Thompson v. Thompson
Thompson v. Thompson (99-201); 171 Vt. 549; 762 A.2d 1236
[Filed 22-Aug-2000]
ENTRY ORDER
SUPREME COURT DOCKET NO. 99-201
JUNE TERM, 2000
Mary Josephine Thompson } APPEALED FROM:
}
}
v. } Bennington Family Court
}
}
Frank L. Thompson, Jr. } DOCKET NO. 56-3-94 Bndm
Trial Judge:
In the above-entitled cause, the Clerk will enter:
Defendant Frank Thompson, Jr. appeals a decision of the Bennington
Family Court, which first held his former wife, plaintiff Mary Thompson,
in contempt for noncompliance with a child visitation order and then
transferred the case to New York because it is a more convenient forum.
We conclude that the court erred in dismissing the case in Vermont, in
failing to exercise its discretion with respect to a contempt sanction and
in failing to adjudicate defendant's motion to hold the child's former
counsel in contempt. Accordingly, we reverse and remand for further
proceedings in accordance with this entry order.
Plaintiff and defendant were married on December 8, 1984 at
Sunderland, Vermont. Plaintiff had a daughter from a previous marriage,
Dawn, who was adopted by defendant after the couple married. Elizabeth
("Libby") was born to the parties in 1987. After Dawn made allegations
that defendant had sexually abused her, plaintiff filed for divorce. In
the divorce decree, which was issued in 1996, the court awarded sole
custody of Dawn and Libby to plaintiff subject to defendant's right of
parental contact with Libby. The court required, however, that defendant's
visitation with Libby be supervised because of her fear of defendant based
on her perceptions of his misconduct with Dawn. In 1997, plaintiff moved
to Long Island, New York with Libby. In 1998, defendant filed a motion in
the Bennington Family Court to enforce parent-child contact, alleging that
visitation under the divorce order had never occurred. The court ordered
a plan to reunify Libby with defendant that included provisions to
reintroduce Libby to her father over time, first by mail contact, then by
visitation in a therapeutic setting, and finally with a normal visitation
schedule. The court ordered plaintiff, defendant, and Libby to attend
counseling to address residual issues lingering from the divorce and
hostilities among the parties. Finally, the court ordered Libby's
court-appointed attorney, Charles Chamberlain, to find a qualified child
and family counselor to act as a coordinator to oversee this process.
In 1999, defendant filed two motions for contempt in the Bennington
Family Court. The first motion alleged that plaintiff failed to permit
parent-child contact in violation of the 1998 order. The second motion
alleged that Charles Chamberlain failed to comply with the order because he
had not identified a coordinator to oversee the reunification process. In
response, Libby's new court-appointed counsel filed a motion to dismiss
the proceeding based on a finding pursuant to 15 V.S.A. § 1036 that
Vermont is an inconvenient forum. After a hearing, the trial court held
that plaintiff was in contempt of the 1998 decree and ordered her to
comply with its provisions. The court also held that New York would be a
more convenient forum for addressing and resolving other issues in the
case and declined jurisdiction pursuant to 15 V.S.A. § 1036(b). It ordered
that the Nassau County Family Court, in New York, be notified of the
order. It found the contempt motion against Libby's former counsel to be
moot. Defendant appeals the court's decision arguing 1) the court erred by
not imposing any sanctions upon plaintiff for failure to comply with the
1998 order; 2) the court erred by not addressing defendant's motion to
hold Charles Chamberlain in contempt for noncompliance with the 1998
order; and 3) the court abused its discretion in holding that Vermont is an
inconvenient forum in which to litigate custody matters in this case.
We first address the court's compliance with the Uniform Child Custody
Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031 - 1051, because that issue
lies at the heart of this appeal. 15 V.S.A. § 1036(a) provides:
(a) A court which has jurisdiction under this chapter to make an
initial or modification decree may decline to exercise its
jurisdiction any time before making a decree if it finds that it
is an inconvenient forum to make a custody determination under
the circumstances of the case and that a court of another state
is a more appropriate forum.
A contempt adjudication is not a custody determination. See Matthews
v. Riley, 162 Vt. 401, 414, 649 A.2d 231, 240 (1994). Thus the court
acted correctly in considering the contempt motion against plaintiff,
despite its determination that New York offered a more convenient forum.
See In re Paternity of J.L.V., 426 N.W.2d 112, 113 (1988). Since only the
contempt motions were before the court, however, it was not making a
"custody determination," and § 1036 did not give it the power to dismiss
the case in favor of jurisdiction in New York. See id. at 114 (holding
UCCJA jurisdiction provision inapplicable because case involved only
contempt proceedings). There was nothing pending over which the New York
courts could extend jurisdiction.
Because the court erred in dismissing the case, it also erred in
dismissing as moot the motion to hold the former attorney for the child in
contempt. The court must consider that motion on its merits on remand.
Finally, we consider defendant's argument that the court erred in
failing to provide sanctions for contempt. In this context, the function
of civil contempt is coercive to compel a party to comply with a court
order. See In re C.W., ___ Vt. ___, 739 A.2d 1236, 1239 (1999). While the
power to
cite and sanction for civil contempt lies within the discretion of the
trial court, there must be a reasonable basis for the discretionary action
of the trial court. See Andrews v. Andrews, 134 Vt. 47, 49, 349 A.2d 239,
241 (1975). When "the court is called upon to exercise its discretion in
the matter, the moving party is entitled to have the issue settled." Orr
v. Orr, 122 Vt. 470, 474, 177 A.2d 233, 236 (1962). Failure to exercise
discretion in such circumstances is an abuse of that discretion. See
Brooks v. Brooks, 131 Vt. 86, 92, 300 A.2d 531, 535 (1973). The court
failed to exercise its discretion to consider a sanction against plaintiff
arising out of the complaint, apparently because it believed that question
could be resolved in the New York courts. Without a sanction, the
adjudication of contempt had no coercive effect and could not fulfill its
basic purpose. On remand, the court must consider an appropriate sanction
for the contempt which it adjudicated.
Reversed.
BY THE COURT:
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Jeffrey L. Amestoy, Chief Justice
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John A. Dooley, Associate Justice
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James L. Morse, Associate Justice
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Denise R. Johnson, Associate Justice
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Marilyn S. Skoglund, Associate Justice
