Enforcement of Family Court Orders–Vermont and New Hampshire comparison
I have written before of the frustration I feel for my clients who do not understand why Family Court judges in Vermont seem to be reluctant to enforce family court orders. Recently in three separate cases clients rightly expressed their dismay at not receiving prompt and decisive responses from the court when the opposing party flaunted a specific court order–resulting in financial distress for each client. I can only caution patience and express sympathy for their plight. New Hampshire Courts, on the other hand, seem to be far more willing to enforce court orders and to punish miscreants in family court.
What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire? Let’s look at the rules. Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party. In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court. A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.
Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children). Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing. This rule applies in both ongoing cases, and in closed cases.
Rule 16 also provides as follows: ”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.” Emphasis added.
Thus the rule not only requires costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial discretion on what is a “clear and substantial”. violation. As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial. Here is where I believe the Vermont rule needs to be changed. The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order. Why? Two reasons: First, because as the survey respondents indicated, the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously. Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt. Litigants should not be put in that position.
New Hampshire’s Family court contempt rule has less onerous procedures than Vermont’s. Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding. However, if there is an ongoing proceeding, a New Hampshire litigant need only file a motion with no affidavit, and service need only be by first class mail. There is no provision for a period of time for the alleged contemnor to answer.
Substantively, there is also a large difference between the rules concerning a finding of contempt. New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt ”upon a finding of the violation of any Court order”. Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont; merely that the order has been violated.
New Hampshire’s rule makes more sense. First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont. To require an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator. Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders. Americans believe strongly that court orders should be strictly enforced. After all, as one client said to me, if a court won’t enforce its own orders, who will?
Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished, without having to shoulder the heavy burdens imposed by Vermont Family Rule 16.
Want to Register your Trademark? Here’s How
Author’s Note: this article was produced with the able assistance of paralegal Michael Roosevelt, whose background in fine arts, printmaking and lithography (See his website here) sparked his interest in this subject. His practical knowledge of trademark law has have helped clients walk through the process of obtaining valid trademarks quickly and efficiently.
As new businesses begin to produce products and services, and old businesses produce new products or services, they should consider registering the trademarks or service marks (“marks”) associated with them.
Both trademarks and service marks can be registered at the federal level. Only goods – not services – can be registered at the state level in Vermont (Title 9, Ch. 71 of Vermont Statutes Annotated). Federally registered marks are protected throughout the United States – state registered marks are only protected in Vermont.
What is a trademark or service mark?
According to the U.S. Patent and Trademark Office, “A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”
A trademark can take many forms which identify and distinguish specific goods or services. These include letters and words, logos, pictures, slogans, colors, distinctive product shapes; sounds, or a combination of the above.
As stated on the Vermont Secretary of State’s website, “Trademark is different from a business or trade name. The mark identifies the goods; the name identifies the entity which does business, such as selling the goods.”
How do you establish a trademark?
One approach is to establish use in the market and notice your claim to a mark by the use of the “™” symbol and other notices. Another approach is to directly register the mark with Vermont Secretary of State, or the U.S. Patent and Trademark Office to establish “first use.”
Why register?
For the consumer, trademarks make it easier for them to identify the source of a product. For the businessperson, a trademark protects against the unauthorized use of a confusingly similar mark. While, as indicated above, you do not need register a mark to establish its use in the marketplace, it is generally better practice to register your mark, particularly if you plan to use it extensively and for a long period of time. In addition, registering the mark will ensure that your mark is not infringing on other owner’s marks. As part of the registration process, the USPTO researches to make sure the trademark being registered is not currently in use.
How does the public recognize your trademark or service mark?
A trademark or service mark is identified by the use of the “™” trademark symbol on goods, or the “SM” service mark symbol when applied to services. These symbols place a viewer on notice that you are claiming the possession and use of these marks.
By registering a mark at the federal level, you increase your trademark rights. The “®” registration symbol indicates that a mark has been registered with the United States Patent and Trademark Office (“USPTO”). Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(1), provides federal protection against infringement of unregistered marks and trade names and many other forms of unfair competition.
How do you determine whether your mark has been infringed?
