Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-360

                                          JULY TERM, 2011

 Jane Krochmalny and Office of                         }    APPEALED FROM:
 Child Support                                         }
                                                       }
                                                       }
    v.                                                 }    Superior Court, Windham Unit,
                                                       }    Family Division
                                                       }
 Wayne Mills                                           }    DOCKET NO. F355-12-93 Wmdm

                                                            Trial Judge: Katherine A. Hayes

                          In the above-entitled cause, the Clerk will enter:

        Defendant obligor appeals an order of the family division of the superior court issuing a
child support arrears judgment requiring him to pay a specified sum towards those arrears by a
certain date, and permitting the Office of Child Support (OCS) to apply for a mittimus in the
event he failed to timely pay that amount. We affirm.

       This is the latest in a series of attempts by plaintiff obligee and OCS to collect child
support from defendant. Plaintiff and defendant were married for twenty years and divorced in
1996. By the time their youngest son graduated from high school in 2005, defendant owed over
$29,000 in child support arrears. In 2007, the parties, including OCS, entered into a stipulation
in which defendant agreed to pay $400 per month towards the more than $39,000 in child
support arrears that had accumulated. Defendant made his last payment in December 2007.

        In June 2008, the family court held defendant in contempt for willfully putting himself in
a position in which he could not pay child support. The court ordered defendant to pay $2800 by
the end of July 2008 to purge himself of the contempt. When defendant failed to pay the
required sum, OCS filed an affidavit of noncompliance, and on August 18, 2008, the court issued
a mittimus ordering husband’s incarceration. On appeal, we reversed the court’s finding of
contempt, vacated the mittimus, and remanded the matter after concluding that the court issued
the mittimus without first finding that defendant had the ability to purge his contempt.
Krochmalny v. Mills, 2009 VT 106, 186 Vt. 645 (mem.).

        A hearing on remand was scheduled for December 9, 2009. Shortly before the hearing,
defendant informed the court that he would not be appearing in person at the hearing but that he
could be reached at a certain telephone number. At the hearing, the court noted the lack of any
request to appear by telephone, see V.R.F.P. 17(b) (stating necessary conditions for telephonic
participation at hearing, including finding by court that telephonic appearance will not prejudice
fairness of proceedings because of, for example, need to assess credibility of witness), but
decided to treat the hearing as a status conference only. A contempt hearing was rescheduled for
January 26, 2010. That hearing did not take place, however, because the court was unable to
timely serve defendant with notice of the hearing. The hearing was again rescheduled, this time
for April 13, 2010. On the morning of the hearing, the court received a letter from defendant
stating that he would not be attending the hearing because he had not been served notice at least
fifteen days in advance of the hearing, as required by rule. The court again treated the hearing as
a status conference. The court then rescheduled the hearing for August 10, 2010. On June 15,
2010, defendant was personally served with a judicial summons, a notice of hearing, a blank
affidavit of income and assets form, and an application for assigned attorney. Nevertheless,
defendant failed to appear at the August 10 hearing, and the matter proceeded as a default
hearing on the merits. Plaintiff and a representative of OCS appeared, and evidence was taken.

        In a September 3, 2010 decision, the court concluded, among other things, that defendant
had a present ability to pay $3075, the same amount that a Massachusetts court on June 15, 2010
had ordered defendant’s sister to pay him within three business days. Based on this and other
findings and conclusions, the family court entered a judgment of child support arrears in the
amount of $43,361, ordered defendant to pay to OCS $3075 within ten days, and, in the event
defendant did not timely pay that amount, permitted OCS to “apply for a mittimus to issue
requiring the defendant to pay this amount, or to be incarcerated as a sanction for his failure to
do so.” On September 20, 2010, OCS filed an affidavit of noncompliance and a request that the
court issue a mittimus. On the same day, defendant filed a notice of appeal of the court’s
September 3 order. On October 6, 2010, without ruling on OCS’s request for a mittimus, the
court stayed enforcement of its September 3 order pending defendant’s appeal.

        On appeal, defendant argues that the court abused its discretion by requiring him to pay a
specified amount based solely on the fact that he may have received an equivalent amount of
money two-and-one-half months earlier or at some later time. We find defendant’s argument
unavailing insofar as the court did not actually find defendant in contempt, but rather “defer[red]
the imposition of sanctions until the respondent has had an opportunity to meet specific
conditions that will purge the contempt.” V.R.F.P. 16(b)(5); see also V.R.F.P. 16(a) (noting that
Rule 16 “implements and supplements the inherent and statutory powers of the court to impose
such sanctions for failure to comply with a court order” (emphasis added)). And even if we have
to assume a finding of contempt in light of the court’s invitation to OCS to seek a mittiums in the
event defendant did not pay the required amount, defendant may yet seek to demonstrate an
inability to purge himself of the contempt before the court can issue a mittimus for his
incarceration. See Sheehan v. Ryea, 171 Vt. 511, 512 (mem.) (explaining that court cannot order
incarceration as means of coercing compliance if obligor lacks present ability to pay purge
amount); see also Russell, 166 Vt. at 400 (concluding that defendant not entitled to counsel at
initial contempt hearing “because the court did not consider incarcerating defendant without
providing him another opportunity, if necessary, to challenge his ability to comply with the child
support orders and the reasonableness of the purge conditions with the aid of counsel”).

       Affirmed.

                                             BY THE COURT:

                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice
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