Articles Posted in Family Law

by
Wife Nicola Weaver appealed the trial court’s order granting a motion filed by husband David Weaver to modify his spousal maintenance obligation. Wife argues the trial court erred by: (1) reducing her spousal support to zero; (2) inaccurately calculating husband’s actual living expenses because the court declined to consider husband’s current wife’s financial support of husband; and (3) allowing a credit for overpayment of spousal maintenance against a child support arrearage. The Vermont Supreme Court agreed with wife that the trial court erred on these three points of law and therefore reversed and remanded. View "Weaver v. Weaver" on Justia Law

Posted in: Family Law

by
The events leading to this appeal were rooted in the parties’ 2007 divorce. In September 2005, the parties entered into a final stipulation that provided, among other things, that defendant James Billado was to pay plaintiff Laura Cramer $50,000 to buy out her interest in defendant’s business. Before the court entered a divorce judgment, defendant sought to set aside his uncounseled stipulation on the ground that, since signing the stipulation, he learned that while acting as bookkeeper, plaintiff had been stealing money from the business. The trial court rejected his claim, but found that both parties treated the various business accounts as personal accounts, withdrawing funds at will to pay for vacations, credit card debt, and other personal expenses. Defendant turned a blind eye to poor bookkeeping practices since both he and plaintiff received the financial benefit. Given this record, the trial court declined to set aside the parties’ stipulation. Plaintiff recorded a certified copy of the judgment in the Bakersfield land records to perfect her judgment lien on defendant’s property. In 2015, plaintiff filed this foreclosure action alleging that defendant had failed to pay on the 2007 judgment. Defendant appealed the trial court’s denial of his motion to set aside the default judgment of foreclosure on the grounds that the trial court erred in allowing service of the foreclosure complaint by tack order and in declining to set aside the default foreclosure judgment in light of his defenses. After review, the Vermont Supreme Court concluded the trial court’s orders were within its discretion and accordingly affirmed. View "Cramer v. Billado" on Justia Law

by
The parties divorced in 2004 and were parents to two sons, approximately sixteen and fourteen years old. The parental rights and responsibilities portion of the final divorce order was amended several times and those changes were incorporated in a stipulated agreement approved by the family court in September 2008. Under that agreement, mother had sole physical and legal parental rights and responsibilities. Father had parent-child contact with the children every other week. In this appeal, father claimed that, under 15 V.S.A. sec. 670, he was entitled as a matter of right to his sons’ personal records, and specifically, to all of his sons’ mental health records. The family court disagreed and denied father access to the requested records based on the best interests of the children. Finding no reversible error in the family court's order, the Supreme Court affirmed. View "Rinehart v. Svensson" on Justia Law

Posted in: Family Law

by
Defendant Ashley Nutbrown-Covey is the mother of three children: J.N., born in 2013; A.N., born in 2008; and A.C., born in 2004. In August 2011, defendant and A.N.’s father took A.N. (then three years old) to the emergency room for an injury to A.N.’s leg. A.N. was examined by a physician, whose treating records indicate that although it was obvious that A.N. was injured, there were no deformities or external bruising to A.N.’s leg. The physician ordered X-ray examinations, which showed that A.N. was suffering from a spiral fracture of the left leg, meaning that A.N.’s leg had been subjected to significant torque. Although the physician was a mandated reporter, he did not notify the Department for Children and Families (DCF) of A.N.’s injury because nothing indicated that A.N. had been injured by defendant or any other adult. Neither DCF nor the State took any action until 2014. This case presented the question whether the doctrine of issue preclusion bars the State from prosecuting defendant for alleged abuse of one child, A.N., after the family court, in an earlier child-in-need-of-supervision (CHINS) proceeding involving a different child, J.N., found that there was insufficient evidence to adjudicate J.N. CHINS for being without proper parental care or subsistence. The Vermont Supreme Court held that, given the facts of this case, the prosecution was not barred by issue preclusion. Accordingly, the Court affirmed the trial court’s denial of defendant’s motion to dismiss. View "Vermont v. Nutbrown-Covey" on Justia Law

by
Father appealed a family court judgment modifying the disposition plan and terminating his parental rights to the minors A.M., E.M., and L.M. After review of the record, the Supreme Court concluded that a single transgression by father, in the face of otherwise positive evidence and findings as to his compliance with the case plans and his observed parenting abilities, did not support a finding of changed circumstances to warrant modification of the case plan goal. Accordingly, the Court reversed. View "In re A.M., E.M., L.M." on Justia Law

