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:
                                      

                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice