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Rule 16 – Civil Contempt Proceedings

May 14, 2021 | Family Law, Vermont

(a)Scope. This rule governs proceedings seeking remedial sanctions for civil contempt in any action or proceeding under these rules. The rule implements and supplements the inherent and statutory powers of the court to impose such sanctions for failure to comply with a court order. The rule does not apply to proceedings seeking punitive sanctions for criminal contempt, to summary proceedings for contempt in the presence of the court, or, except as otherwise provided herein, to the imposition of sanctions for which a different procedure is specifically authorized by other provisions of these rules or by statute.
(b)Procedure.

(1)Initiation of Proceeding. A proceeding under this rule may be initiated by order of the court, either on its own motion or on the motion of a party. The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court. An order on the court’s own motion must set forth the order violated and the specific facts alleged to constitute the contempt. An order on the motion of a party must be accompanied by the motion, which must be supported by an affidavit setting forth the order violated and those facts.
(2)Notice; Service. The order of the court initiating the proceeding shall set the matter for evidentiary hearing and shall order that notice of the hearing, together with a copy of the order initiating the proceeding and any motion and affidavit, shall be served upon the person against whom the contempt proceedings are brought (the respondent) by the appropriate method provided in Rule 4.2(b) of these rutes. The notice shall set forth the title of the action and the date, time, and place of the hearing, shall order the respondent to appear at the hearing to show cause why he or she should not be held in contempt and shall allow the respondent a reasonable time, not less than 14 days before the date set for hearing, to file an answer and prepare a defense. The notice may include an order to produce documents requested by the moving party or the court. The notice shall inform the respondent that failure to appear at the hearing may result in the issuance of an arrest warrant directing a law enforcement officer to transport the respondent to court. The notice shall also contain a warning that if the court finds the respondent to be in contempt, the court may impose sanctions, whether or not the respondent has answered or appeared in the proceeding. If the court has determined that it may consider imprisonment as a sanction, the notice shall so state and shall also advise the respondent that failure to retain or request counsel will result in a waiver of the right to be represented by counsel at the hearing.
(3)Answer. The answer shall be made under oath and shall specifically address the factual allegations in the order initiating the proceeding or in an accompanying motion and affidavit. If the answer asserts that respondent is unable to make payments of money previously ordered by the court, it shall be accompanied by the material and information required by Rule 4(g)(2)(D).
(4)Hearing. At the hearing, the moving party, or the court in a proceeding on its own motion, has the burden of establishing the elements of contempt. The respondent may present evidence in defense and mitigation.
(5)Findings of Contempt. The court shall make findings of fact on the record based on the evidence presented, which may include direct or circumstantial evidence. The respondent may be held in contempt if the court finds that

(A) The respondent knew or reasonably should have known that he or she was subject to a court order, including a court-ordered financial obligation as provided in 15 V.S.A. § 603(b); and
(B) The respondent has failed to comply with the court order. If the failure to comply involves a failure to pay child support or spousal maintenance, the person who brings the action has the burden to establish the total amount of the obligation, the amount unpaid, and any unpaid surcharges or penalties; and
(C) The respondent has willfully violated the court order in that he or she had the ability to comply with the order and failed to do so.
(6)Order of Contempt. If the court finds that the respondent is in contempt, the court may enter judgment imposing appropriate sanctions as provided in subdivision (c) of this rule or may defer the imposition of sanctions until the respondent has had an opportunity to meet specific conditions that will purge the contempt. An order imposing sanctions or conditions must contain a clear description of the action that is required to purge the contempt. The order may set a date for hearing to determine whether the contempt has been purged.
(7)Failure to Answer or Appear. If the respondent fails to answer or appear as required, the court may consider the factual allegations of the order or motion admitted and may find the respondent to be in contempt. After any further hearings that the court deems necessary, the court shall enter judgment imposing appropriate sanctions as provided in subdivision (c) of this rule.
(c)Sanctions. The court may impose any of the following sanctions on a person found to be in contempt:

(1)Coercive Imprisonment. A person found to be in contempt may be committed to an appropriate correctional facility until the person purges the contempt by performing the affirmative act required by the court’s previous order.
(2)Coercive Fine. A person found to be in contempt may be assessed a fine to be paid to the State of Vermont:

