contact following a voluntary suspension of such contact due to an allegation of child sexual abuse. First, it was unclear what prejudice the father suffered as a result of the imposition of the threshold showing for modification of the visitation order; second, the language of the voluntary suspension order contemplated court action; and finally, the passage of time without any contact, coupled with the allegations of abuse and the effect such allegations had on the daughter’s well-being, required the family court to reexamine what level of parent-child contact would most benefit the daughter. Desantis v. Pegues, 2011 VT 114, 190 Vt. 457, 35 A.3d 152, 2011 Vt. LEXIS 114 (2011).

Visitation order allotting two six-hour periods and no overnight visitation to father was not error where it was based on court’s conclusion that extensive visitation was disruptive to child. Bissonette v. Gambrel, 152 Vt. 67, 564 A.2d 600, 1989 Vt. LEXIS 126 (1989).

Where trial court found that parties’ son was approximately four and one-half years old and mother had provided excellent care since the parties’ separation, it did not abuse its discretion by ordering a visitation schedule less disruptive to the lifestyle the child had become accustomed to than father’s proposed schedule. Cleverly v. Cleverly, 151 Vt. 351, 561 A.2d 99, 1989 Vt. LEXIS 71 (1989).

Cited.

Cited in Bonanno v. Bonanno, 148 Vt. 248, 531 A.2d 602, 1987 Vt. LEXIS 485 (1987); Pill v. Pill, 154 Vt. 455, 578 A.2d 642, 1990 Vt. LEXIS 96 (1990); Brown v. Brown, 154 Vt. 625, 580 A.2d 975, 1990 Vt. LEXIS 134 (1990); Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992); In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993); Guiel v. Guiel, 165 Vt. 584, 682 A.2d 957, 1996 Vt. LEXIS 58 (1996); Fournier v. Fournier, 169 Vt. 600, 738 A.2d 98, 1999 Vt. LEXIS 215 (1999); Lyddy v. Lyddy, 173 Vt. 493, 787 A.2d 506, 2001 Vt. LEXIS 284 (2001); Jackson v. Hendricks, 2005 VT 113, 179 Vt. 549, 893 A.2d 292, 2005 Vt. LEXIS 302 (2005) (mem.).

Annotations From Former §§ 292, 557, 652

Discretion of court.

Trial court has wide discretion in awarding child custody upon a divorce, always having in mind the best interests and welfare of the child. Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139, 1978 Vt. LEXIS 659 (1978). (Decided under former § 292.) .

Court did not exercise its discretion in an untenable or unreasonable manner by granting custody of children to wife granted a divorce where court found that father employed a 25 year old female to keep and maintain his home, paying her $100 a month plus “board and room”, and had a propensity to spend his earnings on nonessentials rather than supporting his family. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969). (Decided under former § 292.) .

Findings.

A custody order will be reversed and remanded where facts essential to the disposition of the custody issue are not state by the trial court. Barbour v. Barbour, 146 Vt. 506, 505 A.2d 1217, 1986 Vt. LEXIS 319 (1986). (Decided under former § 652.) .

Joint custody.

In an appropriate case, a court has power to divide child custody between parties. Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139, 1978 Vt. LEXIS 659 (1978). (Decided under former § 292.) .

Factors relevant to a determination whether to award joint child custody to divorced parents are fitness of the parents and their ability to cooperate in guiding the child to adulthood, age of the child, distance between the parents’ abodes, and frequency of transfer and proportion of each parent’s custodial time, frequent changes being inherently disruptive and roughly equal division of custodial time being potentially more confusing to the child than a less balanced proportioning. Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139, 1978 Vt. LEXIS 659 (1978). (Decided under former § 292.

Supreme court will presume that joint custody of child of divorced parents against the best interests of the child and require a trial court finding of some special circumstance indicating that such disposition would serve the child’s best interest to overcome the presumption. Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139, 1978 Vt. LEXIS 659 (1978). (Decided under former § 292.) .

Jurisdiction.

In matters of custody and care of children of divorced parents, legislative intent is to limit court’s jurisdiction over children to the period their minority. Beaudry v. Beaudry, 132 Vt. 53, 312 A.2d 922, 1973 Vt. LEXIS 256 (1973). (Decided under former § 292.) .

Primary caretaker.

The fact that one party acted as primary caretaker of the parties’ child is an important factor for a court to weigh when determining custody, but it is not determinative. Peckham v. Peckham, 149 Vt. 388, 543 A.2d 267, 1988 Vt. LEXIS 24 (1988). (Decided under former § 652.) .

Stepparent.

If a stepparent stands in loco parentis to a child of the marital household, custody of that child may be awarded to the stepparent if it is shown by clear and convincing evidence that the natural parent is unfit or that extraordinary circumstances exist to warrant such a custodial order, and that it is the best interests of the child for custody to be awarded to the stepparent. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985). (Decided under former § 652.) .

Visitation rights.

Where wife was granted a divorce and custody of children, father and children were unquestionably bound by ties of mutual love and devotion, and it did not serve the children’s best interests to condition of father’s visitation rights upon full compliance and all the terms of the divorce decree, cause would be remanded for such revision of decree’s visitation provisions as was necessary to such condition to visitation and clarify the custodial and visitation rights. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969). (Decided under former § 292.) .

Welfare of child paramount.

In deciding issue of custody of children whose parents are granted a divorce, the desires of the parents and the preferences of the children must yield to the children’s well-being, which is paramount. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969). (Decided under former § 292.) .

Judicial authority in matters affecting custody has as its paramount objective the welfare of the child, and the opposing desires of hostile parents, insofar as they conflict with the well-being of the child, must yield. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962). (Decided under former § 557.) .

Law Reviews —

For note, “Gender Bias Against Fathers in Custody? The Important Difference Between Outcome and Process,” see 18 Vt. L. Rev. 215 (1993).

For note, “Mandatory Mediation of Custody Disputes: Criticism, Legislation, and Support”, see 20 Vt. L. Rev. 255 (1995).

For note relating to procedures for determination of best interests of child in divorce custody disputes, see 9 Vt. L. Rev. 311 (1984).

For note, “Mandatory Mediation of Custody Disputes: Criticism, Legislation, and Support”, see 20 Vt. L. Rev. 255 (1995).

§ 665a. Conditions of parent-child contact in cases involving domestic violence.

If within the prior ten years, one of the parents has been convicted of domestic assault or aggravated domestic assault against the other parent, or has been found to have committed abuse against a family or household member, as defined in section 1101 of this title, the court may award parent-child contact to that parent if the court finds that adequate provision can be made for the safety of the child and the parent who is a victim of domestic violence.
In a parent-child contact order issued under subsection (a) of this section, a court may:
1. order an exchange of a child to occur in a protected setting;
2. order parent-child contact supervised by another person or agency;
3. order the perpetrator of domestic violence to participate in, to the satisfaction of the court, a program of intervention for perpetrators, where available, or other designated counseling as a condition of the visitation;
4. if alcohol or drugs were involved in the domestic abuse, order the perpetrator of domestic violence to abstain from being under the influence of alcohol or controlled substances without a prescription during the visitation and for 24 hours preceding parent-child contact;
5. order the perpetrator of domestic violence to pay a fee to defray the costs of supervised parent-child contact, provided that the perpetrator can afford to pay the fee;
6. prohibit overnight parent-child contact;
7. impose any other condition that is deemed necessary or appropriate to provide for the safety of the child, the victim of domestic violence, or another family or household member.
Whether or not parent-child contact is allowed, the court may order the address of the child and the victim to be kept confidential.
If a court allows a family or household member to supervise parent-child contact, the court shall establish conditions to be followed during parent-child contact.

HISTORY: Added 2007, No. 174 (Adj. Sess.), § 13.

§ 666. Agreements between parents.

Any agreement between the parents that divides or shares parental rights and responsibilities shall be presumed to be in the best interests of the child.
An agreement between the parties which is a complete agreement on parental rights and responsibilities shall include provisions that address at least the following:
1. Physical living arrangements.
2. Parent child contact.
3. Education of the minor child.
4. Medical, dental, and health care.
5. Travel arrangements.
6. Procedures for communicating about the child’s welfare.
7. If parental rights and responsibilities are to be shared or divided, procedures for resolving disputes. Such procedures may include but shall not be limited to mediation and binding arbitration.
If the court finds that an agreement between the parents is not in the best interests of the child or if the court finds that an agreement was not reached voluntarily the court shall refuse to approve the agreement.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 4.

ANNOTATIONS

Construction.
Evidence.
Particular cases.
Power of court.
Rejection of agreement.

Construction.

Relocation agreements. .

Subsection (b) of this section does not require that a stipulation be a complete agreement on parental rights and responsibilities in order to be presumed to be in the best interest of the child under subsection (a) of this section. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Evidence.

Particular cases.

Power of court.

Rejection of agreement.

Trial court could reject stipulation relating to legal responsibility for the parties’ children, which was filed after the hearing on the merits but before the court filed its order, only if it gave notice of its intention to the parties and gave them an opportunity to present evidence on the issues covered in the settlement. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Relocation agreements.

There is no specific statutory authority for the divorce order to define changed circumstances for purposes of a future modification nor has the court considered such a provision; however, without deciding whether such provisions will always be effective, the court concludes that the “relocation” provision was effective in this case because it was based on a stipulation of the parties, which is presumed to be in the best interest of the children, and the “relocation” provision itself established a reasonable benchmark to determine changed circumstances. deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843, 1994 Vt. LEXIS 55 (1994).

Cited.

Cited in In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993); Gates v. Gates, 168 Vt. 64, 716 A.2d 794, 1998 Vt. LEXIS 149 (1998); Luce v. Cushing, 2004 VT 117, 177 Vt. 600, 868 A.2d 672, 2004 Vt. LEXIS 329 (2004) (mem.).

Annotations From Former § 652

Effect of agreements.

Agreements between the litigating parties in divorce actions are not conclusive or binding upon the courts where the interests of the children are concerned. Barbour v. Barbour, 146 Vt. 506, 505 A.2d 1217, 1986 Vt. LEXIS 319 (1986).

Rejection of agreement.

Although trial court is not bound by an agreement of the parties relative to custody, it must give notice to the parties of its rejection of an agreement so that they may make a meaningful evidentiary presentation on this issue. Plante v. Plante, 148 Vt. 234, 531 A.2d 926, 1987 Vt. LEXIS 486 (1987).

Where trial court was aware that the parties had reached an agreement dealing with custody and visitation, even though no formal stipulation was entered into the record, but failed to give the parties notice of its opposition to the agreement and an opportunity to be heard on those issues, portion of court’s order dealing with custody and visitation would be reversed and the matter remanded for further proceedings on those issues. Plante v. Plante, 148 Vt. 234, 531 A.2d 926, 1987 Vt. LEXIS 486 (1987).

§ 667. Evidence.

Evidence of conduct of a parent not related to the factors in section 665 of this title shall only be admissible for the purposes of determining parental rights and responsibilities if it is shown that the conduct affects the parent’s relationship with the child.
Reports prepared by a person qualified as an expert under the Vermont Rules of Evidence, evaluating the best interests of the child, shall be admissible for the purposes of determining parental rights and responsibilities provided that the expert is available for cross-examination.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 5.

History

Revision note—

In subsec. (a), substituted “section 665 of this title” for “section 664” to correct an error in the reference and to conform reference to V.S.A. style.

CROSS REFERENCES

Testimony of minor child in custody and support proceedings, see § 594 of this title.

ANNOTATIONS

Admissibility.

Rule regarding the factual basis for experts’ opinions is not to be treated as either an auxiliary hearsay exception, or as a back door to an expansive reading of existing hearsay exceptions. In the case at hand, the family court’s justification for using otherwise inadmissible statements contained within the report was based on the fact that the expert’s report was entered into evidence by stipulation and, according to the family court, “without any restrictions”; this did not overcome the limits of the rule and statute governing the report’s admission. Chickanosky v. Chickanosky, 2011 VT 110, 190 Vt. 435, 35 A.3d 132, 2011 Vt. LEXIS 110 (2011).

Where defendant’s lover was present in her home enough so that the court could find him to be a person who could significantly affect the parties’ children within the meaning of section 665(b)(7) of this title, evidence of defendant’s relationship with her lover was relevant and admissible under subsection (a) of this section. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

Expert testimony.

In a custody dispute, the report of an expert who examined the child was admissible since, by statute, reports of an expert “evaluating the best interests of the child” are admissible to determine parental rights and responsibilities “provided that the expert is available for cross-examination.” In forming her report, an expert can rely on facts not admissible or admitted into evidence as long as the facts are of a type reasonably relied on by experts in the field. These facts can include hearsay statements. Velardo v. Ovitt, 2007 VT 69, 182 Vt. 180, 933 A.2d 227, 2007 Vt. LEXIS 170 (2007).

Evaluation of the effect that a party’s sexual conduct has on the children does not require expert testimony. Harris v. Harris, 149 Vt. 410, 546 A.2d 208, 1988 Vt. LEXIS 55 (1988).

§ 668. Modification of order.

On motion of either parent or any other person to whom custody or parental rights and responsibilities have previously been granted, and upon a showing of real, substantial, and unanticipated change of circumstances, the court may annul, vary, or modify an order made under this subchapter if it is in the best interests of the child, whether or not the order is based upon a stipulation or agreement.
Whenever a judgment for physical responsibility is modified, the court shall order a child support modification hearing to be set and notice to be given to the parties. Unless good cause is shown to the contrary, the court shall simultaneously issue a temporary order pending the modification hearing, if adjustments to those portions of any existing child support order or wage withholding order that pertain to any child affected by the modification are necessary to ensure that support and wages are paid in amounts proportional to the modified allocation of responsibility between the parties.
A final order related to parental rights and responsibilities and parent-child contact issued pursuant to subdivision 665(f)(1) of this title shall not be subject to modification. A party may file a motion for modification of an order related to parental rights and responsibilities and parent-child contact issued pursuant to subdivision 665(f)(2) of this title only upon a showing of extraordinary, real, substantial, and unanticipated change of circumstances.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 6; amended 2011, No. 119 (Adj. Sess.), § 7; 2013, No. 197 (Adj. Sess.), § 2.

History

Revision note—

Amendments

—2013 (Adj. Sess.). Subsec. (a): Inserted comma following “vary”.

Subsec. (c): Added.

—2011 (Adj. Sess.). Added the subsec. (a) designation, and added subsec. (b).

Best interests of child.

Burden of proof.

Change of circumstances.

Conditions.

Discretion of court.

Findings.

Hearing.

Jurisdiction.

Motion.

Notice.

Physical rights and responsibilities.

Relocation in shared custody situations.

Relocation of custodial parent.

Standards generally.

Visitation.

Best interests of child.

Burden of proof.

This section permits court to change custody only when the best interests of the children require, and burden of proof on the issue is on moving party. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

A party seeking modification of decision-making provisions of a custody order does not have as heavy a burden as party seeking modification of physical custody of children; a change in decision-making does not entail the violent dislocation realized by a change in physical custody. Pill v. Pill, 154 Vt. 455, 578 A.2d 642, 1990 Vt. LEXIS 96 (1990).

A party seeking modification of an order assigning physical custody of children, pursuant to a divorce, has a heavy burden to prove changed circumstances, and the trial court must consider the evidence carefully before making the threshold finding that a real, substantial and unanticipated change of circumstances exists. Pill v. Pill, 154 Vt. 455, 578 A.2d 642, 1990 Vt. LEXIS 96 (1990).

Trial court erred in basing a modification of custody involving change of children’s physical custody from one parent to the other solely on analysis of the best interests of the children; threshold finding that a real, substantial and unanticipated change of circumstances had occurred was required. Pill v. Pill, 154 Vt. 455, 578 A.2d 642, 1990 Vt. LEXIS 96 (1990).

Change of circumstances.

Trial court properly modified parental rights and responsibilities to give the mother sole physical rights and responsibilities, as the complete breakdown in the relationship between the child and the father constituted a substantial change in circumstances, preventing the parties from continuing to share physical custody, and the mother had a healthy relationship with the daughter and was better able to support her emotional and therapeutic needs. Wright v. Kemp, 2019 VT 11, 209 Vt. 476, 207 A.3d 1021, 2019 Vt. LEXIS 28 (2019).

Statute governing modification based on change of circumstances may not open the door to modification of parent-child contact based on the mere fact of a child’s predictably aging and reaching school age. Terino v. Bleeks, 2018 VT 77, 208 Vt. 65, 195 A.3d 647, 2018 Vt. LEXIS 112 (2018).

Because the mere fact of a child’s aging, including reaching school age, was not generally an unanticipated change of circumstances by itself under the statute governing modification, the family court erred in ruling that the parties could rely on the statute to modify parent-child contact as the child aged. Terino v. Bleeks, 2018 VT 77, 208 Vt. 65, 195 A.3d 647, 2018 Vt. LEXIS 112 (2018).

In a custody modification case, the specific factual errors alleged by the mother, if erroneous at all, did not, either individually or in combination, rise to the level of reversible error. The record was clear that as a result of the mother’s allegations of sexual abuse, the parties’ daughter was examined by multiple professionals; the trial court was not in error when it declined to recast the mother’s statements as having been made by the emergency room physician; and other alleged errors were collateral to the findings that formed the basis for its changed-circumstances determination. Clark v. Bellavance, 2016 VT 124, 204 Vt. 111, 162 A.3d 679, 2016 Vt. LEXIS 131 (2016).

In a custody modification case, the trial court properly found that a real, substantial, and unanticipated change of circumstances took place when it found that the mother believed that the father had molested their daughter despite the lack of any credible evidence supporting the allegations, that the mother’s belief caused her to treat the daughter as a victim to subject her to multiple invasive medical examinations and investigative interviews, and that the mother unilaterally breached the father’s parent-child contact rights despite repeated warnings from the trial court not to do so. Clark v. Bellavance, 2016 VT 124, 204 Vt. 111, 162 A.3d 679, 2016 Vt. LEXIS 131 (2016).

In a custody modification case, the mother’s argument that the trial court was biased against her and that its decision was tainted by what she characterized as “unflattering and prejudicial findings” about her relationship with the father prior to the original parenting order was unavailing. The mother produced no evidence to contradict the trial court’s interpretation of record testimony that she had at least initially believed that the father’s family had influence over the trial court, and any brief recitation of testimony about events that transpired prior to the original parenting order did not affect the trial court’s ultimate findings on changed circumstances. Clark v. Bellavance, 2016 VT 124, 204 Vt. 111, 162 A.3d 679, 2016 Vt. LEXIS 131 (2016).

In modifying child custody to award legal rights and responsibilities to the father, the trial court did not err in finding a substantial change of circumstances, as the decision of where the child, who was autistic, would go to school was central to his welfare and best interest, and joint decision-making had wholly broken down with respect to that decision. Wener v. Wener, 2016 VT 109, 203 Vt. 582, 157 A.3d 1108, 2016 Vt. LEXIS 109 (2016).

Parties submitted their stipulation increasing defendant’s parent-child contact after the hearing and after the final judgment; the parties presented their arguments at trial; and the trial court considered the relevant information in the context of the best interests of the children, after which it issued an order. Because the post-judgment stipulation contained no evidence of changed circumstances, the trial court had no need to hold yet another hearing or elaborate on the grounds of its decisions. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

The family court has discretion in determining if the moving party has established a change of circumstances; the moving party bears a heavy burden to prove changed circumstances, and the court must consider the evidence carefully before making the threshold finding that a real, substantial and unanticipated change of circumstances exists. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

Trial court’s findings showing that the parties’ inability to share parental rights and responsibilities was a new development supported its conclusion that a substantial and material change of circumstances had occurred since the parties’ divorce. Maurer v. Maurer, 2005 VT 26, 178 Vt. 489, 872 A.2d 326, 2005 Vt. LEXIS 33 (2005) (mem.).

Where the family court found that since the last motion to modify, mother had continued to interfere with father’s telephone contact with the children; she had attempted to keep father from attending one of the children’s first communion by refusing to tell him when the ceremony was scheduled; and she had filed a form with the children’s school claiming that her boyfriend was the children’s stepfather, which meant that father was not permitted to get information about the children; these findings supported the court’s conclusion that mother had engaged in “willful, repeated interference” with father’s visitation rights, and, therefore, the court did not abuse its discretion in concluding that there had been a material and substantial change in circumstances since the final divorce order. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

When the family court finds that there has been a real, substantial and unanticipated change of circumstances, it must consider if a change in parental responsibilities is in the children’s best interests; in conducting its analysis, the court must consider the statutory factors set forth in 15 V.S.A. § 665(b) . Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

Relocation alone does not automatically constitute a change of circumstances. Habecker v. Giard, 2003 VT 18, 175 Vt. 489, 820 A.2d 215, 2003 Vt. LEXIS 16 (2003).

Even though mother’s proposed relocation was not, per se, a change of circumstances in and of itself, reassessment of the custodial arrangement was, however, clearly warranted based on evidence of a deteriorating and unanticipated change in the context of mother’s relationship to her family, and this evidence was sufficient to support a finding of a real, substantial and unanticipated change of circumstances. Habecker v. Giard, 2003 VT 18, 175 Vt. 489, 820 A.2d 215, 2003 Vt. LEXIS 16 (2003).

Based on testimony of both mother and father that they disagreed on most major issue concerning the children, including religion, education, extracurricular activities, whether the children should be participating in counseling and with whom, child care, and how mother and father should be communicating about the children, and on mother’s testimony which chronicled a significant change in the parties’ dealings with one another, the family court did not abuse its discretion by concluding that mother had sufficiently demonstrated a real, substantial and unanticipated change in circumstances justifying modification. Meyer v. Meyer, 173 Vt. 195, 789 A.2d 921, 2001 Vt. LEXIS 368 (2001).

In proceeding for modification of an original divorce decree as to the allocation of parental rights and responsibilities, based on the court’s findings regarding negative effects on the children of mother’s and father’s differing sets of religious beliefs, evidence of father’s attempting to alienate the children from mother, and on the fact that the court was merely making explicit mother’s decision as the custodial parent charged with legal responsibility for the children, the court’s order that father not involve the children in his religious observances or raise them as Jehovah’s Witnesses was not inconsistent with constitutional principles. Meyer v. Meyer, 173 Vt. 195, 789 A.2d 921, 2001 Vt. LEXIS 368 (2001).

For purposes of modifying child custody, circumstances or arrangements are “unanticipated” if they were not expected at time of divorce. Hoover v. Hoover, 171 Vt. 256, 764 A.2d 1192, 2000 Vt. LEXIS 296 (2000).

Petition for modification of visitation order was adequately supported by defendant’s memorandum and affidavit that specifically alleged that child had nightmares and physical indications of sexual abuse after visits with plaintiff; awareness of plaintiff’s past sexual abuse of older daughter and stepdaughter and risk to the child constituted real and substantial unanticipated change of circumstances. Brown v. Brown, 154 Vt. 625, 580 A.2d 975, 1990 Vt. LEXIS 134 (1990).

Family court did not err in finding that custodial parent’s decision to attend law school in Iowa constituted an unanticipated changed circumstance justifying modification of custody order, where, although her plans to attend graduate school had been discussed by the parties prior to their divorce, at the time of the divorce, noncustodial parent reasonably concluded that the plans had been abandoned. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Conditions.

Custodial parent’s expression of her ultimate choice to forgo educational plans in Iowa rather than lose custody was not proper basis for order modifying custody by imposing condition that she reside in a location requiring no more than a four-hour drive from noncustodial parent’s residence. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Trial court did not unconstitutionally abridge mother’s right to travel by conditioning her retention of custody on her agreement to attend law school at a location within a four-hour drive from father’s residence. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Discretion of court.

Threshold determination for motion to modify custody order is discretionary. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Findings.

With regard to a father’s motion to reinstate parent-child contact with his daughter following a voluntary suspension of such contact due to an allegation of child sexual abuse, the evidence was sufficient to support the family court’s finding by a preponderance standard that the father sexually abused the daughter. The daughter said that her drawings and stories involving rabbits were her way of showing that the father was doing “gross stuff,” which she described as touching her in the wrong places and then lying about it; the father admitted to having prolonged kisses with the daughter, often upon the mouth, which the mother described as passionate; although a social worker’s interview methods and her rapid adoption of the daughter’s report of abuse were strongly criticized, it was not clearly erroneous for the family court to rely on her factual testimony regarding the daughter’s disclosure; and evidence was presented of the daughter’s agitation and distress surrounding her contact with the father. Desantis v. Pegues, 2011 VT 114, 190 Vt. 457, 35 A.3d 152, 2011 Vt. LEXIS 114 (2011).

Where the family court’s findings left no way to determine whether and how the court applied the best interest factors, or how it reached its conclusion to award mother sole legal rights and responsibilities, it was necessary to reverse and remand the question of whether the transfer of sole rights and responsibilities to mother was in the child’s best interests to the court for additional findings. Maurer v. Maurer, 2005 VT 26, 178 Vt. 489, 872 A.2d 326, 2005 Vt. LEXIS 33 (2005) (mem.).

Where custody order of divorce decree stated that a change in children’s primary residence could be effected without court approval if the parties agreed it would be in the best interests of the children, since the parents could not agree, it was necessary that the court make a finding of a real, substantial and unanticipated change of circumstances as a threshold matter before it could consider whether a change in physical custody was in the best interests of the children, and its failure to do so required reversal. Pill v. Pill, 154 Vt. 455, 578 A.2d 642, 1990 Vt. LEXIS 96 (1990).

Hearing.

Because the father’s child support obligation might be affected if he was obligated to pay daycare expenses directly and because of the modification of the percentage of time the children spent with each parent, a child support modification hearing was required. Kessler v. Whitaker, 204 Vt. 658, 159 A.3d 1098 (2017).

Jurisdiction.

Motion.

Given the parties’ noncompliance with the rule requiring that any proceedings for modification of a divorce order shall be on motion, supported by an affidavit, the family court properly denied the motion to modify the order summarily. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

In order to modify a visitation order, the court must act on a motion. Brown v. Brown, 154 Vt. 625, 580 A.2d 975, 1990 Vt. LEXIS 134 (1990).

Trial court was empowered to modify visitation of plaintiff where defendant’s memorandum and supporting affidavit in opposition to plaintiff’s petition to enforce a visitation order gave defendant clear notice of what was in issue and thus satisfied requirement of a motion upon which the court could act. Brown v. Brown, 154 Vt. 625, 580 A.2d 975, 1990 Vt. LEXIS 134 (1990).

Notice.

Physical rights and responsibilities.

Remand was required because the trial court, having modified child custody to award legal rights and responsibilities to the father, failed to separately analyze whether there were grounds to modify physical rights and responsibilities, and whether such a modification was in the best interest of the child, in light of the mother’s alternate plan. Wener v. Wener, 2016 VT 109, 203 Vt. 582, 157 A.3d 1108, 2016 Vt. LEXIS 109 (2016).

Relocation in shared custody situations.

Where parents have shared parenting responsibilities over time and have both spent substantial time with the child, the child’s loss from one parent’s relocation is substantial regardless of which parent gets custody of the child. Sochin v. Sochin, 2005 VT 36, 178 Vt. 535, 872 A.2d 373, 2005 Vt. LEXIS 144 (2005) (mem.).

Relocation of custodial parent.

In considering a mother’s motion to modify parent-child contact and legal rights and responsibilities, the family court erred by focusing on whether the mother’s move was in the child’s best interests and by effectively prohibiting the mother, the custodial parent, from moving with the child when it concluded that it was not. Instead, it should have considered whether the mother had shown a real, substantial, and unanticipated change of circumstances and whether the child’s best interests would be optimally served by transferring physical rights and responsibilities to the father, and then fashioned a parent-child contact order that would serve the child’s best interests, in light of its determination that physical rights and responsibilities should remain with the mother. Quinones v. Bouffard, 2017 VT 103, 206 Vt. 66, 179 A.3d 173, 2017 Vt. LEXIS 123 (2017).

Trial court properly denied a father’s motion to modify parental rights and responsibilities based on changed circumstances stemming from the mother’s move to Georgia. The father’s parent-child contact was only one-quarter of the child’s time and did not include legal rights or responsibilities; an alternative visitation schedule that continued the father’s parent-child contact, albeit in a different form, could be established; the child’s young age would make the move less disruptive in terms of connections to the community; and the record did not show that the proposed alternative schedule, which would give the father seven to eight weeks a year with the child in Vermont, could not work due to financial reasons. Falanga v. Boylan, 2015 VT 71, 199 Vt. 343, 123 A.3d 811, 2015 Vt. LEXIS 50 (2015).

While the relocation of a custodial parent may be a ground to modify a preexisting parental rights and responsibilities order, it is not a sufficient ground to order that parent to return to this state. Adamson v. Dodge, 2006 VT 89, 180 Vt. 612, 910 A.2d 821, 2006 Vt. LEXIS 181 (2006) (mem.).

Where mother’s relocation left the parties over ninety miles apart, the family court acted within its discretion when it modified the parent-child contact order to account for the distance between the parties and the logistical dilemmas this distance presented. Adamson v. Dodge, 2006 VT 89, 180 Vt. 612, 910 A.2d 821, 2006 Vt. LEXIS 181 (2006) (mem.).

Whether a relocation or other change is substantial enough to meet the threshold must be determined in the context of all the surrounding circumstances, keeping in mind that the effect on the child is what makes a change substantial. Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, 2005 Vt. LEXIS 83 (2005).

Although a custodial parent’s relocation, by itself, does not automatically satisfy the threshold showing of changed circumstances, neither does relocation alone automatically preclude the family court from finding changed circumstances just because the relocating party is the custodial parent. Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, 2005 Vt. LEXIS 83 (2005).

A critical factor in relocation cases is the amount of rights and responsibilities exercised by each parent; in considering that factor, the family court should not necessarily rely on the custodial assignments in the final divorce order, but rather consider the parties’ actual parenting arrangement. Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, 2005 Vt. LEXIS 83 (2005).

Relocation by a custodial parent, in and of itself, may amount to changed circumstances; further, while the allocation of legal rights and responsibilities could certainly be a factor in determining whether there are changed circumstances, the physical custodian has a right to determine the child’s residence. Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, 2005 Vt. LEXIS 83 (2005).

In regard to whether mother’s proposed relocation was a real, substantial and unanticipated change of circumstances the relevant question is whether her relocation would significantly impair father’s ability to continue exercising the rights and responsibilities he has been exercising. Among the relevant factors that should be considered in addressing this question are (1) the amount of custodial responsibility that the parties have been exercising, and for how long, (2) the distance and duration of the move, and (3) the availability of alternative visitation arrangements. Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, 2005 Vt. LEXIS 83 (2005).

Family court may find no changed circumstances with respect to a proposed relocation that nonetheless requires the court to modify the parties’ parent-child-contact schedule. Hawkes v. Spence, 2005 VT 57, 178 Vt. 161, 878 A.2d 273, 2005 Vt. LEXIS 83 (2005).

In a divorce action in which plaintiff wife was considering relocating to another state, wife should have been asked to choose between stating that she would move, allowing the court to include plaintiff’s relocation as a factor in its custody decision, or that she had made no firm decision to move, in which case any later relocation have been an unanticipated change, allowing the defendant to ask for modification of the custody order on the basis of changed circumstances. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Decision of custodial parent to move to another state triggers jurisdiction to modify custody order, but is not in and of itself sufficient to allow court to second-guess custodian in determining appropriateness of that change. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Appraisal of custodial parent’s decision to relocate to another state should take into account both the family’s needs in the short term and the family’s benefit in the more distant future. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

To prevail on motion for change of custody based on custodial parent’s decision to move to another state, noncustodial parent must prove that the children’s best interests would be so undermined by relocation with custodial parent that transfer of custody is necessary. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Where noncustodial parent’s motion for modification of custody requested change in custody or change in visitation schedule and child support to accommodate increased cost and travel burdens due to custodial parent’s intended relocation to Iowa, court focused on wrong inquiry and fashioned an improper modification when it sought to determine whether it was in the best interests of the children to move to Iowa and conditioned retention of custody by imposing condition on where custodial parent could reside; proper inquiry was to determine appropriate custodial parent in light of the move to Iowa. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Standards generally.

There are no fixed standards to determine what constitutes a substantial change in circumstances; instead, the court should be guided by a rule of very general application that the welfare and best interests of the children are the primary concern in determining whether the order should be changed. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

There is no requirement that the court must first find mother in contempt before it may find a transfer of custody in the children’s best interests. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

There is no requirement that a parent must interfere with physical contact, rather than just telephone contact, before a modification of custody is appropriate. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

In order to modify a custody determination, a moving party must traverse two hurdles; first, the moving party must make a showing of real, substantial and unanticipated change of circumstances, and second, if that threshold is met, the moving party must show that annulling, varying or modifying a prior parental rights and responsibilities determination is in the best interests of the child. deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843, 1994 Vt. LEXIS 55 (1994).

Court may differ with custodial parent as to the wisdom of a certain parental decision, but it may not lightly replace judgment of custodian with its own. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Supreme court cannot condone process that substitutes judgment of court for that of custodial parent merely because court would have done something different if it had been the parent. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

After dissolution of a marriage, a new family unit, consisting of custodial parent and children, is created; allowing the new family to flourish is in itself conducive to the best interests of the children involved. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Where a parent lives in relation to the other parent is one factor of many to be considered in formulating a custody decision. Lane v. Schenck, 158 Vt. 489, 614 A.2d 786, 1992 Vt. LEXIS 76 (1992).

Visitation.

It was error to suspend all parent-child contact with the father when the family court had not found that any further contact, even in a supervised or therapeutic setting, would be detrimental to the daughter’s best interests and when the record would not support such a finding, but rather showed that the father had been an involved, loving parent and maintained frequent contact with the daughter until an incident where he posted disparaging comments about her stepfather following an argument with the daughter. Thus, remand was required for the family court to consider contact for the father upon such terms and conditions as it found to be in the current best interests of the daughter. Wright v. Kemp, 2019 VT 11, 209 Vt. 476, 207 A.3d 1021, 2019 Vt. LEXIS 28 (2019).

Family court had good reason to decline to impose a provision that automatically shifted parent-child contact when the child reached school age. It would have been premature and presumptuous to set forth a plan for more extended contact based on the information currently available to the parties. Terino v. Bleeks, 2018 VT 77, 208 Vt. 65, 195 A.3d 647, 2018 Vt. LEXIS 112 (2018).

Family court properly modified the parent-child contact schedule to reduce the mother’s time with the child and to restrict her telephonic and electronic communications with him. The evidence supported the trial court’s finding of a substantial change in circumstances in that the mother was unwilling to follow the new visitation schedule and was enabling or encouraging child not to do so; furthermore, the family court found that the child’s best interests were not served by extensive contact with the mother because she continued to undermine his relationship with the father and because her fixation on the alleged wrongs perpetrated by the father prevented her from seeing the child’s real needs for structure, discipline, and medical treatment. Weaver v. Weaver, 2018 VT 38, 207 Vt. 236, 186 A.3d 1119, 2018 Vt. LEXIS 38 (2018).

When the mother’s move was for an indefinite duration and a two-and-a-half-hour drive separated the parties’ homes, the move constituted a real, substantial, and unanticipated change of circumstances for the purpose of the mother’s motion to modify parent-child contact and thus required the trial court to issue a new contact schedule. Bonk v. Bonk, 2018 VT 15, 206 Vt. 522, 183 A.3d 600, 2018 Vt. LEXIS 12 (2018).

Obstruction of visitation and attempts at parental alienation are not in a child’s best interests, and they may form the basis for a change in custody. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

By changing the operative language in a parent-child contact order regarding Mother’s Day from “if possible” to “shall,” the trial court made a discretionary matter into an obligatory order, resulting in modification of the order without the required finding of a real, substantial, and unanticipated change in circumstances. The trial court also modified the order by limiting the father’s ability to make travel arrangements for the child. Patnode v. Urette, 2017 VT 107, 206 Vt. 212, 179 A.3d 1242, 2017 Vt. LEXIS 128 (2017).

Absent a showing by clear and convincing evidence that any visitation, including supervised visitation, would be detrimental to the daughter’s best interests, the family court erred by halting all contact between the daughter and her father after finding under a preponderance standard that the father had sexually abused the daughter. This required remand for the family court to consider parent-child contact for the father upon such terms and under such conditions as the family court deemed necessary and appropriate in the best interest of the daughter. Desantis v. Pegues, 2011 VT 114, 190 Vt. 457, 35 A.3d 152, 2011 Vt. LEXIS 114 (2011).

Cited.

Cited in Sullivan v. Sullivan, 147 Vt. 407, 518 A.2d 33, 1986 Vt. LEXIS 430 (1986); Viskup v. Viskup, 150 Vt. 208, 552 A.2d 400, 1988 Vt. LEXIS 150 (1988); In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993); Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714, 1994 Vt. LEXIS 59 (1994); Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996); Gates v. Gates, 168 Vt. 64, 716 A.2d 794, 1998 Vt. LEXIS 149 (1998).

Annotations From Former §§ 292, 557, 652

Change of circumstances.

To warrant modification of a child custody order made pursuant to a divorce, the petitioner must prove a substantial change in the material circumstances and that under the new conditions a change of custody is in the best interests of the child. Valeo v. Valeo, 132 Vt. 526, 322 A.2d 306, 1974 Vt. LEXIS 384 (1974). (Decided under former § 292.) .

Change of circumstances is not a ground for modification of a custody order, but it is a prerequisite. Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738, 1968 Vt. LEXIS 238 (1968). (Decided under former § 292.) .

Whether divorced father was presently the most suitable person to have care and custody of minor child is not the test to be applied as to whether court order should be changed to award custody to father. Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738, 1968 Vt. LEXIS 238 (1968). (Decided under former § 292.) .

In order to warrant modification of custody order, change in conditions or circumstances must be shown. McKinney v. Kelley, 120 Vt. 299, 141 A.2d 660, 1957 Vt. LEXIS 86 (1957), cert. denied, 356 U.S. 972, 78 S. Ct. 1135, 2 L. Ed. 2d 1147, 1958 U.S. LEXIS 955 (1958); Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738, 1968 Vt. LEXIS 238 (1968). (Decided under former § 292.) .

Continuing jurisdiction.

The court which grants a divorce retains continuing jurisdiction to annul, vary or modify any order it has made concerning minor children of the parties as it deems expedient concerning the care, custody and maintenance of those children. Brooks v. Brooks, 131 Vt. 86, 300 A.2d 531, 1973 Vt. LEXIS 272 (1973). (Decided under former § 292.) .

Discretion of court.

After granting divorce, court upon petition of parent has authority to annul, vary or modify order for care and custody of minor children as it deems expedient. Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738, 1968 Vt. LEXIS 238 (1968). (Decided under former § 292.) .

Where a trial court which modified the parties’ original divorce decree and awarded custody of the parties’ minor children to the defendant found a significant improvement in the defendant’s circumstances since the date of the original order and made numerous findings on the deterioration of plaintiff’s circumstances, primarily in frequent and significant moves and often crowded living conditions, the court’s finding of substantial change of material circumstances was within its discretion. Hayes v. Hayes, 144 Vt. 332, 476 A.2d 135, 1984 Vt. LEXIS 451 (1984). (Decided under former § 652.) .

Foreign decree.

Where habeas corpus is used in child custody cases, court will be guided soley by what it finds to be for best interests of child under the circumstances, and to that end, although valid foreign decree is res adjudicata between the parents upon facts as they existed on date of decree, it has no binding, conclusive or even persuasive effects as to any events or changed conditions which may have occurred since that date. In re Forslund, 123 Vt. 341, 189 A.2d 537, 1963 Vt. LEXIS 117 (1963). (Decided under former § 292.) .

When divorce is granted in foreign state, and decree therein makes orders as to custody and support of minor children, such order will be respected as res judicata in Vermont; if, however, it appears that conditions relating to custody or support in Vermont; if, however, it appears that conditions relating to custody or support have since changed, Vermont courts having jurisdiction may act in these matters in light of changed conditions, notwithstanding foreign decree. Miller v. Miller, 123 Vt. 221, 186 A.2d 93, 1962 Vt. LEXIS 228 (1962). (Decided under former § 557.) .

Procedure.

A court considering modification of child custody should take the findings of the court that issued the original order and compare or contrast them with whatever findings it has made about the parties’ circumstances since the original order. Hayes v. Hayes, 144 Vt. 332, 476 A.2d 135, 1984 Vt. LEXIS 451 (1984). (Decided under former § 652.) .

It is permissible for a court considering modification of child custody to make explicit reference to the original court’s findings if appropriate, but it should not ordinarily take evidence or make independent findings concerning events that transpired prior to the divorce decree. Hayes v. Hayes, 144 Vt. 332, 476 A.2d 135, 1984 Vt. LEXIS 451 (1984). (Decided under former § 652.) .

Where the trial court which modified a custody order made finding concerning events that occurred before the divorce decree and original custody award, the supreme court would not apply a rule of per se reversal because the modification court’s findings overlapped somewhat with those of the original court. Hayes v. Hayes, 144 Vt. 332, 476 A.2d 135, 1984 Vt. LEXIS 451 (1984). (Decided under former § 652.) .

Standards generally.

On a petition to modify a child custody order, trial court must fist determine whether there has been a real, substantial and unanticipated change of circumstances; only if such a change is found may the court move on to the question of the best interest of the child. Kilduff v. Willey, 150 Vt. 552, 554 A.2d 677, 1988 Vt. LEXIS 210 (1988). (Decided under former § 652.) .

Giving stability to a child’s life, to the extent possible under the circumstances, is so important that custody ought not to be modified without critical justification. Kilduff v. Willey, 150 Vt. 552, 554 A.2d 677, 1988 Vt. LEXIS 210 (1988). (Decided under former § 652.) .

As prerequisite to modifying a custody order, the petitioner must prove a substantial change in the material circumstances and that under the new conditions a change of custody is in the best interests of the child or children. Hayes v. Hayes, 144 Vt. 332, 476 A.2d 135, 1984 Vt. LEXIS 451 (1984). (Decided under former § 652.) .

In a change of child custody proceeding, wishes of a child found to be opposed to the child’s best welfare must yield. Valeo v. Valeo, 132 Vt. 526, 322 A.2d 306, 1974 Vt. LEXIS 384 (1974). (Decided under former § 292.) .

To justify modification of custody order petitioner must first show that there has been change of circumstances, and then go on to show that under new conditions change of custody would be for best interests of child. Gokey v. Gokey, 127 Vt. 334, 248 A.2d 738, 1968 Vt. LEXIS 238 (1968). (Decided under former § 292.) .

§ 668a. Enforcement of visitation.

When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights.
When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.
If a custodial parent refuses to honor a noncustodial parent’s visitation rights, the court shall enforce such rights unless it finds good cause for the failure or that a modification of the visitation rights is in the best interests of the child. Unless restoration of the visitation is not in the best interests of the child, enforcement of the visitation rights shall include the restoration of the amount of visitation improperly denied. When a party files a motion for enforcement of parent-child contact under this subsection, the court shall conduct a hearing within 30 days of service of the motion.
A person who violates this section may be punished by contempt of court or other remedies as the court deems appropriate, including awarding attorney’s fees and costs to the prevailing party.
1. If a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child. Good cause shall include: (e) (1) If a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child. Good cause shall include:
  1. a pattern or incidence of domestic or sexual violence;
  2. a reasonable fear for the child’s or the custodial parent’s safety; or
  3. a history of failure to honor the visitation schedule agreed to in the parent-child contact order.
2. A custodial parent, upon a showing of good cause as defined in subdivision (1)(A) or (B) of this subsection, may receive an ex parte order suspending a noncustodial parent’s visitation rights until a court hearing is held. A hearing shall be held within 14 days from the issuance of the order.
All parent-child contact orders issued by the family division of the superior court in connection with a divorce or parentage proceeding shall bear the following statement: “A PERSON WHO FAILS TO COMPLY WITH ALL TERMS OF THE CURRENT ORDER GOVERNING PARENT-CHILD CONTACT MAY BE SUBJECT TO CONTEMPT OF COURT CHARGES. THE COURT MAY IMPOSE ADDITIONAL REMEDIES, INCLUDING A MODIFICATION OF THE CURRENT PARENT-CHILD CONTACT ORDER IF FOUND TO BE IN THE BEST INTERESTS OF THE CHILD.”

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 27a; amended 1995, No. 59 , § 10; 2003, No. 159 (Adj. Sess.), § 3; 2007, No. 174 (Adj. Sess.), § 10; 2009, No. 154 (Adj. Sess.), § 238; 2017, No. 11 , § 40.

History

Amendments

—2017. Subdiv. (e)(2): Substituted “14” for “10” preceding “days” in the second sentence.

—2009 (Adj. Sess.) Subsec. (f): Substituted “family division of the superior court” for “family court”.

—2007 (Adj. Sess.). Subsec. (e): Amended generally.

—2003 (Adj. Sess.). Subsec. (d): Added “including awarding attorney’s fees and costs to the prevailing party” following “appropriate”.

Subsecs. (e), (f): Added.

—1995. Subsec. (c): Added the second sentence.

§ 669. Guardian ad litem.

In all cases involving parental rights and responsibilities the court may appoint a guardian ad litem to represent the best interests of the child.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 7.

CROSS REFERENCES

Appointment of attorney to represent child with respect to child support and allocation of parental rights and responsibilities, see § 594 of this title.

Representation of child in proceedings, see § 594 of this title.

ANNOTATIONS

Applicability.

In a proceeding for modification of an original divorce decree as to the allocation of parental rights and responsibilities, where there was no evidence that either party had anything other than the children’s best interest in mind, the court’s failure to appoint a guardian ad litem for the children was not an abuse of discretion. Meyer v. Meyer, 173 Vt. 195, 789 A.2d 921, 2001 Vt. LEXIS 368 (2001).

In a parental-rights-and-responsibilities case, the court may appoint a guardian ad litem for the child, whose role is to minimize the harm suffered by the child during the breakup of the family rather than to assist the attorney and the child in making the choices that parties must make in our adversary system; in essence, the guardian acts as a buffer between the child and the adversarial nature of our judicial process. Gilbert v. Gilbert, 163 Vt. 549, 664 A.2d 239, 1995 Vt. LEXIS 61 (1995).

Cited.

Cited in In re B.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1993 Vt. LEXIS 55 (1993).

§ 670. Access to records.

Access to records and information pertaining to a minor child, including but not limited to medical, dental, law enforcement, and school records shall not be denied to a parent solely because that parent has not been awarded parental rights and responsibilities. The court may order that access to all or a portion of the records or information shall be denied if access is not in the best interest of the child or if access may cause detriment to the other parent including but not limited to abuse.

HISTORY: Added 1985, No. 181 (Adj. Sess.), § 8.

ANNOTATIONS

Particular cases.

While the court is permitted by statute to restrict the noncustodial parent’s access to a child’s records, such an order must be based on the criteria set forth in the statute. Here, the family court’s order restricting the mother’s access to the child’s records was unsupported by any findings or analysis and therefore had to be reversed. Weaver v. Weaver, 2018 VT 38, 207 Vt. 236, 186 A.3d 1119, 2018 Vt. LEXIS 38 (2018).

Family court properly denied a father, the noncustodial parent, access to his sons’ mental health records, as a noncustodial parent’s general right of access to the records was subject to the child’s best interests and here, the family court found the boys could be prevented from seeking or succeeding in treatment or could be emotionally harmed by a forced disclosure. Rinehart v. Svensson, 2017 VT 33, 204 Vt. 390, 169 A.3d 198, 2017 Vt. LEXIS 48 (2017).

As the family court had extensive prior dealings with the parties and received additional briefing on the issue after remand, and neither party raised a new issue that required further fact-finding, the evidence was sufficient to support the court’s determination denying a father access to his sons’ mental health records despite the lack of a hearing and new factual findings after remand, and the opinion as a whole clearly demonstrated the family court’s proper focus on the best interests of the children. Rinehart v. Svensson, 2017 VT 33, 204 Vt. 390, 169 A.3d 198, 2017 Vt. LEXIS 48 (2017).

Statute governing access to records in child custody cases provides a noncustodial parent with a general right of access to his or her children’s records. Rinehart v. Svensson, 2017 VT 33, 204 Vt. 390, 169 A.3d 198, 2017 Vt. LEXIS 48 (2017).

Right of access.

Second sentence of the statute governing access to records in child custody cases makes plain that a noncustodial parent’s general right of access to his or her children’s records is subject to a statutory limitation. Therefore, a court can curtail a noncustodial parent’s general right of access by finding either that disclosure is not in the child’s best interests or that disclosure may harm the other parent. Rinehart v. Svensson, 2017 VT 33, 204 Vt. 390, 169 A.3d 198, 2017 Vt. LEXIS 48 (2017).

Cited.

Cited in Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Subchapter 4. Orders Pending Libel

§§ 671-675. Repealed. 1981, No. 247 (Adj. Sess.), § 18.

History

Former § 671, relating to prohibiting restraint of wife’s personal liberty and care and custody of children, was derived from 1971, No. 98 , § 6; V.S. 1947, § 3229; 1941, No. 44 , § 1; P.L. § 3141; G.L. § 3575; P.S. § 3083; 1906, No. 63 , § 33; V.S. § 2686; R.L. § 2376; 1870, No. 27 , § 1; 1867, No. 23 , § 1; G.S. 70, §§ 29, 30; R.S. 63, §§ 32, 33 and previously repealed by 1971, No. 185 (Adj. Sess.), § 237.

Former § 672, relating to temporary alimony, was derived from 1971, No. 98 , § 7; V.S. 1947, § 3230; 1941, No. 44 , § 2; P.L. § 3142; G.L. § 3576; P.S. § 3084; 1906, No. 63 , § 33; V.S. § 2687; R.L. § 2377; 1867, No. 23 , § 2; 1862, No. 14 and previously repealed by 1971, No. 185 (Adj. Sess.), § 237.

Former § 673, relating to restraining or mandatory orders as to property, was derived from V.S. 1947, § 3231; P.L. § 3143; G.L. § 3577; 1915, No. 106 ; P.S. § 3085; 1906, No. 63 , § 33; 1898, No. 56 , § 1; V.S. § 2688; R.L. § 2378; 1866, No. 32 ; G.S. 70, § 45; 1855, No. 11 and was previously repealed by 1971, No. 185 (Adj. Sess.), § 237.

Former § 674, relating to court orders as liens on property, was derived from V.S. 1947, § 3232; P.L. § 3144; G.L. § 3578; P.S. § 3086; R. 1906, § 2967; V.S. § 2689; R.L. § 2379; 1866, No. 32 .

Former § 675, relating to temporary relief, was derived from 1971, No. 238 (Adj. Sess.), § 4 and amended by 1977, No. 115 (Adj. Sess.), § 1.

Subchapter 4a. Military Parents’ Rights Act

History

Legislative findings. 2009, No. 69 (Adj. Sess.), § 1 provides: “The Vermont general assembly finds that:

“(1) The military population in our state exceeds 5,000 Vermonters, a majority of whom serve a traditional part-time role. Many of these service members are parents to children under the age of 18.

“(2) The mobilization of these military parents, with sometimes little advance notice, can have a disruptive effect on custody or visitation arrangements involving minor children.

“(3) It is in the best interests of these children to minimize the loss of parental contact and disruption of the family that results from the service member’s absence pursuant to military orders due to temporary duty performed outside the state, deployment, or mobilization.

“(4) It is important to maintain parent-child contact as much as feasible when the child’s parent is absent due to military orders.

“(5) It is in the best interests of these children for the courts to address the military membership of one or both parents at the time of the initial custodial order or anytime thereafter, regardless of whether the service member has temporary duty orders or a deployment or mobilization order.

“(6) The regular scheduling of hearings may be harmful to the interest of service members who, due to military orders, may need an expedited hearing or may need to use electronic means to give testimony when they cannot appear in person in court.

“(7) The use of expedited hearings and testimony by electronic means, at the request of the service member who is absent or about to depart, would aid and promote fair, efficient, and prompt judicial processes for the resolution of family law matters.”

§ 681. Definitions.

As used in this subchapter:

“Deploy” and “deployment” mean military service in compliance with military orders received by a member of the U.S. Armed Forces, including any reserve component thereof to report for combat operations, contingency operations, peacekeeping operations, a remote tour of duty, or other active service for which the deploying parent is required to report unaccompanied by any family member. Deployment includes a period during which a military parent remains subject to deployment orders and remains deployed on account of sickness, wounds, leave, or other lawful cause.
“Deploying parent” means a military parent who has been notified by military leadership that he or she will deploy or mobilize with the U.S. Armed Forces, including any reserve component thereof, or who is currently deployed or mobilized with the U.S. Armed Forces, including any reserve component thereof. “Nondeploying parent” means a parent who is either not a member of the U.S. Armed Forces, including any reserve component thereof, or is a military parent who is currently not a deploying parent.
“Military parent” means a natural parent, adoptive parent, or legal parent of a child under the age of 18 whose parental rights have not been terminated or transferred to the state or another person through a juvenile proceeding pursuant to 33 V.S.A. chapter 53 or guardianship pursuant to 14 V.S.A. chapter 111 by a court of competent jurisdiction, and who is a member of the U.S. Armed Forces, including any reserve component thereof.
“Mobilization” and “mobilize” mean the call-up of National Guard or Reserve service members to extended active service. For purposes of this definition, “mobilization” does not include National Guard or Reserve annual training, inactive duty days, drill weekends, temporary duty, or state active duty.
“State active duty” means the call-up by a governor for the performance of any military duty in state status.
“Temporary duty” means the transfer of a service member to a geographic location outside Vermont for a limited period of time to accomplish training or to assist in the performance of a noncombat mission.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 682. Final order; modification.

If a deploying parent is required to be separated from a child as a result of deployment, a court shall not enter a final order modifying parental rights and responsibilities and parent-child contact in an existing order until 90 days after the deployment ends, unless such modification is agreed to by the deploying parent.
Absence created by deployment or mobilization or the potential for future deployment or mobilization shall not be the sole factor supporting a real, substantial, and unanticipated change in circumstances pursuant to section 668 of this title.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 683. Temporary modification.

