Rule 16.Civil Contempt Proceedings

REPORTER'S NOTES--2018 AMENDMENTS: Rule 16 is amended to change its 15-day time periods to 14 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter's Notes to simultaneous amendments of V.R.F.P. 1.

REPORTER'S NOTES--2016 AMENDMENT: V.R.F.P. 16(b)(2) is amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0-4.3. See Reporter's Notes to those rules.

REPORTER'S NOTES--2015 AMENDMENT: Rule 16 is amended to incorporate provisions of 15 V.S.A. § 603, enacted by 2011, No. 119 (Adj. Sess.), § 2, to establish an enhanced procedure for civil contempt in the enforcement of orders of the Family Division in divorce proceedings that create a financial obligation, including child support, spousal maintenance, and lump sum property settlements. See 15 V.S.A. § 603(a)- (i). Many of the enhanced provisions will also apply to contempt for failure to comply with nonfinancial obligations. Rule 16(b)(2) incorporates language of 15 V.S.A. § 603(d) to make clear that “the person against whom the contempt proceedings are brought” is the respondent under the existing provisions of the rule and stating clearly the purpose of the hearing and the risk of arrest for failure to appear. New Rule 16(b)(5) combines the language of 15 V.S.A. § 603(g) and (f) concerning the manner of supporting findings and their content. To sustain a finding of contempt, the evidence must support findings that the respondent had actual or constructive knowledge of the order and any financial obligation that it contained, failed to comply, and had the ability to comply. If the noncompliance is a failure to pay child support or spousal maintenance, subparagraph (5)(B) provides that the moving party has the burden of establishing the amount of the obligation, the amount unpaid, and the amount of any unpaid surcharges or penalties resulting from prior late payments or the nonpayment. Subparagraph (5)(C) adopts statutory language requiring a finding that respondent “willfully violated the court order in that he or she had the ability to comply with the order and failed to do so.” 15 V.S.A. § 603(f)(3). Here, “willfully” should be understood to mean intentionally rather than accidentally, but not to import a further requirement of maliciousness. Cf. In re Chase, 2009 VT 94, ¶¶ 25-26, 186 Vt. 355, 987 A.2d 924. Willfulness in this sense is an element of contempt that will be found if, in addition to knowledge of the order and failure to comply, the court finds ability to comply. New Rule 16(c)(4) brings into the rule the provisions of 15 V.S.A. § 603(h) concerning sanctions appropriate for failure to pay a financial obligation imposed by court order. Former paragraph (4) has been renumbered and carried forward as paragraph (5). Former Rule 16(d) is redesignated and carried forward as Rule 16(d)(1). New Rule 16(d)(2) brings into the rule the provisions of 15 V.S.A. § 603(i) covering present ability to pay a financial obligation imposed as a purge condition.

REPORTER'S NOTES: Rule 16 is added to provide a uniform procedure for enforcement of Family Court orders by contempt proceedings. The court has authority for such enforcement by virtue of 15 V.S.A. § 603, which incorporates for divorce proceedings the general contempt procedure of 12 V.S.A. § 122. The latter section provides that to bring proceedings for contempt of a duly served order made “in a cause no longer on the docket of the court,” the judge before whom the proceedings are brought “shall order forthwith the cause to be brought forward on the docket of the court and may issue concurrently with the order a summons or capias against the party” alleged to have violated the order. The rule is intended to supplement and implement these and other existing statutory procedures, such as those provided by 15 V.S.A. § 606 for imposition of sanctions for noncompliance with orders for maintenance, child support, and suit money. Efficient enforcement, particularly of child support orders, is critical to Family Court proceedings and ultimately must depend upon the court's most effective weapon, the contempt sanction. At the same time, the proceedings must not infringe the constitutional rights of those accused of contempt. See Martin v. Martin, 154 Vt. 651, 578 A.2d 110 (1990) (mem.); Randall v. Randall, 129 Vt. 432, 434-35, 282 A.2d 794, 795-96 (1971). The rule is intended to serve both goals by codifying and making uniform the procedure for civil contempt, including protections of notice for the respondent, and filing the many gaps in the existing procedure. Without the rule, that procedure would remain largely a matter of common law and inherent judicial power exercised in differing ways by individual judges. Rule 16(a) sets forth the limited scope of the rule. It provides a procedure for the proceeding commonly called civil contempt-- the imposition of remedial sanctions designed to compel compliance with a court order and to compensate a party for loss occasioned by violation of the order. Rule 16 does not apply to criminal contempt proceedings, which impose incarceration or fines as punishment for violation of a court order or for other actions that threaten the dignity or integrity of the court, and as to which there is a right to trial