State v. Fontaine

State v. Fontaine  (97-043); 167 Vt. 529; 711 A.2d 667

[Filed 17-Apr-1998]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 97-043


State of Vermont                             Supreme Court

                                             On Appeal from
    v.                                       District Court of Vermont
                                             Unit No. 2, Addison Circuit
Steve A. Fontaine
                                             December Term, 1997



Matthew I. Katz, J.

       John T. Quinn, Addison County State's Attorney, Middlebury, for
  Plaintiff-Appellee.

       Robert Appel, Defender General, Anna Saxman, Appellate Attorney, and
  Deborah Mans, Law Clerk (on the Brief), Montpelier, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund, JJ.


       MORSE, J.  Defendant Steve Fontaine was convicted of driving under the
  influence, death resulting, in violation of 23 V.S.A. §§ 1201(a)(2) and
  1210(e).  He appeals a probation condition requiring him to pay restitution
  for partial support to the victim's two minor children. He claims (1) the
  condition exceeds the statutory limits on restitution, (2) the evidence did
  not support the award, and (3) there was no proper inquiry into his ability
  to pay.  While we agree that restitution in the form of child support
  awarded here was reasonable and served the ends of justice, restitution in
  a criminal case is a creature of the legislature and its statutes on the
  subject are too narrow to permit the condition imposed.  We reverse.

       At sentencing, the trial court imposed two to ten years, all suspended
  but two years, and a $2,000 fine.  In addition, a special condition of
  probation was imposed requiring defendant to pay restitution in the form of
  $12.50 per week to each of the decedent's two minor children for sixteen
  years, for a sum total of $20,800.  The trial court arrived at this fixed
  sum by

 

  multiplying "$25 a week, times fifty-two weeks a year, . . . times sixteen
  years remaining in [the younger child's] time through graduation from high
  school."  As the court explained, the amount "would be far less than would
  be the actual cost of paying for raising a child, but would be a
  substantial amount over time, and we can know exactly what it's going to
  because it's clearly a matter of multiplication."  The court concluded,
  "[it's] not a perfect sum, but it's a liquidated sum."  This appeal
  followed.

       We address defendant's first claim and hold that the trial court did
  not have the statutory authority to require defendant, as a condition of
  probation, to contribute to the support of the deceased victim's
  dependents.  The statutes involved here are 28 V.S.A. § 252(b)(6) and 13
  V.S.A. § 7043.  We have held that "28 V.S.A. § 252(b)(6), which generally
  allows restitution as a condition of probation, is limited by 13 V.S.A. §
  7043, which specifically explains when restitution must be considered and
  what restitution may include."  State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 (1986).  Under 28 V.S.A. § 252(b)(6), the sentencing court may
  require that the offender "[m]ake restitution or reparation to the victim
  of his conduct . . . for the damage or injury which was sustained."  And
  under 13 V.S.A. § 7043(a), "[r]estitution shall be considered in every case
  in which a victim of a crime has suffered a material loss or has incurred
  medical expenses."  The award can include a payment "to compensate for
  damages to the victim's property or person."  Id. § 7043(b)(2).

       A trial court has broad discretion in determining conditions of
  probation and may require a probationer to satisfy any conditions
  reasonably related to a defendant's rehabilitation.  See State v. Lockwood,
  160 Vt. 547, 560, 632 A.2d 655, 663 (1993).  However, this discretion is
  not unbridled.  We observed in Jarvis, 146 Vt. at 640, 509 A.2d  at 1007,
  that restitution in a criminal action is not a substitute for a civil
  lawsuit, and is generally construed more narrowly. Accordingly, we
  construed the words "material loss," "medical expenses," and "damages to
  the victim's property or person" under our legislative scheme to include
  "only liquidated amounts which are easily ascertained and measured."  Id.
  at 638, 509 A.2d  at 1006.

