Mother appealed a trial court’s final divorce order. She asserted that the court erred in granting the parties a divorce because the statutory requirements for divorce were not satisfied. She also challenged the court’s award of primary legal and physical custody of the parties’ five children (including her son, but father’s stepchild) to father. Lastly, she argued that the court abused its discretion in its award of parent-child contact. Upon review of the trial court record, the Supreme Court affirmed the court’s order in all respects with the exception of its decision to award father primary parental rights and responsibilities in his stepchild. On this issue, the Court reversed and remanded for further proceedings. View "LeBlanc v. LeBlanc" on Justia Law

Vermont State Employees' Association (VSEA) appealed a Vermont Labor Relations Board decision which found that the State was not required to give certain compensation to state employees in the weeks and months following Tropical Storm Irene.The storm had a particularly devastating effect on the complex of state buildings in Waterbury. Governor Peter Shumlin authorized the complete closure of Vermont state government for one day. The closure notice stated that only authorized critical staff persons should report for work. In the days that followed, various work arrangements were necessary because the Waterbury complex was generally unusable. The Vermont Department of Human Resources indicated that agencies with offices in the complex had implemented their Continuity of Operations Plans (COOP). These plans allow only specifically authorized critical staff to work in order to continue an agency’s essential functions during and immediately following an emergency situation. All other employees in the complex were instructed that they "should not report to work unless specifically authorized to do so by a supervisor." Eventually, most of the state employees in the complex were assigned to new work stations as agencies moved their operations. At first, there was uncertainty about the work requirements and compensation for state employees who had worked in the complex. Over time, management reached a position on those policies. The position was unacceptable to VSEA, the union that represents the state’s classified employee workforce. VSEA charged that the State’s position was inconsistent with three collective bargaining agreements as well as a state personnel policy. When the parties could not resolve the conflict, VSEA appealed to the Vermont Labor Relations Board. VSEA contended that the Board erred in interpreting certain terms of the emergency closing provision of the collective bargaining agreements between the State and VSEA. Finding no reversible error, the Supreme Court affirmed. View "In re Grievance of VSEA" on Justia Law

Defendant Aidan Brunner appealed his conviction for possession of brass knuckles or a similar weapon with intent to use it. He argued arguing that the implement at issue is neither brass knuckles nor a similar weapon under State law. The weapon was described as having retractable blades. There was a slot that permitted the wielder to insert his or her fingers and hold the weapon. The concave curve of the metal fit against the palm; once grasped, one section is within the closed grip of the fist, and the remaining portions protrude along the front of the fingers/knuckles. The bar has sharp, serrated teeth. Finding that description fit the statutory definition of "brass knuckles" [or similar weapon], the Supreme Court affirmed. View "Vermont v. Brunner" on Justia Law

In Fall 2013, defendant pled guilty to a felony charge of lewd and lascivious conduct with a child as well as four counts of prohibited acts. The court ordered a pre-sentence investigation (PSI) and a psychosexual evaluation. Sentencing occurred after submission of the PSI report and the evaluation. In the course of the sentencing hearing, the defense sought testimony from the victim, who was thirteen years old at the time the offense conduct began and sixteen at the time of sentencing. The victim was defendant's younger sister. The defense requested that the judge speak privately with the victim. The State objected although it agreed "to allow the victim to express her preference to the Court outside the presence of counsel." Specifically, the record reflected that when the judge inquired if anyone "would object to my meeting briefly with [the victim] to find out exactly what her comfort level is," the State responded that it had no objection. The judge met with the child in chambers. A record was kept of their conversation. Reading from a prepared statement, the victim told the judge that she did not want her brother to go to jail. During the conversation, the judge discussed general sentencing principles with the victim. The trial judge offered the victim a mixture of advice and sympathy and discussed ways to overcome traumatic experiences in life. At the close of the conversation, the victim stated that she did not want to provide any additional testimony in open court. The court sentenced defendant to two-to-eight years, all suspended except ninety days on the lewd-and-lascivious conduct charge. The State petitioned for extraordinary relief, raising two issues concerning defendant’s sentencing: an objection to a private meeting in chambers between the judge and the minor victim of the offenses and the court’s decision to impose a "split" probationary sentence on the charge of lewd and lascivious conduct with a child, first offense. The Supreme Court found no violation of the sentencing provisions applicable to this offense. Accordingly, it denied the State's petition for extraordinary relief. View "Vermont v. Fontaine" on Justia Law

The South Burlington School District appealed an environmental court decision approving Howard Center, Inc.'s application for interior renovations to an existing medical office to accommodate a new methadone clinic. The District argued the court erroneously concluded that: (1) the clinic was a permitted "medical office" use under the South Burlington Land Development Regulations and therefore did not require site-plan or conditional-use review; (2) the Traffic Overlay provisions of the Regulations did not apply to the permit application; and (3) general safety concerns were not a permissible consideration under the Regulations in reviewing the permit application. Finding no reversible error, the Supreme Court affirmed. View "In re Howard Center Renovation Permit" on Justia Law