by jury. See In re Sage, 115 Vt. 516, 517, 66 A.2d 13, 14 (1949); State v. Lafayette, 152 Vt. 108, 111, 564 A.2d 1068, 1069 (1989). The procedure for criminal contempt proceedings is set forth in V.R.Cr.P. 42. Note that the same conduct may constitute both civil and criminal contempt and may be subject to proceedings for both remedial and punitive sanctions. Rule 16 also does not apply to summary proceedings to impose immediate sanctions, whether punitive or remedial, for contempt occurring in the presence of the court. See State v. Allen, 145 Vt. 593, 600-01, 496 A.2d 168, 171-73 (1985). Summary proceedings for punitive sanctions are covered by V.R.Cr.P. 42(a), which applies whether the conduct to be punished occurred in the course of a criminal or a civil proceeding. When contempt occurring in the presence of the court affects the interests of a party, a proceeding for remedial sanctions should ordinarily be brought as provided in Rule 16. When delay would render the sanctions ineffective, however, the procedure of V.R.Cr.P. 42(a) may be adapted for such proceedings. In proceedings to which it otherwise applies, Rule 16 does not supersede procedures and sanctions expressly provided by other rules such as V.R.C.P. 37 governing civil discovery sanctions (applicable by virtue of Rules 4(a)(1), 4(g)(2)), or by statute. See, e.g., Uniform Desertion and Nonsupport Act, 15 V.S.A. §§ 201-210 (prosecution for imprisonment or fine for willful nonpayment of support, with discretion for orders for payment and for care of children). Rule 16(b) sets forth a general procedure for civil contempt proceedings. Paragraph (1) provides that the proceeding is to be initiated by order of the court, either on its own motion or on the motion of a party. The court is given the power to proceed on its own motion for the protection of pro se litigants as well as to assure enforcement of orders in which no party has a direct interest, such as orders to participate in a litigant education program under Rule 14. To preclude hasty or summary action, the rule permits the court to issue an order, whether on its own or a party's motion, only in the case of an alleged “clear and substantial violation of a previous order.” For the benefit of the party charged with contempt, the motion, or the order if on the court's motion, must set forth the order violated and specific facts. In the case of a party's motion, these matters must be presented in the form of a supporting affidavit. If the party is proceeding orally in open court, the facts may be stated on the record under oath administered by the judge or clerk. Rule 16(b)(2) provides that the order initiating the proceeding is both to set the hearing date and to provide for service of the order and the motion and affidavit on which it is based, as well as notice of the hearing date. Service is to be accomplished as provided for service of post-judgment motions under Rule 4(j)(2). The particular form of service to be used will depend on whether the order alleged to be violated involves minor children and whether the respondent's location can be ascertained. See Rule 4(j)(2)(A)-(C). These provisions are generally calculated to provide actual notice in most instances. The substituted service by mail to the last address filed in the state case registry, provided by Rule 4(j)(2)(C) in the limited situation of a child- support obligor whose whereabouts cannot be ascertained by diligent effort, is only effective if the court is satisfied that diligent effort has been made. In any event, service by mail to the last reported address is likely to be at least as effective as service by publication. See Reporter's Notes to Rule 4(j)(2)(C). To require a more stringent form of service of the motion for contempt would allow a respondent deliberately to evade the court's process and his or her support obligations. The notice must give the defendant a period of at least 15 days before the hearing in which to answer. Under V.R.C.P. 6(a), that period includes intermediate Saturdays, Sundays, and holidays. The notice may include an order to produce documents and must also advise the respondent of a number of important procedural matters, including the time for answer, the possibility of a finding of contempt and the imposition of sanctions by default, and the need to retain or request counsel in a case where imprisonment is a possible sanction. In Choiniere v. Brooks, 163 Vt. 625, 660 A.2d 289 (1995) (mem.), the Court found a constitutional right to appointed counsel for the indigent whenever imprisonment was under consideration as a possible sanction for contempt. Subsequently, in Russell v. Armitage, 166 Vt. 392, 403-05, 697 A.2d 630, 638 (1997), the Court reaffirmed Choiniere and upheld the appointment of a public defender as a matter of inherent power. Noting the lack of authorization in the Public Defender Act for such a practice, however, the Court indicated that the courts should use their inherent power to appoint counsel from the bar in cases where it was constitutionally required. Rule 16(b)(3) requires that the answer be under oath and respond to the allegations of contempt. If the defense is financial inability, respondent must file, or update, the affidavit of income