Upon motion of a deploying or nondeploying parent, the court shall enter a temporary order modifying parental rights and responsibilities or parent-child contact during the period of deployment or mobilization when:
1. a military parent who has shared, sole, or primary legal or physical parental rights and responsibilities for a child or who has parent-child contact pursuant to an existing court order has received notice from military leadership that he or she will deploy or mobilize in the near future; and
2. the deployment or mobilization would have a material effect upon his or her ability to exercise such parental rights and responsibilities or parent-child contact.
Motions for modification because of deployment shall be heard by the court as expeditiously as possible, and shall be a priority for this purpose.
1. All temporary modification orders shall include a specific transition schedule to facilitate a return to the predeployment order over the shortest reasonable time period after the deployment ends, taking into consideration the child’s best interests. (c) (1) All temporary modification orders shall include a specific transition schedule to facilitate a return to the predeployment order over the shortest reasonable time period after the deployment ends, taking into consideration the child’s best interests.
2. The temporary order shall set a date certain for the end of deployment and the start of the transition period. If deployment is extended, the temporary order shall remain in effect during the extended deployment, and the transition schedule shall take effect at the end of the extended deployment. In that case, the nondeployed parent shall notify the court of the extended deployment. Failure of the nondeployed parent to notify the court in accordance with this subdivision shall not prejudice the deployed parent’s right to return to the prior order once the temporary order expires as provided in subdivision (3) of this subsection.
3. The temporary order shall expire upon the completion of the transition, and the prior order for parental rights and responsibilities and parent-child contact shall be in effect.
Upon motion of the deploying parent, the court may delegate his or her parent-child contact rights, or a portion of them, to a family member, a person with whom the deploying parent cohabits, or another person with a close and substantial relationship to the minor child or children for the duration of the deployment, upon a finding that it is in the child’s best interests. Such delegated contact does not create separate rights to parent-child contact for a person other than a parent once the temporary order is no longer in effect.
A temporary modification order issued pursuant to this section shall designate the deploying parent’s parental rights and responsibilities for and parent-child contact with a child during a period of leave granted to the deploying parent, in the best interests of the child.
A temporary order issued under this section may require any of the following if the court finds that it is in the best interests of the child:
1. The nondeploying parent shall make the child reasonably available to the deploying parent when the deploying parent has leave.
2. The nondeploying parent shall facilitate opportunities for telephonic, electronic mail, and other such contact between the deploying parent and the child during deployment.
3. The deploying parent shall provide timely information regarding his or her leave schedule to the nondeploying parent. Actual leave dates are subject to change with little notice due to military necessity and shall not be used by the nondeploying parent to prevent parent-child contact.
A court order modifying a previous order for parental rights and responsibilities or parent-child contact because of deployment shall specify that the deployment is the basis for the order, and it shall be entered by the court as a temporary order. The order shall further require the nondeploying parent to provide the court and the deploying parent with 30 days’ advance written notice of any change of address and any change of telephone number.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 684. Emergency motion to modify; permanent modification.

Upon the return of the deploying parent, either parent may file a motion to modify the temporary order on the grounds that compliance with the order will result in immediate danger of irreparable harm to the child, and may request that the court issue an ex parte order. The deploying parent may file such a motion prior to his or her return. The motion shall be accompanied by an affidavit in support of the requested order. Upon a finding of irreparable harm based on the facts set forth in the affidavit, the court may issue an ex parte order modifying parental rights and responsibilities and parent-child contact. If the court issues an ex parte order, the court shall set the matter for hearing within 14 days from the issuance of the order.
Nothing in this chapter shall preclude the court from hearing a motion for permanent modification of parental rights and responsibilities or parent-child contact prior to or upon return of the deploying parent. The moving party shall bear the burden of showing a real, substantial, and unanticipated change in circumstances and that resumption of the parental rights and responsibilities or parent-child order in effect before the deployment is no longer in the child’s best interests. Absence created by deployment or mobilization or the potential for future deployment or mobilization shall not be the sole factor supporting a real, substantial, and unanticipated change in circumstances pursuant to section 668 of this title.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010; amended 2017, No. 11 , § 41.

History

Amendments

—2017. Subsec. (a): Substituted “14” for “ten” preceding “days” in the fifth sentence.

§ 685. Testimony and evidence.

Upon motion of a deploying parent, provided reasonable advance notice is given and good cause shown, the court shall allow such parent to present testimony and evidence by electronic means with respect to parental rights and responsibilities or parent-child contact matters instituted under this section when the deployment of that parent has a material effect on his or her ability to appear in person at a regularly scheduled hearing. The phrase “electronic means” includes communication by telephone or video teleconference.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 686. No existing final order.

If there is no existing order establishing the terms of parental rights and responsibilities or parent-child contact and it appears that deployment or mobilization is imminent, upon an action filed under this chapter by either parent, the court shall expedite a hearing to establish temporary parental rights and responsibilities and parent-child contact to ensure the deploying parent has access to the child, to ensure disclosure of information, to grant other rights and duties set forth herein, and to provide other appropriate relief.
Any initial pleading filed to establish parental rights and responsibilities for or parent-child contact with a child of a deploying parent shall be so identified at the time of filing by stating in the text of the pleading the specific facts related to deployment.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 687. Duty to cooperate and disclose information.

Because military necessity may preclude court adjudication before deployment, the parties shall cooperate with each other in an effort to reach a mutually agreeable resolution of parental rights and responsibilities, parent-child contact, and child support. Each party shall provide information to the other in an effort to facilitate agreement on these issues.
Within 14 days of receiving notification of deployment or mobilization in the near future from his or her military leadership, the military parent shall provide written notice to the nondeploying parent of the same. If less than 14 days’ notice is received by the military parent, then notice must be given immediately upon receipt of notice to the nondeploying parent.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 688. Failure to exercise parent-child contact rights.

In determining whether a parent has failed to exercise parent-child contact, the court shall not count any time periods during which the parent did not exercise such contact due to the material effect of that parent’s military duties on the contact schedule.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

§ 689. Attorney’s fees.

In making determinations pursuant to this subchapter, the court may award attorney’s fees and costs based on the court’s consideration of:

Unreasonable failure of either party to accommodate the other party in parental rights and responsibilities or parent-child contact matters related to a deploying parent. A parent’s refusal to accommodate the other parent shall not be considered unreasonable if the parent demonstrates a reasonable fear for his or her safety or the safety of his or her child.
Unreasonable delay caused by either party in resolving parental rights and responsibilities or parent-child contact related to a deploying parent.
Failure of either party to provide timely information about income and earnings information to the other party.
Other factors as the court may consider appropriate and as may be required by law.

HISTORY: Added 2009, No. 69 (Adj. Sess.), § 2, eff. March 3, 2010.

Subchapter 5. Enforcement of Liens

§ 711. Sale of property.

If a party in a cause instituted under the provisions of this chapter and sections 291-294 of this title shall be in default for the period of thirty days upon an order for the payment of money, made according to the provisions thereof, which shall have become a valid lien upon the real or personal property of such party or on the stock of such party in a corporation as provided in this chapter, the court before which such cause is pending, or a Superior judge, may order to be sold at public sale the real or personal property and stock upon which such lien shall exist, or such portion thereof as shall be necessary to satisfy the cost of the sale and the amount in arrears at the time of such order of sale, or so much thereof as such court or judge shall designate.

History

Source.

V.S. 1947, § 3233. P.L. § 3145. G.L. § 3579. P.S. § 3087. 1906, No. 63 , § 33. 1898, No. 57 , § 1.

References in text.

Section 292, referred to in this section, was repealed by 1981, No. 247 (Adj. Sess.), § 18.

ANNOTATIONS

Lis pendens.

Sections 672-674 and 711-715 of this title, which provide for impressment of lien on real and personal property of petitionee in divorce case, accomplishes all that application of rule of lis pendens would, and in such cases statutes afford exclusive method of impressing such lien and rule does not there apply. Cole v. Cole, 117 Vt. 354, 91 A.2d 819, 1952 Vt. LEXIS 146 (1952).

Cited.

Cited in Hendrick v. Hendrick, 142 Vt. 357, 454 A.2d 1251, 1982 Vt. LEXIS 652 (1982).

§ 712. Whole of real estate may be sold.

If, in the opinion of the court or of such judge, the real estate upon which such lien exists is so constituted as to render it impracticable to divide the same, the whole of such real estate may be ordered to be sold.

History

Source.

V.S. 1947, § 3234. P.L. § 3146. G.L. § 3580. P.S. § 3088. 1898, No. 57 , § 2.

§ 713. Execution.

Execution signed by the clerk of such court shall issue to carry the order of sale mentioned in sections 711 and 712 of this title into effect and shall be governed by all the provisions and limitations touching executions issued on judgments so far as shall be consistent with sections 714 and 715 of this title.

History

Source.

V.S. 1947, § 3235. P.L. § 3147. G.L. § 3581. P.S. § 3089. 1898, No. 57 , § 3.

CROSS REFERENCES

Execution generally, see Rule 69, Vermont Rules of Civil Procedure.

§ 714. Disposition of proceeds.

The sheriff or constable selling such property upon such execution, after deducting his or her lawful fees, shall pay the proceeds to the clerk of such court, who shall disburse such proceeds to the petitioner or other persons entitled to the same pursuant to the terms of such order.
If the terms of such order are not fully satisfied by the proceeds so disbursed, the lien upon such property or stock shall attach to the balance of such proceeds. Such proceeds shall be retained by the clerk of such court or deposited in some savings bank, trust company, or other banking institution in this State to the credit of such clerk in such manner as shall be directed in such order of sale.
From time to time, out of the proceeds so deposited or held by him or her, the clerk shall thereafterwards pay to such petitioner or other persons designated in such order, such amount as, from time to time, shall become due by the terms thereof, unless the person against whom such order is made shall deposit with the clerk other funds to carry out the terms of such order.
When the terms of such order have been fully and finally complied with, all of such proceeds in the hands of the clerk or deposited as shall be paid to the party against whom such order is made.

History

Source.

V.S. 1947, §§ 3236-3239. P.L. §§ 3148-3151. G.L. §§ 3582-3585. P.S. §§ 3090-3093. 1898, No. 57 , §§ 4-7.

§ 715. Subsequent default.

The same proceedings shall be had in case of any subsequent default after an order of sale has been made as if such prior orders of sale had not been made.

History

Source.

V.S. 1947, § 3240. P.L. § 3152. G.L. § 3587. P.S. § 3095. 1898, No. 57 , § 9.

Subchapter 6. Property Settlement; Maintenance

History

Revision note—

Substituted “Property settlement; Maintenance” for “Disposition of Property; Alimony” as the subchapter heading in light of 1981 (Adj. Sess.) amendments.

§ 751. Property settlement.

Upon motion of either party to a proceeding under this chapter, the court shall settle the rights of the parties to their property by including in its judgment provisions which equitably divide and assign the property. All property owned by either or both of the parties, however and whenever acquired, shall be subject to the jurisdiction of the court. Title to the property, whether in the names of either or both parties, or a nominee, shall be immaterial, except where equitable distribution can be made without disturbing separate property.
In making a property settlement, the court may consider all relevant factors, including:
1. The length of the civil marriage.
2. The age and health of the parties.
3. The occupation, source, and amount of income of each of the parties.
4. Vocational skills and employability.
5. The contribution by one spouse to the education, training, or increased earning power of the other.
6. The value of all property interests, liabilities, and needs of each party.
7. Whether the property settlement is in lieu of or in addition to maintenance.
8. The opportunity of each for future acquisition of capital assets and income. For purposes of this subdivision:
  1. The court may consider the parties’ lifestyle and decisions made during the marriage and any other competent evidence as related to their expectations of gifts or an inheritance. The court shall not speculate as to the value of an inheritance or make a finding as to its value unless there is competent evidence of such value.
  2. A party’s interest in an inheritance that has not yet vested and is capable of modification or divestment shall not be included in the marital estate.
  3. Notwithstanding any other provision of this subdivision (8), a person who is not a party to the divorce shall not be subject to any subpoena to provide documentation or to give testimony about:
    1. his or her assets, income, or net worth, unless it relates to a party’s interest in an instrument that is vested and not capable of modification or divestment; or
    2. his or her revocable estate planning instruments, including interests that pass at death by operation of law or by contract, unless a party’s interest in an instrument is vested and not capable of modification or divestment.
  4. This subdivision (8) shall not be construed to limit the testimony given by the parties themselves or what can be obtained through discovery of the parties.
9. The desirability of awarding the family home or the right to live there for reasonable periods to the spouse having custody of the children.
10. The party through whom the property was acquired.
11. The contribution of each spouse in the acquisition, preservation, and depreciation or appreciation in value of the respective estates, including the nonmonetary contribution of a spouse as a homemaker.
12. The respective merits of the parties.

HISTORY: Amended 1981, No. 247 (Adj. Sess.), § 6; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2013, No. 63 , § 1.

History

Source.

V.S. 1947, § 3251. P.L. § 3162. 1929, No. 49 , § 1.

Revision note

—2013. In subsec. (a), deleted “the husband, the wife,” and inserted “either or” in accordance with 2009, No. 3 , § 12a.

Revision note—. Substituted “motion” for “petition” at the beginning of subsec. (a) to conform language to Rule 7(b), Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2013. Deleted “but not limited to” following “including” in subsec. (b); added “For purposes of this subdivision” in subdiv. (b)(8); and added subdivs. (b)(8)(A) through (b)(8)(D).

—1981 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Generally.
Acquirement.
Admissibility of evidence.
Award to children.
Beneficial interests.
Collateral attack.
Construction.
Contributions of parties.
Discovery.
Discretion of court.
Division of real estate.
Duration of marriage.
Engagement ring.
Equitable title.
Expectancy of Spouse.
Factors to be considered.
Failure to dispose of property.
Failure to present evidence.
Family home.
Fault.
Financial misconduct.
Findings.
Fraudulent transfers.
Harmless error.
Increased earning capacity.
Liquidation of property.
Parental rights and responsibilities.
Particular awards.
Pension plans.
Presumptions.
Procedure.
Property settlement in lieu of or in addition to maintenance.
Recrimination.
Respective merits of parties.
Separate property.
Stipulations of parties.
Trust property.
Undistributed inheritance.
Valuation of property.
Voluntary reduction of income and assets.

Generally.

Trial court has power to distribute marital assets, including bank accounts and securities, in whatever manner it finds just and equitable, regardless of prior owner. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

This section requires division of marital property however and whenever acquired, and is broad enough to cover property acquired after parties have separated. Nuse v. Nuse, 158 Vt. 637, 601 A.2d 985, 1991 Vt. LEXIS 234 (1991) (mem.).

Distribution of property in a divorce action must be equitable, not necessarily equal. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

Division of marital property in a divorce proceeding is not an exact science. Plante v. Plante, 148 Vt. 234, 531 A.2d 926, 1987 Vt. LEXIS 486 (1987).

All that is required of distributions of marital property in divorce cases is that they be equitable, and because individual circumstances are considered by the court, equality is not a necessary predicate to equity. Burr v. Burr, 148 Vt. 207, 531 A.2d 915, 1987 Vt. LEXIS 487 (1987).

The distribution of property upon divorce is not an exact science and does not always lend itself to a precise mathematical formula; all that is required is that such distribution be equitable. Kinley v. Kinley, 140 Vt. 77, 435 A.2d 698, 1981 Vt. LEXIS 569 (1981); Victor v. Victor, 142 Vt. 126, 453 A.2d 1115, 1982 Vt. LEXIS 627 (1982); Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983); Roberts v. Roberts, 146 Vt. 498, 505 A.2d 676, 1986 Vt. LEXIS 318 (1986); Lalumiere v. Lalumiere, 149 Vt. 469, 544 A.2d 1170, 1988 Vt. LEXIS 49 (1988).

Acquirement.

Where in divorce proceedings the testimony failed to indicate how long prior to the separation and divorce a gift to one of the parties had been received, it was fully within the trial court’s discretion to merge such income into the parties’ joint assets in providing for distribution of the property. Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983).

This section is directed to property owned by one of the parties to the marriage prior to the marriage and brought to the marriage. Colm v. Colm, 137 Vt. 487, 407 A.2d 184, 1979 Vt. LEXIS 1012 (1979), (Decided under prior law.).

Where camp which had been in husband’s family was given to husband and wife as a wedding gift, court granting divorce was not required by this section to give the camp to husband. Colm v. Colm, 137 Vt. 487, 407 A.2d 184, 1979 Vt. LEXIS 1012 (1979), (Decided under prior law.).

Tort action settlement husband received shortly after he began divorce action, constituting $143,000 for, among other things, the present value of lost future earnings, was marital property. Bero v. Bero, 134 Vt. 533, 367 A.2d 165, 1976 Vt. LEXIS 722 (1976).

Whether wife granted divorce worked with, for, or was a party with, husband in his business enterprises was of no controlling significance to question of effect her hard work in such enterprises, which was the important factor, should have in division of the parties’ interests in the enterprises. Segalla v. Segalla, 129 Vt. 517, 283 A.2d 237, 1971 Vt. LEXIS 300 (1971).

Original source of funds from which ski lodge, which husband against whom divorce was granted claimed was purchased with funds from sale of house acquired by gift from his grandfather, was acquired was not of controlling importance to property disposition where there was no indication the house was given to husband alone and wife helped operate the lodge and other enterprises in the ski industry which husband developed. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969).

Admissibility of evidence.

In a divorce case, the family court properly held that the wife could not subpoena the husband’s father to testify about the husband’s interest in a trust because on the face of the trust, the husband’s interest in the trust assets had not vested. Collins v. Collins, 2017 VT 70, 205 Vt. 251, 173 A.3d 345, 2017 Vt. LEXIS 85 (2017).

Wife could testify in divorce action to value of property she owned with husband, even though her testimony relied significantly on inadmissible appraisals made more than a year before. Albarelli v. Albarelli, 152 Vt. 46, 564 A.2d 598, 1989 Vt. LEXIS 128 (1989).

Admission, in divorce proceedings of testimony relating to an offer of compromise by one of the parties was not improper since it was material, on the issue of ability to pay and the general equities between parties, to the division of the property of the parties. Jackson v. Jackson, 139 Vt. 548, 432 A.2d 1181, 1981 Vt. LEXIS 525 (1981).

Reception and reliance upon evidence of an offer of compromise in determining the division of property pursuant to a divorce is not improper; liability for a “just and equitable” division of the property of the parties existing by this section, no evidence is necessary to support its imposition and no prejudice is shown by admitting evidence tending merely to confirm it. Jackson v. Jackson, 139 Vt. 548, 432 A.2d 1181, 1981 Vt. LEXIS 525 (1981).

Award to children.

A divorce property order cannot be used to create an obligation to support children beyond their majority. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

Order placing proceeds from defendant’s annuity in divorce matter in trust fund for daughters’ educational costs was improper, since agreement parties had to provide education to daughters was not recognized by section 659(b) of this title, governing agreements to place postmajority support provisions in orders, and court had no authority to create educational trust for use beyond children’s age of majority. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

Under this section providing that marital property be disposed of between the parties, absent stipulation to the contrary, decree awarding children the fee in the homestead was erroneous. Senesac v. Senesac, 135 Vt. 24, 370 A.2d 214, 1976 Vt. LEXIS 601 (1976).

Beneficial interests.

In a divorce case where the husband’s father changed the beneficiary of his trust to the parties’ son, the family court did not err in excluding the trust assets from the marital estate, as the father was always entitled to name a new beneficiary, regardless of his timing or purpose, and the wife offered no evidence that the son was merely a nominal holder of the trust assets. Collins v. Collins, 2017 VT 70, 205 Vt. 251, 173 A.3d 345, 2017 Vt. LEXIS 85 (2017).

Any interest a spouse has as beneficiary under a will or revocable trust is not marital property if the testator or settlor is still alive; however, such a beneficial interest can be considered in allocating marital property between the parties if it creates an “opportunity . . . for future acquisition of capital assets and income” under the property settlement statute. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Near unanimous holdings around the country are that a beneficiary’s interest under a will is not property before the death of the testator, but instead is only an expectancy that is not subject to the jurisdiction of the family court. The Vermont Supreme Court adopts these holdings as the proper interpretation of the property settlement statute. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Collateral attack.

A separation agreement later incorporated into a final divorce order could not be collaterally attacked, in an action in superior court, on the grounds that the agreement was unconscionable and obtained through fraud, deceit and duress. Although plaintiff labeled her complaint a tort action, in fact she was attempting to relitigate the property distribution agreement that the family court adopted rather than asserting a unique claim separate and distinct from the divorce decree. Tudhope v. Riehle, 167 Vt. 174, 704 A.2d 765, 1997 Vt. LEXIS 258 (1997).

Construction.

Statutory homestead exemption, purpose of which was to protect homeownership 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. Pearson v. Pearson, 169 Vt. 28, 726 A.2d 71, 1999 Vt. LEXIS 12 (1999).

All property owned by either spouse, whether held separately, jointly, or as tenants by the entirety, is subject to distribution under this section. Lynch v. Lynch, 147 Vt. 574, 522 A.2d 234, 1987 Vt. LEXIS 424 (1987).

Contributions of parties.

In making a property division, the trial court did not fail to consider the mother’s nonmonetary contributions as a spouse; rather, it considered the mother’s contributions without specifically labeling those findings as homemaking. Frazer v. Olson, 2015 VT 84, 200 Vt. 13, 127 A.3d 86, 2015 Vt. LEXIS 67 (2015).

One party’s contribution of property to the marriage is only one of numerous factors to be considered in distributing property under this section. Plante v. Plante, 148 Vt. 234, 531 A.2d 926, 1987 Vt. LEXIS 486 (1987).

Discovery.

In a divorce case, the trial court properly barred the husband from conducting discovery concerning a trust established by the wife’s grandfather, as the wife’s interest was capable of modification or divestment by her father, who was free to deplete the principal and was not obligated to allocate any remaining funds to the wife. Noble v. Noble, 2020 VT 105, 251 A.3d 541, 2020 Vt. LEXIS 120 (Vt. 2020).

Discretion of court.

Assets are normally valued for distribution as of the day of the final divorce hearing, regardless of whether they were acquired before or after the parties separated. Thus, the family court acted within its discretion in considering stock options received by husband after the date of separation and including them in the marital estate for division. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

Where using the date of separation as a cut-off date would fail to capture as marital property a significant part of husband’s compensation for the marital period, the family court acted within its discretion in determining that stock options awarded after separation were marital property subject to distribution. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

The family court has broad discretion when analyzing and weighing the statutory factors in light of the record evidence. Wade v. Wade, 2005 VT 72, 178 Vt. 189, 878 A.2d 303, 2005 Vt. LEXIS 155 (2005).

Trial court did not abuse its discretion in awarding wife all of the marital assets she requested so that she received approximately 43% of the assets while husband received approximately 57% where, in support of its award, the court explained that, because both parties were gainfully employed and healthy, and in the absence of fault, and because both were capable of working for many more years, the amount of property awarded to each did not need to be precisely equal to be fair. Turner v. Turner, 2004 VT 5, 176 Vt. 588, 844 A.2d 764, 2004 Vt. LEXIS 10 (2004).

Potential costs such as taxes or commissions cannot affect the valuation of a marital asset; yet, the trial court has the discretion to consider such costs in establishing the amount and method of payment of any monetary award. Hayden v. Hayden, 2003 VT 97, 176 Vt. 52, 838 A.2d 59, 2003 Vt. LEXIS 277 (2003).

The trial court did not abuse its discretion where it considered the implications of a hypothetical real estate commission on the overall difference between the property awards but did not deduct the real estate commission from its valuation of the marital home. Hayden v. Hayden, 2003 VT 97, 176 Vt. 52, 838 A.2d 59, 2003 Vt. LEXIS 277 (2003).

Family court did not abuse its discretion in allocating husband’s tax-deferred savings plan and car debt, and in awarding a clock to wife, because, given his employment and earning history, husband, unlike wife, has the ability to acquire future capital assets, and evidence supported the award of the clock. Weaver v. Weaver, 173 Vt. 512, 790 A.2d 1125, 2001 Vt. LEXIS 381 (2001) (mem.).

Family court’s decree extinguished the marital interest each party had in all the property in the marital estate; thus, the wife’s lien on the house awarded to the husband did not attach to his preexisting interest in the homestead so as to be avoidable in bankruptcy proceeding brought by the husband. In re Farrar, 219 B.R. 48, 1998 Bankr. LEXIS 403 (Bankr. D. Vt. 1998).

There was no abuse of discretion in family court’s distribution which gave defendant husband roughly forty percent of the marital assets because family court based its award on a careful consideration of each of the factors specified in 15 V.S.A. § 751(b) , and it used the property award to reimburse wife for $11,680 husband owed under the temporary order for maintenance, property taxes on the house, and reimbursement of wife’s medical bills; subtracting out this reimbursement, the distribution was close to fifty percent each. Soutiere v. Soutiere, 163 Vt. 265, 657 A.2d 206, 1995 Vt. LEXIS 12 (1995).

Where the trial court noted and evaluated each of the statutory factors set out in 15 V.S.A. § 751 , observed the inconsistency between wife’s testimony and her requested findings, but determined that, given the extreme substantial fault of the husband and the needs of the children, the marital home was to be awarded to wife free and clear of husband’s interest, and where sufficient findings existed to support these conclusions, Supreme Court could not conclude that the award amounted to an abuse of discretion. Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261, 1995 Vt. LEXIS 57 (1995).

Although trial court has discretion in considering the twelve factors that the court may consider in distributing marital assets in dissolution proceeding, the findings must provide a clear statement as to what was decided and why. Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558, 1993 Vt. LEXIS 54 (1993).

Trial court’s discretion in dividing marital assets is not limited to the increase in value during the marriage since all property owned by either party is subject to the jurisdiction of the court. Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558, 1993 Vt. LEXIS 54 (1993).

The trial court made a thorough examination of the factors enumerated in 15 V.S.A. § 751(b) when awarding the house to the plaintiff and refusing to give the defendant compensation for his share of the house, and its ruling was reasonable. Stafford v. Stafford, 161 Vt. 580, 641 A.2d 348, 1993 Vt. LEXIS 181 (1993) (mem.).

Trial court has broad discretion in awarding marital property in divorce action. Williams v. Williams, 158 Vt. 574, 613 A.2d 200, 1992 Vt. LEXIS 75 (1992).

Disposition of property pursuant to divorce decree is matter of wide discretion for trial court, and it will not be disturbed unless court’s discretion was abused, withheld or exercised on untenable grounds or to clearly unreasonable extent. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

Trial court has broad discretion in considering statutory factors governing distribution of property in a divorce, and its decision will be upheld unless its discretion was abused, withheld, or exercised on grounds clearly untenable. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

The trial court has wide discretion in the distribution of marital property upon divorce, and the supreme court will affirm the decision where it finds reasonable evidence to support the trial court’s findings and conclusions. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Property division and maintenance awards are closely related under statutory scheme and court must give due consideration to both; the court may, in its sound discretion, conclude that significant amounts of both property and maintenance should be awarded. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Trial court has broad discretion in considering the factors set forth in this section, and unless the court fails to exercise its discretion or exercises it for clearly untenable reasons or to an untenable extent, its decision will be upheld. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Disposition of couple’s assets that was close to an even split of the property valued was within range of trial court’s discretion, in view of all factors including wife’s lower earning power, wife’s contribution to husband’s professional development, and husband’s substantial inheritance from his father. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Trial court has broad discretion in dividing property in a divorce action. Myott v. Myott, 149 Vt. 573, 547 A.2d 1336, 1988 Vt. LEXIS 99 (1988).

The disposition of property pursuant to a divorce decree is a matter of wide discretion for the trial court, and its disposition will not be disturbed unless the court’s discretion was abused, withheld or exercised on untenable grounds or to a clearly unreasonable extent. Lalumiere v. Lalumiere, 149 Vt. 469, 544 A.2d 1170, 1988 Vt. LEXIS 49 (1988).

The trial court has wide discretion in distributing property upon divorce, and its award will not be disturbed on appeal unless the court’s discretion was abused, withheld or exercised on untenable grounds or to a clearly unreasonable extent. Ellis v. Ellis, 150 Vt. 650, 552 A.2d 406, 1988 Vt. LEXIS 136 (1988) (mem.).

Trial courts have wide discretion under this section in formulating awards of property upon divorce, and unless it is shown that such discretion was abused, withheld or exercised on clearly unreasonable grounds, supreme court will allow the decree to stand. Lewis v. Lewis, 149 Vt. 19, 538 A.2d 170, 1987 Vt. LEXIS 577 (1987).

Disposition of property pursuant to this section is a matter of discretion with the trial court, whose decree must stand unless an abuse of discretion is demonstrated. Poulin v. Upham, 149 Vt. 24, 538 A.2d 181, 1987 Vt. LEXIS 572 (1987).

The division of property in divorce proceedings is a matter of wide discretion. Lynch v. Lynch, 147 Vt. 574, 522 A.2d 234, 1987 Vt. LEXIS 424 (1987).

Trial court has power to distribute the marital assets in whatever manner it finds just and equitable. Lynch v. Lynch, 147 Vt. 574, 522 A.2d 234, 1987 Vt. LEXIS 424 (1987).

Requirement that trial court consider all of the factors enumerated in subsection (b) of this section leaves the weight given to each separate factor within the court’s sound discretion. Kingsbury v. Kingsbury, 147 Vt. 625, 523 A.2d 1246, 1987 Vt. LEXIS 435 (1987).

In divorce cases, trial court is vested with broad discretion in making property dispositions, and court’s order will not be disturbed on appeal unless it can be shown that this discretion was abused, withheld, exercised on untenable grounds or exercised to a clearly unreasonable extent. Burr v. Burr, 148 Vt. 207, 531 A.2d 915, 1987 Vt. LEXIS 487 (1987).

In distributing marital property under this section, trial court possesses wide discretion which will not normally be disturbed on appeal without a showing of abuse or withholding of that discretion. Paquette v. Paquette, 148 Vt. 446, 535 A.2d 785, 1987 Vt. LEXIS 524 (1987).

Trial court has broad discretion under this section in the division of property, and in the absence of an abuse of discretion, the decree will stand. Philburt v. Philburt, 148 Vt. 394, 533 A.2d 1181, 1987 Vt. LEXIS 520 (1987).

Trial court has broad discretion in formulating awards dividing marital property. Sullivan v. Sullivan, 147 Vt. 407, 518 A.2d 33, 1986 Vt. LEXIS 430 (1986).

Trial courts have wide discretion in the disposition of property upon divorce. Roberts v. Roberts, 146 Vt. 498, 505 A.2d 676, 1986 Vt. LEXIS 318 (1986).

Trial court’s property disposition upon divorce will not be disturbed, unless the court’s discretion was abused, withheld or exercised on untenable grounds or to a clearly unreasonable extent. Roberts v. Roberts, 146 Vt. 498, 505 A.2d 676, 1986 Vt. LEXIS 318 (1986).

The discretion accorded a court under this section is wide and its decree is not to be overturned without a showing of abuse or withholding of that discretion. Daitchman v. Daitchman, 145 Vt. 145, 483 A.2d 270, 1984 Vt. LEXIS 555 (1984).

Where party challenging trial court’s classification of monthly payments as alimony under section 754 of this title rather than periodic installments of a property settlement under this section failed to prove that the trial court improperly exercised its discretion, or exceeded its bounds in making the classification, the classification would stand. Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983).

The disposition of property upon divorce is a matter of a broad discretion of the trial court, and unless it is shown that such discretion was abused, withheld, or exercised on grounds clearly untenable or to an extent clearly unreasonable, the decree will stand. Victor v. Victor, 142 Vt. 126, 453 A.2d 1115, 1982 Vt. LEXIS 627 (1982); Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983).

Trial courts have wide discretion within the limits of this section in formulating awards of property. Emmons v. Emmons, 141 Vt. 508, 450 A.2d 1113, 1982 Vt. LEXIS 563 (1982); Atwood v. Atwood, 143 Vt. 298, 465 A.2d 1354, 1983 Vt. LEXIS 517 (1983).

Within the bounds of this section, the disposition of property pursuant to a divorce decree is a matter of wide discretion for the trial court, and the supreme court will not disturb such a decree if a reasonable evidentiary basis supports the trial court’s findings and the findings are sufficient to support the conclusions of law. Costello v. Costello, 142 Vt. 124, 453 A.2d 1107, 1982 Vt. LEXIS 622 (1982).

The division of marital property under this section is a matter for the discretion of the trial court, and the trial court’s decree must stand unless an abuse of discretion has occurred. Baird v. Baird, 142 Vt. 115, 454 A.2d 1229, 1982 Vt. LEXIS 644 (1982).

The disposition of property upon divorce is a matter of discretion with the trial court, and, unless an abuse of discretion is demonstrated, its decree must stand. Kinley v. Kinley, 140 Vt. 77, 435 A.2d 698, 1981 Vt. LEXIS 569 (1981).

In distribution of property pursuant to divorce, trial court did not abuse discretion in awarding to each party the personal property in the possession of the party the time of decree, rather than equally dividing the property between the parties. Kinley v. Kinley, 140 Vt. 77, 435 A.2d 698, 1981 Vt. LEXIS 569 (1981).

Divorce decree disposing of marital property by awarding about 60 percent to wife and 40 percent to husband, appealed by wife, who claimed she should have been awarded all or a larger portion of the equity in the homestead, would be affirmed where trial court’s discretion was neither abused nor withheld. Graziano v. Graziano, 139 Vt. 403, 431 A.2d 448, 1981 Vt. LEXIS 491 (1981).

Discretion accorded court disposing of property of divorced couple is wide and is not to be overturned without a showing of abuse or the withholding of that discretion. Colm v. Colm, 137 Vt. 487, 407 A.2d 184, 1979 Vt. LEXIS 1012 (1979), (Decided under prior law.).

Where it did not appear on review that trial court’s great discretion in decreeing disposition of property of divorced couple was withheld, abused, or exercised on grounds clearly untenable or to an extent clearly unreasonable, the decree must stand. Whitcomb v. Whitcomb, 137 Vt. 11, 398 A.2d 305, 1979 Vt. LEXIS 930 (1979).

Property distribution in divorce proceeding is not an exact science and is require only to be equitable, and wide discretion is vested in the trial court. Hogel v. Hogel, 136 Vt. 195, 388 A.2d 369, 1978 Vt. LEXIS 758 (1978).

Unless it appears on review that court’s discretion in division of marital property upon divorce was withheld or abused, the division must stand. Sweeney v. Sweeney, 136 Vt. 199, 388 A.2d 388, 1978 Vt. LEXIS 759 (1978).

Division of marital property upon divorce does not always lend itself to a precise mathematical formula, and though court allegedly stated that the property should be divided equally and ordered division which did not achieve that result, there was no abuse of discretion where record on appeal showed court complied with statute governing property division. Sweeney v. Sweeney, 136 Vt. 199, 388 A.2d 388, 1978 Vt. LEXIS 759 (1978).

The trial court has broad discretion in the disposition of marital property between the parties to a divorce. Senesac v. Senesac, 135 Vt. 24, 370 A.2d 214, 1976 Vt. LEXIS 601 (1976).

Court granting a divorce has wide judicial discretion in disposing of property when there are no minors involved, and one claiming the discretion was wrongfully exercised has the burden of proof. Young v. Young, 134 Vt. 87, 349 A.2d 225, 1975 Vt. LEXIS 337 (1975).

Division of property in divorce proceedings is a matter of wide discretion in the trial court, and the court may decree disposition of such property as it deems just, whether held separately, jointly, or by entirety; and unless such discretion has been withheld or abused, the decree must stand. LaFarr v. LaFarr, 132 Vt. 191, 315 A.2d 235, 1974 Vt. LEXIS 322 (1974).

Upon granting a divorce, the court has a wide discretion and may decree the property as it deems just, whether held separately, jointly or by entirety. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969).

Decree that parties hold ski lodge as tenants in common must stand where facts showed no abuse of court’s discretion in so decreeing. Lafko v. Lafko, 127 Vt. 609, 256 A.2d 166, 1969 Vt. LEXIS 288 (1969).

In fixing amount of award upon dissolution of marriage, court is vested with wide, but judicial, discretion and it is duty of court to give consideration to all facts affecting situation of either party that will be helpful to such determination. Raymond v. Raymond, 120 Vt. 87, 132 A.2d 427, 1957 Vt. LEXIS 70 (1957).

Upon dissolution of marriage, court, under this section and section 754 of this title, may decree to wife such part of real and personal estate of husband, or such sum of money to be paid in lieu thereof, as it deems just. Loeb v. Loeb, 118 Vt. 472, 114 A.2d 518, 1955 Vt. LEXIS 115 (1955).

Division of property is a matter of wide discretion vested in trial court, and the decree must stand on review unless it appears that such discretion has been withheld or abused. Wacker v. Wacker, 114 Vt. 521, 49 A.2d 119, 1946 Vt. LEXIS 102 (1946); Segalla v. Segalla, 129 Vt. 517, 283 A.2d 237, 1971 Vt. LEXIS 300 (1971).

Division of real estate.

Family court’s property division was inequitable in awarding wife half the current equity in the marital home to be paid approximately ten or 11 years later without any provision for interest. Johnson v. Johnson, 163 Vt. 491, 659 A.2d 1149, 1995 Vt. LEXIS 44 (1995).

The division of real estate in a divorce proceeding is a final division of property and such a determination is not subject to the modification provisions applicable to alimony orders. Ellis v. Ellis, 135 Vt. 83, 370 A.2d 200, 1977 Vt. LEXIS 561 (1977).

Duration of marriage.

In the context of a long-term marriage such as the one here, the trial court’s property-division order lacked sufficient analysis balancing the merits of the parties’ contributions over the course of the marriage and their joint decision making with the rest of the statutory factors. Most importantly, the trial court failed to clearly articulate why it awarded the spouse with the greater financial contributions and historically higher earning capacity a larger percentage of the parties’ property in the context of their long-term marriage. Lee v. Ogilbee, 2018 VT 96, 208 Vt. 400, 198 A.3d 1277, 2018 Vt. LEXIS 137 (2018).

Trial court acted within its discretion in not including the parties’ premarital relationship or cohabitation period in calculating the duration of the marriage for equitable distribution and maintenance purposes, as the parties were unemployed or underemployed then and had initially kept their finances separate, and the wife was not financially dependent upon the husband then. MacKenzie v. MacKenzie, 2017 VT 111, 206 Vt. 244, 180 A.3d 855, 2017 Vt. LEXIS 132 (2017).

Engagement ring.

Although trial court dividing marital property must consider origin of engagement ring which husband claimed was a family heirloom, court could award ring to wife, and, absent an abuse of discretion, its award would not be overturned. Williams v. Williams, 158 Vt. 574, 613 A.2d 200, 1992 Vt. LEXIS 75 (1992).

Equitable title.

By filing for divorce, a wife did not acquire equitable title through the property settlement statute to property owned by the husband and therefore was not entitled to a homestead exemption with regard to the mortgage on that property. The family court’s injunction against the alienation of marital property did not affect this result, as it did not give either party a right to any item of property. Brattleboro S&L Ass'n v. Hardie, 2014 VT 26, 196 Vt. 144, 94 A.3d 1132, 2014 Vt. LEXIS 26 (2014).

Expectancy of Spouse.

Husband’s interest in certain farm property was inchoate and thus could not be distributed as marital property, as the husband’s mother retained a life estate and the power to sell or mortgage the property during her lifetime and therefore retained full control over it during her lifetime. This expectancy, however, could be considered with respect to the husband’s opportunity to acquire future assets and income. Coburn v. Cook, 2014 VT 45, 196 Vt. 410, 97 A.3d 892, 2014 Vt. LEXIS 43 (2014).

Factors to be considered.

Likely receipt of future inheritances and trust assets or proceeds may be considered under the subsection of the property distribution statute dealing with “opportunity . . . for future acquisition of capital assets and income.” The statute does not distinguish between different opportunities based on the means by which the opportunity is created. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Necessarily, future assets to be considered under the subsection of the property distribution statute dealing with “opportunity . . . for future acquisition of capital assets and income” are not marital property; otherwise they would be distributed between the parties. Thus, the fact that the beneficiary interest is merely an expectancy during the life of the testator or settlor prevents that interest from being marital property but does not prevent it from being considered under the subsection; indeed, because a property distribution cannot be modified where a change of circumstances occurs, it is necessary to have a grasp of predicted future circumstances to bring about a fair result. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Family court improperly granted a motion in limine that preemptively excluded evidence about the extent of the husband’s potential interest in revocable trusts and wills. These could be considered under the subsection of the property distribution statute dealing with “opportunity. . . for future acquisition of capital assets and income.” Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

In a divorce case, it would have been inappropriate to consider the tax liability on a sale of assets if no asset was to be sold and the husband was to accrue no tax liability. While the husband argued that the trial court failed to exercise its discretion, the court read the trial court’s decision differently—that is, that the trial court was unconvinced that there would be any tax liability and declined to change the property award for this purpose. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

The family court may include as marital assets property that has been placed in other names to avoid distribution to a spouse. Kasser v. Kasser, 2006 VT 2, 179 Vt. 259, 895 A.2d 134, 2006 Vt. LEXIS 2 (2006).

Even though husband violated the family court’s interim order prohibiting the parties from transferring any marital property by withdrawing money from his investment account for his own purposes, the court erred in concluding that his continued trading of stocks was also a violation because his management of the investment account was, for him, business in the ordinary course and not prohibited by the general language of the order. Jenike v. Jenike, 2004 VT 83, 177 Vt. 502, 857 A.2d 798, 2004 Vt. LEXIS 249 (2004) (mem.).

A trial court is required by statute to explain its rationale for awarding funds placed in a retirement account before the marriage and following separation to the employee spouse rather than dividing these funds equally, therefore, where the trial court’s decision contained no discussion of the factors that the statute requires the court to consider in formulating a property settlement, on remand, the court must consider the factors laid out in the statute in making an equitable property settlement. Hayden v. Hayden, 2003 VT 97, 176 Vt. 52, 838 A.2d 59, 2003 Vt. LEXIS 277 (2003).

The court may consider the parties’ liabilities when deciding how to allocate property, but nothing in the statutes mandates that the court determine the parties’ rights with respect to their debts, absent some request to do so. Demgard v. Demgard, 173 Vt. 526, 790 A.2d 383, 2001 Vt. LEXIS 425 (2001) (mem.).

Several factors weigh in favor of giving the mother a larger share of the marital property: she withdrew from the work force for several years to raise the children while the husband went to work and steadily gained earning power, she lost her future ability to earn an income by taking care of the children, she will have to raise two children without earning power, and she is not currently receiving a maintenance award; such factors make the $10,000.00 property settlement in the wife’s favor extremely inequitable. Harris v. Harris, 162 Vt. 174, 647 A.2d 309, 1994 Vt. LEXIS 67 (1994).

Among the factors to be considered by the court in making its decision as to the disposition of property upon divorce are the source of the property, the respective merits of the parties, the conditions with which each would be left by the divorce, the needs of the children and a general equitable result. Lalumiere v. Lalumiere, 149 Vt. 469, 544 A.2d 1170, 1988 Vt. LEXIS 49 (1988).

Among factors to be considered by the court in making its decision as to the disposition of property in divorce matters are source of the property, the respective merits of the parties, the condition with which each would be left by the divorce, the needs of the children and a general equitable result. Kinley v. Kinley, 140 Vt. 77, 435 A.2d 698, 1981 Vt. LEXIS 569 (1981).

Failure to dispose of property.

Where not all the parties’ assets were evaluated by the trial court in dividing the property of parties to divorce proceedings, resulting in an incomplete and unreviewable division, the case would be remanded for reconsideration and division of the marital estate in a manner which was just and equitable and supported by complete findings. Hendrick v. Hendrick, 142 Vt. 357, 454 A.2d 1251, 1982 Vt. LEXIS 652 (1982).

Trial court erred in divorce proceedings in concluding that it could not apportion the interest of one of the parties in a corporation on the ground that the interest was subject to a contract, under the terms of which neither stockholder could see or withdraw his shares without first offering the stock to the other, which the court could not alter; trial courts have number of alternatives in effecting an equitable division of property which afford them with sufficient latitude to fashion a division without altering contractual restrictions on sales of stock. Hendrick v. Hendrick, 142 Vt. 357, 454 A.2d 1251, 1982 Vt. LEXIS 652 (1982).

It was not prejudicial error for court dividing property of parties to divorce to decline to dispose of real estate owned by husband and his brother, conveyed to wife and subject to undischarged attachment. Segalla v. Segalla, 129 Vt. 517, 283 A.2d 237, 1971 Vt. LEXIS 300 (1971).

Failure to present evidence.

Trial court did not abuse its discretion by distributing property pursuant to divorce without first hearing all evidence relevant to the facts set out in this section where failure to present evidence was due to husband’s misunderstanding of the hearing on the merits and his lack of preparation. Ellis v. Ellis, 150 Vt. 650, 552 A.2d 406, 1988 Vt. LEXIS 136 (1988) (mem.).

Family home.

Even if the family court miscalculated the home equity, this minor error was an erroneous nonessential finding that did not require reversal of the court’s property disposition in a divorce case. Casavant v. Allen, 2016 VT 89, 202 Vt. 606, 151 A.3d 1233, 2016 Vt. LEXIS 91 (2016).

When the mother admitted that it was not economically feasible for her to pay for the marital residence by herself and then asked the trial court to award her 70 percent of the equity in the home, the trial court was justified in concluding that she preferred a large percentage of the equity in the home rather than the home itself. Frazer v. Olson, 2015 VT 84, 200 Vt. 13, 127 A.3d 86, 2015 Vt. LEXIS 67 (2015).

Awarding a father an $85,000 share of the equity in the martial home was not excessive. The family court found that the father was entitled to more than just the value of his labor, as he had worked to support the family and care for the children and the mother’s prospects of acquiring additional wealth through inheritance were substantially better than his. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

In dividing the equity in the marital home, the family court did not impermissibly adjudicate the rights of the mother’s parents, who had brought a collection action against the parties. In essence, it allocated any future judgment against the parties in favor of the mother’s parents as a debt owed by the mother only; by so doing it fulfilled its statutory duty to equitably divide and apportion marital assets and liabilities. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

In making its decision involving the parties’ home, the family court did not fail to consider repairs that would have to be made before the home could be sold. It was by no means clear from the mother’s brief testimony on the issue what the nature of the problem with the septic system was, and there was no evidence that it rendered the house unmarketable. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

Family court properly awarded the father an $85,000 share of the equity in the marital home when it found that the marital home was the parties’ only valuable asset and that the father was entitled to receive a share of the equity in order to allow him a stake to continue the task of parenting the parties’ children. Its decision fell within its wide discretion to fashion a schedule for distribution of the marital property. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

Evidence supported the family court’s determination that the parties’ home was a marital asset unencumbered by the claims of the mother’s parents. While the mother’s parents provided the funds to purchase the property as well as substantial additional funding for improvements, there were none of the ordinary indicia associated with a typical loan, as opposed to a gift, and the mother’s parents never demanded repayment until the divorce was set for a contested trial. Paine v. Buffa, 2014 VT 10, 195 Vt. 596, 93 A.3d 90, 2014 Vt. LEXIS 12 (2014).

Chapter 7 debtor was allowed under 11 U.S.C.S. § 522(f) to avoid a judgment lien a bank placed on a house the debtor purchased after he agreed to surrender the marital home to his wife in a divorce action because the lien impaired a homestead exemption the debtor was allowed to claim under Vermont law on his new home. The debtor was allowed under 27 V.S.A. § 109 to protect equity he had in his new home if he acquired the new home with funds derived from a prior homestead, and IRA funds he used to purchase the new home were part of the consideration he received from the disposition of his former homestead because they were part of a global equitable distribution of marital property the state court approved; it did not matter that the debtor obtained a home equity loan on his new home shortly after he purchased the home and used the money to replace funds he took from his IRA. In re Patterson, 482 B.R. 755, 2012 Bankr. LEXIS 5257 (Bankr. D. Vt. 2012).

The court did not abuse its discretion by awarding possession of the marital home to wife where, in reaching its decision, it weighed each party’s contribution to the home’s purchase and construction, as well as evidence of each party’s interest in physical possession of the home. Mizzi v. Mizzi, 2005 VT 120, 179 Vt. 555, 889 A.2d 753, 2005 Vt. LEXIS 301 (2005) (mem.).

There was no abuse of discretion, in a divorce action, in awarding defendant a right of first refusal on the marital residence. Although he did not presently have custody of the children, he did have extensive visitation, and it was not unreasonable for the court to allow defendant to purchase the home to maintain a familiar environment for the children. Nothing in 15 V.S.A. § 751(b) suggests that the court cannot consider its award of parental rights and responsibilities, or parent-child contact, in fashioning its property award. Gazo v. Gazo, 166 Vt. 434, 697 A.2d 342, 1997 Vt. LEXIS 102 (1997).

Trial court in divorce action did not abuse its discretion in awarding marital residence to wife, even though husband had contributed more to value of residence, where court balanced that fact against source and amount of income of parties, need of parties, and nonmonetary contribution of wife as homemaker. Williams v. Williams, 158 Vt. 574, 613 A.2d 200, 1992 Vt. LEXIS 75 (1992).

Trial court did not abuse its discretion to equitably distribute property in divorce proceeding by dividing sole asset jointly owned, the family residence, in equal shares despite evidence of husband’s physical abuse of wife; it appeared from record trial court weighed defendant’s egregious conduct against parties’ relative contributions to acquiring and maintaining property and husband’s ill health. Ward v. Ward, 155 Vt. 242, 583 A.2d 577, 1990 Vt. LEXIS 189 (1990).

It was within trial court’s discretion in divorce proceedings to exclude marginal rental income husband earned on marital residence during pendency of proceedings from property distribution. Ward v. Ward, 155 Vt. 242, 583 A.2d 577, 1990 Vt. LEXIS 189 (1990).

Fault.

In dividing property, the trial court did not err in failing to attribute fault for the breakup of the marriage to the wife based on her infidelity. It found that fault was not a decisive factor, given the conduct of both parties. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

Under subdivision (b)(12) of this section, fault is one of the factors that may be considered by trial court in making an equitable distribution of property. Lewis v. Lewis, 149 Vt. 19, 538 A.2d 170, 1987 Vt. LEXIS 577 (1987).

In the division of property pursuant to a divorce, the fault of the parties is one factor among many which may be considered. Cleverly v. Cleverly, 147 Vt. 154, 513 A.2d 612, 1986 Vt. LEXIS 376 (1986).

Fault of the parties to a divorce action is only one factor among many which may be considered by the trial court in its distribution of property. Victor v. Victor, 142 Vt. 126, 453 A.2d 1115, 1982 Vt. LEXIS 627 (1982).

The mere act of separation by itself cannot be grounds for a finding of fault under this section. Emmons v. Emmons, 141 Vt. 508, 450 A.2d 1113, 1982 Vt. LEXIS 563 (1982).

In a divorce action, trial court’s finding that former wife had abandoned the home was not supported by the evidence where the former wife had testified that she left the home because of irreconcilable differences with her former husband and that her leaving was by mutual consent, and where her former husband testified that he concurred in her decision to leave; merely leaving the homestead in and of itself was not sufficient to justify a finding of fault under this section. Emmons v. Emmons, 141 Vt. 508, 450 A.2d 1113, 1982 Vt. LEXIS 563 (1982).

Fault may be considered in the ascertainment of an equitable division of property in a divorce action. Senesac v. Senesac, 135 Vt. 24, 370 A.2d 214, 1976 Vt. LEXIS 601 (1976).

Financial misconduct.

Trial court can return the disputed assets to the marital estate for purposes of equitable distribution if it finds the expenditures involved financial misconduct, such as intentional waste or selfish financial impropriety, coupled with a purpose unrelated to the marriage. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

Trial court erred when it added $250,000 to the marital estate to reflect the value of improper expenditures by the husband. There were no findings of financial misconduct or intentional waste. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

Findings.

With regard to the property division in a divorce case, the testimony was more than adequate to support the family court’s findings of fact on the many aspects of the husband’s conduct which played a part in its property division. These included not only the fact that he had dissipated marital assets by imprudent spending, but his abusive behavior, excess drinking and extra-marital affairs. Casavant v. Allen, 2016 VT 89, 202 Vt. 606, 151 A.3d 1233, 2016 Vt. LEXIS 91 (2016).

With regard to the classification of educational savings accounts, the trial court’s decision was based on virtually no record, and the parties had made assertions that might be true, but had no support in the evidence. Under the circumstances, the court’s only available course of action was to vacate the decision that the education savings funds were not marital property and remand for further evidentiary development of this issue and a new order with respect to these funds. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

When fashioning an equitable award, the family court must explain the underlying rationale for its decision, which will not be disturbed absent a showing that the court abused its discretion. Wade v. Wade, 2005 VT 72, 178 Vt. 189, 878 A.2d 303, 2005 Vt. LEXIS 155 (2005).

Although divorce court cannot leave basis for its decision on property division to speculation, supreme court will uphold decision where findings reasonably support judgment. Goodrich v. Goodrich, 158 Vt. 587, 613 A.2d 203, 1992 Vt. LEXIS 92 (1992).

This section does not require court to make specific findings on each factor contained in subsection (b). Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Trial court in divorce proceeding was not required to make specific findings as to statutory criteria for property settlement or as to value of the parties’ assets, where the court adopted the parties’ pretrial agreement and stated on the record why it followed the agreement. Bendekgey v. Bendekgey, 154 Vt. 193, 576 A.2d 433, 1990 Vt. LEXIS 70 (1990).

Fraudulent transfers.

In considering the value of all property interests under subdivision (b)(6) of this section, court properly decided to disregard an agreement that would have conveyed marital assets in contemplation of divorce in return for little or no consideration; such an agreement was unenforceable as a fraudulent transfer. Clayton v. Clayton, 153 Vt. 138, 569 A.2d 1077, 1989 Vt. LEXIS 226 (1989).

Harmless error.

Finding that mortgage was in the amount of $27,000 was not supported by the evidence where a mortgagor, the husband in a divorce proceeding, in response to interrogatories prior to trial, state that the mortgage was in the amount $24,000; but distribution of property and alimony award based partly on such finding would be struck down where market value of the property was $200,000 and husband’s equity was thus zero. Hogel v. Hogel, 136 Vt. 195, 388 A.2d 369, 1978 Vt. LEXIS 758 (1978).

Increased earning capacity.

Although increased earning capacity is not itself marital property subject to distribution, in appropriate circumstance contributions to increased earning power by the nonstudent spouse could be a significant factor in determining a fair distribution of marital property. Downs v. Downs, 154 Vt. 161, 574 A.2d 156, 1990 Vt. LEXIS 56 (1990).

Where trial court erroneously considered the increase in earning potential made possible by a professional degree earned during the marriage as an asset of the marriage to be distributed, supreme court vacated and remanded both division of marital property and maintenance award for trial court’s determination of increased earning potential as a relevant factor in maintenance award. Downs v. Downs, 154 Vt. 161, 574 A.2d 156, 1990 Vt. LEXIS 56 (1990).

Liquidation of property.

Family court did not abuse its discretion in valuing marital residence at level within range of values assigned by experts, or in ordering that home be placed on market with method for reducing price by $10,000.00 for each ninety day interval it remained unsold. Mansfield v. Mansfield, 167 Vt. 606, 708 A.2d 579, 1998 Vt. LEXIS 18 (1998) (mem.).

Trial court had power to order sale of husband’s home, purchased after parties’ separation, in order to ensure that maintenance was paid. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

It is within trial court’s discretion to order that marital property held by one or both parties be liquidated and immediately reduced to cash when court finds it necessary to meet immediate needs. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

It was not abuse of trial court’s wide discretion for qualified tax-shelter annuity owned by defendant in divorce action to be liquidated and sold for cash to meet immediate needs. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

Parental rights and responsibilities.

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. Pearson v. Pearson, 169 Vt. 28, 726 A.2d 71, 1999 Vt. LEXIS 12 (1999).

Where award of custody under section 665 of this title was reversed and remanded, division of property based in part on parental rights and responsibilities must also be reversed and remanded. Hansen v. Hansen, 151 Vt. 506, 562 A.2d 1051, 1989 Vt. LEXIS 92 (1989).

Particular awards.

Trial court did not err in awarding a lump-sum payment of $18,000 to the wife as part of its property division award, given its finding that she was in debt because she received minimal support from the husband during the year and a half before the final divorce hearing; moreover, through the wife’s divorce complaint and trial testimony, the husband had sufficient notice that she was seeking spousal maintenance and a lump-sum cash award to help her get started following the divorce, and any error in the way the trial court framed its award was harmless. Noble v. Noble, 2020 VT 105, 251 A.3d 541, 2020 Vt. LEXIS 120 (Vt. 2020).

