2013 VT 20


Welch v. Welch (2012-184)
 
2013 VT 20
 
[Filed 08-Mar-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 20 

 

No. 2012-184

 

Jeanne Welch


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Family Division


 


 


John Welch


January Term, 2013


 


 


 


 


A.
  Gregory Rainville, J.


 

Sandra A. Strempel of Dinse, Knapp & McAndrew, P.C.,
Burlington, for Plaintiff-Appellee.
 
Marsha Smith Meekins of Marsha Smith Meekins, LLC, South
Burlington, for 
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.  Defendant ex-husband appeals an order of the
superior court, family division, finding him in contempt for failure to pay
spousal maintenance as ordered.  He claims that the court lacked
jurisdiction to find him in contempt because he was not personally served with
the underlying order upon which the finding of contempt was based, as required
by statute and our case law.  We affirm.
¶ 2.            
The parties divorced in December 1993.  The stipulated final order
required defendant to pay plaintiff ex-wife spousal maintenance in the amount
of $600 per month until she remarried or died.  Defendant defaulted on his
payment obligations on several occasions over the next eighteen years and was
found in contempt four times.  On October 7, 2011, plaintiff commenced
civil contempt proceedings under Vermont Rule for Family Proceedings 16,
alleging that defendant failed to comply with a June 27, 2011 order compelling
him to pay $3776 for spousal maintenance arrearage, interest, costs, and
attorney’s fees.  The June 27, 2011 order stemmed from a motion for
enforcement filed by plaintiff in January 2010.
¶ 3.            
On November 5, 2011, plaintiff personally served defendant with her
October 7, 2011 motion for contempt along with a notice of hearing scheduled
for November 29, 2011, and sent copies of the motion and proof of service to
defendant’s attorney, but did not include with the personal service to
defendant a copy of the underlying June 27, 2011 order.  The June 27, 2011
order had been sent, however, to defendant’s attorney after it was entered at
the conclusion of a hearing attended by both parties’ attorneys.  The June
27, 2011 order noted defendant’s chronic failure to abide by the spousal
maintenance order, but granted defendant an additional thirty days to produce
copies of checks he claimed to have provided to plaintiff for spousal
maintenance.  When defendant failed to produce the copies as ordered,
plaintiff filed her October 7, 2011 motion for contempt.   On November
22, 2011, defendant’s attorney sent to plaintiff’s counsel a letter that
included a $50 check identified as payment toward the June 27, 2011 judgment.
¶ 4.            
Neither defendant nor his attorney appeared at the scheduled November
29, 2011 hearing on the contempt motion.  At the conclusion of the
hearing, the court held defendant in contempt and issued a contempt order on
December 6, 2011.  The order required defendant to pay plaintiff the
amount of the unpaid June 27, 2011 judgment—$3776—plus costs, interest, and
attorney’s fees for a total judgment of $6451.
¶ 5.            
On January 6, 2012, defendant’s attorney sent plaintiff’s attorney two
checks: $600 for current support and $3126 to be applied to the June 27, 2011
judgment.  Defendant did not pay the amount due under the December 5, 2011
contempt order, claiming that the court did not have jurisdiction to enter the
order.  After notice to defendant, a mittimus hearing took place on
January 17, 2012.  Defendant did not appear at the hearing.  His
attorney made a limited appearance solely to dispute the court’s jurisdiction
to adjudicate the October 7, 2011 contempt motion, arguing that the court
lacked jurisdiction because defendant had not been personally served with the
June 27, 2011 order.  The court rejected this argument, as well as
defendant’s follow-up motion for reconsideration, ruling that Vermont Rule of
Civil Procedure 5 governed the form of service and required only that the order
be sent to defendant’s attorney, which it was.
¶ 6.            
On appeal, defendant argues that the court’s ruling is erroneous because
12 V.S.A. § 122 and case law construing that statute do not allow a party
to be punished for contempt unless that party was personally served with the
order upon which the motion for contempt was based.  According to
defendant, the family court’s ruling erroneously allowed a court rule to
override a statute, in violation of 12 V.S.A. § 1, which states that court
rules may not modify substantive rights provided by law.
¶ 7.            
The flaw in defendant’s argument is that neither § 122 nor our case
law construing the statute requires personal service—as opposed to other forms
of service—upon a party of the underlying order before contempt may be
found.  Section 122 provides that when a party violates a court order
“after service of the order upon that party, contempt proceedings may be
instituted.”  Our case law confirms that service of the underlying order
is a required prerequisite to a finding of contempt.  See Socony Mobil