 

       On appeal, the parties disagree as to the nature of the award. 
  Relying on our holding in Jarvis, 146 Vt. at 638-39, 509 A.2d  at 1006,
  defendant characterizes the award here as an unliquidated amount.  In
  Jarvis we distinguished between "lost employment income" and "loss of
  earning capacity" and concluded that the former is generally easy to
  ascertain whereas the latter is not.  Id. at 638-39, 509 A.2d  at 1006. 
  Defendant alleges that partial child support constitutes an award for
  future loss of income and as such, is an amount not readily ascertainable. 
  He further argues that the sentencing judge, in fashioning an amount for
  the future support of the victim's children, was forced to base his award
  on the future earning capacity of the victim, again, an unliquidated amount
  not encompassed under our statutes.  In support of this contention he cites
  generally to the guidelines and criteria in Title 15 requiring estimates of
  an obligor's earning capacity when calculating the total support
  obligation.

       The State, on the other hand, contends that child support obligations
  are more in the nature of "lost income" to the children rather than "loss
  of future earning capacity" of the victim, and thus are readily
  ascertainable.  In addition, the State points out that the statutory
  guidelines governing child support awards are sufficient to ensure that an
  award for child support is easily ascertained and measured.  After all, the
  State contends, the minimal amount awarded here, $12.50 per week per child,
  obviated an inquiry into the victim's future earning capacity.

       We hold that given the limited language of our statutes and the narrow
  construction we have previously applied to restitution awards, an award for
  partial child support is not authorized under our statutory scheme.  In
  State v. May,      Vt.     ,     , 689 A.2d 1075, 1077 (1996), we addressed
  whether "lost profits of the victim" constituted a proper restitutory award
  and characterized it as "a category of damages that does not fit neatly
  within either of the terms used in Jarvis."  Similarly, an award for
  partial child support reflects an unusual hybrid of damages for lost
  profits and loss of earning capacity.  The award in May was stricken on the
  ground that it was not proved with reasonable certainty.  See id. at     ,
  689 A.2d  at 1076.

       Although the sentencing judge here attempted to circumvent problems of
  proof by

 

  calculating a very modest amount of support, the award still raises issues
  that are not sufficiently addressed under our statutory scheme.  For
  example, uncertainties may develop in a subsequent civil action for
  wrongful death.  We note that child support orders are frequently modified
  to reflect changes in the financial circumstances of the obligor as well as
  fluctuations with respect to the needs of the minor children.  See
  generally 15 V.S.A. §§ 658-661.  Our restitution scheme, however, does not
  account or allow for future ambiguities.

       We recognize the salutary motives of the trial court in this instance,
  and we appreciate its efforts to calculate a liquidated amount consistent
  with our previous decisions.  Nevertheless, until our legislation is
  amended to repose greater authority in sentencing judges in criminal
  proceedings, we set aside the restitutory award ordered here.

       We believe the interests of victims and their survivors are best
  served by laws permitting recovery through restitution in criminal
  proceedings, and we encourage the Vermont Legislature to consider the
  restitution statutes in effect in other jurisdictions where awards for
  child support have been upheld.  See, e.g., People v. Wager, 342 N.W.2d 619, 623 (Mich. App. 1983); Butler v. State, 544 So. 2d 816, 823 (Miss.
  1989).  Wager involved a restitution award for partial child support where
  the underlying facts were essentially identical with those presently before
  us.  The Michigan court there affirmed the award noting the statutory
  language setting restitutory limits "`as the circumstances of the case may
  require or warrant, or as in [the trial court's] judgment may be proper.'" 
  342 N.W.2d  at 622-23 (quoting Mich. Comp. Laws § 771.3(3); Mich. Stat. Ann.
  § 28.1133(3)).  Similarly, in Butler, the court held that child support to
  the victim's minor child was within the statutory definition of "pecuniary
  damages."  544 So. 2d  at 822-23.  Pecuniary damages under the relevant
  Mississippi statute constitute "`all special damages, but not general
  damages, which a person could recover against the defendant in a civil
  action arising out of the facts or events constituting the defendant's
  criminal activities . . .' " Id. at 822 (quoting Miss. Code Ann. §
  99-37-1(b) (Supp.1988)).

       Having concluded that partial child support is not a proper matter for
  restitution awards

 

  under the current statutory scheme, defendant's remaining claims of error
  need not be addressed. Because the trial court determined that the
  restitution award here was "not a reduction of [defendant's] sentence,"
  that it was "independent," it is not necessary to remand the case for a new
  sentencing hearing.

       The probation condition for restitution is stricken.


                                   FOR THE COURT:




                                   Associate Justice