Trial court did not abuse its discretion in valuing and allocating the husband’s truck and tool business equipment. While the trial court could have exercised its discretion to award the truck and tool equipment to the husband at his agreed value of $75,000, the wife testified that she needed the funds from the sale of these assets to pay marital debts, so the trial court could have reasonably concluded that the best way to ensure that the equipment would be timely sold, and debts correspondingly paid down, would be to award them to the wife. Jaro v. Jaro, 2018 VT 105, 208 Vt. 391, 198 A.3d 1270, 2018 Vt. LEXIS 145 (2018).

Wife had failed to demonstrate that the trial court’s property distribution, including its award of property in lieu of maintenance, was inequitable or unjust. The trial court’s findings and conclusions demonstrated that it was well aware of the husband’s then-current income and prospects, as well as the wife’s limited income and her desire to enroll in a two-year physician’s assistant program the following fall, and it apportioned her a substantial marital estate. MacKenzie v. MacKenzie, 2017 VT 111, 206 Vt. 244, 180 A.3d 855, 2017 Vt. LEXIS 132 (2017).

Remand in an equitable distribution case was required when the court could not be sure that the trial court believed it had the discretion to distribute all of the husband’s deferred compensation earned during the marriage, including for the period after the parties separated, even if it had not vested at the time of the divorce. MacKenzie v. MacKenzie, 2017 VT 111, 206 Vt. 244, 180 A.3d 855, 2017 Vt. LEXIS 132 (2017).

Although the family court was correct to exclude trust assets from the marital estate when the husband’s father changed the beneficiary of his trust to the parties’ son, it properly considered the husband’s lifestyle and the benefits the husband derived from the trust, such as his rent-free use of his parents’ house, when dividing marital property. Collins v. Collins, 2017 VT 70, 205 Vt. 251, 173 A.3d 345, 2017 Vt. LEXIS 85 (2017).

Family court’s property division did not leave the husband in an unreasonable financial circumstance. The husband remained employed with annual wages of $52,000; the family court awarded him a car, the remaining savings of $8000 and a pending personal injury claim; and while the husband was assigned the tax debt, the family court freed him from any further obligation on the home mortgage loan or other expenses related to the marital home. Casavant v. Allen, 2016 VT 89, 202 Vt. 606, 151 A.3d 1233, 2016 Vt. LEXIS 91 (2016).

In a divorce case, the property award was not disproportionate, as the trial court was entitled to give more weight to some factors than to others and to conclude that the wife was entitled to more of the marital property than the husband, given its determination that husband had had affairs, had drank to excess, had been abusive, and had been an undisciplined spender. Casavant v. Allen, 2016 VT 89, 202 Vt. 606, 151 A.3d 1233, 2016 Vt. LEXIS 91 (2016).

Because a car belonging to the husband’s adult son did not belong to either spouse, the trial court erred in treating it as marital property. Coburn v. Cook, 2014 VT 45, 196 Vt. 410, 97 A.3d 892, 2014 Vt. LEXIS 43 (2014).

In determining that the husband of divorcing parties was to be awarded the parties’ pet dog, the treatment of the dog was an appropriate factor upon which to base the decision, as well as the dog’s welfare and its emotional relationship with the parties. Hament v. Baker, 2014 VT 39, 196 Vt. 339, 97 A.3d 461, 2014 Vt. LEXIS 36 (2014).

Allocation of a pet in a divorce is not subject to a custody award following a determination of its best interests because a pet is property; the family division must assign it to one party or the other and like other aspects of the property division, the assignment is final and generally not subject to modification. Hament v. Baker, 2014 VT 39, 196 Vt. 339, 97 A.3d 461, 2014 Vt. LEXIS 36 (2014).

Award of approximately 57 percent of the marital estate to the wife was well within the trial court’s discretion, given the wife’s homemaker role throughout the course of the long-term marriage and the fact that the wife was receiving marital property in lieu of a maintenance award. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

In dividing property, the trial court did not show bias against a husband by assigning to him all of the liability associated with an aging commercial property used as a manufacturing facility for one of his businesses. In assigning the debt solely to the husband, the trial court noted the possibility of the property eventually turning a profit and also the wife’s outstanding attorney’s fee obligation beyond that awarded by the trial court. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

Reversal and remand were required in a divorce case when the trial court’s property division decision was based on a mistaken understanding that the wife had agreed to the husband keeping the equity in the home and not on an equitable division of the property. Furthermore, on remand, the trial court had to provide an explanation for how it distributed the personal property. Hanson-Metayer v. Hanson-Metayer, 2013 VT 29, 193 Vt. 490, 70 A.3d 1036, 2013 Vt. LEXIS 27 (2013).

Maintenance arrearage was a debt that could be reallocated by the family court in its final decree. The family court was well within its discretion in determining that it was equitable to nullify the arrearage. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Trial court properly found that a settlement agreement was equitable. It considered the parties’ lengthy marriage, the fact that the husband had a much greater ability than the wife to generate income and acquire assets, and the fact that absent the agreement, the wife would be entitled to a large maintenance award; it also provided the husband ample opportunity to present evidence regarding the financial consequences of enforcing the agreement. Camara v. Camara, 2010 VT 53, 188 Vt. 566, 998 A.2d 1058, 2010 Vt. LEXIS 50 (2010) (mem.).

In a divorce case, the trial court properly enforced the parties’ settlement agreement. The wife had unconditionally accepted the husband’s offer, and her attempt to include indemnification and mutual release provisions in a draft was not a counteroffer, but merely an attempt to modify the existing contract. Camara v. Camara, 2010 VT 53, 188 Vt. 566, 998 A.2d 1058, 2010 Vt. LEXIS 50 (2010) (mem.).

When one party’s mother owned a 50 percent interest in the couple’s house, the fundamental flaw in the family court’s equity determination was its application of the couple’s outstanding debt on the mortgage against the fair market value of the house, rather than against the value of the couple’s interest in the house. When the couple’s debt was properly accounted for, it became apparent that the couple had no equity in the house; the error was not harmless, because this “equity” was found to be the parties’ largest asset, and it was awarded to defendant along with the obligation to pay the parties’ debt to her mother. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

Trial court did not abuse its discretion in dividing the value of the parties’ assets equally when it considered the statutory factors and concluded that an equitable division would be for the wife to receive ownership of the house and the husband ownership of his business, with the payment of an equalization amount by the husband because the business was more valuable than the house. Moreover, with respect to the comparative merit of the parties, the trial court concluded that the primary cause of the marital breakup was the husband’s controlling and abusive behavior, including threats of violence. Gravel v. Gravel, 2009 VT 77, 186 Vt. 250, 980 A.2d 242, 2009 Vt. LEXIS 82 (2009).

Because the family court was in the best position to assess the merits of the parties’ contentions, and its decision addressed the relevant statutory factors, it could not be said that the court abused its discretion in fashioning the property award giving wife approximately ninety percent of the marital property. Wade v. Wade, 2005 VT 72, 178 Vt. 189, 878 A.2d 303, 2005 Vt. LEXIS 155 (2005).

Trial court did not err in considering, for distribution purposes, parties’ entire fifteen year relationship rather than only four years they were legally married, or in considering defendant’s inherited stock portfolio as a marital asset to be distributed. Wall v. Moore, 167 Vt. 580, 704 A.2d 775, 1997 Vt. LEXIS 266 (1997) (mem.).

In a divorce action, the court did not improperly award wife $12,000, a sum equal to one-third of the equity in the property, as her share in the marital home, as, although the home was given to the parties by husband’s parents to benefit their son, the contributions of each party to the marital estate were essentially equivalent. Also the parties had already divided the personal property, each receiving property of nearly equivalent value. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996).

Where trial court’s only explanation as to why former wife was awarded only 12.5 percent of the total value of marital assets at issue was the marriage was fairly short and that nearly all of the assets were originally attributable to former husband, but failed to take into account that former wife left her home state and her employment there, that she withdrew from the work force and served as homemaker for two years of the marriage, that former husband’s earning capacity was considerably greater than hers, and that she would have to find a suitable place to live since former husband was awarded the homeplace, and no specific findings as to the percentage of the increase in marital assets during the marriage were made, case was remanded for court to make a clear statement as to why the disparity in the property awarded was so significant. Dreves v. Dreves, 160 Vt. 330, 628 A.2d 558, 1993 Vt. LEXIS 54 (1993).

Property distribution in divorce action which resulted in wife receiving martial assets valued at $141,000 while husband’s share was $43,170 was not erroneous where husband benefitted materially from wife’s ownership of stock in closely held company while not contributing to enhancing its value and husband was awarded marital home, the only substantial asset joint acquired during the marriage. Goodrich v. Goodrich, 158 Vt. 587, 613 A.2d 203, 1992 Vt. LEXIS 92 (1992).

Uneven distribution of marital property in favor of wife was not an abuse of discretion where husband had opportunity to receive future income from irrevocable trust, wife had a relatively lower earning capacity, and where the respective merits of the parties supported uneven distribution. Chilkott v. Chilkott, 158 Vt. 193, 607 A.2d 883, 1992 Vt. LEXIS 36 (1992).

Where trial court in divorce action awarded marital residence to wife, subject to $25,000 lien payable to husband upon wife’s remarriage, sale of the property, or when their daughter became eighteen years of age, it abused its discretion in failing to award husband interest during the passage of time until husband realized his $25,000 share. Williams v. Williams, 158 Vt. 574, 613 A.2d 200, 1992 Vt. LEXIS 75 (1992).

Where trial court’s findings with respect to distribution of marital property provided a clear statement as to what was decided and why and evinced sufficient consideration of statutory factors, distribution which resulted in roughly a 65%-35% split in favor of husband did not amount to an abuse of discretion. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Where trial court in divorce action ordered that the former wife be awarded 8.4 acres of a 14.4-acre parcel of real estate acquired during the marriage and that the remaining 6 acres, divided into three 2-acre parcels with a suitable right of way be awarded to the former husband, sold, and the proceeds invested and the interest used to pay child support, since there was no evidence that the parcel could be divided into one 8.4 and three 2-acre lots, the 2-acre parcels had not been surveyed, the necessary easement had not been laid out, none of the sites had been checked to determine if they had a sufficient water supply or to ascertain the feasibility of installing septic system, and the sale of the lots would be subject to zoning approval which had not been applied for, the trial court’s order was incapable of performance an, therefore, constituted an abuse of discretion. Atwood v. Atwood, 143 Vt. 298, 465 A.2d 1354, 1983 Vt. LEXIS 517 (1983).

Action of trial court, in dividing the property of the parties in a divorce proceeding by awarding the home and furnishings of the parties, valued at $25,000 to the husband and awarding the wife only $5,000 deferred payment for her interest in the property, did not constitute an abuse of discretion in light of the husband’s preponderance of contribution to the existing equity and the burden of support left to him under the divorce decree and in light of the infidelities and misconduct of the wife. Jackson v. Jackson, 139 Vt. 548, 432 A.2d 1181, 1981 Vt. LEXIS 525 (1981).

Where, in divorce proceeding, wife received homestead and furnishings valued at $45,000, securities and bank accounts valued at $15,000 and $4,800 alimony, and husband received securities worth $11,000, 1971 Oldsmobile, note with $76,000 due on it, which was of doubtful value, hunting camp valued at $10,000 but encumbered by $5,300 mortgage, and part ownership of resort valued at $20,000 but with a $24,000 mortgage encumbrance on it, and, though both husband and wife had contributed to increased value of homestead and property with $76,000 note on it husband had originally contributed both to the marriage, property distribution was not an abuse of discretion. Hogel v. Hogel, 136 Vt. 195, 388 A.2d 369, 1978 Vt. LEXIS 758 (1978).

Where alimony and child support order gave wife all but $222.798 a week of husband’s monthly salary of $893.05 and it appeared that husband had no other income, the order appeared on its face to be inequitable and perhaps impossible of compliance, and where there were no findings the cause would be remanded for a rehearing, the preparation of findings, and a new alimony, child support and property disposition order, and that appellant husband had not requested findings did not prevent the grant of relief. Cleary v. Cleary, 134 Vt. 181, 353 A.2d 334, 1976 Vt. LEXIS 625 (1976).

Where parties in divorce action had real estate worth $30,000 and husband was awarded a $143,000 tort settlement during the action of loss of future earnings, incurred in motorcycle accident, and wife had minimal education, few employment skills and was granted custody of three minor children, award to wife $12,500 for her interest in real estate and $8,500 lump sum in lieu of alimony was within courts’ discretion. Bero v. Bero, 134 Vt. 533, 367 A.2d 165, 1976 Vt. LEXIS 722 (1976).

Order for equal division of property of divorced parties would be overturned where lower court had concluded that the absence of liquidity placed both parties in a very precarious financial position and therefore the properties should be equally divided, for neither the absence of liquidity nor the precarious financial position of the parties justified the equal division and neither was contained in this section stating what the court should consider when disposing of property; and the order would be overturned even though the same result might have been reached without the improper conclusion and even though statutory factors was considered, where the absence of liquidity apparently received greater consideration. Young v. Young, 134 Vt. 87, 349 A.2d 225, 1975 Vt. LEXIS 337 (1975).

Property division and alimony order giving wife homestead and husband cottage, ordering husband to make $16,500 remaining mortgage payments and keep up life and health insurance policies with wife as beneficiary, and ordering husband, who had net after tax income of over $33,000 the previous year, to pay wife, who had net after tax income of over $33,000 the previous year, the pay wife, who had no job training and a very minor income, $1,000 alimony per month, would stand where not shown to be an abuse or withholding of the trial court’s wide discretion. Peisch v. Peisch, 132 Vt. 514, 321 A.2d 67, 1974 Vt. LEXIS 380 (1974).

Husband was erroneously awarded the real estate of parties to divorce where evidence clearly established a 50-50 partnership between them. Mandigo v. Mandigo, 128 Vt. 446, 266 A.2d 434, 1970 Vt. LEXIS 252 (1970).

Pension plans.

The court erred when it failed to consider the entire monetary value of defendant’s retirement accounts at the time of the final hearing as assets to be distributed between the parties. Hayden v. Hayden, 2003 VT 97, 176 Vt. 52, 838 A.2d 59, 2003 Vt. LEXIS 277 (2003).

When a court apportions a pension between parties to a divorce, it must apply a coverture fraction to reflect the proportion of the entire pension attributable to the marriage; the coverture fraction reflects the proportion of the entire pension attributable to the marriage. Hayden v. Hayden, 2003 VT 97, 176 Vt. 52, 838 A.2d 59, 2003 Vt. LEXIS 277 (2003).

Pension rights acquired by party to divorce during course of marriage constitute marital property and are subject to equitable distribution along with other assets, since money was either deposited at party’s option or by employer in lieu of higher compensation which would otherwise have enhanced marital standard of living; there is no general barrier to distribution of pensions as marital assets. Milligan v. Milligan, 158 Vt. 436, 613 A.2d 1281, 1992 Vt. LEXIS 72 (1992).

Trial court did not err in a divorce action in considering former husband’s pension plan as a factor in arriving at an equitable property distribution. Victor v. Victor, 142 Vt. 126, 453 A.2d 1115, 1982 Vt. LEXIS 627 (1982).

Presumptions.

Supreme court must presume trial court had in mind fact husband against whom divorce was granted was $8,000 in debt when it made property division, even though there was no finding as to the debts, where evidence of the debts had been given. Segalla v. Segalla, 129 Vt. 517, 283 A.2d 237, 1971 Vt. LEXIS 300 (1971).

Procedure.

Trial court lacked authority to impose an enforceable visitation order for divorcing parties’ dog because a property division order was final and not subject to modification, and unlike child custody matters, there was no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal. Hament v. Baker, 2014 VT 39, 196 Vt. 339, 97 A.3d 461, 2014 Vt. LEXIS 36 (2014).

Family division had exclusive jurisdiction over the division of the marital property of parties whose marriage was annulled due to having been deemed void at its inception. Cameron v. Rollo, 2014 VT 40, 196 Vt. 346, 97 A.3d 454, 2014 Vt. LEXIS 37 (2014).

Statutory authority of the family division to divide marital property extends to cases of annulment, divorce, and legal separation. Cameron v. Rollo, 2014 VT 40, 196 Vt. 346, 97 A.3d 454, 2014 Vt. LEXIS 37 (2014).

Where wife sought an appropriate disposition of property in her divorce complaint; where at trial her counsel asked for permission to submit wife’s requests in writing as opposed to having her testifying about them, husband indicated no objection, and the court granted the request; where the written requests were submitted on time and included the request for the home; and where in the two and one-half months following submission of the requests, husband never objected to the request for the award of the home or sought to put on new evidence, husband had fair notice of the procedure and the request and there was no error because the request for the home came after the evidentiary hearing. Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261, 1995 Vt. LEXIS 57 (1995).

Vermont’s property distribution statute requires the court to equitably divide and assign the property and sets out twelve factors that the court may consider; the trial court has wide discretion in considering these factors and need not specify the weight given to each factor but is required only to provide a clear statement as to what was decided and why, and its decision will be upheld unless its discretion was abused, withheld, or exercised on clearly untenable grounds. Jakab v. Jakab, 163 Vt. 575, 664 A.2d 261, 1995 Vt. LEXIS 57 (1995).

Property settlement in lieu of or in addition to maintenance.

When the family court made a combined property and maintenance award that provided the wife with an income stream of essentially the same amount per month from the date of the divorce and indefinitely thereafter, the awards were to be viewed as a package. The family court did this by providing the full monthly amount through maintenance until the anticipated date of the husband’s retirement and thereafter through retirement pension income supplemented by a small amount of maintenance. Molleur v. Molleur, 2012 VT 16, 191 Vt. 202, 44 A.3d 763, 2012 Vt. LEXIS 15 (2012).

Family court did not abuse its considerable discretion in awarding the wife 75 percent of the marital portion of the husband’s military pension, which amounted to a little over 40 percent of his total pension, in order to create an income stream that would meet the wife’s minimum needs above her employment income. The husband was entitled to be credited for his greater relative contributions and merits, while the length of the marriage and the asymmetry in the parties’ circumstances and future prospects suggested a distribution to the wife, and the court found no basis to second-guess the family court’s choice of the balancing point. Molleur v. Molleur, 2012 VT 16, 191 Vt. 202, 44 A.3d 763, 2012 Vt. LEXIS 15 (2012).

The statute governing maintenance contemplates that the family court will devise an equitable property settlement, taking into account the factors under this section, including fault, before it considers whether the financial circumstances of the parties justify an award of maintenance. Jenike v. Jenike, 2004 VT 83, 177 Vt. 502, 857 A.2d 798, 2004 Vt. LEXIS 249 (2004) (mem.).

Although property and maintenance issues are related, the considerations justifying a property settlement are different from those grounding maintenance awards, and they must not be confused in the final analysis. Jenike v. Jenike, 2004 VT 83, 177 Vt. 502, 857 A.2d 798, 2004 Vt. LEXIS 249 (2004) (mem.).

Where divorce action was remanded for consideration of a maintenance awarded, property award would also be reopened because of the interrelationship of those two parts of the financial order. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Court is required to look at interrelationship of property disposition and maintenance determination. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Determination of whether the property settlement is in lieu of or in addition to maintenance is a factor the court may consider when dividing the property. DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986).

Property division was vacated, where court’s findings were insufficient to support maintenance award, and there was nothing in the record to indicate whether court had consider the maintenance award in determining the property division. DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986).

Recrimination.

Where, in divorce action, defendant entered into evidence facts relating to plaintiff wife’s moral conduct after filing of divorce action and paternity of plaintiff’s children, such evidence was limited to question of property distribution, which is governed by principles of equity regardless of the grounds of divorce, and as such is separate and apart from that portion of the decree which grants divorce, and section 562 of this title, regarding recrimination, did not apply and evidence was properly admitted. Allen v. Allen, 132 Vt. 182, 315 A.2d 459, 1974 Vt. LEXIS 320 (1974).

Respective merits of parties.

The court was justified in determining that “the respective merits of the parties” favored neither husband nor wife where it was shown that both parties engaged in extramarital affairs. Mizzi v. Mizzi, 2005 VT 120, 179 Vt. 555, 889 A.2d 753, 2005 Vt. LEXIS 301 (2005) (mem.).

Family court does not abuse its discretion by including a party’s conduct during coverture, including involvement in an extramarital relationship, as one of the factors influencing a property award. Weaver v. Weaver, 173 Vt. 512, 790 A.2d 1125, 2001 Vt. LEXIS 381 (2001) (mem.).

One of the purposes of subdivision (b)(12) of this section is to call the court’s attention to the fact that the award should take into account the equities as measured in connection with the parties’ conduct during coverture. Cleverly v. Cleverly, 147 Vt. 154, 513 A.2d 612, 1986 Vt. LEXIS 376 (1986).

Subdivision (b)(12) of this section, listing “the respective merits of the parties” as a relevant factor to be considered, is designed to call the court’s attention to the fact that the award should take into account the equities as measured in connection with the parties’ conduct during coverture. Daitchman v. Daitchman, 145 Vt. 145, 483 A.2d 270, 1984 Vt. LEXIS 555 (1984); Plante v. Plante, 148 Vt. 234, 531 A.2d 926, 1987 Vt. LEXIS 486 (1987).

Separate property.

Where the court determined that while wife’s name was listed with those of her sister and mother on each of deeds, wife’s mother was the actual owner of the properties in question, and found that wife’s mother had placed the names of her daughters on the deeds to avoid probate, and that both daughters understood that wife’s mother retained “full authority to maintain, sell, lease or otherwise dispose of” the properties as she saw fit, the court did not abuse its discretion by looking behind the deeds and refusing to award any portion of these properties to husband. Mizzi v. Mizzi, 2005 VT 120, 179 Vt. 555, 889 A.2d 753, 2005 Vt. LEXIS 301 (2005) (mem.).

A husband has no vested or “homestead” right in real estate standing in the name of his wife such that it cannot be taken from him without compensation; there is no requirement in any law which mandates that compensation must be paid to the former owner before title is vested in the judgment beneficiary of a divorce order, and such a requirement would render meaningless the court’s power under this section to distribute the marital assets in whatever manner it finds just and equitable regardless of the prior owner. Condosta v. Condosta, 142 Vt. 117, 453 A.2d 1128, 1982 Vt. LEXIS 633 (1982).

Stipulations of parties.

Agreements between the parties can be set aside only for grounds sufficient to set aside a contract: fraud, unconscionable advantage, impossibility of performance, hampering circumstances beyond the expectations of the parties, collusion, or duress. Boisclair v. Boisclair, 2004 VT 43, 176 Vt. 646, 852 A.2d 617, 2004 Vt. LEXIS 111 (2004).

Even if a distribution was not entirely fair to wife, both parties entered into the agreement voluntarily, and the fact that wife might have negotiated a more advantageous bargain was not grounds to set aside an otherwise valid agreement. Boisclair v. Boisclair, 2004 VT 43, 176 Vt. 646, 852 A.2d 617, 2004 Vt. LEXIS 111 (2004).

Even if there is a stipulation between the parties dividing marital property, the court must make an independent termination of whether the distribution is equitable. Poulin v. Upham, 149 Vt. 24, 538 A.2d 181, 1987 Vt. LEXIS 572 (1987).

In disposing of marital property, trial court is not bound by stipulations between the parties, but acts within its discretion in making a different disposition of the property based on evidence before it. Lewis v. Lewis, 149 Vt. 19, 538 A.2d 170, 1987 Vt. LEXIS 577 (1987).

In disposing of marital property, trial court should give great weight to any agreements between the parties. Lewis v. Lewis, 149 Vt. 19, 538 A.2d 170, 1987 Vt. LEXIS 577 (1987).

Where parties, during pendency of their divorce proceedings, entered into a temporary property settlement agreement which, by conveyance to another who then reconveyed back to the parties, resulted in apportionment to husband of far more valuable real property than to wife, lower court’s refusal to be bound by the agreement was correct, because both parties regarded it as temporary and, in divorce actions, court has absolute right to decree such disposition of property as appears just and equitable. Rudin v. Rudin, 132 Vt. 30, 312 A.2d 736, 1973 Vt. LEXIS 251 (1973).

Trial court making final order and decree in case where wife was granted divorce did not have to honor stipulation entered into by the parties three days after divorce petition was served on husband or temporary court order following the terms of the stipulation. Segalla v. Segalla, 129 Vt. 517, 283 A.2d 237, 1971 Vt. LEXIS 300 (1971).

Trust property.

Husband’s beneficial interest in irrevocable trusts was marital property. The property distribution statute states that all property owned by either or both of the parties shall be subject to the jurisdiction of the court, and this is true even if title to the interest is exclusively in the name of one party. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

That the family court discussed the interests in irrevocable trusts as being the husband’s interests did not indicate that it did not consider them part of the marital estate; it merely meant that the family court correctly understood that the husband, and not the wife, was the named beneficiary of these trusts. Neither did the fact that the family court ultimately decided to distribute the interest in these trusts to the husband indicate that the family court determined the trusts were not part of the marital estate; this distribution merely meant that the family court determined it was equitable to allocate these assets to the husband as part of the division of the marital estate. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Despite a pretrial order awarding her $5,000 from the husband for this purpose, the wife failed to produce a valuation expert for the two irrevocable trusts in issue, leaving the family court without adequate evidence to arrive at valuations. It was within the family court’s discretion to determine that it lacked the requisite evidence to accurately determine the value of husband’s interests in the two trusts, and it was within its discretion to distribute the two irrevocable trusts to the husband. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

Husband’s interest in a revocable trust was not marital property during the life of the settlor. Billings v. Billings, 2011 VT 116, 190 Vt. 487, 35 A.3d 1030, 2011 Vt. LEXIS 119 (2011).

In divorce action, husband’s contingent remainder interest irrevocable trust was marital property subject to distribution. Chilkott v. Chilkott, 158 Vt. 193, 607 A.2d 883, 1992 Vt. LEXIS 36 (1992).

Husband’s future remainder interest in irrevocable trust had an ascertainable present value of distribution in divorce action where the husband’s interest was contingent on the death of his 87-year-old mother, the trust would become worthless only if the principal was exhausted for his mother’s care, and the mother had never drawn on the corpus of the trust. Chilkott v. Chilkott, 158 Vt. 193, 607 A.2d 883, 1992 Vt. LEXIS 36 (1992).

Property in a trust created by a spouse who retains a power of revocation in marital property subject to equitable distribution. Lynch v. Lynch, 147 Vt. 574, 522 A.2d 234, 1987 Vt. LEXIS 424 (1987).

If trust property is “owned” within the meaning of subsection (a) of this section, trial court may in its equitable discretion order the trust revoked and consider the trust property as marital property subject to equitable distribution. Lynch v. Lynch, 147 Vt. 574, 522 A.2d 234, 1987 Vt. LEXIS 424 (1987).

Undistributed inheritance.

A court may consider an undistributed inheritance among the total economic circumstances of both parties under this section. Osborn v. Osborn, 147 Vt. 432, 519 A.2d 1161, 1986 Vt. LEXIS 439 (1986).

During formulation of appropriate property settlement in divorce action, court should have considered husband’s undistributed share of his mother’s estate, since under this section, court was required to settle the rights of the parties to all of their property. Osborn v. Osborn, 147 Vt. 432, 519 A.2d 1161, 1986 Vt. LEXIS 439 (1986).

Valuation of property.

Trial court’s finding concerning the value of the husband’s accounts receivable was supported by the evidence. The trial court reasonably assigned a value that reflected a deep discount over the face value of the accounts receivable, while also accounting for the husband’s lack of effort to collect them. Jaro v. Jaro, 2018 VT 105, 208 Vt. 391, 198 A.3d 1270, 2018 Vt. LEXIS 145 (2018).

Trial court should have valued the parties’ marital property as close to the date of the final divorce hearing as possible, not the date of the parties’ separation. Valuing the parties’ retirement funds and other marital property as of the time the parties separated in December 2015, rather than when the trial court held the final hearing in September 2017, might mean the trial court did not accurately consider the entire monetary value of the parties’ marital assets. Lee v. Ogilbee, 2018 VT 96, 208 Vt. 400, 198 A.3d 1277, 2018 Vt. LEXIS 137 (2018).

Trial court did not err with regard to its distribution of retirement assets and a house that the father co-owned with his aunt. The trial court’s conclusions that the marriage was of short duration and that both parties had an opportunity for future income and inheritance of additional assets were relevant to its order awarding the retirement account to the mother and setting off the value of an anticipated inheritance against increases in that account; it weighed the father’s anticipated receipt of his aunt’s interest in the home against the retirement account’s increase in value and awarded him a sum of money from that account. MacCormack v. MacCormack, 2015 VT 64, 199 Vt. 233, 123 A.3d 383, 2015 Vt. LEXIS 41 (2015).

In dividing the parties’ property, the trial court erred in using a hypothetical real-estate commission to reduce the value of the father’s payout from the increase in the home’s equity, as the fact that there would be no sale in the refinancing scenario meant that the inclusion of the hypothetical real-estate commission had the effect of directly modifying the value of the asset being awarded. MacCormack v. MacCormack, 2015 VT 64, 199 Vt. 233, 123 A.3d 383, 2015 Vt. LEXIS 41 (2015).

Whether or not a lease was negotiated at arm’s length, it represented the source of income for the property owners now and for some period in the future. Thus, in a divorce case, the trial court properly considered it in valuing the property by the income capitalization method. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

In a divorce case, the trial court properly concluded that a lease rate was within market range, as its decision was based on record evidence that the lease was fair to both parties involved. Moreover, whether the lease was above market rate was not determinative of its use in valuating a partnership interest, unless the rate somehow undermined the finding that a business would remain a tenant. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

In valuing property in a divorce case, the trial court’s finding that a business would remain a tenant for seven years was supported by the evidence. The business had an option to renew for the remainder of the seven years; the building was one of the largest commercial buildings in the county and had been modified three times to meet the unique needs of the business; the cost for the business to move to a new building would be substantial and would require a substantial amount of time; and no witness testified that a move was likely for any reason. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

In a divorce case, the trial court properly refused a minority discount to the husband, who owned a one-third interest in a partnership. While the husband did not have a controlling interest in the partnership, he was certainly the most important of the three equal partners because he had effective control of the corporate tenant from which the income was derived; reducing the value of the partnership interest, while the husband received full income from the partnership based on full valuation, would be unfair to the wife. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

On appeal from a divorce case, the wife repeated the arguments she made to the family court as to why it should reject the opinion of husband’s expert as to valuation and adopt that of her expert. These arguments were properly made to the trial court, but were out of place on appeal; the trial court had the discretion to accept the expert’s opinion as it did. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

Where the family court found that a nursery school operated by the wife in her home had value to her because it provided a modest livelihood and personal fulfillment, the court did not err in its finding that the school had no market value. Wade v. Wade, 2005 VT 72, 178 Vt. 189, 878 A.2d 303, 2005 Vt. LEXIS 155 (2005).

Where the court’s primary reasons for awarding the residence to wife were to provide a homeplace for the children and to give her something in lieu of maintenance in light of husband’s greater earning capacity, the absence of precision in valuation of the property was harmless. Mills v. Mills, 167 Vt. 567, 702 A.2d 79, 1997 Vt. LEXIS 240 (1997) (mem.).

Under this section, the court may consider the contribution of a spouse to the depreciation in value of property, and where wife used her revoked power of attorney to refinance the marital home and spent all the proceeds from the financing, the court properly considered this conduct in making its property disposition. However, the court cannot award more of the marital estate than exists, so where the evidence failed to demonstrate that the amount awarded actually existed, the property settlement and maintenance award were vacated. Schwartz v. Selden-Schwartz, 165 Vt. 499, 685 A.2d 665, 1996 Vt. LEXIS 94 (1996).

As a general proposition, marital assets should be valued as close to the date of trial as possible; however, this proposition does not hold that trial courts are obligated to accept automatically the more recent of two appraisals since the appellate court does not intend to restrict what evidence is admissible, or can be relied upon, to determine that valuation. Kanaan v. Kanaan, 163 Vt. 402, 659 A.2d 128, 1995 Vt. LEXIS 19 (1995).

Best method of valuation of closely held company in divorce action will necessarily depend on particular facts and circumstances. Goodrich v. Goodrich, 158 Vt. 587, 613 A.2d 203, 1992 Vt. LEXIS 92 (1992).

Supreme court would not mandate single methodology for determining value of interest in closely held company in divorce action. Goodrich v. Goodrich, 158 Vt. 587, 613 A.2d 203, 1992 Vt. LEXIS 92 (1992).

Where divorce court’s valuation of stock of closely held company, which accepted wife’s view that valuation should reflect what a willing buyer would pay for the stock from a willing seller, was supported by credible evidence in record, it was not clearly erroneous. Goodrich v. Goodrich, 158 Vt. 587, 613 A.2d 203, 1992 Vt. LEXIS 92 (1992).

Trial court erred in valuation of limited partnerships awarded wife in divorce case, since it was unsupported by evidence; because change in valuation of partnerships could affect positions of parties in property distribution, and require reconsideration of maintenance award, entire decree, except granting of divorce, was remanded. Johnson v. Johnson, 158 Vt. 160, 605 A.2d 857, 1992 Vt. LEXIS 32 (1992).

Although the trial court may consider the potential tax when establishing the amount and method of any monetary award, the court does not consider the basis in the property when determining the value of the asset. Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162, 1992 Vt. LEXIS 130 (1992).

Trial court distributes property that has appreciate in value as an asset worth its present value at the time of the property division. Mabee v. Mabee, 159 Vt. 282, 617 A.2d 162, 1992 Vt. LEXIS 130 (1992).

Where $392,000 valuation of husband’s share of business was within the range of evidence presented in divorce action, trial court was within its discretion to arrive at this figure. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Trial court did not err in failing to add almost $400,000 in case which husband’s business had on hand at the time it was valued for property settlement where court could conclude that the cash was considered by the expert witnesses in valuing the business. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Marital assets should be valued as close to date of trial as possible. Albarelli v. Albarelli, 152 Vt. 46, 564 A.2d 598, 1989 Vt. LEXIS 128 (1989).

It is an abuse of discretion for trial court to premise its division of marital property on outdated valuations of the assets involved; an equitable distribution, as mandated by subsection (a) of this section, cannot be achieved by relying on stale valuation data. Cleverly v. Cleverly, 151 Vt. 351, 561 A.2d 99, 1989 Vt. LEXIS 71 (1989).

Where neither party offered any evidence of the value of husband’s law practice, trial court’s determination that the practice was property of undetermined value to be distributed to husband and to be considered for its income in assessing the appropriateness of an award of maintenance to wife was correct. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Voluntary reduction of income and assets.

In making a property distribution, court properly concluded that plaintiff could not legally benefit from voluntarily reducing his income and assets where there appeared to be no rational business purpose and where the result would be in derogation of the rights of the wife and child. Clayton v. Clayton, 153 Vt. 138, 569 A.2d 1077, 1989 Vt. LEXIS 226 (1989).

Cited.

Cited in Justis v. Rist, 159 Vt. 240, 617 A.2d 148, 1992 Vt. LEXIS 141 (1992); Belanger v. Belanger, 148 Vt. 202, 531 A.2d 912, 1987 Vt. LEXIS 488 (1987); Helm v. Helm, 148 Vt. 336, 534 A.2d 196, 1987 Vt. LEXIS 515 (1987); Quesnel v. Quesnel, 150 Vt. 149, 549 A.2d 644, 1988 Vt. LEXIS 127 (1988), Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989); Nevitt v. Nevitt, 155 Vt. 391, 584 A.2d 1134, 1990 Vt. LEXIS 242 (1990); Bassler v. Bassler, 156 Vt. 353, 593 A.2d 82, 1991 Vt. LEXIS 95 (1991); Justis v. Rist, 159 Vt. 240, 617 A.2d 148, 1992 Vt. LEXIS 141 (1992); Bell v. Bell, 162 Vt. 192, 643 A.2d 846, 1994 Vt. LEXIS 56 (1994); Cabot v. Cabot, 166 Vt. 485, 697 A.2d 644, 1997 Vt. LEXIS 101 (1997); Gamache v. Smurro, 2006 VT 67, 180 Vt. 113, 904 A.2d 91, 2006 Vt. LEXIS 151 (2006).

Law Reviews —

For article, “The Rhetoric of Marriage, Achievement, and Power: An Analysis of Judicial Opinions Considering the Treatment of Professional Degrees as Marital Property,” see 21 Vt. L. Rev. 409 (1996).

For note relating to powers and role of side judges in the legislative and judicial branches of government, see 10 Vt. L. Rev. 321 (1985).

§ 752. Maintenance.

In an action under this chapter, the court may order either spouse to make maintenance payments, either rehabilitative or long term in nature, to the other spouse if it finds that the spouse seeking maintenance:
1. lacks sufficient income or property, or both, including property apportioned in accordance with section 751 of this title, to provide for his or her reasonable needs; and
2. is unable to support himself or herself through appropriate employment at the standard of living established during the civil marriage or is the custodian of a child of the parties.
The maintenance order shall be in such amounts and for such periods of time as the court deems just, after considering all relevant factors, including:
1. the financial resources of the party seeking maintenance, the property apportioned to the party, the party’s ability to meet his or her needs independently, and the extent to which a provision for support of a child living with the party contains a sum for that party as custodian;
2. the time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
3. the standard of living established during the civil marriage;
4. the duration of the civil marriage;
5. the age and the physical and emotional condition of each spouse;
6. the ability of the spouse from whom maintenance is sought to meet his or her reasonable needs while meeting those of the spouse seeking maintenance;
7. inflation with relation to the cost of living;
8. the impact of both parties reaching the age of eligibility to receive full retirement benefits under Title II of the federal Social Security Act or the parties’ actual retirement, including any expected discrepancies in federal Social Security Retirement benefits; and
9. PARASTAT=“s” DESISTAT=“”>the following guidelines:
  Click to view

PARASTAT=“s” DESISTAT=“”>Length of marriage % of the difference Duration of alimony award PARASTAT=“s” DESISTAT=“”> between parties’ as % length of marriage PARASTAT=“s” DESISTAT=“”> gross incomes PARASTAT=“s” DESISTAT=“”>0 to <5 years 0-16% No alimony PARASTAT=“s” DESISTAT=“”> or short-term alimony PARASTAT=“s” DESISTAT=“”> up to one year PARASTAT=“s” DESISTAT=“”>5 to <10 years 12-29% 20-50% (1-5 yrs) PARASTAT=“s” DESISTAT=“”>10 to <15 years 16-33% 40-60% (4-9 yrs) PARASTAT=“s” DESISTAT=“”>15 to <20 years 20-37% 40-70% (6-14 yrs) PARASTAT=“s” DESISTAT=“”>20+ years 24-41% 45% (9-20+ yrs)

HISTORY: Amended 1981, No. 247 (Adj. Sess.), § 7; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2017, No. 60 , § 2, eff. June 5, 2017; 2019, No. 40 , § 6; 2019, No. 131 (Adj. Sess.), § 300.

History

Source.

V.S. 1947, § 3242. P.L. § 3153. 1929, No. 49 , § 2. G.L. § 3588. P.S. § 3096. V.S. § 2690. R.L. § 2380. G.S. 70, § 32. R.S. 63, § 34. 1805, p. 166. R. 1797, p. 335, § 12.

Revision note—

Substituted “section 751 of this title” for “section 751” in subdiv. (a)(1) to conform reference to V.S.A. style.

Amendments

—2019. Subsec. (a): Substituted “long term” for “permanent” in the introductory paragraph.

Subsec. (b): Deleted “and” at the end of subdiv. (b)(7), added subdiv. (b)(8), redesignated former subdiv. (b)(8) as present subdiv. (b)(9), in subdiv. (b)(9), substituted “16%” for “20%” preceding “No alimony”, substituted “12-29%” for “15-35%”, substituted “16-33%” for “20-40%”, substituted “4” for “3” preceding “-9 yrs”, substituted “20-37%” for “24-45%”, and substituted “24-41%” for “30-50%”.

—2017. Subdiv. (a)(1): Substituted “or” for the comma following “income”.

Subsec. (b): Added a comma following “factors” and deleted “, but not limited to” following “including”.

Subdiv. (b)(6): Deleted “and” following “maintenance;”.

Subdiv. (b)(7): Substituted “; and” for a period following “living”.

Subdiv. (b)(8): Added.

—1981 (Adj. Sess.). Section amended generally.

Repeal of subdiv. (b)(9). 2017, No. 60 , § 3, as amended by 2017, No. 203 (Adj. Sess.), § 1, effective May 30, 2018 and 2019, No. 131 (Adj. Sess.), § 300, provides that subdiv. (b)(9) of this section is repealed effective July 1, 2021. Previously, 2017, No. 60 , § 3 had provided for the repeal of this subdivision [previously subdiv. (b)(8)] on July 1, 2019, and 2017, No. 203 (Adj. Sess.), § 1 had extended the date of that repeal until July 1, 2021. 2019, No. 131 (Adj. Sess.), § 300 corrected the subdiv. reference included in 2017, No. 60 and 2017, No. 203 (Adj. Sess.) to account for the redesignation of subdiv. (b)(8) as subdiv. (b)(9) by 2019, No. 40 , § 6 and retained the July 1, 2021 repeal date.

Repeal of subdiv. (b)(9) sunset. 2017, No. 60 , § 3, as amended by 2017, No. 203 (Adj. Sess.), § 1 and 2019, No. 131 (Adj. Sess.), § 300, and which had provided for the repeal of subdiv. (b)(9), effective July 1, 2021, was repealed by 2021, No. 65 , § 3, effective June 7, 2021.

CROSS REFERENCES

Award and modification of maintenance supplement, see § 661 of this title.

ANNOTATIONS

Ability to pay.
Amount.
Antenuptial agreements.
Automatic adjustment provisions.
Bankruptcy.
Burden of proof.
Construction.
Discretion of court.
Duration of marriage.
Effective date of order.
Enforcement.
Factors to be considered.
Findings.
Form of payment.
Insurance.
Jurisdiction.
Particular awards.
Permanent maintenance.
Pleadings.
Property distribution.
Purpose.
Reasonable needs.
Rehabilitative maintenance.
Request.
Review.
Right to maintenance.
Separation agreement.
Stipulations.
Time limit.

Ability to pay.

Although defendant husband argued that family court failed to find that he had the ability to pay maintenance award, court acted reasonably and within its discretion where defendant conceded that he expected to earn $24,000 a year working only three days a week, and although court made no findings on his present living expenses or his anticipated future expenses, defendant proposed none and repeatedly refused to respond to plaintiff’s discovery requests for financial information. Soutiere v. Soutiere, 163 Vt. 265, 657 A.2d 206, 1995 Vt. LEXIS 12 (1995).

Amount.

In granting alimony from the real and personal estate of a spouse, the court is limited by the definition of the term “estate” to the total net value of the estate at the time of the decree, so that where alimony in gross award was twenty-two times the size of husband’s estate it would be vacated. Hammond v. Hammond, 134 Vt. 318, 360 A.2d 71, 1976 Vt. LEXIS 663 (1976) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Antenuptial agreements.

In the absence of evidence of fraud or unconscionable advantage taken at the time of execution of a prenuptial agreement, the parties themselves are bound according to the terms of the contract, and the court will override their provisions only to enforce duties imposed by law sought to be avoided by contract, or, in particular, to protect the interests of children involved. Padova v. Padova, 123 Vt. 125, 183 A.2d 227, 1962 Vt. LEXIS 209 (1962) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Promissory note executed and delivered by man to woman whom he subsequently marries, which is expressed to be in consideration of intended marriage, and in full payment of all that she, or her heirs or assigns, will ever claim against his estate and which he has paid according to its terms, does not contemplate divorce through fault of husband, nor, in event of such divorce, prevent court from awarding her alimony. Carter v. Carter, 76 Vt. 190, 56 A. 989, 1904 Vt. LEXIS 120 (1904) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Antenuptial contract between husband and wife that neither shall claim any right in property which other may have at time of marriage, or may acquire during coverture, will not bar wife of alimony upon obtaining a divorce for wilful refusal to support. Sterns v. Sterns, 66 Vt. 187, 28 A. 875, 1893 Vt. LEXIS 26 (1893) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Automatic adjustment provisions.

If cost-of-living adjustments to a permanent maintenance award are to be every third year, they should adjust based on the inflationary changes over the intervening three year period. Molleur v. Molleur, 2012 VT 16, 191 Vt. 202, 44 A.3d 763, 2012 Vt. LEXIS 15 (2012).

There is no single way to comply with the requirement that in applying an automatic inflation adjustment to a permanent maintenance award, the payor’s income be considered. Molleur v. Molleur, 2012 VT 16, 191 Vt. 202, 44 A.3d 763, 2012 Vt. LEXIS 15 (2012).

Conflicting escalation clauses in a modification order rendered future adjustments unworkable. While the trial court must consider inflation with relation to the cost of living when fashioning a maintenance order, the order must clearly articulate the formula for doing so. Braun v. Greenblatt, 2007 VT 53, 182 Vt. 29, 927 A.2d 782, 2007 Vt. LEXIS 82 (2007).

Under 15 V.S.A. § 752(b)(7) , the trial court must consider inflation with relation to the cost of living when fashioning a maintenance order, and the trial court’s failure to do so without a valid reason is cause for reversal and remand on this issue. Bell v. Bell, 162 Vt. 192, 643 A.2d 846, 1994 Vt. LEXIS 56 (1994).

Escalation clause in maintenance award, regardless of particular factor escalation is based upon, is not an authorization for a prospective modification without requisite showing of real, substantial and unanticipated change of circumstances. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

Trial court did not abuse its wide discretion to fashion maintenance award by trying escalation clause to defendant’s income; since award was based on wife’s contribution as well as her support needs, it was appropriate that maintenance increase in relation to defendant’s enhanced standard of living, and in light of history of acrimony between parties and defendant’s noncompliance with earlier orders, escalation clause would give wife a secure starting point from which defendant could, at a later date, argue the award had become unfair. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

When an order for child support or spousal maintenance which includes an automatic adjustment provision providing for changes in the cost of living should set forth a simple and workable formula which can be used each year to determine what the change in the payments will be; the formula must provide for adjustments to be made in a manner which is based on readily obtainable information, and should also provide for situations in which the payor’s income does not keep pace with inflationary increases in the cost of living. Roya v. Roya, 145 Vt. 488, 494 A.2d 132, 1985 Vt. LEXIS 321 (1985).

Bankruptcy.

Discharge in insolvency does not bar proceeding to enforce decree for alimony made before filing of petition. Noyes v. Hubbard, 64 Vt. 302, 23 A. 727, 1892 Vt. LEXIS 39 (1892) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Burden of proof.

Party appealing award of maintenance has the burden of showing that there is no reasonable basis to support the award. Quesnel v. Quesnel, 150 Vt. 149, 549 A.2d 644, 1988 Vt. LEXIS 127 (1988).

Party seeking to overturn a maintenance award must show that there is no reasonable basis to support the trial court’s award of maintenance. DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986).

Defendant who appeals trial court’s award of alimony has the burden of showing that there is no reasonable basis to support the award. Buttura v. Buttura, 143 Vt. 95, 463 A.2d 229, 1983 Vt. LEXIS 476 (1983).

Construction.

In this section, the word “spouse” means a party to the marriage. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

Discretion of court.

It was not an abuse of discretion for the court to consider defendant’s past earnings to predict his future income because although defendant contended that the trial court erroneously determined that he had the ability to pay maintenance because it wrongfully imputed his income using his former $65,000 salary, the trial court found that defendant voluntarily quit his job and was underemployed as a real estate salesman at the time of trial, defendant testified that while he had not received any real estate commissions to date, he had listed several homes and sold one, and defendant’s own testimony was that he would take over his father’s real estate business for a quicker income and a better income and he claimed that the sky could be the limit. Kohut v. Kohut, 164 Vt. 40, 663 A.2d 942, 1995 Vt. LEXIS 60 (1995).

There was no abuse of discretion in family court’s distribution which gave defendant husband roughly forty percent of the marital assets because family court based its award on a careful consideration of each of the factors specified in 15 V.S.A. § 751(b) and it used the property award to reimburse wife for $11,680 husband owed under the temporary order for maintenance, property taxes on the house, and reimbursement of wife’s medical bills; subtracting out this reimbursement, the distribution was close to fifty percent each. Soutiere v. Soutiere, 163 Vt. 265, 657 A.2d 206, 1995 Vt. LEXIS 12 (1995).

Determination of the needs of both parties, and the amount to be met through maintenance payments, is within the discretion of the trial court and will not be set aside absent a demonstration of abuse of that discretion. Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989).

Trial court has broad discretion in determining the amount and duration of maintenance once grounds for award are established under statutory criteria, and a maintenance award will be set aside only if there is no reasonable basis to support it. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

An award of maintenance is subject to the trial court’s discretion and will not be set aside absent a demonstration of abuse of that discretion. McCrea v. McCrea, 150 Vt. 204, 552 A.2d 392, 1988 Vt. LEXIS 144 (1988).

Under this section, the trial court may award alimony as it deems just, having due regard to the circumstances of the parties, and the trial court has wide discretion in the matter; corrective action is warranted only where such discretion has been improperly exercised, or has exceeded its bounds. Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Where party challenging trial court’s classification of monthly payments as alimony under this section rather than periodic installments of a property settlement under section 751 of this title failed to prove that the trial court improperly exercised its discretion, or exceeded its bounds in making the classification, the classification would stand. Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983).

Lower court has wide discretion as to nature of property division pursuant to divorce. Culver v. Culver, 133 Vt. 191, 332 A.2d 799, 1975 Vt. LEXIS 365 (1975) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Decree for alimony in divorce proceedings is a matter of wide discretion in the trial court, and unless such discretion has been withheld or abused, the decree must stand. LaFarr v. LaFarr, 132 Vt. 191, 315 A.2d 235, 1974 Vt. LEXIS 322 (1974) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Upon dissolution of marriage, the court may, under this section and section 754 of this title, decree to wife such part of real and personal estate of husband, or such sum of money to be paid in lieu thereof, as it deems just. Loeb v. Loeb, 118 Vt. 472, 114 A.2d 518, 1955 Vt. LEXIS 115 (1955) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Upon dissolution of marriage, court may decree to wife such part of husband’s property, or such sum of money in lieu thereof, as it deems just, having regard for circumstances of parties, respectively; in fixing amount of award, court is vested with a wide, but judicial, discretion; in determining what will be a just award it is duty of court to give consideration to all facts affecting situation of either party that will be helpful to such determination. Whitcomb v. Whitcomb, 115 Vt. 331, 58 A.2d 814, 1948 Vt. LEXIS 75 (1948) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

In fixing amount of award to wife upon dissolution of marriage, trial court is vested with wide discretion, and its decision therein is not ordinarily subject to review, but if court declines to consider material fact, well proved, or makes what is manifestly an unjust award, supreme court will correct error. Shaw v. Shaw, 99 Vt. 356, 133 A. 248, 1926 Vt. LEXIS 146 (1926) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Duration of marriage.

Effective date of order.

The effective date of any maintenance order should be left to the sound discretion of the trial court, and court may create a retroactive order and establish an arrearage. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

Maintenance order which calculated arrearage due from date of temporary order when final order that superseded it was held to be of no effect, but which lacked evidence trial court knowingly exercised its discretion in establishing that the effective date of the permanent award, was remanded, and since court had offset arrearages against equity in marital home, affected property award was also remanded. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

Enforcement.

County court may enforce a decree for payment of permanent alimony by imprisonment for contempt. Andrew v. Andrew, 62 Vt. 495, 20 A. 817, 1889 Vt. LEXIS 128 (1889); Curtis v. Gordon, 62 Vt. 340, 20 A. 820, 1890 Vt. LEXIS 127 (1890) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Factors to be considered.

Spousal maintenance guidelines calculation, while important, is not presumptive; that is, a court need not justify a departure from the guideline range. However, like any other statutory factor, the court must consider the guideline spousal maintenance range in fashioning its spousal maintenance award. Jaro v. Jaro, 2018 VT 105, 208 Vt. 391, 198 A.3d 1270, 2018 Vt. LEXIS 145 (2018).

In awarding spousal maintenance, the trial court did not err in departing from the guidelines, as it considered the guidelines and chose to weigh other factors and considerations more heavily. Jaro v. Jaro, 2018 VT 105, 208 Vt. 391, 198 A.3d 1270, 2018 Vt. LEXIS 145 (2018).

Pension is just another type of income-producing asset; thus, pension income is always an important factor in determining whether alimony should be paid and how much either spouse should receive. Any source of income is material to such a determination. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Vermont adheres to the majority rule that in considering the amount of maintenance to award, or whether to modify a maintenance order, the family court may include as income to the obligor any income derived from assets, including a pension, awarded to the obligor in the property distribution. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

The purpose of compensatory alimony is to compensate the recipient spouse for contributions made during the marriage, not after. It is precisely for this reason that the duration of the marriage is such a critical factor. Braun v. Greenblatt, 2007 VT 53, 182 Vt. 29, 927 A.2d 782, 2007 Vt. LEXIS 82 (2007).

While the court must consider the expenses of both spouses, including their current tax obligations and estimates of their future tax obligations, in setting the amount of the maintenance award, it cannot simply shift an expense from one party to another regardless of future fluctuations and call it spousal maintenance. Braun v. Greenblatt, 2007 VT 53, 182 Vt. 29, 927 A.2d 782, 2007 Vt. LEXIS 82 (2007).

The court may award maintenance, either rehabilitative or permanent, to a spouse when it finds that the spouse lacks sufficient income, property, or both, including property distributed pursuant to the divorce decree, to “provide for his or her reasonable needs” and the spouse is unable to support himself or herself “through appropriate employment at the standard of living established during the marriage.” The maintenance must be in the amount and for the duration the court deems just, based on the consideration of seven nonexclusive factors. Kasser v. Kasser, 2006 VT 2, 179 Vt. 259, 895 A.2d 134, 2006 Vt. LEXIS 2 (2006).

Where the trial court explicitly grounded its maintenance decision on an impermissible factor, husband’s bad conduct, the case was remanded for the court to consider wife’s request for maintenance anew without taking into account husband’s fault for ending the marriage. Jenike v. Jenike, 2004 VT 83, 177 Vt. 502, 857 A.2d 798, 2004 Vt. LEXIS 249 (2004) (mem.).

This section contemplates that the family court will devise an equitable property settlement, taking into account the factors under 15 V.S.A.§ 751, including fault, before it considers whether the financial circumstances of the parties justify an award of maintenance. Jenike v. Jenike, 2004 VT 83, 177 Vt. 502, 857 A.2d 798, 2004 Vt. LEXIS 249 (2004) (mem.).

In awarding maintenance, the trial court is required to consider the property division between the parties pursuant to statutory requirements. Hayden v. Hayden, 2003 VT 97, 176 Vt. 52, 838 A.2d 59, 2003 Vt. LEXIS 277 (2003).

Trial court properly considered earnings of divorce defendant’s current wife, as this income related to defendant’s present financial situation, and established that defendant did not have unforeseen financial obligations resulting from his new marriage. Wardwell v. Clapp, 168 Vt. 592, 720 A.2d 862, 1998 Vt. LEXIS 230 (1998) (mem.).