Oil Co. v. N. Oil Co., 126 Vt. 160, 163, 225 A.2d 60, 63 (1966) (“The
requirement of service of the court order, provided for in 12 V.S.A. § 122 is
merely a procedural prerequisite to the institution of contempt proceedings.”).
¶ 8.            
Without question, § 122 and the case law construing that statute require
service of the underlying order upon a party before the party can be found in
contempt for violating that order, but neither the statute nor the case law
purports to designate the form of service required.  Indeed, when the
Legislature intends to do so, it makes the form of service explicit.  See,
e.g., 4 V.S.A. § 466(e) (requiring “personal service” or service set forth in
Vermont Rule for Family Proceedings 4(l) upon respondent with respect to child
support petitions).  Because § 122 is “merely a procedural prerequisite to
the institution of contempt proceedings,” Socony, 126 Vt. at 163, 225
A.2d at 63, § 1’s prohibition against court rules imposing substantive changes
of the law is inapplicable here.[*]
¶ 9.            
Moreover, any issue of limitations on this Court’s rulemaking power is
controlled by Chapter II, § 37, of the Vermont Constitution, which gives this Court
the primary authority to establish court practice and procedure, subject to
revision by the Legislature.  See State v. O’Brien, 158 Vt. 275,
279, 609 A.2d 981, 983 (1992).  The Legislature has not, pursuant to that
constitutional provision, acted to revise Vermont Rule of Civil Procedure 5.
¶ 10.        
As the superior court noted, the form of service for court orders and
pleadings other than original complaints is addressed in, and governed by,
Vermont Rule of Civil Procedure 5.  Rule 5(a) generally requires that
court orders “be served upon a party,” and how that service may be accomplished
is addressed in Rule 5(b).  Whenever Rule 5(a) requires service to be made
upon a party who is represented by an attorney, “the service shall be made upon
the attorney unless service upon the party is ordered by the court.” 
V.R.C.P. 5(b).  Service may be accomplished by mailing a copy of an order
to the attorney.  Id.
¶ 11.        
It is undisputed in this case that the June 27, 2011 order upon which
the October 7, 2011 contempt motion was based was mailed to defendant’s
attorney and that defendant’s attorney received the letter, as evidenced by the
fact that a check, identified as a payment toward sums owed under the June 27,
2011 order, was sent to plaintiff’s attorney.  The form of the service of
the June 27, 2011 order was proper under Rule 5.
¶ 12.        
Moreover, defendant was properly served with plaintiff’s October 7, 2011
contempt motion.  Unlike service of court orders, service of motions to
initiate contempt proceedings is governed by Vermont Rule for Family
Proceedings 16(b)(2), which provides that the form of service is governed by
Vermont Rule for Family Proceedings 4(j)(2).  Rule 4(j)(2)(A) provides
that service “shall be made upon the party, and not the party’s
attorney.”  In this case, plaintiff personally served defendant with her
contempt motion through a sheriff in Wyoming.  In short, defendant was
properly served through his attorney with the underlying order, and plaintiff
personally served defendant with the contempt motion.  There was no error.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[*] 
Our decision in Lyon v. Lyon, 143 Vt. 458, 466 A.2d 1186 (1983) does not
compel a different result.  In Lyon, a divorce decree requiring the
defendant to pay monthly child support and child support arrears was “mailed to
counsel for the parties” but “was never personally served” on the
defendant.  Id. at 460, 466 A.2d at 1187.  More than ten years
later, the plaintiff petitioned for contempt and enforcement of the child
support order.  The trial court dismissed the petition for contempt
because the defendant had not been served with the underlying order, but nonetheless
entered judgment for the plaintiff for arrears owed by the defendant.  The
defendant appealed, arguing in relevant part that the trial court’s reasoning
for dismissing the contempt petition “should extend to the enforcement of
judgments.”  Id. at 461, 466 A.2d at 1188.  Citing Socony,
we held that although the defendant was “correct in stating that a party who
has not been served with an order may not be punished for contempt,”
there was “no legal support for his position that enforcement of support orders
are predicated on the fact of service of the order.”  Lyon, 143 Vt.
at 461, 466 A.2d at 1188 (emphasis added).  Although Lyon
unquestionably implies that § 122 requires personal service of the underlying
order on the actual party and is not satisfied by mailing copies to a party’s
attorney, that is not the holding of the case.  The plaintiff did not
appeal the trial court’s dismissal of her contempt petition, and thus the issue
of whether the petition was erroneously dismissed was not before this Court. 
Moreover, Lyon merely relied upon Socony, which, as noted above,
does not address the type of service required by § 122.  Accordingly, Lyon
is not an impediment to our holding today.