(A) in a specific amount to be paid by a date certain if the person has not purged the contempt by performing an affirmative act required by the court’s previous order or by ceasing to engage in conduct prohibited by the court’s previous order; or
(B) in a specific amount to be paid for each day that the person fails to purge the contempt by performing such an affirmative act or ceasing to engage in such prohibited conduct.
(3)Compensatory Fine. In addition to, or as an alternative to, sanctions imposed under paragraphs (1) or (2) of this subdivision, if loss or injury to a party in an action or proceeding has been caused by the contempt, the court may enter judgment in favor of the person aggrieved for a sum of money sufficient to compensate the aggrieved party for the loss or injury and to satisfy the costs and disbursements, including reasonable attorney’s fees, of the aggrieved party.
(4)Financial Obligations. In addition, in proceedings involving an order creating a financial obligation in accordance with 15 V.S.A. § 603, the court may order any of the following:

(A) The respondent to perform a work search and report the results of his or her search to the court or to the office of child support, or both.
(B) The respondent to participate in an employment services program, which may provide referrals for employment, training, counseling, or other services, including those listed in 15 V.S.A. § 658. Any report provided from such a program shall be presumed to be admissible without the appearance of a witness from the program in accordance with the provisions in 4 V.S.A. § 466(f).
(C) The respondent to appear before a reparative board. The respondent shall return to court for further orders if:

(i) the reparative board does not accept the case; or
(ii) the respondent fails to complete the reparative board program to the satisfaction of the board in a time deemed reasonable by the board.
(D) Payment by respondent of all or a portion of the unpaid financial obligation as a purge condition, providing that the court finds that the person has the present ability to pay the amount ordered and sets a date certain for payment. If the purge conditions are not met by the date established by the court and the date set for payment is within 30 days of finding of ability to pay, the court may issue a mittimus placing the contemnor in the custody of the commissioner of corrections.

(i) As long as the person remains in the custody of the commissioner of corrections, the court shall schedule the case for a review hearing every 14 days.
(ii) The commissioner shall immediately release such a person from custody upon the contemnor’s compliance with the purge conditions ordered by the court.
(iii) The commissioner may, in his or her sole discretion, place the contemnor on home confinement furlough or work crew furlough without prior approval of the court.
(5)Additional Relief. The court may also order additional relief that may be appropriate.
(d)Purging Contempt.

(1)In General. At a time set in the order of contempt issued under paragraph (b)(6), or on motion of either party, the court may hold a hearing to determine whether the contempt has been purged because (1) conditions set in the order of contempt have been met, or (2) the terms of the order violated have been complied with. The respondent has the burden of showing that the contempt has been purged. If the court finds that the contempt has been purged, the respondent will be relieved of any coercive sanctions imposed under paragraph (c)(1) or (2). If conditions set in the order of contempt have not been met, the court may set additional conditions or may impose sanctions in accordance with subdivision (c). If the order violated has not been complied with, any sanctions previously imposed may be continued or additional sanctions may be imposed.
(2) Finding of Present Ability to Pay. In proceedings involving contempt of an order creating a financial obligation in accordance with 15 V.S.A. § 603, a finding of present ability to pay a purge condition shall be effective for up to 30 days from the date of the finding. In determining present ability to pay for purposes of imposing necessary and appropriate coercive sanctions to bring the noncomplying respondent into compliance and purge the contempt, the court may consider:

(A) A respondent’s reasonable ability to use or access available funds or other assets to make all or a portion of the amount due by a date certain set by the court.
(B) A respondent’s reasonable ability to obtain sufficient funds necessary to pay all or a portion of the amount due by a date certain set by the court, as demonstrated by the respondent’s prior payment history and ability to comply with previous contempt orders.

Vt. R. Fam. Proc. 16

Added Nov. 29, 2000, eff. March 1, 2001; amended Dec. 11, 2014, eff. Feb. 13, 2015; Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rule 16 is amended to change its 15-day time periods to 14 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1.

Reporter’s Notes-2016 Amendment

V.R.F.P. 16(b)(2) is amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0–4.3. See Reporter’s Notes to those rules.