A mark is considered to have been infringed upon when someone other than the owner uses the mark in such a way as to cause confusion as to whose goods or services they are.
What are your rights if your mark is infringed upon?
First, you have common law rights to your mark even if you have not registered it, and you can file suit to protect those rights. However, federal registration of a mark brings the owner the right to initiate and infringement suit in federal court and may result in the owner’s recover of treble damages, attorney’s fees, and other awards.
Vermont registration also provides that an mark owner may bring suit to enjoin the use of the mark, and to be awarded damages. Vermont statutes do not provide for attorneys fees or treble damages, but they do provide that the state may file criminal charges against an infringer of the mark.
How to register?
Generally trademark rights can be acquired (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with either the Vermont Secretary of State (for a Vermont only mark) or the U.S. Patent and Trademark Office.
Applications for trademark registration are subject to approval by the USPTO and may be rejected for a number of reasons.
Examples of reasons why a trademark might be rejected are:
- It is likely to cause confusion with an already registered mark (such as McDonald’s” Hot Dogs)
- It simply contains a generic term (such as “Hot Dogs”).
- It primarily describes the geographic origin of the goods or services (such as “St. Johnsbury”).
- It is primarily a surname (such as “Smith’s”), etc
As stated on the USPTO website:
“For advice about trademarks and the USPTO registration process, you should consider hiring a private trademark attorney (not associated with the USPTO) to help you. Although not required, most applicants use private trademark attorneys for legal advice regarding use of their trademark, filing an application, and the likelihood of success in the registration process, since not all applications proceed to registration.
“A private attorney may save you from future costly legal problems by conducting a comprehensive search of federal registrations, state registrations, and “common law” unregistered trademarks. Other trademark owners may have protected legal rights in trademarks similar to yours that are not federally registered; therefore, those trademarks will not appear in the USPTO’s Trademark Electronic Search System (TESS) database.
“A private attorney can also assist in the policing and enforcement of your trademark rights. The USPTO only registers trademarks. You as the trademark owner are responsible for any enforcement.”
[U.S. Patent and Trademark Office page on trademarks
Cornell Law School list of trademark materials
U.S. Patent and Trademark Office www.uspto.gov.
Intellectual Property Law Association of Chicago www.iplac.org.
American Intellectual Property Law Association www.aipla.org.
Survey Results regarding enforcement of court orders
I confess that I have had frustrations over the years with the Vermont courts’ reluctance to enforce court orders in family court. In New Hampshire, where I practice family law occasionally, the attitude of the courts is quite different: just an allegation of violation of a court order will often result in an ex parte court order against the alleged wrongdoer–then a quick hearing to determine what other remedies, if any, should be imposed. That type of action by the court is unheard of in Vermont. Even when violation of court orders is proven, the wrongdoer is rarely punished–and even more rarely does the victim of wrongdoing receive an award of attorneys fees for his or her efforts to enforce an order. In my experience, attorneys fees are awarded less than 5% of the time they are requested, often making it uneconomical for a litigant to spend attorneys fees to request enforcement of an order. According to the results of our survey, the public agrees that court orders should be vigorously enforced. Here is the link to the survey: http://survey.constantcontact.com/survey/a07e4dcl8vigq80yd2t/start
U.S. Supreme Court strikes down Vermont law on First Amendment grounds
In a 6-3 decision issued June 23, 2011, the United States Supreme Court struck down a Vermont law which restricted the ability of pharmaceutical companies to obtain information about what type of drugs doctors were prescribing to patients. The information is used by drug companies to more effectively market their products to doctors. Sorrell v. IMS Health, Inc. 564 U. S. ____ (2011) . At issue was the constitutionality of Vermont’s attempt to regulate the use of information “mined” from prescription records.
When prescriptions are filled at retail pharmacies certain information is generated: the patient’s name, the name of the prescribing doctor, the type/dosage/quantity of the drug prescribed and the date filled. These records are “mined” by data gathering companies who then sell the information to private companies, law enforcement agencies, research institutions and pharmaceutical companies. Federal and state laws require that information identifying a particular patient be “scrubbed” before the remaining information is sold.