A couple may, if they are able to obtain credit and choose to do so, live an extravagant lifestyle that they cannot afford, but such a financial arrangement cannot last forever, and it can rarely last beyond a divorce, when property and income must be split to support two households, despite the requirement that the court consider the standard of living established during the marriage. Indeed, the wife’s financial demands proved this point well. The court correctly concluded that these demands were “unreasonable.” Cabot v. Cabot, 166 Vt. 485, 697 A.2d 644, 1997 Vt. LEXIS 101 (1997).

Trial court did not err by failing to fashion a maintenance award based on the exact standard of living established during the marriage where the parties agreed that they lived beyond their means and were constantly borrowing money and receiving substantial assistance from defendant’s parents and because it was unlikely that such a lifestyle was sustainable after the divorce. Kohut v. Kohut, 164 Vt. 40, 663 A.2d 942, 1995 Vt. LEXIS 60 (1995).

In determining the amount and period of time for which maintenance is to be awarded, the court must consider a number of factors, including the reasonable needs of the recipient and the standard of living established during the marriage. Kohut v. Kohut, 164 Vt. 40, 663 A.2d 942, 1995 Vt. LEXIS 60 (1995).

Restitution for past homemaker contributions, while not recognized by 15 V.S.A. § 752(b) , has been recognized by the Vermont Supreme Court. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Although husband contended that trial court erred in considering past homemaker contributions of wife since there was no evidence of extent of such contribution, there was no error in court’s application of this nonmonetary contribution factor because homemaker contributions are, by their nature, nonmonetary and cannot be quantified and court found that wife delayed her education and entry into job market in order to raise parties’ children while they were infants, parties jointly decided that wife should work in school system, rather than in other employment, with higher remuneration, in order to care for children and manage home, and wife’s occupation enabled her to stay home during summer. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

15 V.S.A. § 752(b)(1) does not prohibit award that gives to party income higher than his or her reasonable needs because need is only one of factors to be considered. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Equalizing the parties’ financial status for an appropriate period is a proper purpose; however, courts have not favored the use of formulas for determining maintenance awards; particularly disfavored are awards requiring one spouse to pay a percentage of gross or net income to the other spouse. Delozier v. Delozier, 161 Vt. 377, 640 A.2d 55, 1994 Vt. LEXIS 26 (1994).

A maintenance award must fall within flexible confines of this section which authorizes award where spouse cannot meet his or her reasonable needs and either is the custodial parent or is unable to maintain the standard of living established during the marriage. Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114, 1990 Vt. LEXIS 113 (1990).

When one spouse obtains a professional degree during the marriage, but the marriage ends before the benefits of the degree can be realized, the future value of the professional degree is relevant factor to be considered in reaching a just and equitable maintenance award. Downs v. Downs, 154 Vt. 161, 574 A.2d 156, 1990 Vt. LEXIS 56 (1990).

Reasonable basis for trial court’s award of rehabilitative maintenance for five years existed where wife’s career had been set back by relocation to further husband’s career; rehabilitative maintenance would help equalize the parties’ financial status and provide for wife’s reasonable needs in light of standard of living established during marriage. Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114, 1990 Vt. LEXIS 113 (1990).

While it is within the trial court’s discretion to terminate maintenance payments upon remarriage, remarriage is not one of the factors the trial court is statutorily mandated to consider and does not automatically justify a termination of such payments. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Trial court’s failure to provide for termination of maintenance award upon wife’s remarriage was not an abuse of discretion; remarriage would not necessarily improve her financial security and husband could seek modification of the order if remarriage did increase her income so that a real and substantial change of circumstances was present. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Where trial court erroneously considered the increase in earning potential made possible by a professional degree earned during the marriage as an asset of the marital property and maintenance award for trial court’s determination of increased earning potential as a relevant factor in maintenance award. Downs v. Downs, 154 Vt. 161, 574 A.2d 156, 1990 Vt. LEXIS 56 (1990).

Defendant failed to show that no reasonable basis existed to support trial court’s award of maintenance to defendant, where the trial court gave due consideration to inter alia, the property distribution made, defendant’s future earning capacity, the parties’ joint and the individual debts, plaintiff’s ability to pay, and the stand of living established during the marriage. Coor v. Coor, 155 Vt. 32, 580 A.2d 500, 1990 Vt. LEXIS 128 (1990).

Need for spousal support must be judged not in relation to subsistence, but in relation to standard of living established during marriage. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Trial court’s failure to consider income from law practice was abuse of discretion, where law practice was not considered in property distribution. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Fact that husband was potentially prosperous was not determinative of the amount of the maintenance award, since future earning are relevant only to the ability to pay the assessed amount. Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989).

Findings.

Divorce decree which failed to award maintenance payments was reversed, where there were no findings by the trial court establishing the marital standard of living, and no finding as to whether the failure to award maintenance deprived defendant wife of income sufficient to minimize the financial impact of the divorce. Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989).

In divorce proceeding, trial court that awarded wife rehabilitative maintenance was not required to make specific finding that husband was capable of making maintenance payments where such finding was not requested in husband’s post-judgment motion. Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114, 1990 Vt. LEXIS 113 (1990).

Form of payment.

Court in its discretion could decree alimony to be paid in money, though bill prayed that it be satisfied out of real estate. Foster v. Foster, 56 Vt. 540, 1884 Vt. LEXIS 90 (1884) (Decided under 15 V.S.A. § 6754 prior to 1981 (Adj. Sess.) amendment.).

Insurance.

It was within the court’s discretion to order a party to maintain life insurance naming the other party as beneficiary; however, Vermont law does not require life insurance to effect indirectly what 15 V.S.A. § 752 does not mandate directly—the continuation of maintenance after the death of either party; where husband was ordered to continue an existing life insurance policy with wife as beneficiary until he was 65, it was not an abuse of discretion to decline to order more. Bell v. Bell, 162 Vt. 192, 643 A.2d 846, 1994 Vt. LEXIS 56 (1994).

Jurisdiction.

Ordering payment of money as alimony, and granting of alimony in any form, being but an incident to granting of divorce, court ordinarily, unless divorce is granted, has no power or jurisdiction to grant permanent alimony. Loeb v. Loeb, 118 Vt. 472, 114 A.2d 518, 1955 Vt. LEXIS 115 (1955) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Order for payment of alimony is in its nature personal and without personal service in state where made or appearance of petitionee is subject to infirmities of ex parte judgment, should its enforcement against petitionee be sought in foreign jurisdiction; however, if proceeding is such that property of petitionee in this state is thereby brought before court and within its control, such order is valid to extent of such property, though court does not have jurisdiction of person of petitionee. In re Callahan’s Estate, 115 Vt. 128, 52 A.2d 880 (1947), amendment.) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

In divorce proceedings court has no jurisdiction to decree payment of money as alimony where petitionee is a nonresident, has no notice except by publication, and does not appear. Smith v. Smith, 74 Vt. 20, 51 A. 1060, 1901 Vt. LEXIS 105 (1901) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Particular awards.

Award of nominal maintenance was within the trial court’s discretion when the trial court imposed the nominal maintenance award in the event unanticipated circumstances justified a later maintenance award——specifically that the husband would come out of retirement and again begin earning substantial income. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874, 2013 Vt. LEXIS 34 (2013), dismissed, (Vt. Super. Ct. 2015).

Family court did not err in awarding permanent maintenance to the wife. The evidence plainly demonstrated that the wife had extremely limited financial prospects, in marked contrast to the husband, and would need financial assistance to live independently or even approach the standard of living established during the marriage. Molleur v. Molleur, 2012 VT 16, 191 Vt. 202, 44 A.3d 763, 2012 Vt. LEXIS 15 (2012).

Family court was required to amend its automatic inflation-adjustment provision, which stated that the $500 permanent maintenance award to the wife be increased automatically every three years “by 7.5%, or 3 times the annual CPI index for the most recent year, whichever is greater.” The family court’s formula did not actually track inflationary increases in the cost of living and did not take into account the possibility that the husband’s income might fail to keep pace with the inflationary increases. Molleur v. Molleur, 2012 VT 16, 191 Vt. 202, 44 A.3d 763, 2012 Vt. LEXIS 15 (2012).

Family court plainly relied on its property allocation in declining to award spousal maintenance to defendant; it noted that she had received a favorable apportionment of the assets of the marriage. In view of the court’s determination that the family court erred in apportioning the couple’s property, the maintenance decision had to be vacated and remanded. DeLeonardis v. Page, 2010 VT 52, 188 Vt. 94, 998 A.2d 1072, 2010 Vt. LEXIS 48 (2010).

In a divorce case, the husband had a good prospect of continuing to grow his business and, therefore, his income, while the wife’s opportunities for advancement were very limited. Because the trial court considered the 13-year length of the marriage, the role the wife played during the marriage, and the income she was likely to obtain in relation to the standard of living set in the marriage, and designed an award to achieve the appropriate purposes of maintenance, the time-limited award of maintenance to the wife was just in light of all the facts and circumstances of this case and within the trial court’s discretion. Gravel v. Gravel, 2009 VT 77, 186 Vt. 250, 980 A.2d 242, 2009 Vt. LEXIS 82 (2009).

After excluding the property award from husband’s monthly expenses, the trial court did roughly equalize the parties’ living standards in its maintenance award to the wife; offsetting the husband’s property equalization payments against maintenance would give the husband, who had been awarded the entire ownership of his business, double credit for paying his obligation. Further, because of the increased cost of maintaining two households post-divorce, it was only reasonable that both parties had to lower their expenses and standard of living; while the reasonable needs of a party were determined in light of the standard of living established during the marriage, if the income of the parties was unable to support that standard of living, both parties had to lower their expenses and adjust accordingly. Gravel v. Gravel, 2009 VT 77, 186 Vt. 250, 980 A.2d 242, 2009 Vt. LEXIS 82 (2009).

There was no merit to a husband’s argument that the trial court erred in not awarding the wife ownership of his business in lieu of maintenance. While the family court had the discretion to make an award of property in lieu of maintenance, it was not required to do so; here, the trial court could have concluded that leaving the husband and the wife joined in a business relationship was untenable. Gravel v. Gravel, 2009 VT 77, 186 Vt. 250, 980 A.2d 242, 2009 Vt. LEXIS 82 (2009).

Wife had failed to show that the family court abused its broad discretion in arriving at its maintenance award. For the most part, the wife failed to direct the trial court to the maintenance issues she raised for the first time in her cross-appeal. Drumheller v. Drumheller, 2009 VT 23, 185 Vt. 417, 972 A.2d 176, 2009 Vt. LEXIS 27 (2009).

Where husband was awarded stock options worth over $1,400,000, many of which were vested, and it was reasonable to expect that these assets would earn income, this income was required to be considered in determining an appropriate maintenance award. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

Where the family court awarded no child support but awarded spousal support up to specified dates, the court’s failure to make a separate child support award made it impossible to determine the amount actually intended for maintenance, and whether there was a reasonable basis to support it. Weaver v. Weaver, 173 Vt. 512, 790 A.2d 1125, 2001 Vt. LEXIS 381 (2001) (mem.).

Family court did not abuse its discretion in limiting wife’s award of permanent maintenance to payment of her health insurance; there was no need for precise specification of the parties’ living standard and, contrary to wife’s argument, court did consider interrelationship between its property award and the need for maintenance. Stalb v. Stalb, 168 Vt. 235, 719 A.2d 421, 1998 Vt. LEXIS 248 (1998).

Family court did not abuse its discretion in denying mother permanent maintenance and awarding her rehabilitative maintenance for a period of eight years, where mother was an intelligent and sophisticated person who had been able to develop business skills outside of home, was still relatively young and not burdened by ill health, standard of living during marriage had been modest, and court concluded that mother would eventually succeed on her own, either in her own business or other employment, to achieve an independent middle class lifestyle. Begins v. Begins, 168 Vt. 298, 721 A.2d 469, 1998 Vt. LEXIS 254 (1998).

Trial court did not exceed its discretion in declining to award spousal maintenance to defendant based on its conclusion that maintenance was inappropriate since standard of living enjoyed by both parties exceeded that experienced during majority of marriage, and since there was no significant disparity in earning potential between parties. Wall v. Moore, 167 Vt. 580, 704 A.2d 775, 1997 Vt. LEXIS 266 (1997) (mem.).

There was a reasonable basis for the court’s decision to award maintenance and findings regarding the reasonable needs of plaintiff were sufficient to support a mere $500 a month maintenance award because plaintiff’s need to resort to public assistance demonstrated an obvious lack of personal income, property, or both, thereby justifying a maintenance award under 15 V.S.A. § 752(a) . Kohut v. Kohut, 164 Vt. 40, 663 A.2d 942, 1995 Vt. LEXIS 60 (1995).

Where plaintiff submitted her child support guideline information she had supplied in support of the temporary award of $600 per month, the findings that the couple enjoyed an income of $65,000 per year during the marriage, that plaintiff required welfare assistance after the marriage, and that plaintiff’s income would never equal defendant’s were adequate to support the $500 per month maintenance award against an attack by defendant, who benefited from such a nominal award. Kohut v. Kohut, 164 Vt. 40, 663 A.2d 942, 1995 Vt. LEXIS 60 (1995).

In context of divorce decree awarding wife 50 percent of husband’s retirement and social security benefits, relevant provision established a clear overall scheme under which wife’s 50 percent share of husband’s benefits on the date of the 1984 order accrued, that is, was fixed and established as a base, and the word accrue was intended to refer to amounts credited to that base. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

Date of 1984 order was focal date after which retirement benefits attributable to the parties’ marriage were to be calculated and set as a base, with benefits to be calculated and awarded upon the husband’s subsequent retirement. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

The 1984 order, allowing wife to share in 50 percent of any increase or decrease in husband’s retirement benefits accrued to August 1, 1984, and caused by market fluctuations, acknowledged that the future might enhance or diminish wife’s base and the risks were to be shared; contrary to husband’s argument, use of the word “fluctuations” implied growth. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

Husband’s argument that, because 1984 divorce order treated his retirement benefits as income for purposes of determining alimony and not as marital property, wife was not entitled to any growth in the base amount was misplaced since ultimately it was the agreement terms, and not the characterization of the benefit, that determined the allocation of growth in the value of the retirement account between the date of the 1984 order and the date of retirement. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

The family court erred in calculating wife’s portion of husband’s retirement benefits as if husband had retired in 1990 at age sixty-five, rather than upon his actual retirement in 1993 at age sixty-eight. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

The family court erred in basing wife’s portion of husband’s retirement benefits on the $814 figure recited in the 1984 order as the possible or likely total monthly benefit, rather than on the total actual appreciated value of the account at the date of retirement; figures in that order were merely examples of potential appreciation at different retirement ages. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

Parties’ opting for their own version of the deferred distribution or reserved jurisdiction method of distributing a spouse’s pension, rather than the immediate offset method, negated suggestion that parties intended to match pre- and post-retirement alimony amounts; the election implied potential benefits and detriments to both parties, insulating wife from the vagaries of husband’s decision as to when to retire, and husband benefiting in not having to pay an immediate lump sum to wife but rather paying a fixed dollar amount while employed and a post-retirement amount based on the fortunes of the retirement account. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

Under the terms of 1984 divorce order, Social Security payments to which wife was entitled should have been based on the value of the Social Security account on the date of husband’s retirement in 1993 at age sixty-eight. Sachs v. Sachs, 163 Vt. 498, 659 A.2d 678, 1995 Vt. LEXIS 45 (1995).

Trial court erred in requiring husband to pledge his interest in his law firm or purchase life insurance policy in equivalent amount in order to secure maintenance payments to wife in event husband died before his retirement age of sixty-five years because court order attempted to effect indirectly, through life insurance, what 15 V.S.A. § 752 does not mandate directly, continuation of maintenance after death of party. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Where, prior to separation, couple was living on after-tax income of approximately $130,000 per year and spending most of it, $33,000 was attributable to wife, both parties attained maximum vocational skills and employability, and husband’s earning capacity would grow at faster rate as he approached retirement, trial court acted within its discretion in awarding maintenance of $1,000 per month to wife. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Trial court’s finding that defendant was entitled only to rehabilitative maintenance since she would be able to obtain some sort of job was not supported by sufficient findings because there was no finding that the job would produce an income that would enable defendant to live at the standard established during the marriage, nor was there any consideration of defendant’s long-term contribution as a homemaker and primary caretaker of the children. Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 1993 Vt. LEXIS 58 (1993).

Trial court did not abuse discretion by awarding maintenance to husband in divorce decree, equalizing parties’ income during wife’s lifetime while giving wife substantial assets, since wife was party through whom property was acquired and maintenance award balanced decree. Johnson v. Johnson, 158 Vt. 160, 605 A.2d 857, 1992 Vt. LEXIS 32 (1992).

Trial court did not abuse its discretion in determining future value of professional degree in both amount and duration of maintenance award; court considered value of future benefits to be derived from degree, anticipated expenses to be incurred in obtaining those benefits, parties’ incomes employability, duration of marriage, and most importantly, court focused on standards of living enjoyed by parties. Downs v. Downs, 159 Vt. 467, 621 A.2d 229, 1993 Vt. LEXIS 8 (1993).

Trial court properly awarded permanent maintenance to homemaker wife in divorce proceeding, where there existed at the time of the first hearing a vast inequality between the parties’ financial positions, wife’s health was poor, wife’s prospects for even remotely approaching husband’s earning capacity were slim, and this section specifically permitted trial court to award permanent maintenance as it deemed just. Russell v. Russell, 157 Vt. 295, 597 A.2d 798, 1991 Vt. LEXIS 182 (1991).

Rehabilitative maintenance award of ten years’ duration was not an abuse of the trial court’s discretion to impose time limit on award where recipient, a former school teacher who had been a full-time homemaker during most of the sixteen-year marriage, would find her overall income eroded by inflation unless she obtained employment with an increasing salary. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Defendant failed to show there was no reasonable basis for rehabilitative maintenance award of $1,500 for a ten-year period to plaintiff who had an earning potential of $17,700 as a school teacher but who lacked sufficient income to provide for her reasonable needs in light of the standard of living established during her marriage to physician defendant. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Trial court did not abuse its discretion in award to 55-year-old, unemployed wife of permanent maintenance of $700 per month, despite finding that her monthly living expenses were approximately $1500 and earning potential approximately $1200; award was necessary to keep plaintiff in standard of living established during the marriage, defendant’s earning capacity greatly exceeded that of plaintiff, who had not worked outside the home for many years and who would lose social security disability payments if she went to work and during marriage wife had substantially contributed to husband’s education. Chaker v. Chaker, 155 Vt. 20, 581 A.2d 737, 1990 Vt. LEXIS 121 (1990).

Permanent maintenance.

Permanent maintenance order in divorce decree was not improper on policy grounds, since this section specifically provides for it. DeKoeyer v. DeKoeyer, 146 Vt. 493, 507 A.2d 962, 1986 Vt. LEXIS 466 (1986).

Pleadings.

Where plaintiff husband’s petition for divorce requested he be granted a suitable portion of the marital property, counterclaim requested divorce and “such further relief as seems just,” alimony was provided in a temporary order based upon a stipulation of the parties, and lump sum payment in lieu of alimony was requested and contested at trial, court would no hold that the lump sum granted in lieu of alimony and inappropriate because alimony was not requested in the counterclaim. Bero v. Bero, 134 Vt. 533, 367 A.2d 165, 1976 Vt. LEXIS 722 (1976) (Decided under 15 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Property distribution.

Because the family court is required to consider the property division when determining whether the spouse seeking maintenance has sufficient property and/or income to meet his or her reasonable needs following divorce, remand on the property division requires a remand on the maintenance decision. Boisclair v. Boisclair, 2004 VT 43, 176 Vt. 646, 852 A.2d 617, 2004 Vt. LEXIS 111 (2004).

In a divorce action, in light of the property settlement, the court did not abuse its discretion in failing to award maintenance to wife, who received sufficient cash to pay her attorney’s fees, purchase a home worth approximately $200,000, and still invest $1,000,000. The income stream from that investment, combined with $18,000 per year in child support to provide for her child’s needs, should have allowed wife a very comfortable standard of living. Cabot v. Cabot, 166 Vt. 485, 697 A.2d 644, 1997 Vt. LEXIS 101 (1997).

Court is required to look at interrelationship of property disposition and maintenance determination. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

In making decision regarding maintenance, trial court must consider property division between parties, and any change in property settlement necessitates reexamination of award of maintenance. Cleverly v. Cleverly, 151 Vt. 351, 561 A.2d 99, 1989 Vt. LEXIS 71 (1989).

An award of property in lieu of maintenance is within the discretion of the trial court; however, such discretion is not unfettered. Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989).

While property distribution is to be considered in deciding on a maintenance award, that factor was not intended to require that factor was not intended to require that nonincome producing property awarded to a party can be used in lieu of maintenance unless it clearly appears that the property was above and beyond that awarded as an equitable distribution of the assets of the parties. Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989).

Where divorce action was remanded for consideration of maintenance award property award would also be reopened because of the interrelationship of those two parts of the financial order. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Property distribution must be considered by court when establishing award of maintenance. Osborn v. Osborn, 147 Vt. 432, 519 A.2d 1161, 1986 Vt. LEXIS 439 (1986).

A change in the property settlement in a divorce decree necessarily requires a re-examination of the award of maintenance. Osborn v. Osborn, 147 Vt. 432, 519 A.2d 1161, 1986 Vt. LEXIS 439 (1986).

Purpose.

There was nothing erroneous in the family court’s denial of husband’s motion to modify spousal maintenance, without hearing, because nothing in the stipulation underlying the order, or the order itself, made the maintenance obligation contingent on the recipient seeking employment or training. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

The purpose of rehabilitative maintenance is to give the recipient spouse the opportunity to develop or redevelop employment skills that will allow her or him to achieve economic self-sufficiency in the future. The time limit creates an economic incentive to maximize income production as soon as possible, with the understanding that the obligor’s maintenance obligation will normally end at a time certain, irrespective of the recipient’s need. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

The purpose of spousal maintenance is to rectify inequality between the parties’ financial positions. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

While the purpose of rehabilitative maintenance is to assist the recipient-spouse in becoming self-supporting, in a long-term marriage, maintenance also serves to compensate a homemaker for contributions to family well-being not otherwise recognized in the property distribution. Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 1993 Vt. LEXIS 58 (1993).

One of purposes of maintenance is recompense for contributions of homemaker to family’s well-being which was not otherwise made. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Reasonable needs.

15 V.S.A. § 752(a) is based on concept of relative, not absolute, need. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Reasonable needs are to be determined in light of standard of living established during marriage. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Reference to reasonable needs in this section should not be looked at in relation to subsistence; the critical comparison is to the standard of living established during the marriage since spousal maintenance is intended to correct the vast inequality of the income resulting from divorce and to equalize the standard of living of the parties for an appropriate period of time. Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 1993 Vt. LEXIS 58 (1993).

This section authorizes trial court to order either spouse to make rehabilitative or permanent maintenance payments if the other spouse lacks sufficient income to meet reasonable needs and is unable to maintain the standard of living established during the marriage. Justis v. Rist, 159 Vt. 240, 617 A.2d 148, 1992 Vt. LEXIS 141 (1992).

Under this section, “reasonable needs” of a party is determined in light of the standard of living established during the marriage. Naumann v. Kurz, 152 Vt. 355, 566 A.2d 1342, 1989 Vt. LEXIS 188 (1989).

Rehabilitative maintenance.

When rehabilitative maintenance is awarded, the court must impose a definite termination date. Cleverly v. Cleverly, 147 Vt. 154, 513 A.2d 612, 1986 Vt. LEXIS 376 (1986).

Request.

Where trial court in divorce action failed, without explanation, to address wife’s request for spousal maintenance, case would be remanded for consideration of a maintenance award. Semprebon v. Semprebon, 157 Vt. 209, 596 A.2d 361, 1991 Vt. LEXIS 165 (1991).

Review.

As long as the family court’s order reflects that it considered the relevant factors under subsection (b) of this section, the court is not required to issue specific findings on each factor, and the party challenging the award on appeal must show there is no reasonable basis for it. Watson v. Watson, 2003 VT 80, 175 Vt. 622, 833 A.2d 869, 2003 Vt. LEXIS 270 (2003) (mem.).

Family court’s order that husband pay wife $ 700 per month in permanent maintenance was not without reasonable basis where the court found that, since their separation, husband has maintained the same living standard the parties enjoyed while they were married and, in contrast, wife’s limited income did not allow her to maintain even a modicum of a reasonable living style, much less the standard of living that was maintained by the parties at the time they were together. Watson v. Watson, 2003 VT 80, 175 Vt. 622, 833 A.2d 869, 2003 Vt. LEXIS 270 (2003) (mem.).

Where the trial court employed a process by which it set an amount of maintenance without considering whether father would owe any child support under the guidelines with this amount of maintenance, and only then determining that none was required by using this maintenance award when calculating child support, this methodology confounded any attempt to determine the component parts of the award for the purpose of appellate review. Gulian v. Gulian, 173 Vt. 157, 790 A.2d 1116, 2001 Vt. LEXIS 372 (2001).

To successfully challenge a maintenance award, a party must show there is no reasonable basis to support it. Bancroft v. Bancroft, 154 Vt. 442, 578 A.2d 114, 1990 Vt. LEXIS 113 (1990).

In divorce proceedings, the trial court has considerable discretion in ruling on maintenance, and the party seeking to overturn a maintenance award must show that there is no reasonable basis to support it. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

The trial court has wide discretion in the distribution of marital property upon divorce, and the supreme court will affirm the decision where it finds reasonable evidence to support trial courts’ finding and conclusions. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Right to maintenance.

Reasonable basis supported maintenance award to wife where award was tailored to maintain for wife standard of living during marriage, it was clear that wife was unable to maintain this standard on her income alone, this objective was supported by length of marriage, twenty-five years, and it was also supported by need to compensate wife for homemaker contributions to family well-being not otherwise recognized in financial awards. Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72, 1994 Vt. LEXIS 174 (1994).

Where wife was 40 years old with no college education and with very limited recent work experience, dedicated 18 years to raising the parties’ children and supporting husband in development of his law practice, and could not support herself at standard of living established during marriage, and husband was successful lawyer with net income of $77,000 per year, wife was entitled to maintenance as a matter of law. Klein v. Klein, 150 Vt. 466, 555 A.2d 382, 1988 Vt. LEXIS 212 (1988).

Separation agreement.

Although the family court determined that the support provision in the agreement was fair and equitable at the time the parties executed the separation agreement, it was obligated to consider whether the agreement was fair and equitable pursuant to the relevant statutory factors at the time of the final hearing, such that it could be incorporated into the final divorce order, and erred in failing to do so. Lourie v. Lourie, 2016 VT 57, 202 Vt. 143, 147 A.3d 1015, 2016 Vt. LEXIS 56 (2016).

Stipulations.

The court in a divorce action is not bound by a stipulation between the parties concerning alimony, and has authority to specify in the decree that its order for alimony payments shall be subject to further order of the court. Hall v. Hall, 124 Vt. 410, 206 A.2d 786, 1964 Vt. LEXIS 124 (1964) (Decided under 145 V.S.A. § 754 prior to 1981 (Adj. Sess.) amendment.).

Time limit.

There was no support for the trial court’s decision terminating maintenance when the parties’ youngest child turned 18, or a duration of nine years, because this duration was apparently based on the needs of the children rather than on the needs of mother; a child support award may end upon the children reaching the age of majority, but that temporal event is unrelated to the reason maintenance is awarded. Gulian v. Gulian, 173 Vt. 157, 790 A.2d 1116, 2001 Vt. LEXIS 372 (2001).

In light of the purposes of maintenance — rehabilitation and compensation — the trial court’s decision to tie the duration of mother’s award to the age of majority of her youngest children, without more, was an abuse of discretion because there was no evidence that the duration of nine years would either adequately compensate mother for her contributions to the 14-year marriage or maintain her at the marital standard of living for a sufficient period. Gulian v. Gulian, 173 Vt. 157, 790 A.2d 1116, 2001 Vt. LEXIS 372 (2001).

The termination of marriage does not automatically bar a later separate maintenance award. Poston v. Poston, 160 Vt. 1, 624 A.2d 853, 1993 Vt. LEXIS 37, cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 35, 1993 U.S. LEXIS 4979 (1993).

Although there are no definitive standards used to determine when maintenance should be time-limited, important considerations include the length of the marriage, the role the wife played during the marriage, and the income the wife is likely to achieve in relation to the standard of living set in the marriage. Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 1993 Vt. LEXIS 58 (1993).

Although a maintenance award based on an inaccurate predication about future circumstances can be modified, and it is theoretically possible to eliminate the time limitation and convert a rehabilitative maintenance award into a permanent award, the cases in which such conversion is necessary must be minimized in order to avoid continuing litigation that would frustrate major purpose of rehabilitative maintenance, which is to allow spouses to get on with independent lives. Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 1993 Vt. LEXIS 58 (1993).

Defendant was entitled to some amount of periodic maintenance of indefinite duration where a time-limited award did not compensate her for her years as a homemaker, and was likely to leave her at the end of the time limit with an inadequate income to maintain the standard of living established during the marriage since her age, gender and lack of employment experience greatly limited her earning potential. Strauss v. Strauss, 160 Vt. 335, 628 A.2d 552, 1993 Vt. LEXIS 58 (1993).

State courts do not have statutory authority to order maintenance to continue beyond life of obligor spouse, unless parties have agreed otherwise. Justis v. Rist, 159 Vt. 240, 617 A.2d 148, 1992 Vt. LEXIS 141 (1992).

Notwithstanding that it may be difficult to predict the exact length of time for recipient of an award of rehabilitative maintenance to become self-supporting, the court is required to impose a time limit on such modification, and if the period proves too short or too long, the disadvantaged party can seek modification. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Court’s finding that husband’s earning capacity was $40,000 per year was not sufficiently supported by evidence, so that court’s maintenance award would be vacated where wife did not contest husband’s explanation that $38,000 he earned in one particular year was due to tremendous amount of overtime, and that his earning capacity was $30,000 when working normal overtime. DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986).

Where unchallenged findings in divorce action depicted a vast inequality between the parties’ financial positions, in that husband earned in excess of $20,000 per year, lived in the parties’ jointly-owned house, which had a market value of between $45,000 and $50,000, and retained assorted assets totaling approximately $16,162, while in contrast the wife and her son lived in a low-income housing unit on a salary of $8,843 per year, trial court’s order awarding alimony to the wife was proper. Buttura v. Buttura, 143 Vt. 95, 463 A.2d 229, 1983 Vt. LEXIS 476 (1983).

Cited.

Cited in Bullard v. Bullard, 144 Vt. 627, 481 A.2d 1049, 1984 Vt. LEXIS 524 (1984); Repash v. Repash, 148 Vt. 70, 528 A.2d 744, 1987 Vt. LEXIS 452 (1987); Leas v. Leas, 169 Vt. 364, 737 A.2d 889, 1999 Vt. LEXIS 206 (1999); Schwartz v. Haas, 169 Vt. 612, 739 A.2d 1188, 1999 Vt. LEXIS 225 (1999); Taylor v. Taylor, 175 Vt. 32, 819 A.2d 684, 2002 Vt. LEXIS 331 (2002); Pouech v. Pouech, 2006 VT 40, 180 Vt. 1, 904 A.2d 70, 2006 Vt. LEXIS 91 (2006) (mem.).

§ 753. Conveyance of realty after legal separation.

In all cases where a legal separation has been granted, a spouse may convey his or her real estate without the signature or consent of the other spouse, and the laws of descent applicable to absolute divorce shall apply.

HISTORY: Amended 1981, No. 247 (Adj. Sess.), § 8.

History

Source.

V.S. 1947, § 3243. P.L. § 3154. G.L. § 3589. P.S. § 3097. 1906, No. 88 , § 1.

Amendments

—1981 (Adj. Sess.). Section amended generally.

§ 754. Judgment effective to convey real estate.

A certified copy of the judgment, or relevant parts thereof, when recorded in the land records of the town in which real estate of the parties is located, shall be effective to convey or encumber the real estate in accordance with the terms of the judgment, as if the judgment were a deed. A property transfer return shall be filed with the judgment, but the transfer shall be exempt from the taxes imposed by chapters 231 and 236 of Title 32 to the extent of the property interests conveyed to either of the parties.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 10; 1981, No. 247 (Adj. Sess.), § 9.

History

Source.

V.S. 1947, § 3244. 1947, No. 202 , § 3267. 1945, No. 40 , § 1. P.L. § 3155. G.L. § 3590. 1912, No. 109 . P.L. § 3089. V.S. § 2691. R.L. § 2381. G.S. 70, § 33. R.S. 63, § 35. 1805, p. 166. R. 1797, p. 335, § 12. R. 1787, p. 48.

Amendments

—1981 (Adj. Sess.). Section amended generally.

—1973 (Adj. Sess.). Substituted “either party” for “the wife” following “decree to”, “one spouse” for “her husband” following “estate of” and “that spouse” for “the husband” in the first sentence, “either spouse” for “the husband” preceding “to disclose”, “that person” for “him” preceding “by reason” and “the hands of that person” for “his hands” following “remains in” in the second sentence, and “one spouse” for “the wife” following “court decrees to”, “that spouse” for “the wife” following “alimony” and “30” for “thirty” preceding “days” in the third sentence.

ANNOTATIONS

Construction.
Conveyance of real estate.
Prior law.

Construction.

This section does not provide husband an encumbrance on wife’s title where the divorce decree does not; the purpose of the section is to eliminate the need to prepare and file instruments providing property interests created in a divorce or annulment decree, rather than to create property interests independent of the decree. Sumner v. Sumner, 2004 VT 45, 176 Vt. 452, 852 A.2d 611, 2004 Vt. LEXIS 104 (2004).

Conveyance of real estate.

Chapter 13 debtor’s ex-wife obtained title to marital property, pursuant to 15 V.S.A. § 754 , when she recorded a state court’s judgment awarding her title in a divorce action, and because she took that action before the debtor declared bankruptcy, the property was not part of the debtor’s bankruptcy estate under 11 U.S.C.S. §§ 541 or 1306; because the property was not part of the debtor’s estate, the bankruptcy court lacked jurisdiction to issue orders which required the debtor’s ex-wife to turn over rent she collected on the property after she obtained title, to order the debtor to return a shed and appliances he took from the property, or to award the debtor’s ex-wife damages because the debtor moved livestock onto the property. In re Brooks, 2014 Bankr. LEXIS 2273 (Bankr. D. Vt. May 22, 2014).

In Condosta, the Vermont Supreme Court instructed only that while a divorce terminates a homestead right immediately, as well as a tenancy by the entirety, it does not instantly convey all the non-homestead property interests; although the bankruptcy court recognized in Farrar that a divorce decree distributes the marital properties in accordance with specified terms, it held that the divorce decree is not a conveyance instrument per se upon entry. In re Hutchins, 306 B.R. 82, 2004 Bankr. LEXIS 153 (Bankr. D. Vt. 2004).

Prior law.

For cases construing this section prior to 1981 (Adj. Sess.) amendment, see annotations under section 752 of this title.

§ 755. Judge out of office may sign judgment for maintenance.

After the expiration of his or her term of office, a judge of the Superior Court may sign a judgment for maintenance as of the date when made.

HISTORY: Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1981, No. 247 (Adj. Sess.), § 10.

History

Source.

Agreement.
Burden of proof.
Change of circumstances.
Cohabitation.
Division of real estate.
Evidence.
Findings.
Foreign judgment.
Incarceration.
Income.
Job loss.
Jurisdiction.
Pleadings.
Power of court.
Remarriage.
Res judicata.
Status pending revision.
Stipulations.
Time limit.

Agreement.

Absent grounds for modification, pursuant to 15 V.S.A. § 758 , pretrial contracts may be set aside only upon a showing of fraud, unconscionable advantage, impossibility of performance, or hampering circumstances intervening beyond the expectation of the agreeing parties. Kanaan v. Kanaan, 163 Vt. 402, 659 A.2d 128, 1995 Vt. LEXIS 19 (1995).

Burden of proof.

The family court was correct in denying obligor’s motion to modify spousal maintenance on the basis that his wife was being supported at a higher standard of living by her new partner, because his motion and affidavit did not show that the former spouse’s financial circumstances were unanticipated. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

Trial court properly considered divorce defendant’s subjective intent in making employment choices following unexpected job termination, and properly required him to demonstrate good faith of decision to undertake employment involving a substantial reduction in income. Wardwell v. Clapp, 168 Vt. 592, 720 A.2d 862, 1998 Vt. LEXIS 230 (1998) (mem.).

The party seeking termination of an obligation to pay maintenance must show that the remarriage of his or her ex-spouse constitutes a real, substantial and unanticipated change in circumstances. Coor v. Coor, 155 Vt. 32, 580 A.2d 500, 1990 Vt. LEXIS 128 (1990).

When seeking modification of maintenance order pursuant to this section, proof of real, substantial and unanticipated change in circumstances is jurisdictional prerequisite, and burden of proof rests on party seeking modification. Gil v. Gil, 151 Vt. 598, 563 A.2d 624, 1989 Vt. LEXIS 119 (1989).

In order to seek modification of a support order issued pursuant to a divorce decree, allegation and proof of a substantial change of circumstances from the time of the order sought to be modified is a jurisdictional prerequisite, and the burden of establishing this change of circumstances is on the party seeking the modification. Mancini v. Mancini, 143 Vt. 235, 465 A.2d 272, 1983 Vt. LEXIS 501 (1983).

Change of circumstances.

Trial court’s determination that a change in the husband’s financial circumstances alone was a sufficient basis to establish a change in circumstances for the compensatory aspect of the maintenance award was error, as the trial court did not take into account the bargain that the parties reached when they married and decided that the wife would forego then-available career opportunities in order to raise the couple’s children. Weaver v. Weaver, 2017 VT 58, 205 Vt. 66, 171 A.3d 374, 2017 Vt. LEXIS 76 (2017).

Remand was required for the trial court to consider the husband’s motion to modify his spousal maintenance obligation. In denying the motion, the trial court took an overly narrow approach to the “changed circumstances” analysis by basing its conclusion on whether the changes in question were “within the realm of ordinary foresight,” and the trial court could have found under the correct standard that the husband’s taking on reasonable housing expenses and the wife’s getting a job that produced significant income substantially changed their respective financial circumstances in an unanticipated way. Zink v. Zink, 2016 VT 46, 202 Vt. 10, 147 A.3d 75, 2016 Vt. LEXIS 45 (2016).

Receipt of the wife’s anticipated Social Security benefits could not be the grounds for a change of circumstances that meets the statutory requirement. Likewise, the wife’s age-based entitlement for Medicare could not be considered to be unanticipated. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Vermont Supreme Court encourages parties to raise changes in circumstances as soon as it is clear that they are occurring, but they must understand that the family court cannot speculate what the future will bring. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Family court time is a precious resource that is already under great pressure, and the court cannot respond effectively to every change of circumstances that will inevitably occur; thus, maintenance orders necessarily involve some predictions of the future circumstances of the parties, to minimize the need to return to court for modification. For this reason, the statute requires changes of circumstances to be real, substantial, and unanticipated. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Family court reached an appropriate balance when it denied the husband’s request to totally terminate his maintenance obligation when he was laid off but reduced his maintenance obligation as of the date he stopped receiving unemployment compensation benefits. It reached a pragmatic result that minimized the need for the parties to return to court in the future. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

In considering a husband’s motion to terminate child support, the family court did not err in failing to consider the increase in the cost of his health insurance after his termination from his employment. In light of the motion, which requested termination of maintenance, not incremental reduction of the amount, the family court did not separately analyze instances where a party’s expenses went up in relatively small amounts in relation to the overall financial picture; under these circumstances, the family court apparently did not find the difference in the husband’s premiums, or coverage, to constitute a substantial change of circumstances. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Modification of the purpose of the alimony award and the amount of the obligation cannot be made absent a finding of a real, substantial, and unanticipated change in circumstances. Failure to address this jurisdictional threshold was error. Braun v. Greenblatt, 2007 VT 53, 182 Vt. 29, 927 A.2d 782, 2007 Vt. LEXIS 82 (2007).

Absent an initial determination by the trial court, a finding of changed circumstances will not be made on appeal. Braun v. Greenblatt, 2007 VT 53, 182 Vt. 29, 927 A.2d 782, 2007 Vt. LEXIS 82 (2007).

It is recognized that, in circumstances where an obligor achieves a substantially lower income than the projection upon which a maintenance order is based, the family court can find changed circumstances. This does not mean, however, that the court must find changed circumstances if the obligor’s income is underperforming the projection three months after the maintenance order is issued. Golden v. Cooper-Ellis, 2007 VT 15, 181 Vt. 359, 924 A.2d 19, 2007 Vt. LEXIS 41 (2007).

The burden of proving change of circumstances lies with the party seeking modification. There are no fixed standards for determining what meets the threshold, and evaluation of whether or not any given change is substantial must be determined in the context of the surrounding circumstances. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

The family court did not abuse its discretion in terminating the maintenance obligation based on findings that the recipient spouse had a financial agreement with her new husband whereby he paid half of the household bills, and that she became half-owner of her new husband’s house and, as a result, had a much lower housing cost than at the time of the divorce. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

Where father stated that he could no longer afford to pay maintenance due to his loss of full-time employment, in light of the request made by father, and the court’s finding of changed circumstances, there was no abuse of discretion in the court’s retroactive modification of father’s spousal maintenance obligation. Sundstrom v. Sundstrom, 2004 VT 106, 177 Vt. 577, 865 A.2d 358, 2004 Vt. LEXIS 318 (2004) (mem.).

In order to obtain modification of a maintenance award, a real, substantial, and unanticipated change of circumstances must be shown. Lowery v. Lowery, 156 Vt. 268, 591 A.2d 81, 1991 Vt. LEXIS 48 (1991).

It is within the trial court’s discretion to order termination of maintenance payments should the recipient remarry or cohabitate; if anticipated increase in financial security does not materialize from the remarriage, he or she may seek amendment of the order terminating maintenance upon remarriage. Coor v. Coor, 155 Vt. 32, 580 A.2d 500, 1990 Vt. LEXIS 128 (1990).

No modification of maintenance order pursuant to this section was justified on basis of change in circumstances where departure of minor children from wife’s household was foreseeable, decrease of husband’s income level was self-inflicted, and wife’s cohabitation with another man had been in existence at time of original divorce order and their sharing of expenses was not unanticipated. Gil v. Gil, 151 Vt. 598, 563 A.2d 624, 1989 Vt. LEXIS 119 (1989).

In an action to modify support order, trial court did not err by failing to apply all the criteria used to determine whether to order maintenance in divorce decree listed under section 752 of this title; the court needed only to assess the parties’ current circumstances in light of their circumstances at the time of the divorce. DeKoeyer v. DeKoeyer, 146 Vt. 493, 507 A.2d 962, 1986 Vt. LEXIS 466 (1986).

The loss of an anticipated employment qualifies as an unanticipated change of circumstances. Sylvia v. Sylvia, 146 Vt. 596, 508 A.2d 708, 1986 Vt. LEXIS 346 (1986).

When seeking to modify a maintenance or custody order, proof of a real, substantial and unanticipated change of circumstances is a jurisdictional prerequisite. Bullard v. Bullard, 144 Vt. 627, 481 A.2d 1049, 1984 Vt. LEXIS 524 (1984).

Since an original maintenance decree issued in Vermont takes into consideration the financial capabilities and prospects of both spouses, it is only fair and reasonable that in considering a modification of that original order, a court examine the evidence relating to the change in financial circumstances of either or both spouses. Bullard v. Bullard, 144 Vt. 627, 481 A.2d 1049, 1984 Vt. LEXIS 524 (1984).

Where defendant’s only allegation in support of his motion for modification of an order enforcing an out-of-state support order was his financial inability to comply with the order, his only proof of changed circumstances was his unavailing attempts to secure higher paying employment, his sole source of income had not changed since the order was issued, defendant had recently received a salary increase and his claimed expenses had not changed significantly, trial court correctly denied his motion. Mancini v. Mancini, 143 Vt. 235, 465 A.2d 272, 1983 Vt. LEXIS 501 (1983).

Where record indicated that former husband seeking modification of alimony provision of divorce decree had terminated one of his jobs voluntarily because he wanted more time to himself, not because his mental and physical health did not permit continuation of his work schedule, the change in circumstances of the husband were not intervening and unexpected, but voluntarily made by him, and, there being no evidence to support a reduction of alimony based on impossibility of performance, fraud, or unconscionable advantage, the husband had not sustained the heavy burden thrust upon him as a party attempting to modify an order based on a stipulation and, therefore, entry of order by court modifying alimony provision because of changed circumstances was improper. Cliche v. Cliche, 140 Vt. 540, 442 A.2d 60, 1982 Vt. LEXIS 444 (1982).

Establishment of a substantial change of circumstances since original alimony decree is a jurisdictional prerequisite to power of a court to entertain an action to modify the alimony decree, otherwise the doctrine of res judicata prevents a judgment of modification. Grant v. Grant, 136 Vt. 9, 383 A.2d 627, 1978 Vt. LEXIS 678 (1978).

Where mother had a court order and a stipulation of father and herself giving her custody of children of the marriage following divorce, and the children to live with the father, with mother’s acquiescence, mother could not claim that she did not have control over the actions of the children and she could not rely upon the change in custody as a basis for raising alimony award, and lower court’s increase in alimony was in error where there was no other change in circumstances. Brown v. Brown, 134 Vt. 412, 365 A.2d 248, 1976 Vt. LEXIS 690 (1976).

A change in circumstances and conditions since the original decree is a jurisdictional prerequisite to the power of a court to deal with a change in child support payments; otherwise, the doctrine of res judicata prevents a judgment of modification. French v. French, 128 Vt. 138, 259 A.2d 778, 1969 Vt. LEXIS 213 (1969).

Where divorced parents shared burden of supporting minor children in mother’s custody, the father paying $20 per week support, and the cost of items of support had risen, it would be manifestly unjust and not in the children’s interests to compel mother bear the increased cost alone and lower court properly increased father’s support payments to $30 per week, notwithstanding that financial resources of both parents had remained substantially the same, with the father’s income being $74 per week. French v. French, 128 Vt. 138, 259 A.2d 778, 1969 Vt. LEXIS 213 (1969).

Where order for alimony payments is made subject to further order of the court, allegation and proof of change in circumstance is prerequisite for any modification of the order. Hall v. Hall, 124 Vt. 410, 206 A.2d 786, 1964 Vt. LEXIS 124 (1964).

Change of circumstance alleged and proved, may still be quantitatively insufficient as a ground for modification of alimony order. Hall v. Hall, 124 Vt. 410, 206 A.2d 786, 1964 Vt. LEXIS 124 (1964).

The remarriage of a divorced husband is circumstance that can be taken into consideration in considering modification of a support order, but this fact alone is not ground for reducing the amount of an award for support of children of the prior marriage. Miller v. Miller, 124 Vt. 76, 197 A.2d 488, 1963 Vt. LEXIS 34 (1963).

Divorce decree for alimony or other annual allowance for wife or children is not final judgment, and under provisions of this section is subject to revision upon showing of change in circumstances or conditions subsequent to entry of original decree. Miller v. Miller, 123 Vt. 221, 186 A.2d 93, 1962 Vt. LEXIS 228 (1962).

Cohabitation.

Cohabitation by the recipient spouse can result in reduction or elimination of a maintenance award only if it improves the financial circumstances of the recipient spouse enough to substantially reduce the need for maintenance. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

Changed circumstances presuppose a substantial improvement in the financial circumstances of the recipient spouse as a result of some measure of support by the cohabitant. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

Any economic benefit from cohabitation must be “unanticipated” to justify a reduction of maintenance. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

Division of real estate.

Evidence.

Maintenance award of $1 a year to husband was not clearly erroneous where wife’s earning capacity at the time of divorce was nearly double that of her husband and husband’s temperament had reduced his ability to earn a living in past and potentially might have same effect in future. Henry v. Henry, 162 Vt. 613, 643 A.2d 845, 1994 Vt. LEXIS 47 (1994) (mem.).

In action to modify support order, trial court properly excluded evidence of defendant’s expectations of changes in the plaintiff’s circumstances are irrelevant. DeKoeyer v. DeKoeyer, 1456 Vt. 493, 507 A.2d 962 (1986).

In action to modify support order, trial court properly excluded as irrelevant evidence of the predivorce social and economic history of the parties, evidence of interim changes not in effect at the time of the hearing, and evidence as to defendant’s expectation regarding his own future financial condition. DeKoeyer v. DeKoeyer, 1456 Vt. 493, 507 A.2d 962 (1986).

The weight and sufficiency of the evidence to establish a change in circumstances to justify a new support order is entrusted to the court wherein the petition is presented, and the court’s determination on the issue must stand unless its corrective action is without cause in fact and law. French v. French, 128 Vt. 138, 259 A.2d 778, 1969 Vt. LEXIS 213 (1969).

To justify discretionary modification of an alimony order by trial court, weight and sufficiency of evidence in that regard is for trier of fact, and its determination must stand unless it appears as matter of law that there was no evidentiary support for its action. Davis v. Davis, 121 Vt. 242, 154 A.2d 463, 1959 Vt. LEXIS 113 (1959).

Findings.

Provisions of section 2425 of Title 12 requiring findings in cases triable by jury were not applicable in the case of petition for revision of alimony decree. Davis v. Davis, 121 Vt. 242, 154 A.2d 463, 1959 Vt. LEXIS 113 (1959).

Foreign judgment.

Where a trial court treats a foreign maintenance order as an enforceable Vermont order under principle of comity, court should analyze order as it would any other order under this section which permits revision of maintenance orders upon a showing of a real, substantial, and unanticipated change of circumstances. Lowery v. Lowery, 156 Vt. 268, 591 A.2d 81, 1991 Vt. LEXIS 48 (1991).

At common law and under Vermont statutory law, alimony or support, following grant of divorce without alimony in another jurisdiction, may not be granted. Grant v. Grant, 136 Vt. 9, 383 A.2d 627, 1978 Vt. LEXIS 678 (1978).

Whether or not this section empowers Vermont courts to change alimony provisions of a foreign court’s divorce decree need not be decided in instant case, where wife made no showing of a change of circumstances, and there was no jurisdiction to hear wife’s claim. Grant v. Grant, 136 Vt. 9, 383 A.2d 627, 1978 Vt. LEXIS 678 (1978).

Incarceration.

Because the husband’s incarceration was not taken into account in deciding the original spousal maintenance order, the incarceration was “unanticipated” for purposes of the modification statute. Although the criminal prosecution and future retrial were known at the time of the divorce hearing, the hearing proceeded on the basis that the husband was working and producing income and would continue to do so; there was no consideration of how the result of the criminal trial might affect his income-producing capacity and for how long. Herring v. Herring, 2011 VT 38, 190 Vt. 19, 24 A.3d 574, 2011 Vt. LEXIS 48 (2011).

Income.

Trial court did not err in modifying the wife’s spousal maintenance, as it found that the husband had suffered a substantial and genuine drop in income. Barrup v. Barrup, 2014 VT 116, 198 Vt. 25, 111 A.3d 414, 2014 Vt. LEXIS 121 (2014).

In considering a husband’s motion to terminate spousal maintenance, it was proper for the family court to consider his portion of his pension as a source of income, for that was his money, and it was therefore a resource that he had from which to pay maintenance. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Family court’s order declining to terminate a husband’s maintenance obligation did not impute minimum wage income and count unemployment compensation benefits “simultaneously,” as the husband alleged. The family court estimated the husband’s expected income based on how long he likely would continue to receive unemployment compensation and then imputed minimum wage for the period after unemployment benefits ceased. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Job loss.

In denying a husband’s motion to modify spousal maintenance, the trial court applied an improper standard when determining whether the husband’s termination was unanticipated, as the question was not whether there was a reasonable possibility that he could lose his job in the future but whether subsequent developments departed substantially from the assumptions considered in the maintenance order. The mere possibility that he might be terminated in the future as a result of a warning letter he received a year prior to the final spousal maintenance order or a medical leave of absence that he requested, and his employer approved, was not sufficient to conclude that his termination was not “unanticipated.” Atherton v. Atherton, 2019 VT 15, 209 Vt. 505, 208 A.3d 603, 2019 Vt. LEXIS 32 (2019).

Jurisdiction.

Before the court can modify a maintenance order, it must find that there has been a real, substantial and unanticipated change of circumstances; if the required change has not occurred the court has no jurisdiction to modify the order. Taylor v. Taylor, 175 Vt. 32, 819 A.2d 684, 2002 Vt. LEXIS 331 (2002).

Jurisdictional requirements, with respect to parties, are the same in actions to modify alimony and support orders, as in the case of the original orders. Emmons v. Emmons, 124 Vt. 107, 197 A.2d 812, 1964 Vt. LEXIS 67 (1964).

Pleadings.

Petition to alter or revise an alimony order brought under this section must allege change in circumstances or conditions subsequent to entry of original decree. Sand v. Sand, 116 Vt. 70, 69 A.2d 7, 1949 Vt. LEXIS 106 (1949).

Power of court.

The family court abused its discretion in modifying the maintenance award based on the amount it decided that wife’s new partner should contribute to her household expenses. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

The family court may not modify a divorce decree by awarding maintenance, where the original decree did not provide for maintenance; for this reason, a court may award maintenance in a nominal amount, to preserve the court’s ability to modify the award later in the event of a “real, substantial and unanticipated change in circumstances,” and, absent such preservation, the court cannot order maintenance at a later time, even if the financial situation of one of the spouses would warrant it. Arbuckle v. Ciccotelli, 2004 VT 68, 177 Vt. 104, 857 A.2d 324, 2004 Vt. LEXIS 242 (2004).

Although evidence supported trial court’s finding of a real and substantial change of husband’s financial circumstances, reduction of wife’s maintenance from $1,800 per week to $0 was beyond court’s discretion. Stickney v. Stickney, 170 Vt. 547, 742 A.2d 1228, 1999 Vt. LEXIS 319 (1999) (mem.).

The power of Vermont courts to entertain a suit concerning an incident of marriage depends on the particular incident, and though child support and custody involve parental obligations which are continuous and unaffected by a divorce, so that a court may modify an existing order or enter a new order in the absence of a prior provision, there is no independent action for alimony once there has been a valid divorce. Grant v. Grant, 136 Vt. 9, 383 A.2d 627, 1978 Vt. LEXIS 678 (1978).

Under Vermont statutes and at common law, the granting of alimony in any form is but an incident to the granting of the divorce, and unless the divorce is granted, the court has no power to grant permanent alimony. Grant v. Grant, 136 Vt. 9, 383 A.2d 627, 1978 Vt. LEXIS 678 (1978).

Orders for support are not final, and may be modified from time to time as circumstances require. vanLoon v. vanLoon, 132 Vt. 236, 315 A.2d 866 (1974).

County court has same wide discretion with respect to modification of alimony decrees as it has been accorded in original actions concerning alimony and support. Davis v. Davis, 121 Vt. 242, 154 A.2d 463, 1959 Vt. LEXIS 113 (1959).

The court having made a decree of divorce is not limited in its authority to make further decree to cases where decree of alimony is for annual allowances to be paid from year to year. Buckminster v. Buckminster, 38 Vt. 248, 1865 Vt. LEXIS 93 (1865).