and assets required by Rule 4(g)(2)(D). Under that rule, the affidavit must be accompanied by the party's pay stubs for the four most recent pay periods in which employment income was received, if any, monthly income and expense statements or equivalent documents covering the period following a self- employed person's last-filed income tax return, and documentation of all other income received during the period following any person's last-filed income tax return (including social security, workers' compensation, unemployment compensation, disability and pensions). The respondent should also file his or her tax returns for the two most recent years in which returns were filed, together with all schedules and other documentation that were submitted to the Internal Revenue Service. Rule 16(b)(4) provides for a hearing at which both parties may present evidence. The party seeking the contempt sanction, or the court if proceeding on its own motion, has the burden of establishing the elements of contempt by clear and convincing evidence. See Vermont Women's Health Center v. Operation Rescue, 159 Vt. 141, 146-47, 617 A.2d 411, 414 (1989). Those elements are a valid and definite order, service or other notice to the defendant, and a violation of the order. See id. at 147-49, 617 A.2d at 415-16; State v. Pownal Tanning Co., 142 Vt. 601, 605-06, 459 A.2d 989, 991-92 (1983); Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 225 A.2d 60 (1966). Inability to comply with the order is a defense, upon which respondent has the burden. Russell v. Armitage, supra, 166 Vt. at 401, 697 A.2d at 636; Spabile v. Hunt, 134 Vt. 332, 335, 360 A.2d 51, 52-53 (1976). Rule 16(b)(5) permits, but does not require, the court to impose sanctions at the hearing if the respondent is found in contempt. The court thus has discretion to set conditions that allow the respondent a period of time in which to purge the contempt if that is appropriate in the circumstances. If the period allowed is significant, a second hearing on sanctions may be necessary. Cf. Russell v. Armitage, supra, 166 Vt. at 400-01, 697 A.2d at 635-36. The rule requires that an order imposing sanctions under Rule 16(c), or conditions under this paragraph, include “a clear description” of steps that must be taken to purge the contempt. The description should include any time limits on such steps. See Russell v. Armitage, supra, 166 Vt. at 401-02, 697 A.2d at 636-37. The order may set a specific date for review of the sanctions or conditions at a hearing held under subdivision (d) to determine whether the contempt has been purged. Rule 16(b)(6) gives the court discretion to proceed if respondent does not appear. The court may make a finding of contempt and impose sanctions, with or without further hearing. Rule 16(c) sets forth the sanctions that are appropriate for civil contempt. Paragraph (1) provides for incarceration--the sanction under which the contemnor is traditionally said to have “the key to the jail in his [or her] pocket.” Cf. Russell v. Armitage, supra, 166 Vt. at 398 n.1, 697 A.2d at 635 n.1; id. at 407-08, 697 A.2d at 640 (Morse, J., concurring). Purging the contempt by complying with the order violated is the key to release. Incarceration in a state correctional facility is specifically provided as either a punitive or a remedial sanction for contempt in 12 V.S.A. § 123(a). The statute provides for review of the contempt proceedings annually by “the sentencing court.” 12 V.S.A. § 123(b). Rule 16(c)(2) provides for the coercive use of a fine, payable either in a fixed amount if respondent does not comply by a date certain or in a specific amount for each day that the respondent continues to violate the order. See Vermont Women's Health Center v. Operation Rescue, supra, 159 Vt. at 151-52, 617 A.2d at 417. The coercive fine is payable to the state, because its purpose is to enforce compliance, not to compensate the moving party. Rule 16(c)(3) permits the court to enter judgment against the respondent in an amount sufficient to compensate the moving party for actual loss or injury, including costs and reasonable attorney's fees, caused by the contempt. See Vermont Women's Health Center v. Operation Rescue, supra, 159 Vt. at 149-51, 617 A.2d at 416-17. An order to pay arrearages would be made under this provision. See 15 V.S.A. § 606(a). Rule 16(c)(4) allows other appropriate relief to be awarded. This provision embraces additional remedies provided by statute. See, e.g., 15 V.S.A. §§ 796 (escrow order for assets to secure payment); 797 (additional civil penalty when arrearages wilful). The provision also contemplates measures that might facilitate enforcement of the order, such as appointment of a master or preparation of a detailed payment or parent-child contact plan. Rule 16(d) provides for a purge hearing, either at a time set by the court in the order imposing sanctions or conditions or on motion of a party. At the hearing, the respondent has the burden of showing that the contempt has been purged by performance of the conditions or by compliance with the order violated. Russell v. Armitage, supra, 166 Vt. at 400-01, 697 A.2d at 636. If the contempt has not been purged, the court may order further conditions or sanctions.