Posted in: Family Law

by
Mother appealed a superior court decision denying her motion to set aside a previous order terminating her parental rights to her daughter, P.K. Mother voluntarily relinquished her parental rights in the same proceeding in which she entered into a postadoption-contact agreement with P.K.’s paternal grandmother, with whom the child had been placed by the Department for Children and Families (DCF). After DCF removed P.K. from the paternal grandmother’s home and placed her with another pre-adoptive foster family, mother moved to set aside the termination order. The trial court found that mother agreed, at the termination hearing, that "all parties agreed that it was in P.K.’s best interest that custody be transferred to DCF, without limitation as to adoption." Mother argued on appeal to the Supreme Court that the superior court erred by not employing available legal remedies to safeguard her ongoing relationship with P.K., which the court necessarily found to be in P.K.'s best interest in approving the postadoption-contact agreement. She contended that relief was available based on changed circumstances, in this case, the changed circumstances of the paternal grandmother's removal as a preadoptive parent. Finding no reversible error in the superior court’s denial of mother’s motion, the Supreme Court affirmed. View "In re P.K." on Justia Law

by
Mother and father separately appealed a family court judgment terminating their parental rights to the minors D.S. and W.S. Mother contended the court improperly relied on factors beyond her control in concluding that her ability to parent had stagnated. Father contended: (1) the court improperly failed to address individually whether his ability to parent the children had stagnated; (2) the evidence failed to show that he was unable to resume parenting within a reasonable time; and (3) the court violated his right to due process of law by relying on expectations not in the case plan. The Supreme Court concluded that the predicate finding that mother’s failure to progress amounted to stagnation was unsupported, and therefore that the judgment terminating mother’s parental rights was reversed. The Court agreed with father that the trial court's findings were insufficient to support a conclusion that a termination of father’s parental rights was in the best interests of the children. The Court reversed as to both parents and remanded for further proceedings. View "In re D.S. and W.S." on Justia Law

Posted in: Family Law

by
Mother and father were the parents of a daughter, born in 2009. Mother and father were never married and their relationship ended before daughter was born; daughter lived exclusively with mother for the first twenty-one months of her life. In April 2011, the parties entered into a parenting agreement, accepted by the court as an order, that gave mother sole legal and physical rights and responsibilities for daughter, subject to father's parent-child contact. Mother appealed a family court order modifying parental rights and granting father sole legal and physical rights and responsibilities for their daughter. Mother argued that the family court's decision modifying parental rights was based on erroneous facts and improper consideration of the child's bests interests and resulted from bias against her by the court. Finding no reversible error, the Vermont Supreme Court affirmed. View "Clark v. Bellavance" on Justia Law

Posted in: Family Law

by
This appeal stems from a dispute regarding the parties’ obligations with respect to several tax liens discovered post-divorce in light of two hold-harmless provisions in a final divorce decree. Wife argued that the trial court abused its discretion by failing to enforce the hold-harmless and indemnification provisions and failing to address the parties’ respective obligations with respect to the tax liens. After review of the decree and the provisions at issue here, the Vermont Supreme Court agreed, and accordingly reversed and remanded so the trial court could address wife’s claims. View "Flanagan v. duMont" on Justia Law

Posted in: Family Law

by
Plaintiff Melissa Solomon appealed the dismissal, without consideration of the merits, of her petition for dissolution of a nonresident civil union. Plaintiff and defendant entered into a civil union in 2001 in Brattleboro, Vermont, but both resided in Wake County, North Carolina. The parties were separated by May 2014. The parties had no children. In 2015, they decided to dissolve their civil union and filed an uncontested complaint in Vermont, accompanied by a final stipulation as required by 15 V.S.A. 1206(b). The superior court dismissed the complaint, concluding that the parties failed to produce evidence that they attempted to obtain a dissolution of the civil union in North Carolina. The court expressed concern that if Vermont courts “continue[d] to accept these filings and allow courts in other states to ignore precedent [set by Obergefell v. Hodges, __ U.S. __, 135 S. Ct. 2584, 2608 (2015)], the situation [would] never be resolved.” Because civil marriage and civil unions remained legally distinct entities in Vermont and because "Obergefell" mandated that states recognize only same-sex marriage, uncertainty remained as to whether Obergefell required other states to recognize and dissolve civil unions established in Vermont. The parties here followed the section 1206(b) mandates. Plaintiff contended that the provided affidavit satisfied the “acknowledgment” required by § 1206(b), and thus the court erred when it refused to consider the issue and held that North Carolina was the proper venue for all filings and appeals. The Vermont Supreme Court agreed with plaintiff, and reversed and remanded the trial court's dismissal. View "Solomon v. Guidry" on Justia Law