Authority of court extends to case where petition sought to have court give further allowances for support of minor children, and to grant additional alimony. Buckminster v. Buckminster, 38 Vt. 248, 1865 Vt. LEXIS 93 (1865).

Remarriage.

In the course of granting the husband’s motion for downward modification of his maintenance obligation, the trial court erred when it considered the expenses that the husband had incurred as a result of his remarriage but concluded that it could not also consider the financial assistance his new wife had provided insofar as that assistance impacted his ability to meet his reasonable needs while also meeting the wife’s reasonable needs. Weaver v. Weaver, 2017 VT 58, 205 Vt. 66, 171 A.3d 374, 2017 Vt. LEXIS 76 (2017).

In denying a husband’s motion to terminate maintenance, the family court did not impute the salary of his current wife to the husband or require the current wife to pay part of her husband’s maintenance obligations. It instead credited only her contribution to the household income; that is, it determined the effect of her income on the husband’s expenses and ability to support himself while paying maintenance. Mayville v. Mayville, 2010 VT 94, 189 Vt. 1, 12 A.3d 500, 2010 Vt. LEXIS 93 (2010).

Remarriage does not necessarily improve the spouse’s financial security, and therefore it does not automatically justify a termination of maintenance payments. Remarriage is viewed as relevant to an ongoing maintenance obligation only to the extent it bears on the financial security of the recipient spouse. Miller v. Miller, 2005 VT 122, 179 Vt. 147, 892 A.2d 175, 2005 Vt. LEXIS 303 (2005).

Remarriage is viewed as relevant to an ongoing maintenance obligation only to the extent it bears on the financial security of the recipient spouse; this point is consistent with precedents under this section that substantial and unanticipated changes in the non-maintenance income available to the recipient spouse, or to the income available to the obligor spouse, can be a change in circumstances to warrant modification of a maintenance award. Taylor v. Taylor, 175 Vt. 32, 819 A.2d 684, 2002 Vt. LEXIS 331 (2002).

Where husband alleged that because of her remarriage his former wife had access to such income and wealth that she no longer needed maintenance, her improved financial security was grounds for his motion to modify a maintenance award containing a remarriage provision. Taylor v. Taylor, 175 Vt. 32, 819 A.2d 684, 2002 Vt. LEXIS 331 (2002).

Family court erred in ruling that a maintenance provision, reducing maintenance to 50% on remarriage, should be treated like a liquidated damages clause that prevented looking at the financial circumstances of the parties at any time after the provision was adopted. Taylor v. Taylor, 175 Vt. 32, 819 A.2d 684, 2002 Vt. LEXIS 331 (2002).

Res judicata.

Divorce decree of Virgin Islands court which could have but did not grant alimony to wife who, in later Vermont action for alimony, presented evidence which could have but was not presented to Virgin Islands court, was res judicata as to all facts and issues which could have been brought before it. Grant v. Grant, 136 Vt. 9, 383 A.2d 627, 1978 Vt. LEXIS 678 (1978).

Status pending revision.

Where divorce decree gave mother custody of the children, the children later voluntarily went to live with father, with mother’s acquiescence, and father, at that time, discontinued support payments, lower court properly awarded mother a judgment for the 31 weeks of child support payments encompassing the period during which father had custody of the children and was supporting them and did not make the support payments to the mother, particularly since father unilaterally discontinued the payments and moved to amend support order only after mother brought contempt action. Brown v. Brown, 134 Vt. 412, 365 A.2d 248, 1976 Vt. LEXIS 690 (1976).

The parties to a divorce, and the minor children, have a right to rely on the original order and have it remain in full force and effect until cause for revision is legally established. Orr v. Orr, 122 Vt. 470, 177 A.2d 233, 1962 Vt. LEXIS 122 (1962).

Stipulations.

Where findings of trial court which granted former husband’s motion for relief from judgment in action for divorce were supported by sufficient evidence that the former wife took unconscionable advantage of the husband, at a time when he was unrepresented by counsel, when she prevailed upon him to sign a stipulation which was incorporated into the divorce decree, the court neither withheld nor abused its discretion when it terminated the former husband’s alimony obligation, reduced his child support payments and eliminated his obligation to pay arrearages on the original divorce order. Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 1983 Vt. LEXIS 531 (1983).

Time limit.

Rehabilitative maintenance awards cannot be modified after the term of rehabilitative maintenance has expired. Arbuckle v. Ciccotelli, 2004 VT 68, 177 Vt. 104, 857 A.2d 324, 2004 Vt. LEXIS 242 (2004).

Notwithstanding that it may be difficult to predict the exact length of time for recipient of an award of rehabilitative maintenance to become self supporting, the court is required to impose a time limit on such modification, and if the period proves too short or too long, the disadvantaged party can seek modification. Johnson v. Johnson, 155 Vt. 36, 580 A.2d 503, 1990 Vt. LEXIS 131 (1990).

Cited.

Cited in Ruhe v. Ruhe, 142 Vt. 429, 457 A.2d 628, 1983 Vt. LEXIS 406 (1983); Bibens v. Bibens, 144 Vt. 287, 476 A.2d 134, 1984 Vt. LEXIS 447 (1984); Cleverly v. Cleverly, 147 Vt. 154, 513 A.2d 612, 1986 Vt. LEXIS 376 (1986); Scott v. Scott, 155 Vt. 465, 586 A.2d 1140, 1990 Vt. LEXIS 260 (1990); Shaw v. Shaw, 162 Vt. 338, 648 A.2d 836, 1994 Vt. LEXIS 75 (1994).

§ 759. Repealed. 1973, No. 201 (Adj. Sess.), § 12.

History

Former § 759, relating to allowance to husband where divorce was decreed for adultery committed by wife, was derived from V.S. 1947, § 3247; P.L. § 3158; G.L. § 3593; P.S. § 3101; V.S. § 2694; 1894, No. 162 , § 2636; R.L. § 2384; G.S. 70, §§ 36, 37; R.S. 63, §§ 38, 39.

§§ 760-761. Repealed. 1981, No. 247 (Adj. Sess.), § 18.

History

Former § 760, relating to action to recover alimony, support money and suit money, was derived from 1955, No. 110 ; V.S. 1947, § 3241; 1939, No. 56 , §§ 1-4, and amended by 1961, No. 169 ; 1969, No. 141 , § 2; 1971, No. 185 (Adj. Sess.), § 182. The subject matter is now covered by § 606 of this title.

Former § 761, relating to action by attorney to recover suit money, was derived from 1955, No. 163 . The subject matter is now covered by § 607 of this title.

§ 762. Insurance benefits.

In a proceeding under this chapter, the court may assign insurance benefits to a spouse or children, and may require the spouse who is required to make the assignment to execute a blanket assignment giving notice of the assignment to the provider of the insurance benefits.

HISTORY: Added 1981, No. 247 (Adj. Sess.), § 14.

ANNOTATIONS

Construction.

In cases where an insurance policy is already in effect, this section authorizes the trial court to order that the insured party maintain the policy for the benefit of the spouse. Quesnel v. Quesnel, 150 Vt. 149, 549 A.2d 644, 1988 Vt. LEXIS 127 (1988).

Subchapter 7. Child Support Enforcement

History

Amendments

—1989 (Adj. Sess.). 1989, No. 220 (Adj. Sess.), § 1, substituted “Child” for “Wage” preceding “Support” and “Enforcement” for “Assignment” thereafter in the subchapter heading.

CROSS REFERENCES

Child support orders, see §§ 653-663 of this title.

§ 780. Definitions.

As used in this chapter:

“Court” means the court with jurisdiction over the proceeding.
“Employer” means any employer or payor of wages of any type to the obligor.
“Obligee” means the person found to be legally entitled to receive support or any person to whom the obligee has assigned or authorized all rights of collection.
“Obligor” means the person required to pay support under a support order.
“Registry” means the registry established in 33 V.S.A. § 4103 .
“Support” means periodic payments ordered for the support of dependent children or, for the purposes of sections 783-790 of this title only, a spouse. Support includes periodic amounts to be applied toward unpaid arrearages.
“Support order” means any judgment, order or contract for support enforceable in this state, including, but not limited to, orders issued pursuant to 15 V.S.A. chapter 5 (relating to desertion and support and parentage), 7 (relating to URESA) or 11 (relating to annulment and divorce).
“Wage withholding order” means a transfer from the obligor to the obligee of the right to receive a portion of the obligor’s wages directly from the obligor’s employer.
“Wages” means any compensation paid or payable for personal services, whether designated as wages, salary, commission, bonuses, or otherwise, and shall include periodic payments under pension or retirement programs, workers’ compensation, or insurance policies of any type.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 5; 1989, No. 220 (Adj. Sess.), § 2.

History

References in text.

Section 784, referred to in subdiv. (6), was repealed by 1985, No. 63 , § 22(1).

33 V.S.A. § 2726 , referred to in subdiv. (5) of this section, was repealed by 1985, No. 63 , § 22(2).

Revision note—

Substituted “section 4103” for “section 3753” in subdiv. (5) in view of the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments

—1989 (Adj. Sess.). Section amended generally.

—1985. Subdiv. (4): Deleted “for the three-year period prior to the filing of the petition” following “arrearages”.

Subdiv. (5): Deleted “or” following “judgment” and inserted “or contract” preceding “for support” and “and parentage” following “desertion and support”.

ANNOTATIONS

Cited.

Cited in Stocker v. Stocker, 155 Vt. 652, 586 A.2d 548, 1990 Vt. LEXIS 249 (1990); McCormick v. McCormick, 159 Vt. 472, 621 A.2d 238, 1993 Vt. LEXIS 6 (1993) (mem.).

§ 781. Withholding wages upon issuance or modification of support order after July 1, 1990.

All orders for child support made or modified on or after July 1, 1990 shall include an order for immediate wage withholding in an amount equal to the support obligation and any obligation to pay support arrearages, unless the court finds good cause not to order immediate wage withholding or the parties have entered into an alternative arrangement by written agreement which is affirmatively stated in the order. In determining good cause, the court may consider a history of financial responsibility toward the family and the absence of any threat by the obligor to withhold financial support from the family.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 6; 1989, No. 220 (Adj. Sess.), § 3; 1997, No. 63 , § 9, eff. Sept. 1, 1997.

History

Amendments

—1997. Deleted the subsec. (a) designation at the beginning of the section and deleted subsec. (b).

—1989 (Adj. Sess.). Section amended generally.

—1985. Rewrote the introductory paragraph.

ANNOTATIONS

Cited.

Cited in Stocker v. Stocker, 155 Vt. 652, 586 A.2d 548, 1990 Vt. LEXIS 249 (1990) (mem.).

§ 782. Expedited procedure for wage withholding.

In the case of an order for child support made or modified after July 1, 1990 that does not include an order for immediate wage withholding, an obligee may request a wage withholding order when any amount due under the order has not been paid within seven business days after the amount is due. The obligor may request wage withholding at any time. The petition for wage withholding shall set forth:
1. the amount of support arrearages, if any;
2. the terms of the support order;
3. the periodic amount to be withheld for support and arrearages; and
4. a statement that the obligor may object to wage withholding on the basis of an error in the amount of current support or arrearages or an error in identity, at a hearing to be held within 14 days of the date the petition is filed.
The petition shall be served upon the other party or parties as provided in section 783 of this title.
The court shall set the date for the hearing and notify the parties of the place, date, and time. The hearing shall be held within 14 days of the date the petition is filed.
The court shall enter a judgment for wage withholding under any one of the following circumstances:
1. The obligor does not appear at the hearing without good cause.
2. The obligor has requested the wage withholding order.
3. The court finds after hearing that any amount due under a support order has not been paid within seven business days after the amount is due.
In all cases the court shall issue an order for wage withholding, if any, within 15 days of notice sent to the responding party.
Notwithstanding the provisions of this section to the contrary, the Office of Child Support may notify an employer to initiate wage withholding without obtaining a modification of the court order if any amount due under the order has accumulated to one-twelfth of the annualized amount of child support after:
1. verifying the arrears based on a sworn statement of the obligee or, if the Office of Child Support has maintained the financial records, an employee familiar with the financial records; and
2. notifying the obligor of the withholding pursuant to subsection 783(b) of this title and giving the obligor an opportunity to object and request a hearing in Family Division of the Superior Court to contest the withholding on the grounds that the withholding or the amount withheld is improper due to a mistake of fact.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 7; 1987, No. 54 , § 1, eff. May 15, 1987; 1989, No. 220 (Adj. Sess.), § 3a; 1997, No. 63 , § 10, eff. Sept. 1, 1997; 2009, No. 154 , § 238; 2017, No. 11 , § 42.

History

Revision note—

In subdiv. (a)(6), substituted “section 785(b)(1) of this title” for “section 785(b)(1)” to conform reference to V.S.A. style.

In subdiv. (a)(6), substituted “section 785(c)(1)” for “section 785(b)(1)” in view of the amendment of section 785 of this title by 1987, No. 54 , § 3.

In subsec. (c), substituted “subsection (b) of this section” for “subsection (b)” to conform reference to V.S.A. style.

Amendments

—2017. Subsec. (a): Inserted “business” following “within seven” in the first sentence.

Subdiv. (a)(4): Substituted “14” for “ten” preceding “days” near the end of the subdiv.

Subsec. (c): Substituted “14” for “ten” following “within” in the second sentence.

Subdiv. (d)(3): Inserted “business” following “within seven”.

—2009 (Adj. Sess.) Subdiv. (f)(2): Substituted “family division of the superior court” for “family court.”

—1997. Subsec. (f): Added.

—1989 (Adj. Sess.). Section amended generally.

—1987. Subdiv. (a)(5): Deleted “including but not” preceding “limited” in the introductory clause and rewrote subdiv. (A).

Subdiv. (a)(7): Inserted “a real, substantial and unanticipated” preceding “change”.

—1985. Section amended generally.

§ 783. Wage withholding; notice and hearing.

In the case of a child support order issued prior to July 1, 1990 or a spousal support order, an obligee may request a wage withholding order when any amount due under a support order has not been paid within seven business days after the amount is due. The obligor may request wage withholding at any time. The petition for wage withholding shall set forth:
1. the amount of support arrearages, if any;
2. the terms of the support order;
3. the periodic amount to be withheld for support and arrearages;
4. a statement that the obligor may object to wage withholding on the basis of an error in the amount of current support or arrearages or an error in identity, by filing the objection with the court within 20 days of receiving the petition under this subsection;
5. a statement that an obligor may move for modification of the support order because of a real, substantial and unanticipated change of circumstances, which includes a difference of 10 percent or more between the child support order and the amount required to be paid under the support guidelines.
The petition shall be served by the court or the Office of Child Support by personal service or by mailing to the obligor, at one or more of the addresses supplied by the obligor, by certified mail, return receipt requested and delivery restricted to the addressee, the expense being paid by the petitioner. If acceptance of service is refused, the court or the Office of Child Support may serve the obligor by sending the petition to the obligor by ordinary first class mail and by certifying that such service has been made. In the alternative, the court or the Office of Child Support may provide for mail service as provided in V.R.C.P. 4(e).
If the obligor does not file an objection to wage withholding within 20 days of receiving the petition sent pursuant to subsection (a) of this section or if the obligor has requested the wage withholding order, the court shall enter a judgment for wage withholding as stated in the petition without requiring a hearing or additional motions or additional affidavits, and shall send copies to the parties.
If the obligor files an objection, the matter shall be set for hearing within 20 days of receipt of the objection.
The court shall order wage withholding if the obligor has requested wage withholding or if any amount due under a support order has not been paid within seven business days after the amount is due. In all cases the court shall issue a wage withholding order, if any, within 45 days of notice sent to the responding party.
If a petition for wage withholding and a motion for modification are filed in connection with the same order, the court shall hear the matters at the same time if it is possible to do so within the time limits established by this section.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 8; 1987, No. 54 , § 2, eff. May 15, 1987; 1989, No. 220 (Adj. Sess.), § 4; 1997, No. 63 , § 11, eff. Sept. 1, 1997; 2017, No. 11 , § 43.

History

Revision note—

In the first sentence of subsec. (a), substituted “order issued” for “issued order” to correct a grammatical error.

In subdiv. (a)(6), substituted “section 785(b)(1) of this title” for “section 785(b)(1)” to conform reference to V.S.A. style.

In subdiv. (a)(6), substituted “section 785(c)(1)” for “section 785(b)(1)” in view of the amendment of section 785 of this title by 1987, No. 54 , § 3.

In the first sentence of subsec. (c), substituted “subsection (a) of this section” for “subsection (a)” to conform reference to V.S.A. style.

Amendments

—2017. Subsecs. (a), (e): Inserted “business” following “within seven”.

—1997. Subsec. (b): Inserted “or the office of child support” in following “the court” wherever it appeared and substituted “VRCP 4(e)” for “VRCP 4(1)” at the end of the fourth sentence.

—1989 (Adj. Sess.). Section amended generally.

—1987. Subdiv. (a)(5): Deleted “including but not” preceding “limited” in the introductory clause and rewrote subdiv. (A).

Subdiv. (1)(7): Inserted “a real, substantial and unanticipated” preceding “change”.

—1985. Section amended generally.

§ 784. Repealed. 1985, No. 63 § 22(1).

History

Former § 784, relating to written objections to wage assignment petitions, was derived from 1983, No. 222 (Adj. Sess.).

§ 785. Wage withholding orders.

A wage withholding order shall set forth:
1. the annualized amount of child support;
2. frequency of the child support payment;
3. judgment for support arrearages, if any;
4. provisions for periodic repayment of arrearages;
5. appropriate reduction and termination dates.
A wage withholding order shall require an employer to withhold a periodic amount of child support up to the maximum amount permitted under section 303(b) of the Consumer Credit Protection Act ( 15 U.S.C. § 1673(b)) . All wage withholdings shall be made payable to the Registry.
The court shall file a wage withholding order with the Registry. Within seven business days of receipt of the order, the Registry shall provide the obligor’s employer with notice of withholding by first class mail and send a copy of the notice and the order to the obligor and the obligee.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 9; 1987, No. 54 , § 3, eff. May 15, 1987; 1989, No. 220 (Adj. Sess.), § 5; 2017, No. 11 , § 44.

History

Amendments

—2017. Subsec. (c): Inserted “business” following “seven” in the second sentence.

—1989 (Adj. Sess.). Section amended generally.

—1987. Section amended generally.

—1985. Subsec. (a): Substituted “shall” for “may” preceding “order”.

Subdiv. (a)(1): Substituted “arrearages” for “delinquency” preceding “existed”.

Subdiv. (a)(2): Substituted “arrearages exceed” for “delinquency exceeds” preceding “one-twelfth”.

Subdiv. (a)(3): Deleted “if” preceding “this” and inserted “and” following “against the respondent”.

Subdiv. (a)(4): Added “or a portion thereof” following “assignment”.

Subsec. (b): Substituted “shall” for “may” preceding “order”.

Subdiv. (b)(2): Substituted “equal to” for “consistent with” following “amount”.

Subdiv. (b)(3): Deleted “for the three-year period prior to the filing of the petition” following “arrearages”.

CROSS REFERENCES

Enforcement of order of another state without registration, see § 501 et seq. of Title 15B.

ANNOTATIONS

Cited.

Cited in DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987, 1986 Vt. LEXIS 448 (1986).

§ 786. Obligee’s responsibility.

The obligee shall notify the registry and the obligor of any event that would affect the amount of support to be withheld under the order. Any person who has assigned or authorized all rights of collection shall notify the assignee of any event that would affect the amount of support to be withheld under the order. Notice shall be in writing, mailed or delivered within seven days of any such event.
Any amounts received by the obligee in excess of the amounts required to be withheld under any wage withholding order shall be paid by the obligee to the registry within seven days of receipt.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 10; 1989, No. 220 (Adj. Sess.), § 6.

History

Amendments

—1989 (Adj. Sess.). Section amended generally.

—1985. Subsec. (b): Added the second sentence and substituted “in writing, mailed or delivered” for “by registered mail, mailed” preceding “within” in the third sentence.

Subsec. (c): Added.

Subsec. (d): Added.

§ 787. Employer’s responsibility; compensation.

Upon receipt of notice of wage withholding under this chapter or under a similar law of another state, an employer shall:
1. withhold from the wages paid to the obligor the periodic support amount specified in the order for each wage period;
2. within seven working days after wages are withheld, forward the withheld wages to the registry and specify the date the support was withheld from wages;
3. retain a record of all withheld wages;
4. cease withholding wages upon notice from the court or the registry; and
5. notify the registry within 10 days of the date the obligor’s employment is terminated.
In addition to the amounts withheld pursuant to this subchapter, the employer may retain not more than $5.00 per month from the obligor’s wages as compensation for administrative costs incurred.
1. Any employer who fails to withhold wages pursuant to a wage withholding order within 10 working days of receiving actual notice or upon the next payment of wages to the obligor, whichever is later, shall be liable to the obligee in the amount of the wages required to be withheld. (c) (1) Any employer who fails to withhold wages pursuant to a wage withholding order within 10 working days of receiving actual notice or upon the next payment of wages to the obligor, whichever is later, shall be liable to the obligee in the amount of the wages required to be withheld.
2. No employer who withholds wages from the obligor shall, without good cause, fail to forward payment to the registry for more than 30 days. An employer who violates this subdivision shall be assessed a civil penalty of not more than $100.00 for a first violation and not more than $1,000.00 for a second or subsequent violation.
3. A proceeding pursuant to this section shall be heard by the Family Division of the Superior Court.
The employer may combine amounts withheld from the wages of more than one employee in a single payment to the registry, listing separately the amount of the payment that is attributable to each individual employee.
An employer shall only withhold wages from the nonexempt portion of the obligor’s wages as defined under section 303(b) of the Consumer Credit Protection Act ( 15 U.S.C. § 1673(b)) .
An employer who makes an error in the amount of wages withheld shall not be held liable if the error was made in good faith.
On request of the Office of Child Support, the employer shall furnish the Social Security number and the amount of wages of any employee.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 11; 1989, No. 220 (Adj. Sess.), § 7; 2003, No. 159 (Adj. Sess.), § 9, eff. Sept. 1, 2004; 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments

—2009 (Adj. Sess.) Subdiv. (c)(3): Substituted “family division of the superior court” for “family court.”

—2003 (Adj. Sess.). Subsec. (c): Added the subdiv. (1) designation to the former subsec. (c).

Subdivs. (c)(2), (3): Added.

—1989 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Substituted “obligor’s” for “respondent’s” preceding “wages”.

Subsec. (c): Substituted “withholding” for “assignment” preceding “order” and inserted “within 10 working days of receiving actual notice or upon the next payment of wages to the obligor, whichever is later” thereafter, and substituted “obligee” for “petitioner” preceding “in the amount”.

Subsec. (d): Added.

Subsec. (e): Added.

Subsec. (f): Added.

Subsec. (g): Added.

—1985. Subdiv. (a)(5): Deleted “the issuing authority and” following “notify”.

Subsec. (c): Added.

CROSS REFERENCES

Enforcement of order of another state without registration, see § 501 et seq. of Title 15B.

§ 788. Parent’s responsibility.

Any parent subject to a child support or parental rights and responsibilities order shall notify in writing the court which issued the most recent order and the Office of Child Support of his or her current mailing address and current residence address and of any change in either address within seven business days of the change, until all obligations to pay support or support arrearages, or to provide for parental rights and responsibilities are satisfied. For good cause, the court may keep information provided under this subsection confidential.
When a wage withholding order is in effect, either parent shall notify in writing the registry of the name and address of a new employer within seven days of commencing new employment. If the Registry has received information that a parent has changed employment, it shall notify the other parent of the fact of the change but shall not disclose the identity or the location of the employer. On request of a parent, the Registry shall provide information on the other parent’s wages.
In all cases in which a temporary or final order for relief from abuse has been entered, information provided under this section shall be kept confidential by the court. The court, for good cause shown, may release such information.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 12; 1989, No. 220 (Adj. Sess.), § 8; 1997, No. 63 , § 12, eff. Sept. 1, 1997; 2017, No. 11 , § 45.

History

Amendments

—2017. Subsec. (a): Inserted “business” following “within seven” in the first sentence.

—1997. Added subsec. (a), designated the existing provision of the section as subsec. (b) and rewrote the second and third sentences of that subsec., and added subsec. (c).

—1989 (Adj. Sess.). Section amended generally.

—1985. Substituted “in writing the” for “the issuing authority and” preceding “petitioner” and deleted the second sentence.

§ 789. Wage withholding exemptions; priorities and limitations.

A wage withholding order for a current support obligation or an obligation to pay support arrearages shall not be subject to Rule 4.2(j) of the Vermont Rules of Civil Procedure or 12 V.S.A. §§ 3167 , 3169, 3170(a), (b) and (d). It shall be subject to section 303(b) of the Consumer Credit Protection Act ( 15 U.S.C. § 1673(b)) .
A wage withholding order under this chapter shall have priority over other legal process against the same wages and shall be at least in the amount of the current support order. A wage withholding order for a current support obligation shall have priority over periodic payments to be applied to unpaid support arrearages, but shall not preclude withholding for both. No withholding for an arrearage may occur unless there is available income which is not exempt under section 303(b) of the Consumer Credit Protection Act ( 15 U.S.C. § 1673(b)) .
Wage withholding shall cease upon the termination of the obligation to pay current support or upon the repayment of all arrearages, whichever is later.
If wage withholding is sought for repayment of outstanding arrearages in addition to support previously ordered, the additional amounts withheld for repayment shall not exceed twenty-five percent of the obligor’s support obligation existing at the time of issuance of the wage withholding order.
If arrearages exist after termination of the obligation to pay support, the amount withheld shall not be reduced until all arrearages are paid in full.
If an obligor’s outstanding arrearage increases by one-twelfth of the annual obligation, the Office of Child Support may notify an employer to withhold an additional amount for repayment of any outstanding arrearage that has accumulated since the issuance of the most recent court order. The total wage withholding for arrearages shall not exceed 25 percent of the obligor’s support obligation unless an additional amount is requested by the obligor.
The Office of Child Support shall not notify an employer to withhold an additional amount under subsection (f) of this section without first notifying the obligor of its intention to do so at the obligor’s last known address as provided pursuant to subsection 783(b) of this title and giving the obligor 20 days to contest the withholding pursuant to 33 V.S.A. § 4108 on the grounds the increase would be improper due to a mistake of fact.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 13; 1989, No. 220 (Adj. Sess.), § 9; 1997, No. 63 , § 13, eff. Sept. 1, 1997.

History

Amendments

—1997. Subsec. (b): Deleted “provided that the claim for arrearages has been reduced to judgment” following “withholding for both” at the end of the second sentence.

Subsec. (e): Substituted “not be reduced” for “remain unchanged” following “withheld shall”.

Subsecs. (f), (g): Added.

—1989 (Adj. Sess.). Substituted “withholding” for “assignment” preceding “exemptions” in the section heading.

Subsec. (a): Amended generally.

Subsec. (b): Substituted “wage withholding order under this chapter” for “support wage assignment” preceding “shall have priority” in the first sentence, “wage withholding order” for “wage assignment” preceding “for a current” in the second sentence and “section 303(b) of the Consumer Credit Protection Act ( 15 U.S.C. § 1673(b)) ” for “Rule 4.2(j)(2) of the Vermont Rules of Civil Procedure, 12 V.S.A. § 3170(b) or 33 V.S.A. § 2727 ” in the third sentence.

Subsec. (c): Amended generally.

Subsec. (d): Substituted “obligor’s” for “respondent’s” following “percent of the”.

Subsec. (e): Added.

—1985. Subsec. (a): Added the second sentence.

Subsec. (b): Amended generally.

Subsec. (c): Added “or upon the repayment of all arrearages, whichever is later” following “order”.

Subsec. (d): Added.

§ 790. Employee protected; penalty.

No employee may be discharged from employment or subjected to disciplinary action on account of a wage withholding order issued to an employer against earnings. Any employee discharged or subjected to disciplinary action in violation of this section may bring an action in superior court for reinstatement of employment, back wages and damages and, if that employee prevails, the court shall award costs and may award reasonable attorney’s fees to the employee.
An employer who discharges or subjects an employee to disciplinary action in violation of this section shall be subject to a fine of $100.00.

HISTORY: Added 1983, No. 222 (Adj. Sess.); amended 1985, No. 63 , § 14; 1989, No. 220 (Adj. Sess.), § 10.

History

Amendments

—1989 (Adj. Sess.). Subsec. (a): Substituted “withholding order” for “assignment” following “wage” in the first sentence.

—1985. Added “penalty” following “protected” in the section heading, designated existing provisions of section as subsec. (a) and inserted “or subjected to disciplinary action” following “employment” in the first sentence and following “discharged” in the second sentence of that subsec., and added subsec. (b).

§ 791. Arrearage judgment lien.

1. A judgment issued by the court for support arrearages in excess of one-twelfth of the annualized amount of support shall constitute an arrearage judgment lien, if properly recorded under this section. The court shall also issue an order that payment of support shall be made through the Registry. (a) (1) A judgment issued by the court for support arrearages in excess of one-twelfth of the annualized amount of support shall constitute an arrearage judgment lien, if properly recorded under this section. The court shall also issue an order that payment of support shall be made through the Registry.
2. If payments are being made through the Registry, a sworn affidavit of the Office of Child Support, establishing an arrearage in excess of one-quarter of the annualized amount of support attached to the underlying court order shall constitute an arrearage lien, if properly recorded under this section.
3. Before filing a lien provided for in subdivision (2) of this subsection, the Office of Child Support shall serve the obligor pursuant to subsection 783(b) of this title with notice of the amount of the past due child support, the consequences of the filing of the lien, and the procedure for contesting the arrearage and challenging the lien pursuant to 33 V.S.A. § 4108 . If the obligor does not contest the notice of lien within 20 days of service, the Office may record the lien under this section. For the purposes of this section, such a lien shall be considered an arrearage judgment lien.
4. A copy of any document recorded under this subsection shall be sent to the parties by certified mail.
An arrearage judgment lien shall be recorded in accordance with 12 V.S.A. § 2904 with the clerk in any town where real property owned by the obligor may be found, or in the case of personal property in the proper place for recording a security interest under Title 9A, article 9. The judgment shall become a lien for the amount of support arrearages at the time the judgment is issued and any arrearages that accrue after that time and until the lien is released. The judgment shall not become a lien for any sum or sums prior to the date they severally become due and payable.
Within 10 days of the request of the obligor, the Office of Child Support shall issue a certificate of release of an arrearage judgment lien if:
1. liability for the amount due has been satisfied or has become enforceable by reason of lapse of time; or
2. the interest of the obligee in the property has no value.
If the Office of Child Support does not issue a release of lien within 10 days or if there is a disagreement over the amount of arrearages, the obligor may request the court to determine the amount of arrearages or to issue a release of lien, or both. The court shall schedule a hearing to be held within 14 days of the request. The court may issue a release of lien without requiring the obligor to satisfy his or her liability for the total amount due if it finds that justice so requires.
A certificate of release of lien applicable to real property and issued by the Office of Child Support or the court shall be in substantially the following form:
Click to view
The lien created pursuant to this section shall be effective eight years from the date of issuance of the judgment or eight years after termination of the obligation to pay support, whichever is later. If the lien is not satisfied within 30 days of recording, it may be foreclosed and redeemed as provided in Vermont Rules of Civil Procedure Rule 80.1.
The lien created by this section shall be in addition to and separate from any other remedy or interest created by law or contract.
Upon compliance with subsection (a) of this section, this State shall accord full faith and credit to arrearage liens that arise in another state if the other state accords reciprocity to this State’s arrearage liens.

I hereby certify that the judgment for child support arrearages is paid in full and that the lien recorded in book , page of the land records of the town of is satisfied. A certificate of release of lien which is recorded by the town clerk in the land records shall release the lien and bar actions brought thereon.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 11; amended 1997, No. 63 , §§ 14, 14a, eff. Sept. 1, 1997; 2017, No. 11 , § 46.

History

Amendments

—2017. Subsec. (d): Substituted “14” for “10” following “within” in the second sentence.

—1997. Subsec. (a): Designated the existing provision of the subsec. as subdiv. (1) and added the subdivs. (2)-(4).

Subsec. (h): Added.

§ 792. Lottery offset.

For all Vermont Lottery games, the Commissioner of Liquor and Lottery shall, before issuing prize money of $500.00 or more to a winner, determine whether the winner has an outstanding child support arrearage payable to the Office of Child Support. If the winner has a child support arrearage, the Commissioner of Liquor and Lottery shall withhold the entire amount of winnings and pay the same to the Office of Child Support. The Office of Child Support shall offset the winnings by the amount of support arrearages and the remainder of the winnings, if any, shall be sent to the winner. The obligor shall be notified by the Office of Child Support of the offset prior to payment to the obligee and given a period not to exceed 20 days to contest the accuracy of the information.
The Office of Child Support shall inform the Commissioner of Liquor and Lottery of persons with child support arrearages upon request. Each liable person shall be identified by name, address, and Social Security number.
This section shall apply to Tri-State Lottery games at such time as the same or similar provisions become law in Maine and New Hampshire in accordance with the Tri-State Lotto Compact.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 12; amended 2019, No. 73 , § 24.

History

Amendments

—2019. Subsec. (a): Substituted “Commissioner of Liquor and Lottery” for “lottery commission” in the first and second sentences.

Subsec. (b): Substituted “Commissioner of Liquor and Lottery” for “lottery commission” in the first sentence.

§ 793. Credit reporting.

Information regarding the amount of arrearages owed by an obligor may be made available by the Office of Child Support to any consumer credit bureau organization upon the request of the organization, only if the amount of the arrearages is at least one-quarter of the annual support obligation and the Office of Child Support has notified the obligor by first-class mail or other means likely to give actual notice of the proposed action and given a period not to exceed 20 days to contest the accuracy of the information with the Office of Child Support. In computing the amount of an arrearage, any arrearage accumulated after a motion to modify has been filed shall not be included.
The Office of Child Support shall immediately notify each credit bureau organization to which information has been furnished of any increases or decreases in the account balance.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 28; amended 1997, No. 63 , § 15, eff. Sept. 1, 1997.

History

Amendments

—1997. Section amended generally.

§ 794. Tax offsets.

An order for child support may be enforced as provided in 32 V.S.A. chapter 151.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 13.

§ 795. Licenses or governmental contracts.

As used in this section:
1. “Agency” means any unit of state government, including agencies, departments, boards, commissions, authorities, or public corporations.
2. “License” means any license, certification, or registration issued by an agency to conduct a trade or business, including a license to practice a profession or occupation, or a license required to engage in recreational activities, including the license to hunt, fish, or trap.
3. “Contract” means a contract for the provision of goods, services or real estate space.
Every applicant for a license shall sign a statement that the applicant is not subject to a child support order, or if subject to a child support order is in good standing with respect to the order or in full compliance with a plan to pay any and all child support payable under a support order as of the date the application is filed. A license may not be issued or renewed without such a statement.
No agency shall enter into, extend, or renew any contract unless the person submits a statement that the person is not under an obligation to pay child support or is in good standing with respect to or in full compliance with a plan to pay any and all child support payable under a support order as of the date the contract is made.
For the purposes of this section, a person is in good standing with respect to any and all support payable if:
1. less than one-twelfth of the annual support obligation is overdue; or
2. liability for any support payable is being contested in a judicial or quasi-judicial proceeding; or
3. the person is in compliance with a repayment plan approved by the office of child support or agreed to by the parties; or
4. in the case of a licensee, the licensing agency finds that requiring immediate payment of support due and payable would impose an unreasonable hardship.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 29; amended 1997, No. 63 , § 16, eff. Jan. 1, 1999.

History

Amendments

—1997. Subdiv. (a)(2): Added “or a license required to engage in recreational activities, including the license to hunt, fish, or trap” following “occupation”.

Subsec. (b): Substituted “subject to a child support order, or if subject to a child support order” for “under an obligation to pay child support” following “applicant is not” and “thereto” for “to” following “respect” in the first sentence.

ANNOTATIONS

Cited.

Cited in SBC Enterprises, Inc. v. City of South Burlington Liquor Control Commission, 166 Vt. 79, 689 A.2d 427, 1996 Vt. LEXIS 115 (1996).

§ 796. Assets held in escrow.

If a proceeding for enforcement of child support has previously been brought against an obligor under this subchapter and the obligor at any time thereafter fails to pay support in an amount equal to one-twelfth of the annual support obligation, the court may, in addition to any other remedies under this subchapter, order that existing liquid assets be held in escrow by the court sufficient to secure payment of support for a period not to exceed four months. If the obligor fails to pay support in an amount equal to one-twelfth of the annual support obligation, the assets held in escrow shall be applied toward unpaid support.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 14.

§ 797. Civil penalties.

The court may impose a civil penalty to be paid to the obligee or to the registry on behalf of the obligee of not more than 10 percent on any amount in arrears for 30 days or more if the court determines that the arrearage was willful.

HISTORY: Added 1989, No. 220 (Adj. Sess.), § 15.

§ 798. Enforcement of child support orders; suspension of licenses.

Upon noncompliance with an order issued under section 606 of this title, a motion may be filed seeking an order for suspension of licenses under this section. The motion shall be scheduled for hearing in accordance with the Vermont Rules of Family Proceedings within 30 days of the filing of the motion. At a hearing under this subsection, the obligor shall have the opportunity to present evidence relating to the reasons for noncompliance. An inability to comply shall be a defense in an action brought under this subsection. The noncomplying party shall have the burden of demonstrating inability to comply. An order issued under subsection (c) of this section is in addition to other remedies available at law.
The Office of Child Support may administratively suspend licenses under this section upon noncompliance with an order under section 606 of this title. Prior to suspending a license, the Office of Child Support shall notify the obligor of the Office’s intent to suspend the obligor’s license and shall provide the obligor with an opportunity to contest the action pursuant to 33 V.S.A. § 4108 . If the obligor fails to either contest the claimed delinquency or request an opportunity to present evidence relating to the noncompliance within 21 days of notification, the Office of Child Support may issue a license suspension order.
Upon a finding of noncompliance with an order issued under section 606 of this title and a delinquency of at least one-quarter of the annual support obligation, the Office of Child Support, or a judge or magistrate of a Family Division of the Superior Court, if assigned by the presiding judge of such court, may order a civil suspension of a noncomplying party’s motor vehicle operator’s license issued under 23 V.S.A. chapter 9 or commercial driver license issued under 23 V.S.A. chapter 39, recreational license, and any other license certification or registration issued by an agency to conduct a trade or business, including a license to practice a profession or occupation.
Upon receipt of a license suspension order issued under this section, the license issuing authority shall suspend the license according to the terms of the order. Prior to suspending the license, the license issuing authority shall notify the license holder of the pending suspension and provide the license holder with an opportunity to contest the suspension based solely on the grounds of mistaken identity or compliance with the underlying child support order. The license shall be reinstated within five business days of a reinstatement order from the court or notification from the Office of Child Support or the custodial parent, where the rights of that parent have not been assigned to the Office of Child Support, that the parent is in compliance with the underlying child support order. The license issuing authority shall charge a reinstatement fee as provided for in 23 V.S.A. § 675 , or as otherwise provided by law or rule.
The license issuing authority shall adopt procedural rules in accordance with the provisions of 3 V.S.A. chapter 25 to implement the provisions of this section.

HISTORY: Added 1995, No. 59 , § 11; amended 1997, No. 63 , § 17, eff. Sept. 1, 1997; 2009, No. 146 (Adj. Sess.), § C16; 2009, No. 154 (Adj. Sess.), § 238; 2017, No. 11 , § 47.

History

Amendments

—2017. Subsec. (d): Inserted “business” following “within five” in the third sentence.

—2009 (Adj. Sess.) Act No. 146 substituted “subsection (c)” for “subsection (b)” in the last sentence of subsec. (a), added new subsec. (b), redesignated former subsecs. (b)-(d) as present subsecs. (c)-(e), and in present subsec. (c), inserted “the office of child support” following “support obligation” and substituted “in 23 V.S.A. § 675 ” for “in section 675 of Title 23” in present subsec. (d).

Act No. 154 substituted “family division of the superior court” for “family court” in two places in present subsec. (c).

—1997. Subsec. (b): Substituted “one-quarter” for “two-twelfths” and added “recreational license, and any other license certification or registration issued by an agency to conduct a trade or business, including a license to practice a profession or occupation” at the end of the sentence.

Subsec. (c): Substituted “license issuing authority” for “department of motor vehicles” wherever it appeared and added “or as otherwise provided by law or rule” following “Title 23” at the end of the fourth sentence.

Subsec. (d): Substituted “license issuing authority” for “department of motor vehicles”.

CROSS REFERENCES

Office of child support: authorization for access to motor vehicle information, see 33 V.S.A. § 4107 .

ANNOTATIONS

Disabled obligors.

A disabled individual with an inability to pay cannot be denied reinstatement of his driver’s license under subsection (c) of this section. Lambert v. Beede, 2003 VT 75, 175 Vt. 610, 830 A.2d 133, 2003 Vt. LEXIS 158 (2003) (mem.).

Inability to pay.

Where mother had the ability to pay under the statutory definition of “available income,” her claim that there was no reasonable likelihood that the order for payment of child support arrears would coerce her into compliance did not strip the State of an available enforcement remedy, so long as it did not infringe upon mother’s free exercise of her religion. Office of Child Support, ex rel. Stanzione v. Stanzione, 2006 VT 98, 180 Vt. 629, 910 A.2d 882, 2006 Vt. LEXIS 259 (2006) (mem.).

Under the strictest test, a state may burden religious liberty if the license suspension advances a compelling governmental interest and the state uses the least restrictive means to advance that interest, but mother must first make a threshold showing that the license suspension is a substantial burden on the free exercise of her sincerely-held religious beliefs. Office of Child Support, ex rel. Stanzione v. Stanzione, 2006 VT 98, 180 Vt. 629, 910 A.2d 882, 2006 Vt. LEXIS 259 (2006) (mem.).

Cited.

Cited in SBC Enterprises, Inc. v. City of South Burlington Liquor Control Commission, 166 Vt. 79, 689 A.2d 427, 1996 Vt. LEXIS 115 (1996); Hixson v. Plump, 167 Vt. 202, 704 A.2d 1159, 1997 Vt. LEXIS 261 (1997).

§ 799. Trustee process.

As used in this section, “trustee” means any person, institution, or entity, holding any money, personal property, or real property that belongs to or is owed to the obligor, including judgments, settlements, lottery winnings, funds held in financial institutions, and any voluntary contributions to public and private retirement funds.
Upon noncompliance with a child support order in excess of one-quarter of the annual support obligation, the Office of Child Support may seek to attach assets owned by an obligor and held by a trustee. Prior to attaching assets held by a trustee, the Office of Child Support shall notify the obligor of the delinquency and of the Office’s intent to take administrative enforcement action for liens and trustee process and shall provide the obligor with an opportunity to contest the claimed delinquency and enforcement action pursuant to 33 V.S.A. § 4108 . If the obligor fails to contest the claimed delinquency within 20 days after notification, or upon a final determination of a delinquency after hearing, the Office of Child Support may issue a summons to a trustee as provided in subsection (c) of this section.
If no timely contest is made or upon a final determination of nonpayment of child support equal to or greater than one-quarter of the annual support obligation, the Office of Child Support may issue one or more summons to the trustee. The sum of the amounts for which the goods, effects, or credits of the obligor are attached on trustee process shall not exceed the amount determined to be delinquent under subsection (b) of this section. The Office of Child Support shall serve on the trustee and the obligor a disclosure form and a notice of the exemptions under subsection (f) of this section. If at any time the Office finds the outstanding arrearage has been satisfied in whole or in part, the Office shall discharge any trustee process that is outstanding or reduce the amounts for which the goods, effects, or credits of the obligor are attached so the sum of all such amounts does not exceed the amount that remains unsatisfied. The Office shall promptly notify the trustee and obligor of the change.
In the event the obligor or other aggrieved person contests the summons to the trustee pursuant to 33 V.S.A. § 4108 or appeals the proposed action to the Family Division of the Superior Court within 20 days of the summons and is found not to be in arrears by more than one-quarter of the annual support obligation on the date the summons to the trustee was issued, the Office, within two business days, shall discharge the trustee process and notify the trustee and the obligor. In addition, the Office shall pay to the obligor or other aggrieved person the sum of $500.00.
Upon receipt of a summons, the trustee shall secure and hold the assets in its possession up to the amount specified in the summons, and shall serve a disclosure under oath on the Office of Child Support and the obligor. If no timely contest is made or upon a final determination of any contest sustaining the trustee process, the trustee shall tender to the Office of Child Support the assets of the obligor in its possession up to the amount specified in the summons. If the trustee fails to disclose or fails or refuses to tender the property as directed, the Office of Child Support may file an action with the Family Division of the Superior Court to determine the trustee’s liability. A trustee shall not be liable to the obligor for complying with this section.
The exemptions from attachments and executions in 12 V.S.A. § 2740 shall apply to the trustee process provided for in this section except as follows:
1. the exemption in 12 V.S.A. § 2740 (15) shall not exceed $400.00;
2. the exemption in 12 V.S.A. § 2740(16) shall not exceed $5,000.00; and
3. the exemption in 12 V.S.A. § 2740(18) shall not apply.
Upon notifying a trustee to attach voluntary retirement funds, the Office shall give the obligor an opportunity to have the attachment removed by making alternate payment arrangements satisfactory to the Office within 30 days of issuance of the summons.

HISTORY: Added 1997, No. 63 , § 17a, eff. Sept. 1, 1997; amended 2009, No. 154 (Adj. Sess.), § 238.

History

Amendments

—2009 (Adj. Sess.) Substituted “family division of the superior court” for “family court” in subsecs. (d) and (e).

ANNOTATIONS

Liens.

Carrier properly paid over the entire proceeds of the claimant’s workers’ compensation award to the Office of Child Support (OCS). The OCS lien was first in time and took priority over the lien of the claimant’s attorney; there was no evidence that the carrier knew that OCS would waive its priority to allow the carrier to pay the attorney’s lien, and the carrier was required by the trustee process statute to tender to the OCS the assets in its possession. Colson v. Town of Randolph, 2011 VT 129, 191 Vt. 551, 35 A.3d 1065, 2011 Vt. LEXIS 130 (2011) (mem.).

§ 800. Contract with sheriff for service of civil process.

The Office of Child Support may contract with a sheriff’s department for the purpose of locating and investigating child support obligors and serving process, warrants, and mittimus in child support cases.

HISTORY: Added 2009, No. 146 (Adj. Sess.), § C19.

Chapter 13. Change of Name

History

CROSS REFERENCES

Change of children’s names in action for divorce, see § 559 of this title.

Petitions for change of name generally, see Rule 80.6, Vermont Rules of Probate Procedure.

Woman allowed to take maiden name or name of former husband upon granting of divorce, see § 558 of this title.

§ 811. Procedure; form.

A person of age and sound mind may change his or her name by making, signing, sealing, and acknowledging before the judge of the Probate Division of the Superior Court of the district in which the person resides, an instrument in the following form:

STATE OF VERMONT District. } District. } Be it remembered, that I, A. B. of in the county of , will be hereafter known and called . In witness whereof I hereunto set my hand and seal this day of , 20 . A. B. (L. S.)

Click to view

HISTORY: Amended 1993, No. 174 (Adj. Sess.), § 4; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 3414. 1941, No. 46 , § 14. P.L. § 3338. G.L. § 3764. P.S. § 3272. V.S. § 2863. R.L. § 2543. 1880, No. 137 , § 8. 1870, No. 8 , § 3. 1863, No. 22 .

Revision note

—2002. In the form, substituted “20 _______________ ” for “19 _______________ ” to correct an outdated reference to a year in the future.

Amendments

—2009 (Adj. Sess.) Introductory paragraph: Substituted “probate division of the superior court” for “probate court.”

—1993 (Adj. Sess.). Inserted “or her” following “his”, substituted “the” for “such” preceding “person resides” and deleted “provided, however, that a married person shall not change his name without the consent of the other spouse being expressed in such instrument and the same being signed, sealed and acknowledged by such spouse” following “form”.

1995, No. 6 , § 2(b), provided that the amendment to this section by 1993, No. 174 (Adj. Sess.), § 4, shall apply retroactively to all deeds or other conveyances of lands or of an estate or interest therein that were signed or executed, whether directly by the grantor or by virtue of a power of attorney, prior to July 1, 1994; provided that 1995, No. 6 , § 2(b) shall not be construed to apply to any such document, the validity of which is being contested in a suit begun or pending before a court or, which has been invalidated by a court for lack of a signature of a second witness prior to July 1, 1995.

§ 812. Minor.

A minor may change his or her name by some person who, under 14 V.S.A. chapter 111, may act for him or her, making, signing, sealing, and acknowledging before the judge of the Probate Division of the Superior Court of the district in which such minor resides, an instrument in substantially the form provided in section 811 of this title. Such instrument shall be signed by the person so acting for such minor. However, the name of the minor, if over 14 years of age, shall not be changed without his or her consent given in court.

HISTORY: Amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 3415. P.L. § 3339. G.L. § 3765. P.S. § 3273. V.S. § 2864. 1888, No. 139 .

Revision note—

At the end of the first sentence, substituted “section 811 of this title” for “the preceding section” for purposes of clarity.

Amendments

—2009 (Adj. Sess.) Substituted “probate division of the superior court” for “probate court.”

CROSS REFERENCES

Probate districts, see § 271 et seq. of Title 4.

ANNOTATIONS

Applicants.
- —Proof of abandonment.
Notice or consent.
Standards for decision on application.

Applicants.

Where a minor child desires a name change, this section mandates that the application on behalf of the minor be brought by a legal guardian appointed by the probate court. In re Fletcher, 145 Vt. 209, 486 A.2d 627, 1984 Vt. LEXIS 576 (1984).

Where a petition to change the surname of a minor child was filed by the child’s mother who was not a court-appointed guardian, authorized by this section to file the application, the petition was invalid on its face and the probate court erred in considering the merits of the petition. In re Fletcher, 145 Vt. 209, 486 A.2d 627, 1984 Vt. LEXIS 576 (1984).

—Proof of abandonment.

This section imposes no duty on a person who applies to a probate court to change the name of a minor child to prove abandonment of the child by a noncustodial parent in order to prevail. In re Fletcher, 145 Vt. 209, 486 A.2d 627, 1984 Vt. LEXIS 576 (1984).

Notice or consent.

When application is made to a probate court to change the name of a minor child, notice of the application to, or consent of, a noncustodial parent is not required. In re Fletcher, 145 Vt. 209, 486 A.2d 627, 1984 Vt. LEXIS 576 (1984).

Standards for decision on application.

15 V.S.A. § 812 is silent as to the factors a court should consider in relation to a name change petition but some factors other courts have considered include: (1) the child’s preference, taking into account the child’s age and maturity; (2) the length of time the child has used the surname; (3) the effect of a surname change on the preservation and development of the child’s relationship with each parent; (4) whether the child might feel embarrassment or discomfort bearing a surname different from the rest of the family; (5) whether any negative association or social stigma has attached to either the current or proposed name; (6) the motives of the moving parent; and (7) any other factor relevant to the child’s best interest. In re Wilson, 162 Vt. 281, 648 A.2d 648, 1994 Vt. LEXIS 81 (1994).

Before granting or denying an application under this section, the probate court should first determine what is in the best interests of the child, and then decide, on the basis of sound judicial discretion, whether the requested name change is warranted. In re Fletcher, 145 Vt. 209, 486 A.2d 627, 1984 Vt. LEXIS 576 (1984).

Notes to Opinions

Applicants.

Divorcee who has custody of her child is not such a person as is mentioned in this section as one who may apply for change of child’s name. 1942-44 Vt. Op. Att'y Gen. 293.

§ 813. Filing of instrument.

An instrument changing the name, by virtue of sections 811 and 812 of this title, shall be filed in the Probate Division of the Superior Court of the district in which such person or minor resides.

HISTORY: Amended 1971, No. 179 (Adj. Sess.), § 13; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

History

Source.

V.S. 1947, § 3416. P.L. § 3340. G.L. § 3766. P.S. § 3274. V.S. § 2865. R.L. § 2543. 1880, No. 137 , § 8. 1870, No. 8 , § 3. 1863, No. 22 .

Amendments

—2009 (Adj. Sess.) Substituted “probate division of the superior court” for “probate court.”

—1971 (Adj. Sess.). Deleted the second sentence.

CROSS REFERENCES

Probate districts, see § 271 et seq. of Title 4.

§ 814. Repealed. 1979, No. 142 (Adj. Sess.), § 26.

History

Former § 814, relating to change of surname of wife and children of married man who changed his name, was derived from V.S. 1947, § 3417; P.L. § 3341; G.L. § 3767; P.S. § 3275; V.S. § 2866; R.L. § 2544; 1880, No. 137 , § 9.

§ 815. Repealed. 2003, No. 88 (Adj. Sess.), § 1.

History

Former § 815, relating to advertisement of change of name, was derived from V.S. 1947, § 3418; 1941, No. 46 , § 15; P.L. § 3342; G.L. § 3768; P.S. § 3276; V.S. § 2867; R.L. § 2546; 1880, No. 137 , § 11; G.S. 56, § 10 and 1853, No. 50 , § 4.

§ 816. Amendment of birth certificate.

A person, or the parent or guardian of a minor, may provide the State Registrar of Vital Records with a copy of his or her birth certificate or the birth certificate of the minor and a certified copy of a decree issued under this chapter authorizing a change of name, and request that the birth certificate be amended in accordance with the decree. The State Registrar of Vital Records shall update the Statewide Registration System and proceed in accordance with 18 V.S.A. § 5075 . Notwithstanding 18 V.S.A. § 5075 , certificates amended pursuant to this section shall have the words “Court Amended” at the top and shall show that the change of name was made pursuant to this chapter.

HISTORY: Amended 1979, No. 172 (Adj. Sess.), §§ 22, 26; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2017, No. 28 , § 3, eff. May 10, 2017; 2017, No. 46 , § 57, eff. July 1, 2019.

History

Revision note—

Deleted “(a)” from the beginning of the section in light of the repeal of subsec. (b) of this section.

References in text.

Reference to repealed §§ 4101 and 4109 of V.S. 1947 were changed to the corresponding sections of 1951, No. 170 , set out in Title 18.

“Secretary of the state board of health” was changed to “commissioner of health” pursuant to 1951, No. 170 , § 220, set out in § 5010 of Title 18.

Amendments

—2017. Act No. 28 substituted “Probate Division where” for “register of with whom”; inserted “18 V.S.A.” preceding “chapter 101”; and deleted “of Title 18” following “chapter 101”.

Act No. 46 Amended the section generally.

—2009 (Adj. Sess.) Substituted “probate division of the superior court” for “probate court”.

—1979 (Adj. Sess.) Subsec. (a): Amended generally.

Subsec. (b): Repealed.

Effective date of 2017 amendment of section. 2017, No. 46 , § 63 as amended by 2017, No. 11 (Sp. Sess.), § I.1(b) provides that the amendment of this section shall take effect July 1, 2019.

CROSS REFERENCES

Birth records to be marked “amended,” see § 5076 of Title 18.

§ 817. Consultation of Sex Offender Registry when form filed.