Pharmaceutical companies are the largest users of data obtained from prescription records. The information allows pharmaceutical companies to target marketing and advertising materials to specific markets and geographical locations. It also allows the companies to identify prescribers by their prescribing habits, thereby allowing pharmaceutical sales reps, called “detailers”, to tailor their sales efforts to individual doctors. Being able to tailor a sales pitch to an individual doctor potentially allows the pharmaceutical company to influence which medicines are prescribed by the doctor, which in turn, has the potential to impact the overall cost of an individual’s health care.
Vermont attempted to address concerns raised by the “data mining” of prescription information in 2007 when the legislature passed the “Act Relating to Increasing Transparency of Prescription Drug Pricing and Information.” The law attempted to regulate the sale or use of “prescriber-identifiable” information for marketing or advertising purposes unless the prescriber (ie., the doctor writing the prescription) consented (also known as “opting in”) to use of the information. The overall intent of the law was to protect public health, protect prescriber privacy and reduce health costs.
In August, 2007, two data mining companies filed a lawsuit against the State of Vermont in federal district court. The data mining companies argued, among other things, that Vermont’s law impermissibly restricted their right of free speech. Vermont argued that the law regulated the data mining companies’ conduct, not speech. Vermont argued further that even if the law were viewed as a restriction of speech, the speech being regulated was of a commercial nature which is not fully protected under the Constitution.
The tests used to determine if a law violates the Constitution depends in large part upon the right that is being infringed. “Commercial speech” unlike “political speech” has been generally subjected to what is known as “intermediate scrutiny.” As a general rule, commercial speech can only be limited by the State if the limitation is in support of a substantial governmental interest, directly advances the governmental interest asserted and is not more extensive than necessary to serve the State’s interest. In this case, Vermont argued that the law met the test of constitutionality.
The federal district court agreed with Vermont. The Court found that while the law did indeed infringe upon the data mining companies’ free speech rights, the State’s interest in cost containment and public health were substantial. The Court concluded that the restrictions on the disclosure of prescription related data was “reasonable in proportion to the State’s interests.”
The data mining companies appealed to the 2nd Circuit Court of Appeals. Arguments were heard in that Court in October, 2009. In November, 2010, a divided Court of Appeals overturned the district Court decision. That Court ruled that Vermont’s law was indeed an impermissible restriction on commercial speech. While Vermont arguably asserted substantial state interests, reasoned the 2nd circuit, the law did not directly advance those interests nor was it “narrowly tailored” to serve that interest.
The case was appealed to the Supreme Court. Oral arguments were heard in April, and the Court issued a decision on June 23, 2011.
The Supreme Court held that Vermont’s statute violates the Constitution’s First Amendment protection of free speech. The court found that the law restricted the content of the speech, and restricted who could speak. The Court held that both those restrictions require what the Court called “heightened scrutiny”, rather than the intermediate scrutiny applied to ordinary commercial speech. Thus while the test was the same: that the state must demonstrate that “the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest, ” the Supreme Court held that the State had a greater burden to demonstrate its interest in restricting this type of commercial speech.
The Court found that the statute was not drawn to advance the claimed interests of the state. Vermont argued that the law protected physicians from disclosing their prescription decisions. But the law allows other entities to access that prescription information; it only restricted pharmaceutical companies from obtaining the information without prior doctor consent.
The state then claimed that the statute protected doctors from drug companies trying to persuade them to use their product. In a succinct rebuke to the state, the Supreme Court stated:
“Fear that speech might persuade provides no lawful basis for quieting it.”
Vermont Again, the court found that argument unpersuasive, stating:
“Vermont may be displeased that detailers with prescriber-indentifying information are effective in promoting brand name drugs, but the State may not burden protected expression in order to tilt public debate in a preferred direction.”
The dissent, in an opinion written by Justice Steven Breyer, argued that because this is commercial speech, “heightened scrutiny” is not warranted. Indeed, Justice Breyer argued that the Court had never before used a “heightened scrutiny” standard in reviewing a regulatory scheme that affects commercial speech.
He concluded with a separation of powers argument:
“Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would significantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case.”