The single issue in this appeal was whether payments by employer 863 To Go, Inc. to its delivery drivers should have been excluded from the calculation of employer's contribution to Vermont's system of unemployment compensation. "In a process known to anyone who has ever ordered a pizza, the customer calls in his or her order. A bilateral contract based on an exchange of mutual promises is formed. The customer promises to pay for the meal either upon delivery or before. The price is set, except for any gratuity, as is the description of the meal. Employer promises to obtain the food and arrange for its delivery. . . . The delivery driver plays no discernible role in creating the contract of sale. The record contains no evidence that he or she can vary the terms of sale, either with respect to price or to product. The driver's only role is to deliver the food and to pick up the purchase price if it has not already been paid. He or she has not 'sold' anything. He or she has, obviously, 'delivered' dinner." Since the "selling" requirement of the exemption in section 1301(6)(C)(xxi) was not met, the Supreme Court affirmed the decision of the Employment Security Board that employer was obligated to pay an unemployment compensation contribution to the Department of Labor with respect to its delivery drivers. View "863 To Go, Inc. v. Department of Labor" on Justia Law

In 2011, the Agency of Transportation advertised for bids to reconstruct a half-mile section of North Main Street in downtown Barre. Luck Brothers submitted the low bid and was awarded the contract for the project, which it started in the summer of 2011. In June 2012, Luck Brothers submitted a claim to the Agency seeking approximately $855,000 in additional compensation beyond the bid amount based on alleged differing site conditions from those assumed in the contract. One year later, Luck Brothers submitted a supplemental claim, making the total claim approximately $1.1 million. Less than three months after submitting its $855,000 claim, Luck Brothers filed a complaint against the Agency in superior court seeking, among other things, declaratory relief and compensatory damages. Specifically, the complaint alleged breach of contract, negligent misrepresentation, and breach of an implied warranty on the part of the Agency, and sought penalties under the Prompt Pay Act. Luck Brothers appealed the superior court’s decision to grant the Agency’s motion to dismiss Luck Brothers’ lawsuit on grounds that the company failed to exhaust its administrative remedies before pursuing a remedy in the superior court. Upon review, the Supreme Court affirmed the superior court’s decision, but clarified the standard of review in appeals to the Vermont Transportation Board from Agency determinations under the claims process for construction contracts. View "Luck Brothers v. Agency of Transportation" on Justia Law

On July 3, 2009, plaintiffs Michaela and David Martin and their three-year-old daughter Gracie spent the day at a campsite that the family rented at a campground in Island Pond, Vermont. Defendants John and Joanna Christman rented a campsite near the Martins. Michaela took Gracie to a playground adjacent to the Christmans’ site. The Christmans were camping with two of their boxer dogs, one of which was a two-year old male named Diesel. They had a table of their own which was sheltered with a gazebo. Joanna Christman tied Diesel to a pole supporting the gazebo. Gracie asked John Christman if she could pet Diesel, and he said that she could. Without warning Diesel attacked Gracie, knocking her to the ground and biting her face. John Christman forced his dog to let go of the child. The Martins took Gracie to North Country Hospital where she received surgery to repair her wounds. The Martins brought suit against the Christmans, their insurer, and the campground on several theories, including strict liability and negligence. The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that existing Vermont precedent required proof of negligence to recover against a dog owner for damages caused by his or her dog. It also dismissed a "direct action" claim against the Christmans’ insurer. The parties stipulated to the dismissal with prejudice of the negligence claim and a related claim of premises liability. This appeal was limited to the trial court’s dismissal of the strict liability claim. The Vermont Supreme Court declined to change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. "In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision." View "Martin v. Christman" on Justia Law

The issue this case presented to the Supreme Court centered on the pay due to a state employee pursuant to a collective bargaining agreement when the employee temporarily takes on duties at a higher level. Grievant Christopher Spear appealed a decision of the Vermont Labor Relations Board that the State, as grievant’s employer, did not violate the nonmanagement unit collective bargaining agreement between the Vermont State Employees’ Association (VSEA) and the employer when it provided grievant with “higher assignment pay” of a flat five percent of his regular pay rather than placing, or “slotting,” him to a step in the pay grade associated with the higher assignment duties that was at least five percent higher than his regular pay. The Board found the agreement’s provision governing higher-assignment pay ambiguous and concluded, based on the evidence presented, that the parties intended to calculate higher-assignment pay using a flat rate without slotting. Finding no reversible error, the Supreme Court affirmed. View "In re Spear" on Justia Law

Husband Gilles Richard appealed a family court order awarding wife Ellen Richard interest on a payment due under the final divorce decree. Husband argued that the award of interest was an impermissible modification of the final decree. Pursuant to the final divorce judgment, husband had a fixed obligation to pay wife $11,500 in cash or through QDRO, and any delay in payment was subject to interest by operation of law. "The trial court’s approach to ordering the statutorily due interest in this case was admittedly confusing - the court purported to add a 'clarifying' provision to the final divorce decree, but the clarifying language was nothing more than a statement of the law that applies to post-judgment interest even without the 'addition' to the decree." The trial court did not substantively modify its final property division after the fact; the language it purported to add to the final order was entirely redundant. The trial court’s ruling was not a substantive modification at all; the final order had the exact same implications for husband’s obligation to pay, the timing of that obligation, and his liability for interest after the trial court’s order as before. To the extent that husband argued that the absence of any reference to interest in the final divorce decree reflects “an implied ruling that no interest would accrue prior to transfer,” regardless of husband’s delay in making that transfer, the argument is squarely at odds with well-established law providing for post-judgment interest on fixed obligations. View "Richard v. Richard" on Justia Law