Upon receipt of a change-of-name form submitted pursuant to section 811 of this title, the Probate Court shall request the Department of Public Safety to determine whether the person’s name appears on the Sex Offender Registry established by 13 V.S.A. § 5402 . If the person’s name appears on the Registry, the Probate Court shall not permit the person to change his or her name unless it finds, after permitting the Department of Public Safety to appear, that there is a compelling purpose for doing so.

HISTORY: Added 2009, No. 58 , § 12.

Chapter 15. Parent and Child

§ 901. Parents’ liability for damages.

When an unemancipated minor under the age of 18 years willfully or maliciously causes damage to any property, public or private, or injury to a person, either of his or her parents shall be liable to the owner of such property or to the person injured, in an action on this statute, for the damage to property, injury to person, or either, in an amount not to exceed $5,000.00 provided such minor would be liable had such minor been an adult. If the damage or injury is caused by two or more such minors, a parent shall be liable for each of his or her children subject to the provisions of this section in an amount not exceeding $5,000.00. The remedy provided shall be in addition to, and not in lieu of, any other remedy which may exist at law; except, however, that any judgment subsequently recovered in any action brought for money damages on account of the damage or injury contemplated shall be reduced by the extent of any previous judgment recovered in any other such action.
The provisions of subsection (a) of this section shall not apply to a parent legally deprived or relieved of the custody of the minor prior to the commission of the act complained of.
In an action under this section against a minor’s parents, nothing contained in the record of any juvenile proceeding involving the minor shall be admissible as evidence except as provided in 33 V.S.A. § 5117 .
Law enforcement officers who come in contact with an owner of property damaged by a minor or a person injured by a minor shall make a reasonable effort to inform such person of the provisions of this section.

HISTORY: Added 1959, No. 124 , §§ 1, 2; amended 1989, No. 142 (Adj. Sess.), § 7; 1995, No. 147 (Adj. Sess.), § 1; 2013, No. 131 (Adj. Sess.), § 111.

History

References in text.

Section 5536 of Title 33, referred to in subsec. (c), was repealed by 2007, No. 185 (Adj. Sess.), § 13, effective January 1, 2009.

Amendments

—2013 (Adj. Sess.). Subsec. (c): Substituted “ 33 V.S.A. § 5117 ” for “ 33 V.S.A. § 5536 ” at the end.

—1995 (Adj. Sess.) Subsec. (a): Substituted “18” for “seventeen” and “$5,000.00” for “$1,000.00” in the first sentence and “$5,000.00” for “$1,000.00” in the second sentence.

Subsecs. (c) and (d): Added.

—1989 (Adj. Sess.). Subsec. (a): Substituted “$1,000.00” for “$250.00” following “exceed” in the first sentence and following “exceeding” in the second sentence.

ANNOTATIONS

Applicability.

This section had no bearing on tenants’ liability for damage to leased premises caused by tenants’ children, since its purpose is not to limit liability when a contract action is brought against a parent. Prevo v. Evarts, 146 Vt. 216, 500 A.2d 227, 1985 Vt. LEXIS 366 (1985).

Purpose.

Purpose of this section is to extend the liability of parents to cases where there is no parental negligence. Prevo v. Evarts, 146 Vt. 216, 500 A.2d 227, 1985 Vt. LEXIS 366 (1985).

Chapter 17. Causes of Actions and Breach of Contract

History

Revision note

—2009. 2009, No. 3 , § 12a provides: “The staff of the legislative council, in its statutory revision capacity, is authorized and directed to make such amendments to the Vermont Statutes Annotated as are necessary to effect the purpose of this act, including, where applicable, substituting the words ‘civil marriage’ for the word ‘marriage.’ Such changes shall be made when new legislation is proposed, or there is a republication of a volume of the Vermont Statutes Annotated.”

Revision note—. This chapter was enacted as “chapter 15” but was renumbered as “chapter 17” to conform to V.S.A. classification and style.

§ 1001. Causes of action abolished.

The rights of action to recover sums of money as damages for alienation of affections, criminal conversation, seduction, or breach of contract to marry are abolished. No act done within this State shall operate to give rise, either within or outside this State, to any such right of action. No contract to marry made or entered into in this State shall operate to give rise, either within or outside this State, to any cause or right of action for its breach.

HISTORY: Added 1973, No. 198 (Adj. Sess.).

CROSS REFERENCES

Spouse’s right of action for loss of consortium, see § 5431 of Title 12.

ANNOTATIONS

Applicability.
Effect.
Unlawful interference with marriage.

Applicability.

Alienation of affections action brought before effective date this section abolishing such cause of action was not barred. Woods v. Shumway, 134 Vt. 242, 356 A.2d 529, 1976 Vt. LEXIS 641 (1976).

Effect.

By adopting this section, legislature intended that all causes of action for the alienation of affections be abolished, as a result of which, parents complaint that religious association had alienated and estranged their adult daughter from her family and friends, thereby interfering with and impairing an advantageous relationship, would be dismissed. Schuppin v. Unification Church, 435 F. Supp. 603, 1977 U.S. Dist. LEXIS 15142 (D. Vt.), aff'd, 573 F.2d 1295 (2d Cir. 1977).

Unlawful interference with marriage.

Count of complaint which alleged unlawful interference with plaintiff’s marriage was within the scope of this section and properly dismissed for failure to state a claim upon which relief could be granted. Cronin v. State, 148 Vt. 252, 531 A.2d 929, 1987 Vt. LEXIS 475 (1987).

§ 1002. Gifts made in contemplation of civil marriage.

Nothing in this chapter shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of the transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money, or securities or real property was a contemplated civil marriage that has not occurred, and the court may, if in its discretion justice so requires:

award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto; or
deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.

HISTORY: Added 1973, No. 198 (Adj. Sess.); amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

ANNOTATIONS

Particular cases.

In a partition action, the trial court did not err in not crediting defendant’s argument that the property transfer was made in contemplation of marriage. The trial court credited plaintiff’s conflicting testimony that defendant transferred the property into joint names based on the expectation that plaintiff and her family would be contributing time and money to the construction of a home on the property, and concluded that the evidence did not support defendant’s position. Nystrom v. Hafford, 2012 VT 60, 192 Vt. 300, 59 A.3d 736, 2012 Vt. LEXIS 59 (2012).

§ 1003. Instruments void.

Any contract or instrument executed after July 1, 1974 within this State in payment, satisfaction, settlement, or compromise of any claim or cause of action abolished by this chapter, whether such claim or cause of action arose within or outside this State, is contrary to the public policy of this State and absolutely void. Nothing in this section shall affect the rights of parties to settle or compromise any suit duly begun or pending on July 1, 1974.

HISTORY: Added 1973, No. 198 (Adj. Sess.).

History

Revision note—

Substituted “July 1, 1974” for “the effective date of this chapter” in the first and second sentences for purposes of clarity.

Chapter 18. Grandparents’ Visitation

§ 1011. Jurisdiction.

A court that has considered or is considering the custody or visitation of a minor child may award visitation rights to a grandparent of the child, upon written request of the grandparent filed with the court, if the court finds that to do so would be in the best interests of the child.
No grandparent shall be afforded party status, but may be called as a witness by the court, and shall be subject to cross-examination by the parties.
No appeal may be taken by any grandparent from the court’s decision on visitation as it pertains to any grandparent.
A grandparent who has visitation rights under this section may move the court for enforcement of the court’s order in the same manner as would a party. A hearing shall be held and notice shall be given to the parties pursuant to the Vermont Rules of Civil Procedure.

HISTORY: Added 1983, No. 219 (Adj. Sess.), eff. May 9, 1984; amended 2009, No. 154 (Adj. Sess.), § 127.

History

Amendments

—2009 (Adj. Sess.) Subsec. (a): Deleted “superior, juvenile or probate” preceding “court which”.

ANNOTATIONS

Constitutionality.
Appeals.
Parental decision presumed valid.
Unconstitutional application.

Constitutionality.

Because Vermont’s grandparent visitation statute can be construed to be consistent with constitutional requirements, plaintiff’s facial challenge to the statute must fail. Glidden v. Conley, 2003 VT 12, 175 Vt. 111, 820 A.2d 197, 2003 Vt. LEXIS 11 (2003).

Appeals.

The prohibition on appeals in subsection (c) of this section applies only to proceedings under this section. In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1988 Vt. LEXIS 183 (1988).

Parental decision presumed valid.

When evaluating the best interest of the child, a presumption of validity attaches to the parent’s decision concerning grandparent visitation and, to rebut this presumption, a grandparent must provide evidence of compelling circumstances to justify judicial interference with the parent’s visitation decision. Craven v. McCrillis, 2005 VT 22, 178 Vt. 476, 868 A.2d 740, 2005 Vt. LEXIS 30 (2005) (mem.).

Although a grandparent may have a close relationship with the child such that the child might benefit from contact with the grandparent, and the parent may deny such contact for no good reason, these are not the kind of compelling circumstances justifying interference with the parent’s decision. Craven v. McCrillis, 2005 VT 22, 178 Vt. 476, 868 A.2d 740, 2005 Vt. LEXIS 30 (2005) (mem.).

In order to establish parental unfitness, the grandparent must prove that the parent’s actions or the failure to grant grandparent visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare. Craven v. McCrillis, 2005 VT 22, 178 Vt. 476, 868 A.2d 740, 2005 Vt. LEXIS 30 (2005) (mem.).

Grandmother’s presenting evidence of a child’s boredom, unhappiness, and sometimes unclean condition did not amount to evidence that father’s actions and decisions were adversely affecting the child’s health, safety, and welfare; even evidence of father’s one-time threat to hit the child did not rise to the level of child abuse sufficient to warrant judicial interference with his decision-making. Craven v. McCrillis, 2005 VT 22, 178 Vt. 476, 868 A.2d 740, 2005 Vt. LEXIS 30 (2005) (mem.).

To accord with due process, an evaluation of the best interests of the child under Vermont’s grandparent visitation statute requires that a parental decision concerning grandparent visitation be given a presumption of validity. Glidden v. Conley, 2003 VT 12, 175 Vt. 111, 820 A.2d 197, 2003 Vt. LEXIS 11 (2003).

That a child might benefit from contact with a grandparent or that a parent might deny grandparent visitation for no good reason are not the kind of compelling circumstances contemplated by the Constitution, rather, to overcome a parent’s decision on grandparent visitation, a grandparent must show circumstances like parental unfitness. Glidden v. Conley, 2003 VT 12, 175 Vt. 111, 820 A.2d 197, 2003 Vt. LEXIS 11 (2003).

Unconstitutional application.

Family court’s award of visitation rights to maternal grandmother of plaintiff’s biological daughter impermissibly infringed on plaintiff’s right to decide what visitation is in his daughter’s best interests, where there was no allegation or finding that plaintiff was not fit to parent the child, nor that the child would suffer significant harm without court-ordered visits with her grandmother. Glidden v. Conley, 2003 VT 12, 175 Vt. 111, 820 A.2d 197, 2003 Vt. LEXIS 11 (2003).

Family court’s rationale for entering an enforceable visitation order awarding visitation rights to the maternal grandmother of plaintiff’s biological daughter — to eliminate the potential for plaintiff to restrict visitation due to his otherwise valid parental concerns — was far from compelling, and, standing alone, was not enough to sustain the decision; the order was precisely the type of decision making which, by disregarding and giving no deference to a fit custodial parent’s determination of the child’s best interests, exceeded the bounds of the due process clause, violated plaintiff’s fundamental rights, and was unconstitutional. Glidden v. Conley, 2003 VT 12, 175 Vt. 111, 820 A.2d 197, 2003 Vt. LEXIS 11 (2003).

Cited.

Cited in In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992); Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682, 1997 Vt. LEXIS 16 (1997).

§ 1012. If a parent is deceased or cannot decide.

If a parent of a minor child is deceased, physically or mentally incapable of making a decision, or has abandoned the child, a grandparent of the child may commence an action in Superior Court in the county in which the custodian of the child resides to obtain visitation rights. The action shall promptly be tried without a jury in the same manner as a divorce case. The custodian of the child shall be the party defendant. In the event that the custodian of the child is not the parent of the child, the parent shall also be joined as a party defendant.

HISTORY: Added 1983, No. 219 (Adj. Sess.), eff. May 9, 1984.

ANNOTATIONS

Cited.

Cited in In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1988 Vt. LEXIS 183 (1988).

§ 1013. Decision.

The court shall grant the petitioner reasonable visitation or access to the grandchild upon determining that to do so would be in the best interests of the child.
In determining the best interests of the child, the court shall consider the following factors:
1. the love, affection, and other emotional ties existing between the grandparents involved and the child;
2. the capacity and disposition of the parties involved to give the child love, affection, and guidance;
3. the nature of the relationship between the petitioner and the grandchild and the desirability of maintaining that relationship;
4. the moral fitness of the parties;
5. the mental and physical health of the parties;
6. the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
7. the willingness and ability of the petitioner to facilitate and encourage a close and continuing relationship between the child and the other parties; and
8. any other factor which the court considers to be relevant to a just determination regarding visitation or access.

HISTORY: Added 1983, No. 219 (Adj. Sess.), eff. May 9, 1984.

ANNOTATIONS

Denial of visitation.

Where superior court gave no reasons for denying grandparent visitation, case would be remanded for further hearing on the visitation issue under the factors contained in this section. In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1988 Vt. LEXIS 183 (1988).

Cited.

Cited in Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985).

§ 1014. Modification.

A court may modify or terminate any order granted under this section, issue any orders necessary to the enforcement of rights or the protection of parties under this section, and award costs for defending or prosecuting actions under this section.

HISTORY: Added 1983, No. 219 (Adj. Sess.), eff. May 9, 1984.

§ 1015. Limit on refiling.

Absent a real, substantial, and unanticipated change of circumstances, no person whose petition under this section is denied with prejudice may file another petition under this section sooner than one year after that denial.

HISTORY: Added 1983, No. 219 (Adj. Sess.), eff. May 9, 1984.

§ 1016. Automatic expiration.

When a child subject to an order under this chapter is later adopted, the order under this chapter expires, except when the adopting parent is a stepparent, grandparent, or other relative of the child.

HISTORY: Added 1983, No. 219 (Adj. Sess.), eff. May 9, 1984.

ANNOTATIONS

Construction with other law.

Family court order explicitly indicating that grandmother’s visitation rights would terminate upon adoption was consistent with provisions of 15A V.S.A. §§ 1-109, 3-703(c), 3-705(c) which specify that final adoption decrees render outstanding orders and visitation agreements unenforceable. In re A.S., 171 Vt. 599, 762 A.2d 830, 2000 Vt. LEXIS 301 (2000) (mem.).

Chapter 19. Uniform Child Custody Jurisdiction Act

Cited.

Cited in Columb v. Columb, 161 Vt. 103, 633 A.2d 689, 1993 Vt. LEXIS 95 (1993).

Annotations From Former Ch

Construction.

Regardless of jurisdictional rules to the contrary, this chapter requires that the interests of child involved in a multi-jurisdictional custody dispute are to be addressed in the forum with the strongest ties to the child. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992).

This chapter generally concerns subject matter jurisdiction, not personal jurisdiction. Boisvert v. Boisvert, 143 Vt. 445, 466 A.2d 1184, 1983 Vt. LEXIS 551 (1983).

Construction with other laws.

Requiring Uniform Child Custody Jurisdiction Act (UCCJA) jurisdiction as a predicate to enforcement would defeat the purpose of the Parental Kidnapping Prevention Act (PKPA), which mandates that all states must enforce custody determinations made consistent with PKPA requirements, regardless of whether they could exercise jurisdiction to make a custody determination. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Parental Kidnapping Prevention Act’s (PKPA) preference for home state jurisdiction, established in 28 U.S.C. § 1738A(c)(2), preempts the Uniform Child Custody Jurisdiction Act (UCCJA) to the extent the UCCJA otherwise might confer jurisdiction when another state is the child’s home state. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Jurisdictional requirements of Parental Kidnapping Prevention Act (PKPA) preempt this chapter when the acts conflict; thus, unless child custody decree complies with PKPA, trial court lacks subject matter jurisdiction to modify or enforce original decree. Shute v. Shute, 158 Vt. 242, 607 A.2d 890, 1992 Vt. LEXIS 43 (1992).

Where home state of child in custody dispute is not Vermont, Parental Kidnapping Prevention Act (PKPA) is in conflict with, and takes precedence over, this chapter such that best interest of child may not decide jurisdiction. Shute v. Shute, 158 Vt. 242, 607 A.2d 890, 1992 Vt. LEXIS 43 (1992).

Continuing jurisdiction.

In child custody proceeding the superior court properly decided on basis of the child’s best interests that continuing jurisdiction was proper in Bermuda; argument was rejected that Vermont maintained continuing jurisdiction because it was the state in which guardianship petitions were originally filed. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992).

Purpose.

This chapter seeks to ensure that litigation regarding custody matters takes place in the state with which the child and his or her family have the closet connections. Boisvert v. Boisvert, 143 Vt. 445, 466 A.2d 1184, 1983 Vt. LEXIS 551 (1983).

§§ 1031-1051. Repealed. 2011, No. 29, § 8.

History

Editor’s note

—Former §§ 1031-1051. Former §§ 1031-1051, relating to the Uniform Child Custody Jurisdiction Act, were derived from 1979, No. 136 (Adj. Sess.), § 2.

For present provisions, see now § 1061 et seq. of this title.

ANNOTATIONS.

Annotations From Former § 1031

Contestant.

Home state.

Particular cases.

Person acting as parent.

Proceedings.

Annotations From Former § 1031

Contestant.

Department of Social and Rehabilitation Services is not a “contestant” as defined in Uniform Child Custody Jurisdiction Act. In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993).

Home state.

Even assuming that a child was improperly brought or kept in Vermont, home state jurisdiction under the Uniform Child Custody Jurisdiction Act is not nullified; it could form the basis for referring jurisdiction to another state, but does not invalidate jurisdiction. While the improper method by which a child came into the jurisdiction may cause a court in equity to refuse to exercise jurisdiction over a child, it does not deprive the court of its otherwise existing legal subject matter jurisdiction to determine custody. In re C.P., 2012 VT 100, 193 Vt. 29, 71 A.3d 1142, 2012 Vt. LEXIS 98 (2012).

Vermont could properly exercise jurisdiction over prosecution for custodial interference, where children were residents of Vermont at time of their abduction by defendant father, Vermont was children’s “home state” under both Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act and Vermont family court was properly exercising jurisdiction over custody dispute, and information about parties and their situation was primarily located in Vermont. State v. Wootten, 170 Vt. 485, 756 A.2d 1222, 2000 Vt. LEXIS 41, cert. denied, 531 U.S. 934, 121 S. Ct. 320, 148 L. Ed. 2d 257, 2000 U.S. LEXIS 6752 (2000).

Family court properly exercised jurisdiction over termination of parental rights proceeding, since at time proceeding was commenced, Vermont, not Massachusetts, was home state of child. In re B.C., 169 Vt. 1, 726 A.2d 45, 1999 Vt. LEXIS 1 (1999).

Particular cases.

Child-in-need-of-care-or-supervision (CHINS) merits decision was final and not void pursuant to a belated collateral attack. The family court had jurisdiction over the child-neglect proceeding and also had the ability to issue a CHINS decision pursuant to Uniform Child Custody Jurisdiction Act emergency jurisdiction; thus, even if the exercise of emergency jurisdiction was “ill-advised,” in the context of this collateral attack, the underlying order was not void as a matter of law on subject-matter-jurisdiction grounds. In re C.P., 2012 VT 100, 193 Vt. 29, 71 A.3d 1142, 2012 Vt. LEXIS 98 (2012).

By the time the initial disposition report requesting termination of parental rights was filed, the child had lived in Vermont for more than six months; thus, Vermont had become the child’s home state, and the family court could exercise jurisdiction on this basis. It was not determinative that termination was sought at the initial disposition stage, rather than in a subsequent motion; the interest of New York did not preclude Vermont from adjudicating the proceeding; and there was no merit to the father’s argument that a child-in-need-of-care-or-supervision adjudication was not final as to him because the allegations did not involve him. In re C.P., 2012 VT 100, 193 Vt. 29, 71 A.3d 1142, 2012 Vt. LEXIS 98 (2012).

Termination of parental rights is a determination of status and may be adjudicated when the forum state has a sufficient connection to the children, even absent minimum contact jurisdiction over a parent. Further, in this case, where the father was a citizen and resident of Sri Lanka and had never been to Vermont, exercise of jurisdiction was authorized by the Uniform Child Custody Jurisdiction Act and was reasonable given the strong interests of the state and the children in resolution of the father’s rights as well as the lack of any conflicting jurisdictional claims by another state or country. In re R.W., 2011 VT 124, 191 Vt. 108, 39 A.3d 682, 2011 Vt. LEXIS 127 (2011).

Person acting as parent.

Department of Social and Rehabilitation Services may be considered “a person acting as a parent” under Uniform Child Custody Jurisdiction Act. In re B.C., 169 Vt. 1, 726 A.2d 45, 1999 Vt. LEXIS 1 (1999).

Proceedings.

Uniform Child Custody Jurisdiction Act (UCCJA) defines “custody proceeding,” but leaves the definition of the basic component “proceeding” undefined, leaving the matter to state law. Thus, the Vermont Supreme Court’s definition of “proceeding” controls for UCCJA purposes. In re C.P., 2012 VT 100, 193 Vt. 29, 71 A.3d 1142, 2012 Vt. LEXIS 98 (2012).

Cited.

Cited in Peloso v. Botkin, 144 Vt. 461, 479 A.2d 156, 1984 Vt. LEXIS 502 (1984); Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749, 1987 Vt. LEXIS 459 (1987); In re B.J.C., 149 Vt. 196, 540 A.2d 1047, 1988 Vt. LEXIS 4 (1988); Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988); In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992); In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993); Chick v. Chick, 2004 VT 7, 176 Vt. 580, 844 A.2d 747, 2004 Vt. LEXIS 9 (2004); Jackson v. Hendricks, 2005 VT 113, 179 Vt. 549, 893 A.2d 292, 2005 Vt. LEXIS 302 (2005) (mem.).

Cited in Meyer v. Meyer (1987) 148 Vt. 65, 528 A.2d 749 main volume, overruled, Shute v. Shute (1992) 158 Vt. 242, 607 A.2d 242; Duval v. Duval (1988) 149 Vt. 506, 546 A.2d 1357 main volume, overruled, Shute v. Shute (1992) 158 Vt. 242, 607 A.2d 242. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992); In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993).

ANNOTATIONS.

Annotations From Former § 1032

Construction with other law.

Continuing jurisdiction.

Emergency jurisdiction.

Findings and conclusions.

Grounds for jurisdiction.

Lack of jurisdiction.

Scope of jurisdiction.

When required.

Annotations From Former § 1035

Contacting other state.

Annotations From Former § 1036

Construction.

Construction with other law.

Contacting other jurisdiction.

Contempt proceedings.

Particular cases.

Standards.

Statutory factors.

Annotations From Former § 1032

Construction with other law.

Commencement of a child in need of care and supervision (CHINS) proceeding prior to a child’s birth does not necessarily deprive the family court of subject matter jurisdiction. In re N.H., 2005 VT 118, 179 Vt. 537, 889 A.2d 727, 2005 Vt. LEXIS 254 (2005) (mem.).

Vermont order modifying father’s visitation rights satisfied the requirement of 28 U.S.C. § 1738A(c)(1) of the Parental Kidnapping Prevention Act (PKPA), notwithstanding fact that mother and son moved to Rhode Island two months before Vermont issued order, where Vermont had jurisdiction under Vermont law when it issued orders. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Vermont court was not bound to recognize and enforce Rhode Island modification of Vermont order regarding custody and visitation where the Rhode Island court failed to comply with the prerequisites for modification set forth in the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A(f)) because there was no basis for that court to conclude that Vermont had lost jurisdiction or was deferring to Rhode Island, and the Rhode Island court never requested that the Vermont family court decline jurisdiction. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Vermont family court’s order that mother show cause why she should not be held in contempt was valid where, although the mother contended that the Vermont family court could not find her in contempt of its September 1991 modification order because that order was superseded by the 1992 Rhode Island modification, the Rhode Island modification did not conform with the requirements of the Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) and, thus, the September 1991 order was entitled to enforcement. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

In light of the federal Parental Kidnapping Prevention Act’s preference for home state jurisdiction, it is not normally in best interest of child for Vermont to exercise jurisdiction to determine custody of a child whose home state or recent home state is other than Vermont; moreover, Vermont is normally an inconvenient forum to determine custody of a child who has a home state other than Vermont. Columb v. Columb, 161 Vt. 103, 633 A.2d 689, 1993 Vt. LEXIS 95 (1993).

There was no jurisdictional bar to family court acting on father’s renewed motion to modify child custody, where child had no home state on that date, and there was nothing in Parental Kidnapping Prevention Act or Uniform Child Custody Jurisdiction Act to prevent Vermont’s assertion of jurisdiction if grounds to do so otherwise existed; accordingly, matter was remanded for determination of whether adjudication of custody contest in Vermont was presently in best interest of child, and whether Vermont was the convenient forum. Columb v. Columb, 161 Vt. 103, 633 A.2d 689, 1993 Vt. LEXIS 95 (1993).

Continuing jurisdiction.

Provisions of the Uniform Child Custody Jurisdiction Act as to Vermont’s continuing jurisdiction were met because the child had recently resided in the State and the evidence of the child’s relationship with plaintiff’s ex-partner was present there. Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, 180 Vt. 441, 912 A.2d 951, 2006 Vt. LEXIS 159 (2006), cert. denied, 550 U.S. 918, 127 S. Ct. 2130, 167 L. Ed. 2d 863, 2007 U.S. LEXIS 4557 (2007).

Vermont family court had continuing jurisdiction under best interest criterion of 15 V.S.A. § 1032(a)(2) where although mother and son moved to Rhode Island two years before, father continued to reside in Vermont, where visitation was to take place between father, son, and numerous relatives, son lived in Vermont his entire life before moving to Rhode Island, and only mother’s actions prevented visitation as scheduled. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Bermuda was the most appropriate forum for continuing jurisdiction in determining custody of child who had survived accidental death of parents living in Vermont; Bermuda was where the child had been living with the maternal grandmother for thirteen months, it was the only forum that had access to evidence of the child’s best interests, and it did not decline to exercise jurisdiction. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992).

Vermont could not retain continuing jurisdiction as the home state of child who was born in Bermuda and was five months old at the time of her parents’ death. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992).

Emergency jurisdiction.

Emergency jurisdiction under Uniform Child Custody Jurisdiction Act allows court to enter only a temporary custody order until jurisdictional issue is resolved, and court exercising emergency jurisdiction may not enter a final order on merits and disposition in a child in need of care and supervision (CHINS) proceeding. In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999).

Findings and conclusions.

In action involving modification of child custody decree, where it was found that the child did not have a home state under 15 V.S.A. § 1031(5) at the time that father filed his motion and that Florida had apparently relinquished any claim of jurisdiction over the case, the Vermont court’s exercise of jurisdiction was appropriate under 15 V.S.A. § 1032(a)(4) because no other state had jurisdiction over the child, and it was in the child’s best interests for Vermont to assume jurisdiction. Jackson v. Hendricks, 2005 VT 113, 179 Vt. 549, 893 A.2d 292, 2005 Vt. LEXIS 302 (2005) (mem.).

In case involving termination of a guardianship order instituted in another state, where the family court made extensive findings regarding the child’s best interests relative to the factors identified in 15 V.S.A. § 665(b) , and found that the child had developed strong relationships in Vermont, the court did not abuse its discretion in awarding father legal and physical parental rights and responsibilities, and granting mother and guardian liberal visitation rights. Jackson v. Hendricks, 2005 VT 113, 179 Vt. 549, 893 A.2d 292, 2005 Vt. LEXIS 302 (2005) (mem.).

Although family court’s findings were not adequate to support its conclusion that it had jurisdiction under Uniform Child Custody Jurisdiction Act, record did support a finding of jurisdiction where there was evidence that child and at least one contestant had significant connections with Vermont and that substantial evidence concerning child’s present or future care, protection, and personal relationships were available in Vermont. In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999).

Trial court’s findings of fact and conclusions of law which briefly alluded to the availability of evidence in this state concerning the child’s emotional, physical and social well-being, as well as the child’s and father’s significant connections with this state, were inadequate, and custody proceeding would be remanded for a determination of trial court’s jurisdiction pursuant to all the criteria of this section. Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Duval v. Duval (1988) 149 Vt. 506, 546 A.2d 1357 main volume, overruled, Shute v. Shute (1992) 158 Vt. 242, 607 A.2d 242.

Grounds for jurisdiction.

When a mother and a child had been living in Quebec for over a year at the time the mother filed her custody petition in a Canadian family court, and when the Canadian court considered its assumption of jurisdiction to be in the interests of the child based on his Quebec residence, the significant evidence presented to the court concerning his physical and emotional health, and the perceived risks of returning the child to the father in Vermont, the Canadian decision thus evinced at least two viable grounds for its exercise of jurisdiction under the Uniform Child Custody Jurisdiction Act: as the child’s home state and as the state where at least one contestant and the child had a significant connection, where substantial evidence concerning the child’s welfare could be found, and where the assumption of jurisdiction would serve the child’s interests. Miller v. Miller, 2008 VT 86, 184 Vt. 464, 965 A.2d 524, 2008 Vt. LEXIS 98 (2008).

Having argued for recognition of a Canadian judgment on the ground that Canada rather than Vermont had jurisdiction, a mother had not waived any claim that Canada was the more convenient forum. The critical factors underlying a forum analysis were largely the same as those applicable to the issue of jurisdiction, to wit, the child’s home state, significant connections with the forum, and the location of substantial evidence concerning the child’s welfare, care, interests, and personal relationships, so the parties had been afforded ample opportunity to address the critical issues underlying the court’s analysis; furthermore, the case had dragged on for too many years, and a remand to address the record evidence under a slightly different legal theory would represent a useless expenditure of time and resources and needlessly subject the child to continued instability. Miller v. Miller, 2008 VT 86, 184 Vt. 464, 965 A.2d 524, 2008 Vt. LEXIS 98 (2008).

For the exact reason that the Vermont proceeding met the Parental Kidnapping Protection Act (PKPA) condition, it met the identically-worded provision of the Uniform Child Custody Jurisdiction Act. Thus, the family court had jurisdiction under Vermont law as required by the PKPA. Miller-Jenkins v. Miller-Jenkins, 2006 VT 78, 180 Vt. 441, 912 A.2d 951, 2006 Vt. LEXIS 159 (2006), cert. denied, 550 U.S. 918, 127 S. Ct. 2130, 167 L. Ed. 2d 863, 2007 U.S. LEXIS 4557 (2007).

Where child in need of care and supervision (CHINS), and eventually termination of parental rights (TPR), proceedings were held in the Vermont family court, and it was only at a delayed disposition hearing that the parents’ attorney first suggested that the parents were challenging the Vermont family court’s jurisdiction over the child, and shortly thereafter, Florida declined to exercise jurisdiction over the matter in favor of Vermont jurisdiction, based on the child’s best interest and Vermont’s “closer connection with the child and his family,” therefore, Vermont’s Uniform Child Custody Jurisdiction Act jurisdictional requirements were satisfied. In re N.H., 2005 VT 118, 179 Vt. 537, 889 A.2d 727, 2005 Vt. LEXIS 254 (2005) (mem.).

Vermont was not child’s “home state” at commencement of child in need of care and supervision (CHINS) proceeding, because child had not lived in Vermont from birth. In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999).

For purposes of determining jurisdiction in child in need of care and supervision (CHINS) proceeding, court does not need to weigh its state’s connections against those of another; it either has jurisdiction or it does not, and provisions of Uniform Child Custody Jurisdiction Act relevant to inconvenient forum and situations where custody proceeding is pending in another state are not factors in determination of discrete issue of court’s jurisdiction. In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999).

Where mother and son had lived in Rhode Island for two years, the best interest criterion under 15 V.S.A. § 1032(a)(2) offered the only viable basis for Vermont family court’s continued jurisdiction in case. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Vermont was home state for purposes of jurisdiction and jurisdiction was justified under the Uniform Child Custody Jurisdiction Act (UCCJA) where when 1986 divorce proceedings commenced, son had lived in Vermont at least six months, and although mother and son moved to Rhode Island approximately two months before the September 1991 Vermont modification order was issued, Vermont was the only state that son had lived in for six consecutive months before modification proceedings commenced. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Jurisdiction over subsequent child custody dispute was not established by mother’s voluntarily submitting to jurisdiction of Vermont courts at time of divorce; jurisdictional defect could not be waived because subject matter jurisdiction cannot be conferred by agreement or consent of parties when not given by law, and neither Uniform Child Custody Jurisdiction Act nor Parental Kidnapping Prevention Act specifically recognized waiver or agreement as a ground to establish jurisdiction. Columb v. Columb, 161 Vt. 103, 633 A.2d 689, 1993 Vt. LEXIS 95 (1993).

To find jurisdiction over child custody proceeding, court must find that circumstances required by Uniform Child Custody Jurisdiction Act and, indirectly, Parental Kidnapping Prevention Act are present at commencement of proceeding. Columb v. Columb, 161 Vt. 103, 633 A.2d 689, 1993 Vt. LEXIS 95 (1993).

This section contemplates alternate grounds for subject matter jurisdiction; no preference for one over the other exists. Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Trial court had jurisdiction under this section to award temporary custody of the parties’ children to plaintiff where Vermont was the “home state” of the children within six months before commencement of divorce proceedings, at least one parent had a significant connection with Vermont and substantial evidence concerning the children’s present or future care, protection, training and personal relationships existed in Vermont. Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749, 1987 Vt. LEXIS 459 (1987).

Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749, 1987 Vt. LEXIS 459 (1987).

Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Lack of jurisdiction.

Provision of Uniform Child Custody Jurisdiction Act allowing court to assume jurisdiction in the child’s best interest if the child and at least one other contestant have significant connections to state did not give Vermont courts jurisdiction to determine merits of case alleging sexual abuse of child in South Carolina, where child’s only connection to Vermont was attendance at a boarding school for a short period of time and no other contestant had connections to the state. In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993).

Where alleged sexual abuse of child by her father occurred in South Carolina, fact that child reported the abuse in Vermont did not give Vermont jurisdiction under Uniform Child Custody Jurisdiction Act. In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993).

Where South Carolina was the appropriate forum to adjudicate merits of case alleging sexual abuse of child and that state had not declined jurisdiction, family court’s order relinquishing jurisdiction to South Carolina would be affirmed. In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993).

Father could not rely on underlying divorce action for jurisdiction over his motion to modify child custody; there was no subject matter jurisdiction for determining custody where New Hampshire was home state of child on date divorce action was commenced, it was not in best interest of child for Vermont to assume jurisdiction at that time, and Vermont was an inconvenient forum to determine custody of child. Columb v. Columb, 161 Vt. 103, 633 A.2d 689, 1993 Vt. LEXIS 95 (1993).

Upon accidental death of both parents, probate court had jurisdiction to enter emergency guardianship order giving maternal grandmother living in Bermuda temporary custody, but once purpose of order was accomplished, jurisdiction to determine future custody and visitation issues was no longer in any Vermont court. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992).

Where Vermont was not the home state of the parties’ child at the time plaintiff commenced a custody proceeding on May 1, 1981, nor within six months prior thereto, no parent or person acting as parent lived in Vermont after defendant and the child left the state in 1978, neither the child nor plaintiff had a significant connection with Vermont, since both had been absent from the state, other than for periodic, temporary visits, for three years, the Vermont court was not the forum where substantial evidence concerning the child’s emotional, physical, and social well-being was readily available, although the child was physically present in Vermont, he had not been abandoned, there was no need for emergency protection of the child, since the trial court found that he was cared for and loved by both parents, had a custody action been brought in Missouri, where the child and his mother had resided since 1978, that state would have jurisdiction under the Uniform Child Custody Jurisdiction Act, Missouri had not declined to exercise jurisdiction and trial court’s assumption that it was in the best interest of the child for the court to assume jurisdiction was contrary to the stated purposes of this chapter, Vermont could not have assumed jurisdiction over the subject matter of the petition. Peloso v. Botkin, 144 Vt. 461, 479 A.2d 156, 1984 Vt. LEXIS 502 (1984).

Court which granted a divorce and awarded custody of the parties’ son to the former husband lacked jurisdiction to modify the custody decree two years later where Vermont was not the home state of the child, it had not been his home state during any of the six months preceding commencement of the action to modify the decree, evidence concerning the child’s present or future care, training and relationships, necessary to determine which parent should have custody, did not exist in Vermont, the child was not physically present in the state, no claims of abandonment or abuse had been made, no other state had declined to exercise jurisdiction and neither of the parents lived in Vermont. Boisvert v. Boisvert, 143 Vt. 445, 466 A.2d 1184, 1983 Vt. LEXIS 551 (1983).

Scope of jurisdiction.

Underlying child in need of care or supervision (CHINS) and initial disposition orders were not void for lack of subject matter jurisdiction, and therefore there was an adequate jurisdictional basis for family court to issue its termination of parental rights order. In re B.C., 169 Vt. 1, 726 A.2d 45, 1999 Vt. LEXIS 1 (1999).

Jurisdiction under emergency provision of Uniform Child Custody Jurisdiction Act does not authorize courts to make permanent custody determinations. In re A.L.H., 160 Vt. 410, 630 A.2d 1288, 1993 Vt. LEXIS 76 (1993).

Subdivision (a)(3)(B) of this section only confers jurisdiction for a court to enter temporary protective custody orders. In re B.J.C., 149 Vt. 196, 540 A.2d 1047, 1988 Vt. LEXIS 4 (1988).

When required.

The criteria supporting jurisdiction under this section must be present at the time of the initiation of the proceeding, and whatever occurs after that time is irrelevant to the initial inquiry into jurisdiction. Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

The criteria of subsection (a) of this section must be present at the time of the initiation of the particular custody proceeding, and whatever occurs after that time is irrelevant to the initial inquiry into jurisdiction. Peloso v. Botkin, 144 Vt. 461, 479 A.2d 156, 1984 Vt. LEXIS 502 (1984).

Annotations From Former § 1035

Contacting other state.

Where simultaneous proceedings were filed by father and mother in Vermont and North Carolina, and the Vermont court asserted jurisdiction the following day, and, upon learning of a potential jurisdictional conflict and inconsistent orders, the Vermont judge initiated a conference with the North Carolina judge, after which Vermont retained jurisdiction and North Carolina declined jurisdiction, the courts proceeded properly under this section. Chick v. Chick, 2004 VT 7, 176 Vt. 580, 844 A.2d 747, 2004 Vt. LEXIS 9 (2004).

Family court’s failure to communicate with Massachusetts probate court at initiation of child in need of care or supervision (CHINS) proceeding did not require reversal of subsequent termination of parental rights order; Massachusetts guardianship proceeding was not “pending” at time CHINS petition was filed in Vermont, and it was doubtful that jurisdiction would have been transferred to Massachusetts had family court communicated with the Massachusetts court. In re B.C., 169 Vt. 1, 726 A.2d 45, 1999 Vt. LEXIS 1 (1999).

Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Reversal was not required in child custody proceeding where no practical harm resulted from failure of Vermont superior court to communicate with Bermuda court concerning the more appropriate forum for continuing jurisdiction. In re Cifarelli, 158 Vt. 249, 611 A.2d 394, 1992 Vt. LEXIS 51 (1992).

This section requires that a trial court make a good faith attempt to contact speedily the other jurisdiction where a proceeding concerning custody of the child is pending before taking jurisdiction itself over the dispute; if, under the circumstances of a particular case, the court is unable to make contact with the other jurisdiction, the Vermont court should take jurisdiction over the dispute, issuing a temporary custody order, if necessary, until such time as contact has been made with the other court and the jurisdictional question has been resolved. Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Annotations From Former § 1036

Construction.

Family court reasonably concluded that Vermont remained appropriate forum for contempt proceedings against mother notwithstanding fact that mother and son had moved to Rhode Island where mother justified her refusal to cooperate as necessary to protect son from harm that would ensue from contact with his father and if this was case, evidence of son’s experiences in Vermont and his relationship with his father should prove important to resolution of contempt issue, and most of that relevant evidence was in Vermont. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Although the inconvenient forum calculus does not demand it, the trial court acted within its discretion in considering the 15 V.S.A. § 1036(c) forum non conveniens criteria, intended to further the best interests of the child. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Vermont court properly declined to disturb father’s choice of Vermont forum for enforcement of 1991 Vermont order where until 1992 Rhode Island modification proceedings, Vermont courts had made all custody determinations, including order to be enforced, as recently as 1991, Vermont court had taken considerable testimony about son and his relationship with each parent, and court further determined that most significant and complete evidence concerning son’s relationship with his father and visitation in general would be found in Vermont. Matthews v. Riley, 162 Vt. 401, 649 A.2d 231, 1994 Vt. LEXIS 84 (1994).

Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Where trial court knew that a custody proceeding concerning the parties’ child was pending in another state and evidence indicated that both states had jurisdiction, court was required to determine under this section which state was the more appropriate forum for resolving the dispute. Duval v. Duval, 149 Vt. 506, 546 A.2d 1357, 1988 Vt. LEXIS 64 (1988).

Construction with other law.

Contacting other jurisdiction.

Uniform Child Custody Jurisdiction Act is not predicated upon reciprocation, and judicial proprieties must not be preserved at the expense of the interests of the child. Accordingly, where a Canadian court had apparently made no effort to contact a Vermont court to coordinate their efforts, there was no procedural impediment to recognition of the Canadian judgment. Miller v. Miller, 2008 VT 86, 184 Vt. 464, 965 A.2d 524, 2008 Vt. LEXIS 98 (2008).

Contempt proceedings.

In proceedings on motions for contempt filed by father against mother and a court-appointed attorney, the court acted correctly in considering the contempt motion against mother, despite its determination that New York offered a more convenient forum; since only the contempt motions were before the court, however, it was not making a “custody determination,” and this section did not give it the power to dismiss the case in favor of jurisdiction in New York. Thompson v. Thompson, 171 Vt. 549, 762 A.2d 1236, 2000 Vt. LEXIS 250 (2000) (mem.).

Particular cases.

The case where a mother sought recognition of a Canadian court’s custody order was one of those rare cases where the best interests of the child had to take precedence over the policy goal of deterring parental wrongdoing; thus, Canada was the more appropriate forum to resolve the matter, and the Vermont court should have declined jurisdiction in favor of the foreign forum. At the time of the father’s original petition in Vermont, the child had been absent from Vermont for three years, and the Vermont family court consequently had no real evidentiary basis on which to evaluate the child’s welfare or determine his best interests for purposes of a custodial placement; the Canadian court, in contrast, was home to both the mother and the child and had access to current information concerning the child’s schooling, physical and emotional well-being, and attitude toward his parents. Miller v. Miller, 2008 VT 86, 184 Vt. 464, 965 A.2d 524, 2008 Vt. LEXIS 98 (2008).

Standards.

Canadian court’s failure to follow the precise forms of Vermont law did not undermine its substantive conclusion that Canada was the more appropriate forum to exercise jurisdiction. Although the Canadian court did not expressly address such Uniform Child Custody Jurisdiction Act considerations as the child’s home state, whether another state had a closer connection with the child and his family, or the location of substantial evidence concerning the child’s care, present and future welfare, and personal relationships, much of this information was in the record before it, and all of these factors undoubtedly informed the Canadian court’s explicit conclusion that the retention of jurisdiction was in the best interests of the child. Miller v. Miller, 2008 VT 86, 184 Vt. 464, 965 A.2d 524, 2008 Vt. LEXIS 98 (2008).

Although decision whether to decline jurisdiction over a custody dispute is discretionary and thus subject to review under an abuse-of-discretion standard, family court must act in accordance with Uniform Child Custody Jurisdiction Act and its overall purposes to eliminate forum shopping and assure that children’s best interests are considered. Rocissono v. Spykes, 170 Vt. 309, 749 A.2d 592, 2000 Vt. LEXIS 9 (2000).

Statutory factors.

Family court did not properly exercise its discretion in declining jurisdiction over custody dispute, where two of three reasons relied upon by court were erroneous, and third reason was a single factor relevant to only one of several criteria court should have considered. Rocissono v. Spykes, 170 Vt. 309, 749 A.2d 592, 2000 Vt. LEXIS 9 (2000).

Cited.

Cited in Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749, 1987 Vt. LEXIS 459 (1987).

Cited.

Cited in Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749, 1987 Vt. LEXIS 459 (1987).

Cited.

Cited in In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999); Rocissono v. Spykes, 170 Vt. 309, 749 A.2d 592, 2000 Vt. LEXIS 9 (2000).

Cited.

Cited in In re B.J.C., 149 Vt. 196, 540 A.2d 1047, 1988 Vt. LEXIS 4 (1988); Shute v. Shute, 158 Vt. 242, 607 A.2d 890, 1992 Vt. LEXIS 43 (1992); In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999).

Cited.

Cited in Plourde v. Smith, 151 Vt. 100, 557 A.2d 883, 1988 Vt. LEXIS 235 (1988); In re B.C., 169 Vt. 1, 726 A.2d 45, 1999 Vt. LEXIS 1 (1999); Jackson v. Hendricks, 2005 VT 113, 179 Vt. 549, 893 A.2d 292, 2005 Vt. LEXIS 302 (2005) (mem.).

Cited.

Cited in Meyer v. Meyer, 148 Vt. 65, 528 A.2d 749, 1987 Vt. LEXIS 459 (1987).

Cited.

Cited in In re D.T., 170 Vt. 148, 743 A.2d 1077, 1999 Vt. LEXIS 324 (1999); Rocissono v. Spykes, 170 Vt. 309, 749 A.2d 592, 2000 Vt. LEXIS 9 (2000).

Cited.

Cited in Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23, 1985 Vt. LEXIS 340 (1985); Plourde v. Smith, 151 Vt. 100, 557 A.2d 883, 1988 Vt. LEXIS 235 (1988); Shute v. Shute, 158 Vt. 242, 607 A.2d 890, 1992 Vt. LEXIS 43 (1992); Chick v. Chick, 2004 VT 7, 176 Vt. 580, 844 A.2d 747, 2004 Vt. LEXIS 9 (2004).

Law Reviews —

For note, “Interstate Testimony By Child Protective Agency Workers in the Child Custody Context,” see 21 Vt. L. Rev. 633 (1996).

For note, “In The Best Interest of the Child? The Misapplication of the UCCJA and the PKPA to Interstate Adoption Custody Disputes”, see 19 Vt. L. Rev. 99 (1994).

Chapter 20. Uniform Child Custody Jurisdiction and Enforcement Act

Subchapter 1. General Provisions

§ 1061. Definitions.

As used in this chapter:

“Abandoned” means left without provision for reasonable and necessary care or supervision.
“Child” means an individual who has not attained 18 years of age.
“Child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, or modification order. The term does not include an order relating to child support or other monetary obligation of an individual. The term includes “parental rights and responsibilities” and “parent child contact” as those terms are defined in section 664 of this title.
“Child custody proceeding” means a proceeding in which legal custody or parental rights, physical custody, or visitation or parent child contact with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under subchapter 3 of this chapter.
“Commencement” means the filing of the first pleading in a proceeding.
“Court” means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.
“Home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
“Initial determination” means the first child custody determination concerning a particular child.
“Issuing court” means the court that makes a child custody determination for which enforcement is sought under this chapter.
“Issuing state” means the state in which a child custody determination is made.
“Modification” means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination.
“Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity.
“Person acting as a parent” means a person, other than a parent, who:
1. has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
2. has been awarded legal custody by a court or claims a right to legal custody under the law of Vermont.
“Physical custody” means the physical care and supervision of a child.
“State” means a state of the United States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
“Warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Home state.

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), after a court exercises temporary emergency jurisdiction, the order becomes final and the state becomes a child’s home state if custody proceedings are not commenced in another state within six months. Although the court’s decision in In re M.P. was not explicit on when the six-month period begins for obtaining permanent jurisdiction, the court clarifies now that the six-month period starts when the child first begins living in Vermont; this interpretation accords with the UCCJEA’s definition of home state, which focuses on the state where the child has lived. W.H. v. Dep't for Children & Families, 2020 VT 104, 251 A.3d 41, 2020 Vt. LEXIS 117 (Vt. 2020).

It is the child’s physical presence, not a parent or child’s residence, domicile or subjective intent, that is relevant to determining a child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act. This is consistent with the Vermont Supreme Court’s past cases, which have focused on the child’s presence in the state to determine home state, and held that if the child has a home state, that state has jurisdiction to make an initial decision regarding custody regardless of the parents’ connections to the state. In re M.S., 2017 VT 80, 205 Vt. 429, 176 A.3d 1124, 2017 Vt. LEXIS 100 (2017).

Statutory language is plain: the home state for a child under six months is the place the child “lived from birth” with a parent or person acting as a parent; by adding the requirement that the child live with a parent or person acting as a parent, the legislature meant “lived” to mean more than simply being alive in the state; a short hospital stay incident to birth does not amount to “living from birth with” a parent and does not in itself confer home state jurisdiction. In re M.S., 2017 VT 80, 205 Vt. 429, 176 A.3d 1124, 2017 Vt. LEXIS 100 (2017).

Child had no home state under the Uniform Child Custody Jurisdiction and Enforcement Act when the termination of parental rights proceeding was commenced, as his short hospital stay in New Hampshire incident to his birth did not confer home state jurisdiction, and he had not been physically present in Vermont at the time the petition was filed. In re M.S., 2017 VT 80, 205 Vt. 429, 176 A.3d 1124, 2017 Vt. LEXIS 100 (2017).

Neither New York nor Vermont qualified as a child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act, as the child had not “lived from birth” in either. Although the parents resided in New York when the child was born, the father took the child to Vermont with the intention of residing there when the child was only a week old, applied for welfare benefits, committed to a safety plan for the child, and continued to reside in Vermont until the child-in-need-of-care-and-supervision petition was filed about two weeks later. In re A.W., 2014 VT 32, 196 Vt. 228, 94 A.3d 1161, 2014 Vt. LEXIS 32 (2014).

§ 1062. Proceedings governed by other law.

This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.

HISTORY: Added 2011, No. 29 , § 1.

§ 1063. Application to Indian tribes; international application.

A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.
A Vermont court shall treat a foreign country as if it were a state of the United States for the purpose of applying this subchapter and subchapter 2 of this chapter.
Except as otherwise provided in subsection (d) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under subchapter 3 of this chapter.
A Vermont court need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.

HISTORY: Added 2011, No. 29 , § 1.

§ 1064. Effect of child custody determination.

A child custody determination made by a Vermont court that had jurisdiction under this chapter binds all persons who have been served in accordance with the Vermont laws or notified in accordance with section 1066 of this title or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

HISTORY: Added 2011, No. 29 , § 1.

§ 1065. Priority.

If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, upon request of a party, must be given priority on the calendar and handled expeditiously.

HISTORY: Added 2011, No. 29 , § 1.

§ 1066. Notice to persons outside State.

Notice required for the exercise of jurisdiction when a person is outside Vermont may be given in a manner prescribed by the law of Vermont for service of process or by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
Proof of service may be made in the manner prescribed by the law of Vermont or by the law of the state in which the service is made.
Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

HISTORY: Added 2011, No. 29 , § 1.

§ 1067. Appearance and limited immunity.

A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination, is not subject to personal jurisdiction in Vermont for another proceeding or purpose solely by reason of having participated or of having been physically present for the purpose of participating in the proceeding.
A person who is subject to personal jurisdiction in Vermont on a basis other than physical presence is not immune from service of process in Vermont. A party present in Vermont who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
The immunity granted by subsection (a) of this section shall not:
1. extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in Vermont; or
2. be construed to prevent the arrest of a person pursuant to a valid warrant.

HISTORY: Added 2011, No. 29 , § 1.

§ 1068. Communication between courts.

A Vermont court may communicate with a court in another state concerning a proceeding arising under this chapter.
The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
Except as otherwise provided in subsection (c) of this section, a record shall be made of a communication under this section. The parties shall be informed promptly of the communication and granted access to the record.
For the purposes of this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Communication not mandatory.

Plain language of the Uniform Child Custody Jurisdiction and Enforcement Act states: “A Vermont court may communicate with a court in another state concerning a proceeding arising under this chapter.” The provision’s use of “may” indicates communication is an option, but not a requirement. In re M.S., 2017 VT 80, 205 Vt. 429, 176 A.3d 1124, 2017 Vt. LEXIS 100 (2017).

Communication proper.

Given that there was no pending court proceeding in New Hampshire and no open child-protection case there, there was no conflict between Vermont and New Hampshire and the court did not abuse its discretion in declining to contact New Hampshire. In re M.S., 2017 VT 80, 205 Vt. 429, 176 A.3d 1124, 2017 Vt. LEXIS 100 (2017).

Trial court’s conference with a Virginia court out of the presence of the parties, after they had the opportunity to present facts and legal arguments, was consistent with the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act, which expressly contemplated the possibility that courts could communicate outside the presence of the parties. Pierce v. Slate, 2017 VT 63, 205 Vt. 159, 172 A.3d 190, 2017 Vt. LEXIS 77 (2017).

§ 1069. Taking testimony in another state.

A party to a child custody proceeding may, in addition to other procedures available to a party, offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in Vermont for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms upon which the testimony is taken.
A Vermont court may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A Vermont court shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
Documentary evidence transmitted from another state to a Vermont court by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

HISTORY: Added 2011, No. 29 , § 1.

§ 1070. Cooperation between courts; preservation of records.

A Vermont court may request the appropriate court of another state to:
1. hold an evidentiary hearing;
2. order a person to produce or give evidence pursuant to procedures of that state;
3. order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
4. forward to the Vermont court a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
5. order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
Upon request of a court of another state, a Vermont court may hold a hearing or enter an order described in subsection (a) of this section.
Travel and other necessary and reasonable expenses incurred under subsections (a) and (b) of this section may be assessed against the parties according to Vermont law.
A Vermont court shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.

HISTORY: Added 2011, No. 29 , § 1.

Subchapter 2. Jurisdiction

§ 1071. Initial child custody jurisdiction.

Except as otherwise provided in section 1074 of this title, a Vermont court has jurisdiction to make an initial child custody determination only if:
1. Vermont is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from Vermont, but a parent or person acting as a parent continues to live in Vermont;
2. a court of another state does not have jurisdiction under subdivision (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that Vermont is the more appropriate forum under section 1077 or 1078 of this title, and:
  1. the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Vermont other than mere physical presence; and
  2. substantial evidence is available in Vermont concerning the child’s care, protection, training, and personal relationships;
3. all courts having jurisdiction under subdivision (1) or (2) of this subsection have declined to exercise jurisdiction on the grounds that a Vermont court is the more appropriate forum to determine the custody of the child under section 1077 or 1078 of this title; or
4. no court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3) of this subsection.
Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a Vermont court.
Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Jurisdiction proper.

Vermont’s ties to a child custody matter were sufficient to exercise jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act when the child was residing in Vermont with his father and paternal grandparents when the proceeding commenced, the father had applied for housing and other benefits in Vermont to help support himself and the child and had continued to retain a Vermont driver’s license and vehicle registration, and the father had entered into a safety plan in which he agreed to participate in a variety of services in Vermont. In re A.W., 2014 VT 32, 196 Vt. 228, 94 A.3d 1161, 2014 Vt. LEXIS 32 (2014).