The two Justices appointed by President Obama split on this decision: Justice Sony Sotomayor joining the majority, with Justice Elena Kagan joining the dissent.
*Hat tip to Attorney Bob Brazil, who wrote most of the first part of this article for the radio show, “Law Matters” on Magic 97.7 prior to the Supreme Court’s decision on June 23rd
Called as a witness in court? Here are some tips to help you through the ordeal
Being called as a witness in court can be stressful. People who have seen courtroom dramas on television and in the movies fear that the opposing lawyer will trip them up, twist their words, or make them look foolish. In my 32 years experience I have found that does not happen to an honest witness who understands his or her job is just to answer the questions. If you remember that it is the attorney’s job to make sure all of the evidence is presented, and it is your job just to answer the questions, you will be fine.
Here are some tips that I give my clients and witnesses. These may help you if you are called as a witness:
Getting over the jitters: I will go over your testimony and possible cross examination questions. That should help you feel less nervous. Going over these instructions should also help. If you still feel uncomfortable, I recommend you go to court ahead of time, find out what courtroom you will be testifying in, and watch the proceedings. I can help you make arrangements to visit the court at an appropriate time if you wish.
Dress: It is important that you dress appropriately for court. The clothes you wear should indicate that you consider this an important matter, and that you have respect for the judicial system.
- Men should wear a shirt with a collar and slacks. No jeans or t-shirts. Women should wear dress shirts and slacks or skirt, or dresses. Avoid too much make-up.
- Everyone should be clean and neat. Please shampoo your hair the night before, or the morning of your testimony. Men should have their side-burns and mustaches trimmed, as well as a neat haircut. Both men and women should have their hair combed so it is out of their eyes.
- Do not wear sandals or loud shirts or loud blouses.
Courtroom conduct: When you are sitting in the courtroom, please conduct yourself with dignity. Never make faces or remarks when someone else is testifying. Do not roll your eyes, shake your head, put your head in your hands, or make any other gesture that is in response to a witness’s testimony. The judge and jury hate to see people in the court room do such things, and they frequently misinterpret your body-language.
When you sit in the witness box, sit in a relaxed position, but do not slouch. Put your hands in your lap; do not fold them across your chest.
Tips when testifying:
- TELL THE TRUTH: The one most completely devastating thing that can happen is for you to lie regarding some element of the case. You may be assured that the other side will investigate thoroughly and discover the untruth. It only hurts the case if you do not tell the truth
- BE BRIEF: Listen to each question carefully, answer it completely and honestly but do not over-answer it. That is, do not go elaborate unless some elaboration is necessary to clarify your answer, and do not go on to another topic.
- LISTEN TO THE QUESTION AND ANSWER ONLY THE QUESTION. Do not second guess the attorney who is asking you the questions. Just remember that you have two strikes against you when you are on the witness stand: you are not familiar with the system, and you do not know the questions the attorney is going to ask, or why he or she is asking them–so second guessing is a loser’s game. Do not worry whether your answer is helping your case or whether you are being consistent; my job is to worry about that. All you have to do is tell the truth.
I have been practicing in trial courts since 1979. I have never seen an honest witness fooled by a lawyer.
- Do not ask the cross-examining lawyer a question. It shows belligerence. For example, a witness might ask, “Why is this relevant?” Do not ask such questions. It only gives the lawyer an opportunity to make a remark about your testimony and it irritates the judge and jury. Also, when you ask a question, it appears you are trying to avoid answering the lawyer’s question. There is only one exception: you must ask the attorney to repeat or rephrase the question if you do not hear the question, or do not understand the question.
- Be courteous and attentive to the opposing attorney. Under no circumstances should you get mad or lose your temper. I will be there to protect you if you are being mistreated. It helps to remember the opposing attorney is just doing his or her job.
- Do not look to me for help in answering the questions. I will object if you are asked an improper question.
- Do not testify to what someone has told you unless you are asked specifically about conversations with others.
- If you do not understand a question, say so. I have seen witnesses who are concerned that they look stupid, so they answer a question they do not understand. That could be a disaster
- If you do not hear a question, say so.
