Hale v. Peddle

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as well as formal revision before publication in the Vermont Reports.
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                                No. 90-175


Eric Hale                                    Supreme Court

                                             On Appeal from
     v.                                      Lamoille Superior Court

                                             Special January Term, 1991
William Peddle



Shireen Avis Fisher, J.

Eric Hale, pro se, Hyde Park, plaintiff-appellee

David G. Miller of Brown, Cahill, Gawne & Miller, St. Albans, for defendant-
  appellant



PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     JOHNSON, J.    This is an appeal from a contempt order issued during
the course of a small claims proceeding.  The sole issue before us is
whether the appeal properly lies in superior court or with the Supreme
Court.  The superior court dismissed the appeal for lack of jurisdiction.
Defendant argues that the contempt order was a judgment in small claims,
appealable to the superior court.  We agree and reverse.
     Plaintiff brought an action in small claims for reimbursement for
damage to his automobile.  He claimed that in an effort to avoid hitting
defendant's cows, which were strolling in the road near a curve, he slammed
on his brakes and skidded into guard rails, causing substantial damage to
his car.  The small claims court found defendant negligent for failure to
fence his cows and entered judgment for plaintiff for $2,000 in damages and
$15 in costs.
     Defendant did not appeal the judgment but failed to pay the amount
awarded.  Following a financial disclosure hearing, pursuant to 12 V.S.A. {
5537, the small claims court found that defendant had the ability to pay and
ordered him to do so in full.  Defendant again refused, and after a show
cause hearing, the court held defendant in contempt for refusal to pay the
judgment.  Sanctions were withheld while plaintiff pursued a writ of
execution, but the writ was not served.
     A second hearing was conducted to show cause why defendant should not
be held in contempt.  Defendant claimed to be impecunious, but the court
pronounced the statement incredible and found instead that defendant had
willfully hidden his assets by restructuring his financial affairs.
Defendant stated clearly in open court, under oath and in direct response to
the court's inquiry, that he refused to pay the judgment.  The court found
him in contempt of court and ordered him imprisoned unless he paid the
judgment or filed a proposed payment plan.  He did neither.  Instead, he
appealed the contempt order to superior court, pursuant to 12 V.S.A. {
5538. (FN1) The sentence was stayed pending appeal.
     The superior court dismissed for lack of jurisdiction.  It ruled that
there is no authority for small claims courts to issue contempt orders, that
the order was therefore issued under the district court's general civil
powers, and that the appeal from the contempt order lay in the Supreme
Court.  Defendant accordingly appealed to this Court.  We permitted the
appeal for the limited purpose of determining where the appeal from the
contempt order lies.
     Appeals from small claims judgments lie in superior court.  12 V.S.A. {
5538.  The order in question was issued during the course of a small claims
proceeding; accordingly, it was a small claims judgment.  If courts have no
authority to issue civil contempt orders during the course of small claims
proceedings, a question on which we express no opinion, then the order was
unauthorized.  Jurisdiction to determine that question, lies with the
superior court -- where all small claims appeals lie.
     Reversed and remanded.





                                   FOR THE COURT:



                                   Associate Justice



FN1.       12 V.S.A. { 5538 states in relevant part that "[a]ny party may
appeal from a small claims judgment to the superior court."