Significant connection.

§ 1072. Exclusive; continuing jurisdiction.

Except as otherwise provided in section 1074 of this title, a Vermont court that has made a child custody determination consistent with section 1071 or 1073 of this title has exclusive, continuing jurisdiction over the determination until:
1. a Vermont court determines that neither the child nor the child and one parent nor the child and a person acting as a parent have a significant connection with Vermont, and that substantial evidence is no longer available in Vermont concerning the child’s care, protection, training, and personal relationships; or
2. a Vermont court or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not currently reside in Vermont.
A Vermont court that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 1071 of this title.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Retention of jurisdiction proper.

Vermont continued to have jurisdiction over the case after the mother and the child moved to North Carolina, as Vermont issued the initial child custody determination at a time when all parties were living in Vermont and had never relinquished jurisdiction, and the father continued to live in Vermont and the child resided there between October 2016 and September 2017. Bratton v. Holland, 2018 VT 54, 207 Vt. 517, 192 A.3d 1257, 2018 Vt. LEXIS 56 (2018).

In a child custody case, the trial court properly declined to relinquish exclusive, continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, as it found that the pending motion was part of an ongoing course of post-judgment litigation that began before the mother and the child moved from Vermont, the central issues involved the father’s access to information about the child and his parent-child contact, and the father remained in Vermont. Ward v. Larue, 2016 VT 81, 202 Vt. 499, 150 A.3d 631, 2016 Vt. LEXIS 79 (2016).

§ 1073. Jurisdiction to modify determination.

Except as otherwise provided in section 1074 of this title, a Vermont court may not modify a child custody determination made by a court of another state unless a Vermont court has jurisdiction to make an initial determination under subdivision 1071(a)(1) or (2) of this title and:

the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 1072 of this title or that a Vermont court would be a more convenient forum under section 1077 of this title; or
a Vermont court or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not currently reside in the other state.

HISTORY: Added 2011, No. 29 , § 1.

§ 1074. Temporary emergency jurisdiction.

A Vermont court has temporary emergency jurisdiction if the child is present in Vermont, and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
If there is no previous child custody determination that is entitled to be enforced under this chapter, and a child custody proceeding has not been commenced in a court of a state having jurisdiction under sections 1071-1073 of this title, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 1071-1073 of this title. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 1071-1073 of this title, a child custody determination made under this section becomes a final determination, if it so provides, and Vermont becomes the home state of the child.
If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 1071-1073 of this title, any order issued by a Vermont court under this section shall specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 1071-1073 of this title. The order issued in Vermont remains in effect until an order is obtained from the other state within the period specified or the period expires.
A Vermont court that has been asked to make a child custody determination under this section upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under sections 1071-1073 of this title shall immediately communicate with the other court. A Vermont court that is exercising jurisdiction pursuant to sections 1071-1073 of this title, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Jurisdiction proper.

Family Court had authority to act under the Uniform Child Custody Jurisdiction and Enforcement Act. It had temporary emergency jurisdiction in that the child was living in Vermont with her presumptive father, who was unable to care for her, and her mother was incarcerated in Alabama; given the lack of a competing custody order or proceeding in another state, Vermont’s exercise of temporary emergency jurisdiction became final, and Vermont became the child’s home state. In re M.P., 2019 VT 69, 211 Vt. 20, 219 A.3d 1315, 2019 Vt. LEXIS 121 (2019).

Permanent jurisdiction.

§ 1075. Notice; opportunity to be heard; joinder.

Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with the standards of section 1066 of this title shall be given to all persons entitled to notice under Vermont law as in child custody proceedings between Vermont residents, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.
This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by Vermont law as in child custody proceedings between Vermont residents.

HISTORY: Added 2011, No. 29 , § 1.

§ 1076. Simultaneous proceedings.

Except as otherwise provided in section 1074 of this title, a Vermont court may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a Vermont court is a more convenient forum under section 1077 of this title.
Except as otherwise provided in section 1074 of this title, a Vermont court, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section 1079 of this title. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the Vermont court shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the Vermont court is a more appropriate forum, the Vermont court shall dismiss the proceeding.
In a proceeding to modify a child custody determination, a Vermont court shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
1. stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
2. enjoin the parties from continuing with the proceeding for enforcement; or
3. proceed with the modification under conditions it considers appropriate.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Jurisdiction.

Vermont was not obligated to register an Alabama custody order because Alabama lacked jurisdiction pursuant to the simultaneous-jurisdiction provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in that a custody proceeding, a child welfare proceeding, had already been commenced in Vermont when the Alabama action was filed, Vermont had jurisdiction under the UCCJEA both to make an initial emergency order and then, as the child’s home state, to make permanent orders, and the proceedings in Vermont were not stayed or terminated. W.H. v. Dep't for Children & Families, 2020 VT 104, 251 A.3d 41, 2020 Vt. LEXIS 117 (Vt. 2020).

Trial court properly found that a Virginia court had assumed jurisdiction substantially in conformance with the Uniform Child Custody Jurisdiction and Enforcement Act when the mother relocated to Virginia with the child and signed a one-year lease there, transferred one job and took a second job, and had been planning her move to Virginia for much of the six weeks her child lived in Vermont. Pierce v. Slate, 2017 VT 63, 205 Vt. 159, 172 A.3d 190, 2017 Vt. LEXIS 77 (2017).

§ 1077. Inconvenient forum.

A Vermont court that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances, and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or a request of another court.
Before determining whether it is an inconvenient forum, a Vermont court shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
1. whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
2. the length of time the child has resided outside Vermont;
3. the distance between the Vermont court and the court in the state that would assume jurisdiction;
4. the relative financial circumstances of the parties;
5. any agreement of the parties as to which state should assume jurisdiction;
6. the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
7. the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
8. the familiarity of the court of each state with the facts and issues in the pending litigation.
If a Vermont court determines that it is an inconvenient forum, and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
A Vermont court may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

HISTORY: Added 2011, No. 29 , § 1.

ANNOTATIONS

Retention of jurisdiction proper.

Trial court properly declined to relinquish jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act on the ground that it was an inconvenient forum, as Vermont had issued numerous orders since the relocation, all of which stemmed from the mother’s failure to comply with existing orders, the father resided in Vermont, evidence concerning these issues was easily accessible in Vermont, Vermont courts had decided the issues expeditiously, and Vermont courts were familiar with the facts and issues. Ward v. Larue, 2016 VT 81, 202 Vt. 499, 150 A.3d 631, 2016 Vt. LEXIS 79 (2016).

The Family Court did not err in not declining jurisdiction over a child-in-need-of-care-and-supervision action based on forum non conveniens. Although the parents resided in New York, the child’s placement with his paternal grandparents in Vermont, his continued residence there during the intervening months, the evidence concerning his day-to-day care, the absence of any New York judicial child custody proceeding, and the trial court’s understandable reluctance to dismiss the case with no plan in place for the child all supported its retention of jurisdiction through the merits proceeding. In re A.W., 2014 VT 32, 196 Vt. 228, 94 A.3d 1161, 2014 Vt. LEXIS 32 (2014).

§ 1078. Jurisdiction declined by reason of conduct.

Except as otherwise provided in section 1074 of this title or other Vermont law, if a Vermont court has jurisdiction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:
1. the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
2. a court of the state otherwise having jurisdiction under sections 1071-1073 of this title determines that Vermont is a more appropriate forum under section 1077 of this title; or
3. no court of any other state would have jurisdiction under the criteria specified in sections 1071-1073 of this title.
If a Vermont court declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections 1071-1073 of this title.
If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection (a) of this section, it may assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against Vermont unless authorized by law other than this chapter.

HISTORY: Added 2011, No. 29 , § 1.

§ 1079. Information to be submitted to court.

In accordance with Vermont law regarding the confidentiality of procedures, addresses, and other identifying information in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall state whether the party:
1. has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
2. knows of any other proceeding that could affect the current proceeding, including any proceeding for enforcement and any proceeding relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
3. knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of or visitation with the child and, if so, give the names and addresses of those persons.
If the information required by subsection (a) of this section is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
If the declaration as to any of the items described in subdivisions (a)(1)-(3) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
As used in this section, the term “party” shall not include the child in a proceeding under 33 V.S.A. chapter 51 or 53.

HISTORY: Added 2011, No. 29 , § 1.

§ 1080. Appearance of parties and child.

In a child custody proceeding in Vermont, the court may order a party to the proceeding who is in Vermont to appear before the court in person with or without the child. The court may order any person who is in Vermont and who has physical custody or control of the child to appear in person with the child.
If a party to a child custody proceeding whose presence is desired by the court is outside Vermont, the court may order that a notice given pursuant to section 1066 of this title include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.
If a party to a child custody proceeding who is outside Vermont is directed to appear under subsection (b) of this section or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.
As used in this section, the term “with or without the child” means that the court may order that the child be represented by an attorney or guardian ad litem.

HISTORY: Added 2011, No. 29 , § 1.

Subchapter 3. Enforcement

§ 1081. Definitions.

As used in this subchapter:

“Petitioner” means a person who seeks enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
“Respondent” means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

HISTORY: Added 2011, No. 29 , § 1.

§ 1082. Enforcement under Hague Convention.

Under this subchapter, a Vermont court may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.

HISTORY: Added 2011, No. 29 , § 1.

§ 1083. Duty to enforce.

A Vermont court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and if the determination has not been modified in accordance with this chapter.
A Vermont court may utilize any remedy available under Vermont law to enforce a child custody determination made by a court of another state. The remedies provided in this subchapter are cumulative and do not affect the availability of other remedies to enforce a child custody determination.

HISTORY: Added 2011, No. 29 , § 1.

§ 1084. Temporary visitation.

A Vermont court that does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:
1. a visitation schedule made by a court of another state; or
2. the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
If a Vermont court makes an order under subdivision (a)(2) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in subchapter 2 of this chapter. The order remains in effect until an order is obtained from the other court or until the period expires.

HISTORY: Added 2011, No. 29 , § 1.

§ 1085. Registration of child custody determination.

A child custody determination issued by a court of another state may be registered in Vermont, with or without a simultaneous request for enforcement, by sending to the Family Division of the Superior Court in the county in which a person listed in subdivision (3) of this subsection or the child resides:
1. a letter or other document requesting registration;
2. two copies, including one certified copy, of the determination sought to be registered and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
3. except as otherwise provided in section 1079 of this title, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
On receipt of the documents required by subsection (a) of this section, the Family Division of the Superior Court shall:
1. send the certified copy of the determination to the Court Administrator who shall file it as a foreign judgment; and
2. serve notice upon the persons named pursuant to subdivision (a)(3) of this section and provide them with an opportunity to contest the registration in accordance with this section.
The notice required by subdivision (b)(2) of this section shall state that:
1. a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a Vermont court;
2. a hearing to contest the validity of the registered determination must be requested within 20 days after service of notice; and
3. failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
A person seeking to contest the validity of a registered order must request a hearing before the court in the county in which such person or the child resides within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
1. the issuing court did not have jurisdiction under subchapter 2 of this chapter;
2. the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under subchapter 2 of this chapter; or
3. the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of section 1066 of this title in the proceedings before the court that issued the order for which registration is sought.
If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law, and the person requesting registration and all persons served shall be notified of the confirmation.
Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

HISTORY: Added 2011, No. 29 , § 1; amended 2013, No. 67 , § 2, eff. June 4, 2013.

History

Amendments

—2013. Substituted “Family Division” for “court administrator” in subsec. (b); substituted “send the certified copy of the determination to the Court Administrator who shall file it” for “cause the determination to be filed” in subdiv. (b)(1) and deleted “together with one copy of any accompanying documents and information, regardless of their form” following “judgment” in subdiv. (b)(1).

§ 1086. Enforcement of registered determination.

A Vermont court may grant any relief normally available under Vermont law to enforce a registered child custody determination made by a court of another state.
A Vermont court shall recognize and enforce but may not modify, except in accordance with subchapter 2 of this chapter, a registered child custody determination of a court of another state.

HISTORY: Added 2011, No. 29 , § 1.

§ 1087. Simultaneous proceedings.

If a proceeding for enforcement under this subchapter is commenced in a Vermont court and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under subchapter 2 of this chapter, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement shall continue unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

HISTORY: Added 2011, No. 29 , § 1.

§ 1088. Expedited enforcement of child custody determination.

A petition under this subchapter shall be verified. Certified copies of all orders sought to be enforced and of any order confirming registration shall be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
A petition for enforcement of a child custody determination shall state:
1. whether the court that issued the determination identified the jurisdictional basis it relied upon in exercising jurisdiction and, if so, what the basis was;
2. whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this chapter and, if so, identify the court, the case number, and the nature of the proceeding;
3. whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding;
4. the present physical address of the child and the respondent, if known;
5. whether relief in addition to the immediate physical custody of the child and in addition to attorney’s fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
6. if the child custody determination has been registered and confirmed under section 1085 of this title, the date and place of registration.
Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
An order issued under subsection (c) of this section shall state the time and place of the hearing and advise the respondent that at the hearing the court will order that the petitioner may take immediate physical custody of the child and will order the payment of fees, costs, and expenses under section 1092 of this title, and the order may schedule a hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
1. the child custody determination has not been registered and confirmed under section 1085 of this title and:
  1. the issuing court did not have jurisdiction under subchapter 2 of this chapter;
  2. the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under subchapter 2 of this chapter; or
  3. the respondent was entitled to notice, but notice was not given in accordance with the standards of section 1066 of this title, in the proceedings before the court that issued the order for which enforcement is sought; or
2. the child custody determination for which enforcement is sought was registered and confirmed under section 1084 of this title but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subchapter 2 of this chapter.
Except as otherwise provided in section 1090 of this title, the petition and order shall be served by any method authorized by Vermont law upon the respondent and any person who has physical custody of the child.

HISTORY: Added 2011, No. 29 , § 1.

§ 1089. Hearing and order.

Unless the court issues a temporary emergency order pursuant to section 1074 of this title, upon a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:
1. the child custody determination has not been registered and confirmed under section 1085 of this title and that:
  1. the issuing court did not have jurisdiction under subchapter 2 of this chapter;
  2. the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subchapter 2 of this chapter; or
  3. the respondent was entitled to notice, but notice was not given in accordance with the standards of section 1066 of this title, in the proceedings before the court that issued the order for which enforcement is sought; or
2. the child custody determination for which enforcement is sought was registered and confirmed under section 1085 of this title but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under subchapter 2 of this chapter.
The court may award the fees, costs, and expenses authorized under section 1091 of this title and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.
If a party called to testify refuses to answer on the grounds that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under this subchapter.

HISTORY: Added 2011, No. 29 , § 1.

§ 1090. Warrant to take physical custody of child.

Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or to be removed from Vermont.
If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or to be removed from Vermont, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by subsection 1088(b) of this title.
A warrant to take physical custody of a child shall:
1. recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
2. direct law enforcement officers to take physical custody of the child immediately; and
3. provide for the placement of the child pending final relief.
The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
A warrant to take physical custody of a child is enforceable throughout Vermont. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
The court may impose conditions upon placement of a child to ensure the appearance of the child and the child’s custodian.

HISTORY: Added 2011, No. 29 , § 1.

§ 1091. Costs, fees, and expenses.

The court may award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care expenses during the course of the proceedings.
The court shall not assess fees, costs, or expenses against a state unless authorized by law other than this chapter.

HISTORY: Added 2011, No. 29 , § 1.

§ 1092. Recognition and enforcement, appeals.

A Vermont court shall accord full faith and credit to an order issued by another state and consistent with this chapter which enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under subchapter 2 of this chapter.
An appeal may be taken from a final order in a proceeding under this subchapter in accordance with the Vermont Rules of Appellate Procedure. Unless the court enters a temporary emergency order under section 1074 of this title, the enforcing court may not stay an order enforcing a child custody determination pending appeal.

HISTORY: Added 2011, No. 29 , § 1.

§ 1093. Role of Attorney General; role of law enforcement.

In a case arising under this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction, the Attorney General or a State’s Attorney may take any lawful action, including resort to a proceeding under this subchapter or any other available civil proceeding to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
1. an existing child custody determination;
2. a request to do so from a court in a pending child custody proceeding;
3. a reasonable belief that a criminal statute has been violated; or
4. a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
The Attorney General or a State’s Attorney acting under this section acts on behalf of the court and shall not represent any party.
At the request of the Attorney General or a State’s Attorney acting under this section, a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and assist the Attorney General or State’s Attorney with responsibilities under this section.

HISTORY: Added 2011, No. 29 , § 1.

§ 1094. Costs and expenses.

If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the Attorney General or State’s Attorney and law enforcement officers under section 1093 of this title.

HISTORY: Added 2011, No. 29 , § 1.

Subchapter 4. Miscellaneous Provisions

§ 1095. Application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

HISTORY: Added 2011, No. 29 , § 1.

§ 1096. Effective date and transitional provision.

This chapter shall take effect July 1, 2011. A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination which was commenced before the effective date of this chapter is governed by the law in effect at the time the motion or other request was made.

HISTORY: Added 2011, No. 29 , § 1.

Chapter 21. Abuse Prevention

History

Revision note—

This chapter was enacted as chapter 19 but was renumbered as chapter 21 to conform to V.S.A. numbering scheme pursuant to 1 V.S.A. § 60 .

CROSS REFERENCES

Abuse prevention for elderly and disabled adults, see § 6931 et seq. of Title 33.

Abuse prevention proceedings, see Rule 9, Vermont Rules for Family Proceedings.

Aggravated assault, see § 1024 of Title 13.

Child abuse or neglect, see § 4911 et seq. of Title 33.

Domestic assaults, see § 1041 et seq. of Title 13.

Reports of abuse of elderly and disabled adults, see § 6901 et seq. of Title 33.

Sexual assault, see § 3251 et seq. of Title 13.

Simple assault, see § 1023 of Title 13.

Spouse abuse programs, see § 18 of Title 3.

ANNOTATIONS

Burden of proof.
Construction with other laws.
Discretion of court.
Nature of relief.

Burden of proof.

Legislature intended to authorize courts to award custody of children in the context of a relief-from-abuse hearing only upon a showing that the children had been abused or were in danger of being abused. Rapp v. Dimino, 162 Vt. 1, 643 A.2d 835, 1993 Vt. LEXIS 186 (1993).

Family court exceeded its authority in awarding custody of the parties’ minor children to defendant in relief-from-abuse proceeding where there was no evidence that plaintiff had abused or was likely to abuse the children. Rapp v. Dimino, 162 Vt. 1, 643 A.2d 835, 1993 Vt. LEXIS 186 (1993).

Construction with other laws.

There is no necessary relationship between the abuse prevention provisions of this chapter and the statutes and rules governing divorce proceedings. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Trial court had authority in divorce action to issue an order awarding temporary possession of the marital home to plaintiff wife in the absence of finding either of spouse abuse under this chapter or intolerable severity. Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987).

Discretion of court.

Although abuse toward a spouse may serve as a basis for a finding of abuse to the children, thereby permitting a custody award within the context of an abuse-prevention proceeding, supreme court would not construe abuse-prevention statute to preclude courts, under any circumstances, from awarding custody to defendant found to be abusive toward another family member. Rapp v. Dimino, 162 Vt. 1, 643 A.2d 835, 1993 Vt. LEXIS 186 (1993).

Nature of relief.

An order issued pursuant to this chapter is in the nature of temporary relief which is analogous to a preliminary injunction. La Vanway v. Moye, 146 Vt. 649, 503 A.2d 135, 1985 Vt. LEXIS 430 (1985) (mem.).

Cited.

Cited in United States v. Whitcomb, 767 F. Supp. 79, 1991 U.S. Dist. LEXIS 9576 (D. Vt. 1991).

Law Reviews —

Due process and the abuse prevention statute, see 7 Vt. L. Rev. 185 (1982).

For Article, “Visitation in the Domestic Violence Context: Problems and Recommendations” see 14 Vt. L. Rev. 57 (1989).

Subchapter 1. General Provisions

History

Amendments

—1999 (Adj. Sess.) 1999, No. 134 (Adj. Sess.), § 1, eff. Jan. 1, 2001, designated the existing provisions of this chapter, comprised of sections 1101-1115, as subchapter 1 and added the heading for that subchapter.

§ 1101. Definitions.

The following words as used in this chapter shall have the following meanings:

“Abuse” means the occurrence of one or more of the following acts between family or household members:
1. Attempting to cause or causing physical harm.
2. Placing another in fear of imminent serious physical harm.
3. Abuse to children as defined in 33 V.S.A. chapter 49, subchapter 2.
4. Stalking as defined in 12 V.S.A. § 5131(6) .
5. Sexual assault as defined in 12 V.S.A. § 5131(5) .
  (3) A “foreign abuse prevention order” means any protection order issued by the court of any other state that contains provisions similar to relief provisions authorized under this chapter, the Vermont Rules for Family Proceedings, 33 V.S.A. chapter 69, or 12 V.S.A. chapter 178.
  
  (4) “Other state” and “issuing state” shall mean any state other than Vermont and any federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia.
  
  (5) A “protection order” means any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts, other than support or child custody orders, whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection.
  
  (6) [Repealed.]
“Household members” means persons who, for any period of time, are living or have lived together, are sharing or have shared occupancy of a dwelling, are engaged in or have engaged in a sexual relationship, or minors or adults who are dating or who have dated. “Dating” means a social relationship of a romantic nature. Factors that the court may consider when determining whether a dating relationship exists or existed include:
1. the nature of the relationship;
2. the length of time the relationship has existed;
3. the frequency of interaction between the parties; and
4. the length of time since the relationship was terminated, if applicable.

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1981, No. 207 (Adj. Sess.), § 2, eff. April 25, 1982; 1981, No. 218 (Adj. Sess.), § 1; 1991, No. 135 (Adj. Sess.), § 14; 1995, No. 170 (Adj. Sess.), § 26, eff. May 15, 1996; 1997, No. 153 (Adj. Sess.), § 4; 1999, No. 91 (Adj. Sess.), § 38; 1999, No. 124 (Adj. Sess.), § 10; 2005, No. 193 (Adj. Sess.), § 3, eff. Oct. 1, 2006; 2009, No. 154 (Adj. Sess.), § 128; 2015, No. 23 , § 152.

History

Revision note—

In subdiv. (1)(C), substituted “subchapter 2 of chapter 49 of Title 33” for “chapter 14 of Title 33” in view of the recodification of Title 33 by 1989, No. 148 (Adj. Sess.), §§ 1, 3.

Amendments

—2015. Subdiv. (6): Repealed.

—2009 (Adj. Sess.) Subdiv. (3): Substituted “Vermont Rules for Family Proceedings, chapter 69” for “Vermont Family Court Rules, chapter 69”.

—2005 (Adj. Sess.). Subdiv. (1)(A): Substituted “Attempting” for “attempting”.

Subdiv. (1)(B): Substituted “Placing” for “placing”.

Subdiv. (1)(C): Substituted “Abuse” for “abuse”.

Subdivs. (1)(D), (1)(E): Added.

Subdiv. (3): Deleted “or” following “Rules” and inserted “or chapter 178 of Title 12” following “Title 33”.

—1999 (Adj. Sess.). Subdiv. (2): Amended generally by Act No. 124.

Subdiv. (6): Added by Act No. 91.

—1997 (Adj. Sess.). Subdiv. (2): Substituted the language beginning “who, for any period” for “living together or sharing occupancy and persons who have lived together in a sexual relationship”.

—1995 (Adj. Sess.) Subdivs. (3)-(5): Added.

—1991 (Adj. Sess.). Subdiv. (2): Amended generally.

—1981 (Adj. Sess.). Subdiv. (1)(C): Act No. 207 substituted “chapter 14 of Title 33” for “section 1352 of Title 13”.

Subdiv. (2): Act No. 218 added “persons of the opposite sex living as spouses now or in the past, or persons sixty years of age or older living in the same household and related by blood or marriage”.

1999, No. 91 (Adj. Sess.) amendment. 1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

ANNOTATIONS

Abuse of children.
Construction.
Family members.
Fear of imminent serious physical harm.
Household members.

Abuse of children.

Subdivision (1)(C) of this section alone provides the definition of abuse relevant to relief from abuse hearings involving children. Wood ex rel. Eddy v. Eddy, 2003 VT 67, 175 Vt. 608, 833 A.2d 1243, 2003 Vt. LEXIS 156 (2003) (mem.).

Construction.

Remedial statutes, such as the Abuse Prevention Act, must be liberally construed to suppress the evil and advance the remedy intended by the legislature. Construing the abuse-prevention statute in a way that gives credence to the gender-biased myth that domestic-violence victims provoke, and therefore deserve their abuse, would in no way serve its legislative purpose of providing victims with prompt, uncomplicated relief from abuse. Raynes v. Rogers, 2008 VT 52, 183 Vt. 513, 955 A.2d 1135, 2008 Vt. LEXIS 49 (2008).

Family members.

Brothers-in-law are not related as parents and children nor by blood or affinity and, as such, it cannot be said that they are members of the same family within the commonly accepted meaning of the term. Embree v. Balfanz, 174 Vt. 560, 817 A.2d 6, 2002 Vt. LEXIS 323 (2002) (mem.).

Fear of imminent serious physical harm.

With regard to a relief-from-abuse order, the record did not support a conclusion that defendant’s conduct in entering plaintiff’s residence to retrieve his personal belongings placed plaintiff, from an objectively reasonable standpoint, in fear of imminent serious physical harm, as defendant had never physically harmed plaintiff, there had not been any incident of alleged physical restraint in almost a year, and defendant entered plaintiff’s residence when he knew she was not there so as to avoid her. McCool v. Macura, 2019 VT 85, 211 Vt. 263, 224 A.3d 847, 2019 Vt. LEXIS 157 (2019).

Household members.

Trial court properly denied defendant’s motion for judgment of acquittal of domestic assault. During a 911 recording, the complainant identified defendant and stated that she was beaten with his fists; the evidence contained in the 911 recording was supported by the responding officers’ testimony and the photographs depicting the complainant’s injuries; the evidence was sufficient to establish that by striking the complainant, defendant consciously disregarded a substantial and unjustifiable risk of bodily injury; and the evidence admitted could reasonably convince a jury that the cut above the complainant’s eye was a “bodily injury” and that the complainant was a household member. State v. Kelley, 2016 VT 58, 202 Vt. 174, 148 A.3d 191, 2016 Vt. LEXIS 57 (2016).

Evidence that two brothers-in-law spent eleven nights in the same household during a thirteen year acquaintance was not sufficient to find that they were “household members.” Embree v. Balfanz, 174 Vt. 560, 817 A.2d 6, 2002 Vt. LEXIS 323 (2002) (mem.).

In a proceeding for a relief-from-abuse order, although they had not lived together or had children, plaintiff and defendant had a sexual relationship for five years and, thus, were “household members.” Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Cited.

Cited in Buxton v. Buxton, 148 Vt. 22, 527 A.2d 660, 1987 Vt. LEXIS 442 (1987); State v. Remy, 167 Vt. 541, 711 A.2d 665, 1998 Vt. LEXIS 157 (1998); Coates v. Coates, 171 Vt. 519, 769 A.2d 1, 2000 Vt. LEXIS 442 (2000); Malinowski v. Farnam, 174 Vt. 527, 811 A.2d 177, 2002 Vt. LEXIS 245 (2002); State v. Swift, 2004 VT 8, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802, 2004 Vt. LEXIS 24 (2004); State v. Baron, 2004 VT 20, 176 Vt. 314, 848 A.2d 275, 2004 Vt. LEXIS 23 (2004) (mem.).

Law Reviews —

For note, “An Analysis of the Doctrines and Goals of Feminist Legal Theory and Their Constitutional Implications”, see 19 Vt. L. Rev. 137 (1994).

§ 1102. Jurisdiction and venue.

The Family Division of the Superior Court shall have jurisdiction over proceedings under this chapter.
Emergency orders under section 1104 of this title may be issued by a judge of the Criminal, Civil, or Family Division of the Superior Court.
Proceedings under this chapter may be commenced in the county in which the plaintiff resides. If the plaintiff has left the residence or household to avoid abuse, the plaintiff shall have the option to bring an action in the county of the previous residence or household or the county of the new residence or household.

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1985, No. 79 , § 1; 1993, No. 228 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 129.

History

Amendments

—2009 (Adj. Sess.) Subsec. (a): Inserted “division of the superior” following “family”.

Subsec. (b): Substituted “the criminal, civil, or family division of the superior court” for “the district, superior or family court”.

—1993 (Adj. Sess.). Section amended generally.

—1985. Substituted “the plaintiff” for “he” preceding “shall have the option” in the second sentence and deleted the third and fourth sentences.

ANNOTATIONS

Personal jurisdiction.

Vermont’s relief-from-abuse statute cannot extend the court’s personal jurisdiction beyond the bounds of federal due process, as the Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants. Moreover, the provision stating that the action may be commenced in the county in which the plaintiff resides is fundamentally about venue, not jurisdiction; it does not purport to expand Vermont’s jurisdiction over nonresident defendants. Fox v. Fox, 2014 VT 100, 197 Vt. 466, 106 A.3d 919, 2014 Vt. LEXIS 99 (2014), cert. denied, 574 U.S. 1075, 135 S. Ct. 952, 190 L. Ed. 2d 831, 2015 U.S. LEXIS 180 (2015).

§ 1103. Requests for relief.

Any family or household member may seek relief from abuse by another family or household member on behalf of himself or herself or his or her children by filing a complaint under this chapter. A minor 16 years of age or older, or a minor of any age who is in a dating relationship as defined in subdivision 1101(2) of this chapter, may file a complaint under this chapter seeking relief on his or her own behalf. The plaintiff shall submit an affidavit in support of the order.
Except as provided in section 1104 of this title, the court shall grant relief only after notice to the defendant and a hearing. The plaintiff shall have the burden of proving abuse by a preponderance of the evidence.
1. The court shall make such orders as it deems necessary to protect the plaintiff or the children, or both, if the court finds that the defendant has abused the plaintiff, and: (c) (1) The court shall make such orders as it deems necessary to protect the plaintiff or the children, or both, if the court finds that the defendant has abused the plaintiff, and:
  1. there is a danger of further abuse; or
  2. the defendant is currently incarcerated and has been convicted of one of the following: murder, attempted murder, kidnapping, domestic assault, aggravated domestic assault, sexual assault, aggravated sexual assault, stalking, aggravated stalking, lewd or lascivious conduct with a child, use of a child in a sexual performance, or consenting to a sexual performance.
2. The court order may include the following:
  1. An order that the defendant refrain from abusing the plaintiff or his or her children, or both, and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the plaintiff’s children, or both, in any way, whether directly, indirectly, or through a third party, with the purpose of making contact with the plaintiff, including in writing or by telephone, e-mail, or other electronic communication, and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or the plaintiff’s children are likely to spend time.
  2. An order that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of a residence.
  3. A temporary award of parental rights and responsibilities in accordance with the criteria in section 665 of this title.
  4. An order for parent-child contact under such conditions as are necessary to protect the child or the plaintiff, or both, from abuse. An order for parent-child contact may if necessary include conditions under which the plaintiff may deny parent-child contact pending further order of the court.
  5. If the court finds that the defendant has a duty to support the plaintiff, an order that the defendant pay the plaintiff’s living expenses for a fixed period of time not to exceed three months.
  6. If the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months. A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage.
  7. An order concerning the possession, care, and control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household.
  8. An order that the defendant return any personal documentation in his or her possession, including immigration documentation, birth certificates, and identification cards:
    1. pertaining to the plaintiff; or
    2. pertaining to the plaintiff’s children if relief is sought for the children or for good cause shown.
In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted. Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:
1. evidence of the plaintiff’s past sexual conduct with the defendant;
2. evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy, or disease;
3. evidence of specific instances of the plaintiff’s past false allegations of violations of 13 V.S.A. chapter 59 or 72.
Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff, the children, or both, from abuse. It is not necessary for the court to find that abuse has occurred during the pendency of the order to extend the terms of the order. The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.
No filing fee shall be required.
Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, the date and time of the order, and shall be signed by the judge.
Form complaints and form orders shall be provided by the Court Administrator and shall be maintained by the clerks of the courts.
When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.
Every final order issued under this section shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904 .”

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1981, No. 218 (Adj. Sess.), § 5; 1983, No. 34 , eff. April 18, 1983; 1985, No. 79 , § 3; 1993, No. 228 (Adj. Sess.), § 2; 2005, No. 193 (Adj. Sess.), § 4, eff. Oct. 1, 2006; 2007, No. 174 (Adj. Sess.), § 11; 2013, No. 17 , § 8; 2015, No. 153 (Adj. Sess.), § 31; 2017, No. 44 , § 8, eff. May 23, 2017.

History

Revision note—

In the introductory paragraph of subsec. (a), substituted “plaintiff’s” for “petitioner’s” and “complaint” for “petition” to conform language to Rule 80(m), Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

In the first sentence of subdiv. (c)(6), substituted “chapter 5” for “chapter 15” to correct an error in the reference.

Amendments

—2017. Subdiv. (c)(1)(B): Inserted “a” preceding “child”.

Subdiv. (c)(2)(A): Amended generally.

—2015 (Adj. Sess.). Subsec. (a): Added the second sentence.

—2013. Subdiv. (c)(2)(H): Added.

—2007 (Adj. Sess.). Subsec. (c): Amended generally.

—2005 (Adj. Sess.). Added the second sentence in subsec. (a), added subdiv. (c)(7), added new subsec. (d), and redesignated former subsecs. (d) through (i) as subsecs. (e) through (j), and added subsec. (k).

—1993 (Adj. Sess.). Section amended generally.

—1985. Subsec. (a): Substituted “him or herself or his or her” for “himself or his” preceding “children” in the introductory paragraph and inserted “or her” following “his” in subdiv. (1).

Subsec. (b): Substituted “the” for “his” preceding “children or both” in the second sentence.

Subsec. (d): Added.

—1983. Subsec. (a): In the introductory paragraph, inserted “who is” preceding “living”, “or has lived” thereafter and “petitioner’s” preceding “household”.

—1981 (Adj. Sess.). Subsec. (a): Substituted “person living in the household” for “family or household member” following “abuse by a” in the introductory paragraph.

CROSS REFERENCES

Appeals from orders, see § 1109 of this title.

Transfer of requests for child support to office magistrate, see § 1110 of this title.

ANNOTATIONS

Buffer-zone restriction.
Children.
Collateral attack.
Conduct prohibited.
Custody.
Defenses.
Duration of order.
Evidence.
Extension of Orders.
Grounds.
Harassment.
Limitation of parent-child contact.
Proof of abuse.
Standing.
Weapons.

Buffer-zone restriction.

An order imposing a 1000-foot buffer-zone restriction did not deny defendant due process of law on the grounds that would be impossible for him to comply with the restriction, and that it would subject him to criminal responsibility despite his inability to comply. Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Judgment as to whether the imposition of a 1000-foot buffer zone, or some greater or lesser distance, was necessary to provide plaintiff and her child with an adequate level of security was one that rested within the sound discretion of the trial court. Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Children.

The statute clearly authorized the trial court to include plaintiff’s child in an abuse-prevention order; nowhere does it state that the child must also be defendant’s child or that the court must have found that defendant also abused the child. Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Collateral attack.

Defendants may not collaterally attack abuse-prevention orders that they have been accused of violating, except on the basis of jurisdictional defects. Thus, defendant’s claim that the family court improperly relied on the parties’ stipulation, prohibiting him from abusing or harassing his estranged wife, incorporated by reference into the final relief-from-abuse order, rather than making appropriate findings to support the order, was an unpreserved and otherwise unavailing collateral attack on the underlying order. State v. Goyette, 166 Vt. 299, 691 A.2d 1064, 1997 Vt. LEXIS 18 (1997).

Conduct prohibited.

Orders under subsection (c) not only may require the defendant to refrain from abusing the plaintiff, but they also may require the defendant to refrain from interfering with the plaintiff’s personal liberty, and may restrict the defendant’s ability to contact the plaintiff or to come within a fixed distance of the plaintiff. In short, a relief-from-abuse order may prohibit otherwise legitimate conduct to prevent future abuse, and that conduct may serve as the basis of a criminal conviction for violating the order. State v. Goyette, 166 Vt. 299, 691 A.2d 1064, 1997 Vt. LEXIS 18 (1997).

Custody.

To the extent a mother’s ex-partner, a nonparent, contested the final relief-from-abuse order to assert a parentage claim over the mother’s children, the abuse prevention statute was the wrong vehicle, as it is aimed at providing immediate relief for abuse victims, not at determining the parties’ rights with respect to custody, support or property. Accordingly, custody determinations are better resolved in proceedings concerning divorce, legal separation, parentage, or desertion and support. Moreau v. Sylvester, 2014 VT 31, 196 Vt. 183, 95 A.3d 416, 2014 Vt. LEXIS 30 (2014).

Family court properly issued a final relief-from-abuse order denying defendant, plaintiff’s ex-partner, contact with plaintiff’s children. The trial court found that defendant placed plaintiff and her children in imminent fear of serious physical harm through his back-to-back 2 a.m. forays to plaintiff’s residence, during which the children were present while defendant banged on the door; the trial court also found that the supposed goal of these ventures—the welfare of the children—could have been accomplished far more reasonably than by appearing on a woman’s doorstep at 2 a.m. after ensuring no other man was on the premises. Moreau v. Sylvester, 2014 VT 31, 196 Vt. 183, 95 A.3d 416, 2014 Vt. LEXIS 30 (2014).

Defenses.

In contrast to criminal or tort actions, abuse-prevention proceedings did not exist at common law, but are based entirely in statute. The abuse-prevention statute does not contemplate defense of property as an affirmative defense to relief from abuse because it is based on public policy considerations having nothing to do with private property rights and everything to do with protecting victims from intimate abuse. Raynes v. Rogers, 2008 VT 52, 183 Vt. 513, 955 A.2d 1135, 2008 Vt. LEXIS 49 (2008).

Common-law defense of property is wholly irrelevant to a determination of whether an alleged victim of domestic violence requires protection from abuse. Raynes v. Rogers, 2008 VT 52, 183 Vt. 513, 955 A.2d 1135, 2008 Vt. LEXIS 49 (2008).

Duration of order.

The family court properly denied plaintiff’s motion to terminate a relief from abuse order protecting defendant and the parties’ two children where it found that plaintiff had not complied with conditions to reinstate visitation contained in the order, and that he exhibited no remorse for his violent and abusive actions towards defendant. Thibodeau v. Thibodeau, 2005 VT 14, 178 Vt. 457, 869 A.2d 142, 2005 Vt. LEXIS 15 (2005) (mem.).

Five-year length of a relief-from-abuse order was not unreasonable because there is no limit imposed on the duration of such, and they are required to “be granted for a fixed period.” Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Evidence.

Defendant testified that he kicked plaintiff’s car door, grabbed her wrists, and threw an elbow in her neck in the process; he further admitted that he drove by her house four to five times in one day to monitor her whereabouts. Given defendant’s admissions, plaintiff’s testimony, and defendant’s stalking-like behavior, the court did not abuse its discretion in determining that defendant posed a future threat of harm to plaintiff; contrary to defendant’s assertion, the court neither ignored the testimony that plaintiff precipitated the argument by grabbing his dog nor was required to deny plaintiff’s request for relief even if it found defendant’s version of events credible. Raynes v. Rogers, 2008 VT 52, 183 Vt. 513, 955 A.2d 1135, 2008 Vt. LEXIS 49 (2008).

Evidence and findings were sufficient to support a 1000-foot buffer zone and firearms limitations based on the severity of defendant’s attack upon plaintiff, the fact that plaintiff’s two jobs made a floating zone necessary to adequately protect her and her daughter, and plaintiff’s testimony that she had seen defendant in possession of firearms, and was uncertain whether he continued to possess them. Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Extension of Orders.

Court construes Vermont law to allow requests for extensions to be filed before or after the expiration of a relief-from-abuse order. Thus, plaintiff’s filing, made on the second business day after the order expired, was not untimely. Forrett v. Stone, 2021 VT 17, 256 A.3d 585, 2021 Vt. LEXIS 23 (Vt. 2021).

In the absence of evidence or findings relating to the abuse underlying the initial relief-from-abuse (RFA) order, the trial court lacked a sufficient basis for concluding that extending the RFA order was necessary to protect plaintiff from abuse. Because the self-represented plaintiff’s testimony consisted primarily of responding to questions from the bench, and because the trial court had taken the position that testimony about the underlying abuse was not relevant to the motion to extend, the court remanded for the trial court to take additional evidence. Forrett v. Stone, 2021 VT 17, 256 A.3d 585, 2021 Vt. LEXIS 23 (Vt. 2021).

Grounds.

The critical question in abuse-prevention proceedings is not who was at fault, but who, if anyone, is in need of protection. Raynes v. Rogers, 2008 VT 52, 183 Vt. 513, 955 A.2d 1135, 2008 Vt. LEXIS 49 (2008).

Harassment.

In a prosecution for violating a final relief-from-abuse order, the court’s broad definition of “harassment” in its jury instruction permitted defendant to be convicted on the basis of virtually any behavior that bothered the complainant and made the instruction reversible error. A specific definition of harassment, requiring the jury to find that the alleged acts were committed for no legitimate purpose and caused the complainant emotional distress, was not mandated, however. A definition of harassment could conceivably vary depending on the circumstances of individual cases. State v. Goyette, 166 Vt. 299, 691 A.2d 1064, 1997 Vt. LEXIS 18 (1997).

Limitation of parent-child contact.

In entering a relief-from-abuse order, the trial court’s findings that the father had attempted to interfere with the mother’s custodial rights by taking the children to New York and had physically abused them while they were in his care were supported by the evidence and were sufficient to justify limiting his contact with the children to phone calls for some time, to provide a cooling-off period and to allow the father to address the underlying issues that led to the limitations. Peachey v. Peachey, 2021 VT 78, 266 A.3d 1264, 2021 Vt. LEXIS 102 (Vt. 2021).

Proof of abuse.

There was no basis for an abuse-prevention order where plaintiff’s testimony primarily focused on her desire to deny defendant any visitation with his daughter, notwithstanding the fact that his visitation would be supervised pursuant to a prior divorce order, and she never testified she feared imminent physical harm from him. Coates v. Coates, 171 Vt. 519, 769 A.2d 1, 2000 Vt. LEXIS 442 (2000) (mem.).

Although the family court is permitted to oversee division of property in the limited context of divorce proceedings, it is not authorized to resolve disputes between plaintiff and defendant as part of an abuse prevention proceeding. LaPlume v. Lavallee, 2004 VT 78, 177 Vt. 526, 858 A.2d 255, 2004 Vt. LEXIS 257 (2004) (mem.).

Standing.

Plain language of this section did not encompass petitions by third parties, even grandparents, on behalf of minor children. Bigelow v. Bigelow, 168 Vt. 618, 721 A.2d 98, 1998 Vt. LEXIS 337 (1998) (mem.).

Weapons.

The general authorization for the trial court to make orders it deems necessary to protect plaintiff, and her child, was sufficiently broad to allow the court to prohibit defendant from possessing firearms. Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

A restriction on defendant’s possession of “dangerous weapons” in an abuse-prevention order was required to be stricken as being both vague and overbroad. Benson v. Muscari, 172 Vt. 1, 769 A.2d 1291, 2001 Vt. LEXIS 2 (2001).

Cited.

Cited in Donley v. Donley, 165 Vt. 619, 686 A.2d 943, 1996 Vt. LEXIS 121 (1996); State v. Mott, 166 Vt. 188, 692 A.2d 360, 1997 Vt. LEXIS 6 (1997) (mem.).

Law Reviews —

For note, “Domestic Violence and Guns: Seizing Weapons Before the Court Has Made A Finding of Abuse,” see 23 Vt. L. Rev. 349 (1998).

§ 1104. Emergency relief. [Effective until July 1, 2022]

In accordance with the Vermont Rules of Civil Procedure, temporary orders under this chapter may be issued ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has abused the plaintiff or the plaintiff’s children, or both. The plaintiff shall submit an affidavit in support of the order. A minor 16 years of age or older, or a minor of any age who is in a dating relationship as defined in subdivision 1101(2) of this chapter, may seek relief on his or her own behalf. Relief under this section shall be limited as follows:
1. Upon a finding that there is an immediate danger of further abuse, an order may be granted requiring the defendant:
  1. to refrain from abusing the plaintiff or his or her children, or both, or from cruelly treating as defined in 13 V.S.A. § 352 or 352a or killing any animal owned, possessed, leased, kept, or held as a pet by either party or by a minor child residing in the household;
  2. to refrain from interfering with the plaintiff’s personal liberty or the personal liberty of the plaintiff’s children, or both;
  3. to refrain from coming within a fixed distance of the plaintiff, the plaintiff’s children, the plaintiff’s residence, or the plaintiff’s place of employment; and
  4. to refrain from contacting the plaintiff or the plaintiff’s children, or both, in any way, whether directly, indirectly, or through a third party, with the purpose of making contact with the plaintiff, including in writing or by telephone, e-mail, or other electronic communication.
2. Upon a finding that the plaintiff, his or her children, or both have been forced from the household and will be without shelter unless the defendant is ordered to vacate the premises, the court may order the defendant to vacate immediately the household and may order sole possession of the premises to the plaintiff.
3. Upon a finding that there is immediate danger of physical or emotional harm to minor children, the court may award temporary custody of these minor children to the plaintiff or to other persons.
Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge. Every order issued under this section shall inform the defendant that if he or she fails to appear at the final hearing, the temporary order will remain in effect until the final order is served on the defendant unless the temporary order is dismissed by the court. Every order issued under this section shall state upon its face a date, time, and place when the defendant may appear to petition the court for modification or discharge of the order. This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 14 days from the date of issuance of the order. At such hearings, the plaintiff shall have the burden of proving abuse by a preponderance of the evidence. If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other order as it deems necessary to protect the plaintiff.
Form complaints and form orders shall be provided by the Court Administrator and shall be maintained by the clerks of the courts.
Every order issued under this chapter shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904 .”

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1985, No. 79 , § 4; 1989, No. 294 (Adj. Sess.), § 2; 2005, No. 193 (Adj. Sess.), § 5, eff. Oct. 1, 2006; 2013, No. 17 , § 9; 2015, No. 153 (Adj. Sess.), § 32; 2017, No. 11 , § 48; 2017, No. 44 , § 9, eff. May 23, 2017; 2019, No. 176 (Adj. Sess.), § 1, eff. October 8, 2020.

History

Revision note—

In subsec. (c), substituted “complaints” for “petitions” to conform language to Rule 80(m), Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2019 (Adj. Sess.). Subsec. (b): Added the second sentence.

—2017. Subsec. (a): Act No. 44 substituted “the plaintiff’s” for “his or her” preceding “children”.

Subdiv. (a)(1)(A): Act No. 44 inserted “by” preceding “a minor child”.

Subdiv. (a)(1)(B): Act No. 44 inserted “the” preceding “plaintiff’s”.

Subdiv. (a)(1)(D): Added by Act No. 44.

Subsec. (b): Act No. 11 inserted “and” following “petition,” in the first sentence and substituted “14” for “10” following “more than” in the third sentence.

—2015 (Adj. Sess.). Subsec. (a): Inserted “the” preceding “defendant” twice, and added the third sentence.

—2013. Subdiv. (a)(1)(C): Added.

—2005 (Adj. Sess.). Subsec. (a): Added the second sentence.

Subdiv. (a)(1)(A): Inserted “or from cruelly treating as defined in 13 V.S.A § 352 or 352a or killing any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household” following “both”.

Subsec. (e): Added.

—1989 (Adj. Sess.). Subsec. (d): Substituted “is a crime subject to a term of imprisonment or a fine, or both, and may also” for “may” preceding “be prosecuted”.

—1985. Subsec. (a): Inserted “or her” following “his” in the first sentence of the introductory paragraph, and in subdivs. (1)(A) and (2).

Subsec. (b): Inserted “or her” following “his” in the fifth sentence.

Subsec. (d): Amended generally.

ANNOTATIONS

Cited.

Cited in State v. Mott, 166 Vt. 188, 692 A.2d 360, 1997 Vt. LEXIS 6 (1997).

§ 1104. Emergency relief. [Effective July 1, 2022]

In accordance with the Vermont Rules of Civil Procedure, temporary orders under this chapter may be issued ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has abused the plaintiff or the plaintiff’s children, or both. The plaintiff shall submit an affidavit in support of the order. A minor 16 years of age or older, or a minor of any age who is in a dating relationship as defined in subdivision 1101(2) of this chapter, may seek relief on the minor’s own behalf. Relief under this section shall be limited as follows:
1. Upon a finding that there is an immediate danger of further abuse, an order may be granted requiring the defendant:
  1. to refrain from abusing the plaintiff or the plaintiff’s children, or both, or from cruelly treating as defined in 13 V.S.A. § 352 or 352a or killing any animal owned, possessed, leased, kept, or held as a pet by either party or by a minor child residing in the household;
  2. to refrain from interfering with the plaintiff’s personal liberty or the personal liberty of the plaintiff’s children, or both;
  3. to refrain from coming within a fixed distance of the plaintiff, the plaintiff’s children, the plaintiff’s residence, or the plaintiff’s place of employment;
  4. to refrain from contacting the plaintiff or the plaintiff’s children, or both, in any way, whether directly, indirectly, or through a third party, with the purpose of making contact with the plaintiff, including in writing or by telephone, e-mail, or other electronic communication; or
  5. to immediately relinquish, until the expiration of the order, all firearms that are in the defendant’s possession, ownership, or control and to refrain from acquiring or possessing any firearms while the order is in effect.
2. Upon a finding that the plaintiff or the plaintiff’s children, or both, have been forced from the household and will be without shelter unless the defendant is ordered to vacate the premises, the court may order the defendant to vacate immediately the household and may order sole possession of the premises to the plaintiff.
3. Upon a finding that there is immediate danger of physical or emotional harm to minor children, the court may award temporary custody of these minor children to the plaintiff or to other persons.
Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge. Every order issued under this section shall inform the defendant that if he or she fails to appear at the final hearing, the temporary order will remain in effect until the final order is served on the defendant unless the temporary order is dismissed by the court. Every order issued under this section shall state upon its face a date, time, and place when the defendant may appear to petition the court for modification or discharge of the order. This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 14 days from the date of issuance of the order. At such hearings, the plaintiff shall have the burden of proving abuse by a preponderance of the evidence. If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other order as it deems necessary to protect the plaintiff.
Form complaints and form orders shall be provided by the Court Administrator and shall be maintained by the clerks of the courts.
Every order issued under this chapter shall bear the following language: “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”
Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904 .”

§ 1105. Service.

A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer. A court that issues an order under this chapter during court hours shall promptly transmit the order electronically or by other means to a law enforcement agency for service.
1. A defendant who attends a hearing held under section 1103 or 1104 of this title at which a temporary or final order under this chapter is issued and who receives notice from the court on the record that the order has been issued shall be deemed to have been served. A defendant notified by the court on the record shall be required to adhere immediately to the provisions of the order. However, even when the court has previously notified the defendant of the order, the court shall transmit the order for additional service by a law enforcement agency. (b) (1) A defendant who attends a hearing held under section 1103 or 1104 of this title at which a temporary or final order under this chapter is issued and who receives notice from the court on the record that the order has been issued shall be deemed to have been served. A defendant notified by the court on the record shall be required to adhere immediately to the provisions of the order. However, even when the court has previously notified the defendant of the order, the court shall transmit the order for additional service by a law enforcement agency.
2. An ex parte temporary order issued under this chapter shall remain in effect until either it is dismissed by the court or the petition is denied at the final hearing. If the plaintiff fails to appear at the final hearing, the petition shall be dismissed, provided that the court may continue the temporary order until the final hearing if it makes findings on the record stating why there is good cause not to dismiss the petition. If a final order is issued, the temporary order shall remain in effect until personal service of the final order.
Abuse orders shall be served by the law enforcement agency at the earliest possible time and shall take precedence over other summonses and orders. Orders shall be served in a manner calculated to ensure the safety of the plaintiff. Methods of service that include advance notification to the defendant shall not be used. The person making service shall file a return of service with the court stating the date, time, and place at which the order was delivered personally to the defendant.
If service of a notice of hearing issued under section 1103 or 1104 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1981, No. 218 (Adj. Sess.), § 2; 1993, No. 228 (Adj. Sess.), § 3; 2005, No. 193 (Adj. Sess.), § 6, eff. Oct. 1, 2006; 2007, No. 174 (Adj. Sess.), § 12; 2013, No. 17 , § 1; 2013, No. 17 , § 2, eff. Nov. 1, 2013; 2019, No. 176 (Adj. Sess.), § 2, eff. Oct. 8, 2020.

History

Revision note—

Substituted “complaint” for “petition” to conform language to Rule 80(m), Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2019 (Adj. Sess.). Subsec. (b): Added the subdiv. (1) designation and added subdiv. (2).

—2013. Subsec. (a): Added the second sentence.

Subsec. (b): Act No. 17, § 1 added and redesignated former subsec. (b) as present subsec. (d).

Subsec. (b): Act No. 17, § 2 added the third sentence.

Subsec. (c): Inserted “by the law enforcement agency” following “served”; substituted “ensure” for “insure” and deleted the fifth sentence.

—2007 (Adj. Sess.). Subsec. (a): Added the last sentence.

—2005 (Adj. Sess.). Subsec. (a): Substituted “law enforcement” for “sheriff, deputy sheriff, or any municipal or state police” preceding “officer”.

—1993 (Adj. Sess.). Designated the existing provisions of the text as subsec. (a), inserted “or final order” preceding “issued”, and “any sheriff, deputy sheriff, or” preceding “any municipal” and deleted “if so ordered by the court” following “officer” in the first sentence, added the second and third sentences of that subsec., and added subsec. (b).

—1981 (Adj. Sess.). Added “and may be served by any municipal or state police officer if so ordered by the court” following “procedure”.

ANNOTATIONS

Procedure.

Statute regarding service in relief-from-abuse cases provides that service of a complaint or ex parte temporary order or final order shall be in accordance with the rules of civil procedure, and may be served by any law enforcement officer. It does not require service by a law enforcement officer. Rollo v. Cameron, 2013 VT 74, 194 Vt. 499, 82 A.3d 1184, 2013 Vt. LEXIS 81 (2013).

In a relief-from-abuse case, it is the court that initiates service of a temporary restraining order on the defendant, not the plaintiff. Return of service of the temporary order is filed directly with the court rather than being returned to the plaintiff’s attorney for filing proof of service with the court. Rollo v. Cameron, 2013 VT 74, 194 Vt. 499, 82 A.3d 1184, 2013 Vt. LEXIS 81 (2013).

Cited.

Cited in State v. Crown, 169 Vt. 547, 726 A.2d 493, 1999 Vt. LEXIS 14 (1999) (mem.).

§ 1106. Procedure.

Except as otherwise specified in this chapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules for Family Proceedings and shall be in addition to any other available civil or criminal remedies.
1. The Court Administrator shall establish procedures to ensure access to relief after regular court hours, or on weekends and holidays. The Court Administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to Superior Courts. Law enforcement agencies shall assist in carrying out the intent of this section. (b) (1) The Court Administrator shall establish procedures to ensure access to relief after regular court hours, or on weekends and holidays. The Court Administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to Superior Courts. Law enforcement agencies shall assist in carrying out the intent of this section.
2. 1. The court shall designate an authorized person to receive requests for ex parte temporary relief from abuse orders submitted after regular court hours pursuant to section 1104 of this title, including requests made by reliable electronic means according to the procedures in this subdivision. (2) (A) The court shall designate an authorized person to receive requests for ex parte temporary relief from abuse orders submitted after regular court hours pursuant to section 1104 of this title, including requests made by reliable electronic means according to the procedures in this subdivision.
  2. If a secure setting is not available for processing an ex parte temporary relief from abuse order submitted after regular court hours, or if the authorized person determines that electronic submission is appropriate under the circumstances, the authorized person shall inform the applicant that a complaint and affidavit may be submitted electronically.
  3. The affidavit shall be sworn to or affirmed by administration of the oath over the telephone to the applicant by the authorized person, and shall conclude with the following statement: “I declare under the penalty of perjury pursuant to the laws of the State of Vermont that the foregoing is true and accurate. I understand that the penalty for perjury is imprisonment of not more than 15 years or a fine of not more than $10,000.00, or both.” The authorized person shall note on the affidavit the date and time that the oath was administered.
  4. The authorized person shall communicate the contents of the complaint and affidavit to a judicial officer telephonically or by reliable electronic means. The judicial officer shall decide whether to grant or deny the complaint and issue the order solely on the basis of the contents of the affidavit or affidavits provided. The judicial officer shall communicate the decision to the authorized person, who shall communicate it to the applicant. If the order is issued, it shall be delivered to the appropriate law enforcement agency for service and to the holding station.
The Office of the Court Administrator shall ensure that the Superior Court has procedures in place so that the contents of orders and pendency of other proceedings can be known to all courts for cases in which an abuse prevention proceeding is related to a criminal proceeding.

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1981, No. 218 (Adj. Sess.), § 3; 1993, No. 228 (Adj. Sess.), § 4; 2009, No. 154 (Adj. Sess.), § 130; 2017, No. 110 (Adj. Sess.), § 2, eff. April 25, 2018.

History

Revision note—

In subsec. (b), substituted “plaintiffs” for “petitioners” to conform language to Rule 80(m), Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d). See note set out under § 219 of Title 4.

Amendments

—2017 (Adj. Sess.). Section amended generally.

—2009 (Adj. Sess.) Substituted “Vermont Rules for Family Proceedings” for “family court rules” in subsec. (a), “access to superior courts” for “access to district, superior and family courts” in the second sentence of subsec. (b), and “the superior court has procedures” for “the family court and the district court have procedures” and “all courts” for “both courts” in subsec. (c).

—1993 (Adj. Sess.). Subsec. (a): Substituted “family court rules” for “rules of civil procedure” following “accordance with the”.

Subsec. (b): Deleted “and” preceding “superior” and substituted “and family courts” for “judges” thereafter.

Subsec. (c): Added.

—1981 (Adj. Sess.). Designated existing provisions of the section as subsec. (a) and added subsec. (b).

§ 1107. Filing orders with law enforcement personnel; Department of Public Safety protection order database.

Police departments, sheriff’s departments, and State police district offices shall establish procedures for filing abuse prevention orders issued under this chapter, 33 V.S.A. chapter 69, 12 V.S.A. chapter 178, protective orders relating to contact with a child issued under 33 V.S.A. § 5115 , , and foreign abuse prevention orders and for making their personnel aware of the existence and contents of such orders.
Any court in this State that issues an abuse prevention order under section 1104 or 1103 of this chapter, or that files a foreign abuse prevention order in accordance with subsection 1108(d) of this chapter, or that issues a protective order relating to contact with a child under 33 V.S.A. § 5115 , shall transmit a copy of the order to the Department of Public Safety protection order database.

HISTORY: Added 1979, No. 153 (Adj. Sess.), § 1; amended 1995, No. 170 (Adj. Sess.), § 27, eff. May 15, 1996; 2005, No. 193 (Adj. Sess.), § 7, eff. Oct. 1, 2006; 2009, No. 28 , § 1.

History

Revision note

—2002. Subsec. (b): Substituted “subsection” for “section” preceding “1108(d)” to conform subsec. to V.S.A. style.

Amendments

—2009. Subsec. (a): Inserted “, protective orders relating to contact with a child issued under 33 V.S.A. § 5115 ” following “Title 12”.

Subsec. (b): Inserted “, or that issues a protective order relating to contact with a child under section 5115 of Title 33” following “of this chapter”.

—2005 (Adj. Sess.). Substituted “protection order” for “relief from abuse” in the section heading, inserted “chapter 178 of Title 12,” following “Title 33” in subsec. (a), and substituted “protection order” for “relief from abuse” following “safety” in subsec. (b).

—1995 (Adj. Sess.) Added “department of public safety relief from abuse database” following “personnel” in the section heading, designated the existing provisions of the section as subsec. (a) and inserted “abuse prevention” following “filing” and “chapter 69 of Title 33 and foreign abuse prevention orders” following “this chapter” in that subsec., and added subsec. (b).

§ 1108. Enforcement.

Law enforcement officers are authorized to enforce orders issued under this chapter. A foreign abuse prevention order shall be accorded full faith and credit throughout this State and shall be enforced as if it were an order of this State. Enforcement may include, but is not limited to:
1. making an arrest in accordance with the provisions of V.R.Cr.P. 3;
2. assisting the recipient of an order granting sole possession of the residence to obtain sole possession of the residence if the defendant refuses to leave;
3. assisting the recipient of an order granting sole custody of children to obtain sole custody of children if the defendant refuses to release them.
A law enforcement officer may rely upon a copy of any order issued under this chapter or any foreign abuse prevention order that has been provided to the law enforcement officer by any source. Law enforcement personnel may rely upon the written and sworn statement of the person protected by the foreign abuse prevention order that the order remains in effect. An officer’s reasonable reliance as provided in this subsection shall be a complete defense in any civil action arising in connection with a court’s finding under subsection (c) of this section that the order was not enforceable.
A foreign abuse prevention order shall be enforceable in the courts in this State if all the following are satisfied:
1. The defendant has received notice of the order in compliance with the requirements of the issuing state.
2. The order is in effect in the issuing state.
3. The court in the issuing state had jurisdiction over the parties and the subject matter under the law of the issuing state.
4. In the issuing state, the law gives reasonable notice and opportunity to be heard to the person against whom the order is sought sufficient to protect that person’s right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within a reasonable time after the order is issued, sufficient to protect the defendant’s due process rights. Failure to provide reasonable notice and opportunity to be heard shall be an affirmative defense to any charge or process filed seeking enforcement of the foreign protection order.
A person entitled to protection under a foreign abuse prevention order may file the foreign abuse prevention order in any Family Division of the Superior Court by filing a certified copy of the order with the court. The person shall swear under oath in an affidavit that to the best of the person’s knowledge the order is presently in effect as written. Upon inquiry by a law enforcement agency, the clerk of the Family Division of the Superior Court shall make a copy of the foreign abuse prevention order available.
In addition to the provisions of subsection (a) of this section, violation of an order issued under this chapter may be prosecuted as a criminal contempt under Rule 42 of Vermont Rules of Criminal Procedure. The prosecution for criminal contempt may be initiated by the State’s Attorney in District or Superior Court in the unit or county in which the violation occurred. The maximum penalty that may be imposed under this subsection shall be a fine of $1,000.00 or imprisonment for six months, or both. A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken. After two years have passed from conviction under this subsection, the court may on motion of the defendant expunge the record of the criminal proceeding and conviction unless the defendant has been convicted of a felony or misdemeanor involving moral turpitude or a violation of a domestic abuse order after such initial adjudication.

HISTORY: Added 1981, No. 218 (Adj. Sess.), § 4; amended 1985, No. 79 , § 5; 1995, No. 170 (Adj. Sess.), § 28, eff. May 15, 1996; 2009, No. 154 (Adj. Sess.), § 238.

History

Revision note—

In the first sentence of subsec. (b), substituted “subsection (a) of this section” for “subsection (a)” to conform reference to V.S.A. style.

Amendments

—2009 (Adj. Sess.) Subsec. (d): Substituted “family division of the superior court” for “family court” twice.

—1995 (Adj. Sess.) Added the second sentence in the introductory paragraph of subsec. (a), added a new subsec. (b), redesignated former subsec. (b) as subsec. (e) and substituted “provisions” for “provision” preceding “of subsection (a)” in the first sentence of that subsec., and added subsecs. (c) and (d).

—1985. Designated the existing provisions of the section as subsec. (a), substituted “in accordance with” for “if the officer has probable cause to believe a violation of an order issued under this chapter has been committed, notwithstanding” following “arrest” in subdiv. (1) of that subsec., and added subsec. (b).

CROSS REFERENCES

Penalty for violation of order, see § 1030 of Title 13.

ANNOTATIONS

Foreign orders.

Defendant should have been acquitted of violating an abuse-prevention order issued in New Hampshire because in the absence of evidence that the final order had been served on defendant by proof of mailing it to his last known address in accordance with New Hampshire law, which had not adopted actual notice as a substitute for service of process in abuse cases, the State had not established that the final order was enforceable in Vermont pursuant to the statute governing enforceability of foreign orders. State v. O'Keefe, 2019 VT 14, 209 Vt. 497, 208 A.3d 249, 2019 Vt. LEXIS 34 (2019).

Whether a different means of service might be more effective than those provided by statute or rule is not a proper calculus for the trial court in applying the statute governing enforceability of foreign abuse-prevention orders and the service requirements of the issuing state. It is axiomatic that the proper method of serving process must be adopted in order to render the service effective; where a statute points out a particular method of serving process, such method must be followed. State v. O'Keefe, 2019 VT 14, 209 Vt. 497, 208 A.3d 249, 2019 Vt. LEXIS 34 (2019).

Cited.

Cited in State v. Cardinal, 147 Vt. 461, 520 A.2d 984, 1986 Vt. LEXIS 447 (1986).

§ 1109. Appeals.

An order of the court issued under section 1103 of this title shall be treated as a final order for the purposes of appeal. Appeal may be taken by either party to the Supreme Court under the Vermont Rules of Appellate Procedure and the appeal shall be determined forthwith.

HISTORY: Added 1985, No. 79 , § 6.

History

Revision note—

Substituted “section 1103 of this title” for “section 1103” in the first sentence to conform reference to V.S.A. style.

§ 1110. Requests for child support; transfer to Office of Magistrate.

A request for child support under this chapter may be transferred by the court to the Office of Magistrate for hearing and disposal. A magistrate’s support order granted under this section may not exceed three months unless the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage.

HISTORY: Added 1993, No. 228 (Adj. Sess.), § 5.

§§ 1111-1114. [Reserved for future use.]

§ 1115. Limitation or denial of visitation.

In any proceeding under this title, the fact that a parent has been convicted of any of the following offenses against the parent’s child shall be a ground for limiting or denying visitation:

sexual assault as defined in 13 V.S.A. § 3252 ;
aggravated sexual assault as defined in 13 V.S.A. § 3253 ;
lewd and lascivious conduct as defined in 13 V.S.A. § 2601 ;
sexual activity by a caregiver as defined in 33 V.S.A. § 6913 ;
kidnapping as defined in 13 V.S.A. § 2405(a)(1)(D) ;
lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602 ;
prohibited acts in violation of 13 V.S.A. § 2635 ;
sexual exploitation of children as defined in 13 V.S.A. chapter 64; or
an attempt to commit any offense listed in this section.

HISTORY: Added 1995, No. 170 (Adj. Sess.), § 33, eff. May 15, 1996.

History

Revision note

—2010. In subdiv. (4), substituted “33 V.S.A § 6913” for “ 33 V.S.A. § 6913(d) ” to correct an error in the reference and for purposes of clarity.

Subchapter 2. Domestic Violence Fatality Reviews

§ 1140. Domestic Violence Fatality Review Commission.

The Domestic Violence Fatality Review Commission is established within the Office of the Attorney General, in consultation with the Council on Domestic Violence, for the following purposes:
1. to examine the trends and patterns of domestic violence-related fatalities in Vermont;
2. to identify barriers to safety, the strengths and weaknesses in communities, and systemic responses to domestic violence;
3. to educate the public, service providers, and policymakers about domestic violence fatalities and strategies for intervention and prevention;
4. to recommend policies, practices, and services that will encourage collaboration and reduce fatalities due to domestic violence.
The Commission shall comprise 17 members, consisting of the following:
1. the Attorney General or designee;
2. the Commissioner of Health or designee;
3. the Commissioner for Children and Families or designee;
4. the Commissioner of Corrections or designee;
5. the Commissioner of Public Safety or designee;
6. the Chief Medical Examiner or designee;
7. a State’s Attorney with experience prosecuting domestic violence cases, appointed by the Executive Director of the Department of State’s Attorneys and Sheriffs;
8. the Defender General or designee;
9. a member of the Vermont Coalition of Batterer Intervention Services;
10. a member of the Vermont Network Against Domestic and Sexual Violence;
11. a representative of the Vermont Council on Domestic Violence;
12. a representative of local law enforcement, appointed by the Governor;
13. a victim or survivor of domestic violence, appointed by the Vermont Network Against Domestic and Sexual Violence;
14. a physician, appointed by the Governor;
15. the Executive Director of the Vermont Criminal Justice Council or designee;
16. the Commissioner of Mental Health or designee; and
17. one judge, appointed by the Chief Justice of the Vermont Supreme Court.
In any case subject to review by the Commission, upon written request of the Commission, a person who possesses information or records that are necessary and relevant to a domestic violence fatality review shall, as soon as practicable, provide the Commission with the information and records. A person who provides information or records upon request of the Commission is not criminally or civilly liable for providing information or records in compliance with this section. The Commission shall review fatalities which are not under investigation and fatalities in cases that are postadjudication which have received a final judgment.
The proceedings and records of the Commission are confidential and are not subject to subpoena, discovery, or introduction into evidence in a civil or criminal action. The Commission shall disclose conclusions and recommendations upon request, but may not disclose information, records, or data that are otherwise confidential, such as autopsy records. The Commission shall not use the information, records, or data for purposes other than those designated by subsections (a) and (g) of this section.
The Commission is authorized to require any person appearing before it to sign a confidentiality agreement created by the Commission in order to maintain the confidentiality of the proceedings. In addition, the Commission may enter into agreements with nonprofit organizations and private agencies to obtain otherwise confidential information.
Commission meetings are confidential, and shall be exempt from 1 V.S.A. chapter 5, subchapter 2 (open meetings law). Commission records are confidential, and shall be exempt from 1 V.S.A. chapter 5, subchapter 3 (public access to records).
The Commission shall report its findings and recommendations to the Governor, the General Assembly, the Chief Justice of the Vermont Supreme Court, and the Vermont Council on Domestic Violence not later than the third Tuesday in January of the first year of the biennial session. The report shall be available to the public through the Office of the Attorney General. The Commission may issue data or other information periodically, in addition to the biennial report. The provisions of 2 V.S.A. § 20(d) (expiration of required reports) shall not apply to the report to be made under this subsection.

HISTORY: Added 2001, No. 88 (Adj. Sess.), § 1, eff. May 2, 2002; amended 2009, No. 135 (Adj. Sess.), § 5; 2013, No. 131 (Adj. Sess.), § 112; 2013, No. 142 (Adj. Sess.), § 25.

History

Revision note

—2020. In subdiv. (b)(15), substituted “Vermont Criminal Justice Council” for “Vermont Criminal Justice Training Council” in accordance with 2019, No. 166 (Adj. Sess.), § 2(b).

—2014. In subdiv. (b)(7), substituted “Executive Director of the Department of State’s Attorneys and Sheriffs” for “Executive Director of the Vermont State’s Attorneys’ Association” in light of 2013, No. 49 , § 6.

Amendments

—2013 (Adj. Sess.). Subdiv. (b)(2): Act No. 131 substituted “Commissioner of Health” for “commissioner of the department of health,” and deleted “his or her” preceding “designee”.

Subdiv. (b)(3): Act No. 131 substituted “Commissioner for Children and Families” for “commissioner of social and rehabilitation services,” and deleted “his or her” preceding “designee”.

Subdiv. (b)(4): Act No. 131 substituted “Commissioner of Corrections” for “commissioner of the department of corrections,” and deleted “his or her” preceding “designee”.

Subdivs. (b)(6), (b)(8): Act No. 131 deleted “his or her” preceding “designee”.

Subdivs. (b)(10), (b)(13): Act No. 131 substituted “Network Against Domestic and Sexual Violence” for “network against domestic violence and sexual assault” .

Subdiv. (b)(15), (b)(16): Act No. 131 deleted “his or her” preceding “designee”.

Subsec. (g): Act No. 142 added the fourth sentence.

—2009 (Adj. Sess.) Subsec. (b): Substituted “17 members” for “15 members” in the introductory paragraph, and added subdivs. (16) and (17).

Termination of this section upon termination of funding. 2001, No. 88 , § 2 provides:

“This act [which enacted this section] shall take effect upon passage [May 2, 2002], and shall terminate upon termination of grant funding, administered by the Vermont center for crime victim services, from the Violence Against Women office of the United States Department of Justice for an assistant attorney general assigned to the criminal division and designated as a domestic violence coordinator.”

Subchapter 3. Address Confidentiality for Victims of Domestic Violence, Sexual Assault or Stalking

§ 1150. Findings and intent.

The General Assembly finds that persons attempting to escape from actual or threatened domestic violence, sexual assault, and stalking frequently establish new addresses in order to prevent their assailants or probable assailants from finding them.
It is the purpose of this subchapter to:
1. enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic violence, sexual assault, or stalking;
2. promote interagency cooperation with the Secretary of State in providing address confidentiality for victims of domestic violence, sexual assault, and stalking; and
3. enable State agencies and local agencies to accept a Program participant’s use of an address, and local agencies to accept an address, designated by the Secretary of State as a substitute mailing address.

HISTORY: Added 1999, No. 134 (Adj. Sess.), § 2, eff. Jan. 1, 2001.

§ 1151. Definitions.

Unless the context clearly requires otherwise, the definitions in this section apply throughout the subchapter.

“Actual address” means the physical location where the applicant resides and may include a school address or work address of an individual, as specified on the individual’s application to be a Program participant under this chapter.
“Agency” means any subdivision of the State of Vermont, a municipality, or a subdivision of a municipality.
“Domestic violence” means an act of abuse as defined in subdivision 1101(1) of this title and includes a threat of such acts committed against an individual in a domestic situation, regardless of whether these acts or threats have been reported to law enforcement officers.
“Human trafficking” means conduct prohibited by 13 V.S.A. § 2652 or 2653, and includes a threat of such, regardless of whether the conduct or threat of conduct has been reported to law enforcement officers.
“Law enforcement agency” means the Department of Public Safety, a municipal police department, a sheriff’s department, the Attorney General’s Office, a State’s Attorney’s Office, or certified law enforcement officers of the Department of Motor Vehicles, Agency of Natural Resources, or Department of Liquor and Lottery. “Law enforcement agency” shall also mean the Department for Children and Families when engaged in:
1. the investigation of child abuse and neglect;
2. the delivery of services to families and children with whom the Department is working pursuant to the provisions of 33 V.S.A. chapters 51, 52, and 53; or
3. the performance of the Department’s responsibilities pursuant to an interstate compact to which the State is a party.
“Law enforcement purpose” means all matters relating to:
1. the prevention, investigation, prosecution, or adjudication of criminal offenses, civil matters, or juvenile matters;
2. the investigation, prosecution, adjudication, detention, supervision, or correction of persons suspected, charged, or convicted of criminal offenses or juvenile delinquencies;
3. the protection of the general health, welfare, and safety of the public or the State of Vermont;
4. the execution and enforcement of court orders;
5. service of criminal or civil process or court orders;
6. screening for criminal justice employment;
7. other actions taken in performance of official duties, as set forth by statutes, rules, policies, judicial case law, and the U.S. and Vermont Constitutions; and
8. criminal identification activities, including the collection, storage, and dissemination of criminal history records, as defined in 20 V.S.A. § 2056a(a)(1) , sex offender registry information, and DNA material and information.
“Program participant” means a person certified as a Program participant under this chapter.
“Public record” means a public record as defined in 1 V.S.A. § 317 .
“Secretary” means the Vermont Secretary of State.
“Sexual assault” means an act of assault as defined in 13 V.S.A. § 3252(a) or (b) (sexual assault) or 3253(a) (aggravated sexual assault), and includes a threat of such acts, regardless of whether these acts or threats have been reported to law enforcement officers.
“Stalking” means conduct as defined in 13 V.S.A. § 1061 (stalking) or 1063 (aggravated stalking), and includes a threat of such acts, regardless of whether these acts or threats have been reported to law enforcement officers.
“Substitute address” means the Secretary’s designated address for the Address Confidentiality Program.

HISTORY: Added 1999, No. 134 (Adj. Sess.), § 2, eff. Jan. 1, 2001; amended 2001, No. 28 , § 2, eff. May 21, 2001; 2011, No. 94 (Adj. Sess.), § 2, eff. May 1, 2012; 2013, No. 131 (Adj. Sess.), § 113; 2019, No. 73 , § 25.

History

Amendments

—2019. Subdiv. (5): Substituted “and Lottery” for “Control” at the end of the first sentence.

—2013 (Adj. Sess.). Subdiv. (5)(B): Deleted “with” following “is working” and substituted “33 V.S.A. chapters 51, 52, and 53” for “33 V.S.A. chapter 55” following “provisions of”.

—2011 (Adj. Sess.) Added subdiv. (4); redesignated former subdivs. (4) through (11) as subdivs. (5) through (12), and substituted “department for children and families” for “department of social and rehabilitation services” in subdiv. (5).

—2001. Section amended generally.

Authorization of secretary of state to adopt rules. 2001, No. 28 , § 10, provides: “(a) The secretary of state is authorized to adopt rules under the expeditious rule-making procedures provided in this section in order that the program established by No. 134 of the Acts of the 1999 Adj. Sess. (2000) and this act may be implemented by July 1, 2001. Notwithstanding the provisions to the contrary of 3 V.S.A. chapter 25, the secretary of state shall file final proposed rules prior to June 7, 2001, and adopt, effective July 1, 2001, all rules necessary to implement the program.

“(b) Rules shall be filed in final proposed form with the secretary of state and the legislative committee on administrative rules under 3 V.S.A. § 841 , after the secretary of state’s publication, in the three daily Vermont newspapers of highest average circulation, of a notice listing all rules to be adopted by this process and providing for a seven-day public comment period. The legislative committee on administrative rules shall review and may approve or object to the final proposed rules under the provisions of 3 V.S.A. § 842 , except that its action shall be completed within 15 days or by June 22, 2001, whichever is sooner. Rules so adopted may be effective as soon as five days after adoption, and have the full force and effect of rules adopted pursuant to 3 V.S.A. chapter 25. Any such rules shall be deemed to be in full compliance with 3 V.S.A. § 843 , and the secretary of state shall certify that the rules are required to meet the purposes of this section.”

§ 1152. Address Confidentiality Program; application; certification.

An adult person, a parent, or legal guardian acting on behalf of a minor, or a legal guardian acting on behalf of an incapacitated person may apply to the Secretary of State to have an address designated by the Secretary serve as the person’s address or the address of the minor or incapacitated person. The Secretary of State shall approve an application if it is filed in the manner and on the form prescribed by the Secretary of State, and if it contains:
1. a statement made under oath by the applicant that:
  1. the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, sexual assault, stalking, or human trafficking;
  2. the applicant fears for his or her safety or his or her children’s safety, or the safety of the minor or incapacitated person on whose behalf the application is made;
  3. the parent or legal guardian applying on behalf of a minor or incapacitated person has legal authority to act on the person’s behalf;
  4. if the applicant is under the supervision of the Department of Corrections, the applicant has notified the Department of the actual address and the applicant authorizes the release of the actual address to the Department; and
  5. if the applicant is required to report the actual address for the Sex Offender Registry under 13 V.S.A. chapter 167, subchapter 3, the applicant authorizes the release of the actual address to the Registry;
2. a designation of the Secretary as agent for purposes of service of process and for the purpose of receipt of mail;
3. the mailing address where the applicant can be contacted by the Secretary and the telephone number or numbers where the applicant can be called by the Secretary;
4. the new address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of domestic violence, sexual assault, stalking, or human trafficking; and
5. the signature of the applicant and the name of any individual or representative of any office who assisted in the preparation of the application and the date on which the applicant signed the application.
Applications shall be filed with the Office of the Secretary.
Upon receipt of a properly completed application, the Secretary shall certify the applicant as a Program participant. Applicants shall be certified for four years following the date of filing, unless the certification is withdrawn or cancelled before that date. The Secretary shall by rule establish a renewal procedure.
A person who knowingly provides false or incorrect information to the Secretary as required by this chapter may be prosecuted under 13 V.S.A. § 2904 .
A Program participant shall notify the Secretary of State of a change of actual address within seven days of the change of address.
The Civil or Family Division of Washington County Superior Court shall have jurisdiction over petitions for protective orders filed by Program participants pursuant to 12 V.S.A. §§ 5133 and 5134, to sections 1103 and 1104 of this title, and to 33 V.S.A. § 6935 . A Program participant may file a petition for a protective order in the county in which he or she resides or in Washington County to protect the confidentiality of his or her address.

HISTORY: Added 1999, No. 134 (Adj. Sess.), § 2, eff. Jan. 1, 2001; amended 2001, No. 28 , § 3, eff. May 21, 2001; 2011, No. 94 (Adj. Sess.), § 3, eff. May 1, 2012; 2013, No. 17 , § 10.

History

Amendments

—2013. Subsec. (f): Added.

—2011 (Adj. Sess.). Substituted “, stalking, or human trafficking” for “and stalking” following “sexual assault,” in subdivs. (a)(1)(A) and (a)(4); and “13 V.S.A. chapter 167, subchapter 3” for “subchapter 3 of chapter 167 of Title 13” in subdiv. (a)(1)(E).

—2001. Subsec. (a): Inserted “legal” preceding “guardian” in the first sentence of the introductory paragraph, amended subdiv. (1) generally, and inserted “the name” preceding “of any individual” in subdiv. (5).

Subsec. (c): Substituted “cancelled before” for “invalidated before” in the second sentence.

Subsec. (d): Amended generally.

§ 1153. Certification cancellation.

The Secretary of State may cancel a Program participant’s certification if, after the passage of 14 days:
1. from the date of changing his or her name, the Program participant does not notify the Secretary that he or she has obtained a name change; however, the Program participant may reapply under his or her new name;
2. from the date of changing his or her address, the Program participant fails to notify the Secretary of the change of address; or
3. from the date the secretary first receives mail, forwarded to the Program participant’s address, returned as nondeliverable.
The Secretary shall cancel certification of a Program participant who applies using false information.
The Secretary shall send notice of cancellation to the Program participant. Notice of cancellation shall set out the reasons for cancellation. The Program participant shall have 30 days to appeal the cancellation decision under procedures developed by the Secretary.
Program participants may withdraw from the Program by giving the Secretary written notice of their intention. The Secretary shall establish, by rule, a secure procedure for ensuring that the request for withdrawal is legitimate.

HISTORY: Added 1999, No. 134 (Adj. Sess.), § 2, eff. Jan. 1, 2001; amended 2001, No. 28 , § 4, eff. May 21, 2001.

History

Amendments

—2001. Substituted “cancellation” for “termination” throughout subsec. (c).

§ 1154. Agency use of designated address; agency other than law enforcement agency.

A Program participant shall request that State and local agencies, other than law enforcement agencies, use the substitute address as the participant’s address. When creating a new public record, State and local agencies, other than law enforcement agencies, shall accept the substitute address, unless the Secretary has determined that:
1. the agency has a bona fide requirement for the use of the actual address that would otherwise be confidential under this subchapter;
2. the address will be used only for those statutory and administrative purposes;
3. the agency has identified the specific Program participant’s record for which the waiver is requested;
4. the agency has identified the individuals who will have access to the record; and
5. the agency has explained how its acceptance of the substitute address will prevent the agency from meeting its obligations under the law and why it cannot meet its statutory or administrative obligation by a change in its internal procedures.
During the review, evaluation, and appeal of an agency’s request, the agency shall accept the use of a Program participant’s substitute address.
The Secretary’s determination to grant or withhold a requested waiver must be based on, but not limited to, an evaluation of the information under subsection (a) of this section.
If the Secretary finds that the agency has a bona fide purpose for the actual address and that the information will only be used for that purpose, the Secretary shall issue the actual address to the agency. Prior to granting the waiver, the Secretary shall notify the Program participant of the waiver, including the name of the agency and the reasons for the waiver. If granted a waiver, the agency shall maintain the confidentiality of the Program participant’s address by redacting the actual address when the record is released to any person.
Denial of the agency waiver request must be made in writing and include a statement of the reasons for denial.
Acceptance or denial of the agency’s waiver request constitutes final agency action. An aggrieved party may appeal.
A Program participant may use the address designated by the Secretary as his or her work address.
The Office of the Secretary shall forward all first-class mail to the appropriate Program participants.
The Secretary shall keep a record of all waivers and all documentation relating to requests for waivers.
Any agency receiving a waiver may not make the Program participant’s actual address available for inspection or copying, except under the following circumstances:
1. if requested by a law enforcement agency for a law enforcement purpose as defined in subdivision 1151(5) of this title; or
2. if directed by a court order to a person identified in the order.

HISTORY: Added 1999, No. 134 (Adj. Sess.), § 2, eff. Jan. 1, 2001; amended 2001, No. 28 , § 5, eff. May 21, 2001.

History

Amendments

—2001. Added “agency other than law enforcement agency” at the end of section head, amended the introductory paragraph of subsec. (a) generally, deleted “statutory of administrative” following “bona fide” and inserted “actual” preceding “address” in subdiv. (a)(1), amended subsec. (d) generally, deleted the third sentence in subsec. (f), inserted “actual” preceding “address” in the introductory paragraph of subsec. (j), and substituted “a law enforcement purpose as defined in subdiv. 1151(5) of this title” for “purposes of assisting in the execution of an arrest warrant” in subdiv. (j)(1).

§ 1154a. Agency use of designated address; law enforcement agency.

If requested in person by a Program participant to the person creating the record prior to the creation of the record, and upon proof of participation in the Program established by this chapter, a law enforcement agency shall use the participant’s substitute address in:
1. a summons or complaint for a violation within the jurisdiction of the judicial bureau as set forth in 4 V.S.A. § 1102 .
2. a citation to appear under Rule 3 of the Vermont Rules of Criminal Procedure; or
3. an accident report filed with the Department of Motor Vehicles.
Nothing in this subchapter shall prevent a law enforcement agency from requiring that a Program participant provide his or her actual address upon request from the agency.
A law enforcement agency may, in its discretion, use a substitute address in any record released by the agency.

HISTORY: Added 2001, No. 28 , § 6, eff. May 21, 2001.

§ 1155. Disclosure of address prohibited; exceptions.

The Secretary of State may not make a Program participant’s address, other than the address designated by the Secretary, available for inspection or copying, except under the following circumstances:
1. if requested by a law enforcement agency for a law enforcement purpose as defined in subdivision 1151(5) of this title; or
2. if directed by a court order to a person identified in the order; or
3. to verify the participation of a specific Program participant, in which case the Secretary may only confirm information supplied by the requester.
The Secretary shall ensure by rule that:
1. when a law enforcement agency determines it has an immediate need for a participant’s actual address, disclosure of the address shall occur immediately; and
2. in other circumstances, there is an expedited process for disclosure.
The Secretary may request that an agency review its disclosure requests to determine whether such requests were appropriate.
The Secretary shall provide immediate notification of disclosure to a program participant when disclosure takes place under subdivisions (a)(2) and (3) of this section.
1. No person shall knowingly and intentionally obtain a Program participant’s actual address from the Secretary knowing that he or she was not authorized to obtain the address information. (e) (1) No person shall knowingly and intentionally obtain a Program participant’s actual address from the Secretary knowing that he or she was not authorized to obtain the address information.
2. No employee of a state, local, or municipal agency or sheriff’s department shall knowingly and intentionally disclose, with the intent to disseminate to the individual from whom the Program participant is seeking address confidentiality, a participant’s actual address to a person known to the employee to be prohibited from receiving the participant’s actual address, unless such disclosure is permissible by law. This subdivision is only intended to apply when an employee obtains a participant’s actual address during the course of the employee’s official duties and, at the time of disclosure, the employee has specific knowledge that the address disclosed belongs to a person who is participating in the Program.
3. Nothing in this chapter shall prohibit an agency or agency employee from disclosing or providing a participant’s actual address to an agency attorney providing advice to an agency or agency employee, nor shall any agency attorney be prohibited, except as set forth in section 1156 of this title, from disclosing a participant’s actual address to other law enforcement employees, other agency attorneys, paralegals, or their support staff, if disclosure is related to providing such advice or to the agency attorney’s representation of the agency or agency employee. In the case of law enforcement, agency attorneys shall also include the attorneys in the office of the State’s Attorneys, Attorney General and the U.S. attorney. An attorney, during the course of providing advice to another person or agency, shall not be subject to the provisions set forth in subdivisions 1155(e)(1) and (2) of this title, nor shall any actionable duty arise from giving such advice.
4. A person who violates subdivisions (1) or (2) of this subsection shall be assessed a civil penalty of not more than $5,000.00. Each unauthorized disclosure shall constitute a separate civil violation. Nothing in this subdivision shall preclude criminal prosecution for a violation.

—2011 (Adj. Sess.). Deleted “and” following “assault” and inserted “, and human trafficking” following “stalking”.

Subchapter 4. Vermont Council on Domestic Violence

§ 1171. Creation of Vermont Council on Domestic Violence.

There is created the Vermont Council on Domestic Violence. The Council shall provide leadership for Vermont’s statewide effort to eradicate domestic violence.

HISTORY: Added 2007, No. 174 (Adj. Sess.), § 14.

§ 1172. Purpose; powers; duties.

The Council shall:
1. facilitate opportunities for dialogue, advocacy, education, and support among State agencies, advocacy groups, and the public;
2. collect, review, and analyze data and information relating to domestic violence;
3. provide assistance in developing effective responses to domestic violence, including model policies and procedures, prevention and education initiatives, and domestic-violence-related programs for the criminal justice and human services sectors; specifically, the Council shall work with the Department of State’s Attorneys and Sheriffs and the Department of Corrections to develop recommendations for practice in evidence-based prosecution, risk assessment with domestic violence offenders, the use of deferred sentences in domestic violence cases, standardized probation conditions for domestic violence offenders, appropriate programming options for domestic violence offenders, and strategies for addressing victims of domestic violence who commit crimes as a result of the coercion of a batterer;
4. recommend changes in State programs, laws, administrative regulations, policies, and budgets related to domestic violence;
5. establish and maintain standards for intervention programs for perpetrators of domestic violence, and develop a process for certifying that programs are complying with the standards;
6. review and comment upon legislation relating to domestic violence introduced in the General Assembly at the request of any member of the General Assembly or on its own initiative; and
7. study the issue of employment discrimination against victims of domestic violence and suggest model workplace protections and policies.
The Council shall collaborate with the Vermont Fatality Review Commission to develop strategies for implementing the Commission’s recommendations.
[Repealed.]

HISTORY: Added 2007, No. 174 (Adj. Sess.), § 14; amended 2011, No. 139 (Adj. Sess.), § 51, eff. May 14, 2012.

History

Revision note

—2014. In subdiv. (a)(3), added “and Sheriffs” following “State’s Attorneys” in light of 2013, No. 49 , § 6.

Amendments

—2011 (Adj. Sess.). Subsec. (c): Repealed.

§ 1173. Composition and meetings.

The Council shall consist of the following members to be appointed as follows:
1. To be appointed by the Governor:
  1. one member of the public who shall be a survivor of domestic violence;
  2. a representative from the same-sex domestic violence service provider community;
  3. a representative from the service provider community for people who are deaf or have disabilities;
  4. a representative from the Department of State’s Attorneys and Sheriffs;
  5. a prosecutor from one of the STOP Domestic Violence units;
  6. a member of the Vermont clergy; and
  7. one member of the public representing the interests of children exposed to domestic violence.
2. To be appointed by the Chief Justice of the Vermont Supreme Court:
  1. five members of the judiciary, one of whom may be a magistrate, one of whom may be an assistant judge, and one of whom may be a court manager;
  2. one guardian ad litem;
  3. a representative of Vermont Legal Aid; and
  4. a representative of the Vermont Bar experienced in family law.
3. The following members:
  1. the Secretary of Human Services or designee;
  2. the Director of the Vermont Crime Information Center or designee;
  3. the Defender General or designee;
  4. the Attorney General or designee;
  5. the Executive Director of the Vermont Center for Crime Victim Services or designee;
  6. the Director of the Vermont Network Against Domestic and Sexual Violence or designee;
  7. the Executive Director of the Criminal Justice Training Council or designee;
  8. the Executive Director of the Vermont Commission on Women or designee;
  9. a representative from each county domestic violence task force;
  10. a representative from Vermont’s Supervised Visitation Coalition;
  11. a representative from the Vermont Police Chiefs’ Association;
  12. a representative from the Vermont Sheriffs’ Association;
  13. a representative from the Vermont Coalition of Batterer Intervention Services;
  14. the Commissioner for Children and Families or designee;
  15. the Commissioner of Public Safety or designee;
  16. the Commissioner of Corrections or designee; and
  17. the Secretary of Education or designee.
The Council may establish any committees necessary to carry out its duties.
The Council shall meet at least quarterly to conduct its business.

HISTORY: Added 2007, No. 174 (Adj. Sess.), § 14; amended 2013, No. 92 (Adj. Sess.), § 255, eff. Feb. 14, 2014; 2013, No. 96 (Adj. Sess.), § 71; 2015, No. 97 (Adj. Sess.), § 81.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (a)(3)(E): Substituted “Victim” for “Victims”.

—2013 (Adj. Sess.). Subdiv. (a)(3)(Q): Act No. 92 substituted “Secretary of Education” for “commissioner of the department of education”.

Subdiv. (a)(1)(C): Act No. 96 substituted “service provider community for people who are deaf or have disabilities” for “deaf and disability service provider community”.

Subdiv. (a)(1)(D): Act No. 96 substituted “Department of State’s Attorneys and Sheriffs” for “department of state’s attorneys”.

Chapter 23. Civil Unions

History

1999, No. 91 (Adj. Sess.), § 2, eff. April 26, 2000, provided:

“(a) The purpose of this act is to respond to the constitutional violation found by the Vermont Supreme Court in Baker v. State, and to provide eligible same-sex couples the opportunity to ‘obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples’ as required by Chapter I, Article 7th of the Vermont Constitution.

“(b) This act also provides eligible blood-relatives and relatives related by adoption the opportunity to establish a reciprocal beneficiaries relationship so they may receive certain benefits and protections and be subject to certain responsibilities that are granted to spouses.”

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this chapter.

Legislative findings. 1999, No. 91 (Adj. Sess.), § 1, eff. April 26, 2000, provides:

“The General Assembly finds that:

“(1) Civil marriage under Vermont’s marriage statutes consists of a union between a man and a woman. This interpretation of the state’s marriage laws was upheld by the Supreme Court in Baker v. State.

“(2) Vermont’s history as an independent republic and as a state is one of equal treatment and respect for all Vermonters. This tradition is embodied in the Common Benefits Clause of the Vermont Constitution, Chapter I, Article 7th.

“(3) The state’s interest in civil marriage is to encourage close and caring families, and to protect all family members from the economic and social consequences of abandonment and divorce, focusing on those who have been especially at risk.

“(4) Legal recognition of civil marriage by the state is the primary and, in a number of instances, the exclusive source of numerous benefits, responsibilities and protections under the laws of the state for married persons and their children.

“(5) Based on the state’s tradition of equality under the law and strong families, for at least 25 years, Vermont Probate Courts have qualified gay and lesbian individuals as adoptive parents.

“(6) Vermont was one of the first states to adopt comprehensive legislation prohibiting discrimination on the basis of sexual orientation (Act No. 135 of 1992).

“(7) The state has a strong interest in promoting stable and lasting families, including families based upon a same-sex couple.

“(8) Without the legal protections, benefits and responsibilities associated with civil marriage, same-sex couples suffer numerous obstacles and hardships.

“(9) Despite longstanding social and economic discrimination, many gay and lesbian Vermonters have formed lasting, committed, caring and faithful relationships with persons of their same sex. These couples live together, participate in their communities together, and some raise children and care for family members together, just as do couples who are married under Vermont law.

“(10) While a system of civil unions does not bestow the status of civil marriage, it does satisfy the requirements of the Common Benefits Clause. Changes in the way significant legal relationships are established under the constitution should be approached carefully, combining respect for the community and cultural institutions most affected with a commitment to the constitutional rights involved. Granting benefits and protections to same-sex couples through a system of civil unions will provide due respect for tradition and long-standing social institutions, and will permit adjustment as unanticipated consequences or unmet needs arise.

“(11) The constitutional principle of equality embodied in the Common Benefits Clause is compatible with the freedom of religious belief and worship guaranteed in Chapter I, Article 3rd of the state constitution. Extending the benefits and protections of marriage to same-sex couples through a system of civil unions preserves the fundamental constitutional right of each of the multitude of religious faiths in Vermont to choose freely and without state interference to whom to grant the religious status, sacrament or blessing of marriage under the rules, practices or traditions of such faith.”

§ 1201. Definitions.

As used in this chapter:

“Certificate of civil union” means a document that certifies that the persons named on the certificate have established a civil union in this state in compliance with this chapter and 18 V.S.A. chapter 106.
“Civil union” means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses.
“Commissioner” means the Commissioner of Health.
[Repealed.]
“Party to a civil union” means a person who has established a civil union pursuant to this chapter and 18 V.S.A. chapter 106.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3; amended 2009, No. 3 , § 12, eff. Sept. 1, 2009.

History

Amendments

—2009. Subdiv. (4): Repealed.

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

Law Reviews —

For article, “Issues in Vermont Law: Same-Sex Marriage in Vermont: Implications of Legislative Remand for the Judiciary’s Role,” see 26 Vt. L. Rev. 381 (2002).

For note, “Monkey See, Monkey Do: On Baker, Goodridge, and the Need for Consistency in Same-Sex Alternatives to Marriage,” see 26 Vt. L. Rev. 959 (2002).

§ 1202. Requisites of a valid civil union.

For a civil union to be established in Vermont, it shall be necessary that the parties to a civil union satisfy all of the following criteria:

not be a party to another civil union or a marriage;
be of the same sex;
meet the criteria and obligations set forth in 18 V.S.A. chapter 106.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3; amended 2009, No. 3 , § 6, eff. Sept. 1, 2009.

History

Amendments

—2009. Subdiv. (2): Deleted “and therefore excluded from the marriage laws of this state” following “same sex”.

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

§ 1203. Person shall not enter a civil union with a relative.

A woman shall not enter a civil union with her mother, grandmother, daughter, granddaughter, sister, brother’s daughter, sister’s daughter, father’s sister, or mother’s sister.
A man shall not enter a civil union with his father, grandfather, son, grandson, brother, brother’s son, sister’s son, father’s brother, or mother’s brother.
A civil union between persons prohibited from entering a civil union in subsection (a) or (b) of this section is void.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3.

History

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

§ 1204. Benefits, protections, and responsibilities of parties to a civil union.

Parties to a civil union shall have all the same benefits, protections, and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, as are granted to spouses in a civil marriage.
A party to a civil union shall be included in any definition or use of the terms “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” and other terms that denote the spousal relationship, as those terms are used throughout the law.
Parties to a civil union shall be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.
The law of domestic relations, including annulment, separation, and divorce; child custody and support; and property division and maintenance shall apply to parties to a civil union.
The following is a nonexclusive list of legal benefits, protections, and responsibilities of spouses, which shall apply in like manner to parties to a civil union:
1. laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety (parties to a civil union meet the common law unity of person qualification for purposes of a tenancy by the entirety);
2. causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, dramshop, or other torts or actions under contracts reciting, related to, or dependent upon spousal status;
3. probate law and procedure, including nonprobate transfer;
4. adoption law and procedure;
5. group insurance for State employees under 3 V.S.A. § 631 , and continuing care contracts under 8 V.S.A. § 8005 ;
6. spouse abuse programs under 3 V.S.A. § 18 ;
7. prohibitions against discrimination based upon marital status;
8. victim’s compensation rights under 13 V.S.A. § 5351 ;
9. workers’ compensation benefits;
10. laws relating to emergency and nonemergency medical care and treatment, hospital visitation and notification, including the Patient’s Bill of Rights under 18 V.S.A. chapter 42 and the Nursing Home Residents’ Bill of Rights under 33 V.S.A. chapter 73;
11. advance directives under 18 V.S.A. chapter 111;
12. family leave benefits under 21 V.S.A. chapter 5, subchapter 4A;
13. public assistance benefits under State law;
14. laws relating to taxes imposed by the State or a municipality;
15. laws relating to immunity from compelled testimony and the marital communication privilege;
16. the homestead rights of a surviving spouse under 27 V.S.A. § 105 and homestead property tax allowance under 32 V.S.A. § 6062 ;
17. laws relating to loans to veterans under 8 V.S.A. § 1849 ;
18. the definition of family farmer under 10 V.S.A. § 272 ;
19. laws relating to the making, revoking and objecting to anatomical gifts by others under 18 V.S.A. § 5250i ;
20. State pay for military service under 20 V.S.A. § 1544 ;
21. application for early voter absentee ballot under 17 V.S.A. § 2532 ;
22. family landowner rights to fish and hunt under 10 V.S.A. § 4253 ;
23. legal requirements for assignment of wages under 8 V.S.A. § 2235 ; and
24. affirmance of relationship under 15 V.S.A. § 7 .
The rights of parties to a civil union, with respect to a child of whom either becomes the natural parent during the term of the civil union, shall be the same as those of a married couple, with respect to a child of whom either spouse becomes the natural parent during the marriage.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3; amended 2001, No. 6 , § 12(a), eff. April 10, 2001; 2001, No. 140 (Adj. Sess.), § 19, eff. June 21, 2002; 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2009, No. 119 (Adj. Sess.), § 2.

History

References in text.

8 V.S.A. § 1849 , referred to in subdiv. (e)(17), was repealed by 1999, No. 153 (Adj. Sess.), § 27, effective January 1, 2001.

Amendments

—2009 (Adj. Sess.) Subdiv. (e)(19): Substituted “ 18 V.S.A. § 5250i ” for “ 18 V.S.A. § 5240 ”.

—2001 (Adj. Sess.) Subdiv. (e)(14): Deleted “other than estate taxes” from the end of the subdiv.

—2001. Subdiv. (e)(21): Inserted “early voter” preceding “absentee ballot”.

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

Applicability of 2002 amendment. 2001, No. 140 (Adj. Sess.), § 43(3) provides that section 19 of this act [which amends this section] shall apply to estates of decedents with a date of death on or after January 1, 2005.

ANNOTATIONS

Child custody.

Law Reviews —

For Article, “Vermont Civil Union: A Symposium on Vermont’s Civil Unions: A Note From the Editors: A Vermont Law Review Milestone, a Landmark Case, and a Vermont Election,” see 25 Vt. L. Rev. 1 (2001).

For Article, “Vermont Civil Union: The Baker Case, Civil Unions, and the Recognition of our Common Humanity: An Introduction and a Speculation,” see 25 Vt. L. Rev. 5 (2001).

For Article, “Vermont Civil Unions: The New Language of Marriage,” see 25 Vt. L. Rev. 15 (2001).

For Article, “Beyond Baker: The Case for a Vermont Marriage Amendment,” see 25 Vt. L. Rev. 61 (2001).

For Article, “An Essay on the Passive Virtue of Baker v. State,” see 25 Vt. L. Rev. 93 (2001).

For Article, “But Why Not Marriage: An Essay on Vermont’s Civil Union Laws, Same-Sex Marriage, and Separate But (Un)equal,” see 25 Vt. L. Rev. 113 (2001).

For Article, “For Today, I’m Gay: The Unfinished Battle for Same-Sex Marriage in Vermont,” see 25 Vt. L. Rev. 149 (2001).

For Article, “Opposition to Amending the Vermont Constitution,” see 25 Vt. L. Rev. 277 (2001).

§ 1205. Modification of civil union terms.

Parties to a civil union may modify the terms, conditions, or effects of their civil union in the same manner and to the same extent as married persons who execute an antenuptial agreement or other agreement recognized and enforceable under the law, setting forth particular understandings with respect to their union.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3.

History

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

§ 1206. Dissolution of civil unions.

The Family Division of the Superior Court shall have jurisdiction over all proceedings relating to the dissolution of civil unions. Except as otherwise provided, the dissolution of civil unions shall follow the same procedures and be subject to the same substantive rights and obligations that are involved in the dissolution of civil marriage in accordance with chapter 11 of this title, including any residency requirements.
Notwithstanding the provisions of sections 592 and 593 of this title, a complaint for civil union dissolution may be filed in the Family Division of Superior Court in the county in which the civil union certificate was filed by parties who are not residents of Vermont provided all of the following criteria are met:
1. The civil union of the parties was established in Vermont.
2. Neither party’s state of legal residence recognizes the couple’s Vermont civil union for purposes of dissolution.
3. There are no minor children who were born or adopted during the civil union.
4. The parties file a stipulation together with a complaint that resolves all issues in the dissolution action. The stipulation shall be signed by both parties and shall include the following terms:
  1. An agreement that the terms and conditions of the stipulation may be incorporated into a final order of dissolution.
  2. The facts upon which the court may base a decree of dissolution of a civil union and that bring the matter before the court’s jurisdiction.
  3. An acknowledgment that:
    1. Each party understands that if he or she wishes to litigate any issue related to the dissolution before a Vermont court, one of the parties must meet the residency requirement set forth in section 592 of this title.
    2. Neither party is the subject of an abuse prevention order in a proceeding between the parties.
    3. There are no minor children who were born or adopted during the civil union.
    4. Neither party’s state of legal residence recognizes the couple’s Vermont civil union for purposes of dissolution.
    5. Each party has entered into the stipulation freely and voluntarily.
    6. The parties have exchanged all financial information, including income, assets, and liabilities.
The court shall waive a final hearing on any dissolution action filed pursuant to subsection (b) of this section unless the court determines upon review of the complaint and stipulation that the filing is incomplete or that a hearing is warranted for the purpose of clarifying a provision of the stipulation. Final uncontested hearings in a nonresident dissolution action shall be conducted by telephone unless one or both of the parties choose to appear in person.
1. Except as provided in 18 V.S.A. § 5131(a)(4) , parties to a civil union certified in Vermont who wish to dissolve their civil union after legally marrying one another may do so by following the procedures set forth in this subsection and are not subject to the same substantive rights and obligations that are involved in the dissolution of civil marriage in accordance with chapter 11 of this title, including any hearings, waiting periods, or residency requirements. (d) (1) Except as provided in 18 V.S.A. § 5131(a)(4) , parties to a civil union certified in Vermont who wish to dissolve their civil union after legally marrying one another may do so by following the procedures set forth in this subsection and are not subject to the same substantive rights and obligations that are involved in the dissolution of civil marriage in accordance with chapter 11 of this title, including any hearings, waiting periods, or residency requirements.
2. Parties to a civil union who are legally wed to one another may dissolve their civil union by filing a petition for uncontested dissolution with the Family Division of the Superior Court in the county in which one or both reside. The application for uncontested dissolution shall be on a form prescribed by the Court Administrator. The form shall be signed by both parties. The parties shall provide a certified copy of their marriage certificate with the petition.
3. The grounds for dissolution pursuant to this subsection shall be that the parties are legally married at the time of the dissolution of the civil union.
4. The benefits, protections, and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil law, shall continue in the same manner.
5. Upon the filing of a petition for uncontested dissolution, the court may immediately grant the petition without requiring a hearing by issuing an order of uncontested dissolution.
6. The filing fee for a dissolution pursuant to this subsection shall be as provided in 32 V.S.A. § 1431(b)(2) for a complaint filed with a stipulation for a final order that is acceptable to the court.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3; amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009; 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 92 (Adj. Sess.), § 4.

History

Amendments

—2011 (Adj. Sess.) Added the subsec. (a) designation; and inserted “Except as otherwise provided” preceding “the dissolution” in the second sentence; and added subsecs. (b) through (d).

—2009 (Adj. Sess.) Substituted “family division of the superior court” for “family court”.

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

ANNOTATIONS

Dissolution.

“Acknowledgment” is defined as “a recognition of something as being factual” and it would reach beyond both the written letter and the legislature’s intent in enacting the provision regarding dissolution of civil unions by nonresidents to hold that the “acknowledgment” must also include actual showing of an attempt to file in the other state. Thus, the parties, who had entered into a civil union in Vermont but were now residing in North Carolina, satisfied the “acknowledgment” requirement of the statute when they produced an affidavit from a North Carolina attorney stating that North Carolina would not recognize a civil union for dissolution purposes. Solomon v. Guidry, 2016 VT 108, 203 Vt. 268, 155 A.3d 1218, 2016 Vt. LEXIS 111 (2016).

§ 1207. Commissioner of Health; duties.

The Commissioner shall provide civil union license and certificate forms to all town and county clerks.
The Commissioner shall keep a record of all civil unions.

HISTORY: Added 1999, No. 91 (Adj. Sess.), § 3.

History

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this section.

Chapter 25. Reciprocal Beneficiaries

History

1999, No. 91 (Adj. Sess.), § 41, contained a severability provision applicable to this chapter.

§§ 1301-1306. Repealed. 2013, No. 164 (Adj. Sess.), § 2(b).

History

Former §§ 1301-1306. Former § 1301, relating to purpose of reciprocal beneficiaries, was derived from 1999, No. 91 (Adj. Sess.), § 29 and amended by 2009, No. 119 (Adj. Sess.), § 3.

Former § 1302, relating definitions pertaining to reciprocal beneficiaries, was derived from 1999, No. 91 (Adj. Sess.), § 29.

Former § 1303, relating to requisites of a valid reciprocal beneficiaries relationship, was derived from 1999, No. 91 (Adj. Sess.), § 29 and amended by 2009, No. 3 , § 12a.

Former § 1304, relating to establishing a reciprocal beneficiaries relationship, was derived from 1999, No. 91 (Adj. Sess.), § 29.

Former § 1305, relating to dissolution of a reciprocal beneficiaries relationship, was derived from 1999, No. 91 (Adj. Sess.), § 29 and amended by 2009, No. 3 , § 12a.

Former § 1306, relating to Commissioner of Health duties pertaining to reciprocal beneficiaries, was derived from 1999, No. 91 (Adj. Sess.), § 29.

Reciprocal beneficiaries; repeal; intent. 2013, No. 164 (Adj. Sess.), § 2 provides: “(a) The stated purpose of the reciprocal beneficiaries is to provide two persons who are blood-relatives or related by adoption the opportunity to establish a consensual reciprocal beneficiaries relationship so they may receive the benefits and protections and be subject to the responsibilities that are granted to spouses in specific areas. Since enactment in 2000, no reciprocal beneficiary relationship has been established in Vermont.”

“(b) 15 V.S.A. chapter 25 is repealed (reciprocal beneficiaries) [which consisted of §§ 1301-1306].”