- If you do not know the answer, or you do not remember, say so. However, do not use, “I don’t remember” as an excuse not to answer. If you know the answer, answer the question.
- Do not guess at the answer to any question. Be especially careful where the question deals with dates, time, speed, or distance. You may estimate these if you are able but do not guess.
- Do not be afraid to admit that you have discussed your testimony with an attorney. Remember, that is the truth and you always tell the truth.
- Some people think they have to contradict the opposing attorney as much as possible. Others think they should agree with the opposing attorney as much as possible so that they appear unbiased. Do not try to be either too agreeable or too disagreeable when you are being cross-examined. JUST TELL THE TRUTH.
- Do not answer the question before the lawyer finishes asking. You might be tempted to hurry, because it is not pleasant to be cross-examined, and you want to get it over with. Take your time, and listen to the question carefully. Do not let the lawyer hurry you, either. Go at your own pace.
- Remember, I will have a chance to ask you questions again after the attorney cross-examines you. So, if there is anything that I feel has not been adequately explained in cross-examination, I will give you a chance to explain it.
- If you have been convicted of a crime, the other side may be able to bring it up during cross-examination. Let me know ahead of time, and I will file a motion to try to keep it out. Please do not surprise me on this.
Please remember: the other side may call you to testify before I do. They can. Do not worry about that; just keep in mind the instructions that I have given you.
Results on custody and visitation survey
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In the first question, respondents are asked if a child should be able to choose which parent he or she lives with. Most said yes. In fact, the plurality said children should be able to choose at any age. Only a small fraction said the child should never have a say. Yet, in Vermont, the statutes do not allow children to express a preference for which parent they want to live with at any time. Indeed, one person told me privately that they felt a sibling had been damaged as a child because the sibling did not have a say as to which parent the child could live with. I have always thought it was best for children not to have a say as to where they live. In my experience, there is a danger to allowing children to express a preference because I have seen children who want to take care of a needy parent, and children who want to please an abusive parent. And even good parents can unconsciously manipulate a child. However, my opinion has changed somewhat based on this survey.
In the second question, respondents were asked how a child should be able to express a preference. The vast majority said that children should be able to talk to judges in chambers. That would not be allowed, unless the parties or their attorneys are present. It is a matter of due process for the parties to be able to at least have a representative in chambers. Parents have constitutional rights to the care and companionship of their children, and I do not believe allowing children to talk to a judge alone would pass constitutional muster. In any case, in my 32 years of experience in Vermont family courts, children have only testified once–not about their preferences, which is not allowed, but about some observations they had that no one else could testify to. So, this answer was markedly different than what happens in Vermont family courts.
The third question involved whether there should be a preference for sole custody with one parent, or joint custody. The vast majority said it should be in the judge’s total discretion, recognizing, I think, that each family is different. Vermont statutes do not allow any discretion when it comes to joint legal custody–the parties have to agree, or the court cannot order joint legal custody. In regard to physical custody, in Vermont, the statute outlines nine factors the courts must take into account when determining physical custody, and because those factors are quite general, judges have wide discretion. So the respondent’s answers matched what the statute contemplates. In my experience, judges used to routinely award custody to mother with every other weekend to father. That pattern has changed in recent years, with fathers being awarded custody more often than in the past, and with visitation much more frequent. However, in my experience, mothers still have an advantage, particularly when there are small children.
The fourth question asked whether parents should be able to request modification of custody and visitation as the children got older. The vast majority of respondents said yes, with a plurality indicating parents should go to mediation first. In Vermont, before there can be any modification of custody or visitation, a party must show there is a “substantial unanticipated change in circumstances”. In my experience, judges consider a child growing older not to be an unanticipated change in circumstances; thus custody and visitation cannot be changed. Indeed, in a recent case where a teenager had refused to stay with a parent for over a year, even though the order provided for 50/50 custody. The parent where the child lived filed a motion to modify, citing a substantial unanticipated change in circumstances. The judge refused to modify the order, because he found that teenagers often have a falling out with a parent, so he determined this was not an unanticipated change in circumstances!
Child Custody and visitation–what do you think?
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Because of the changes that are happening in family courts, and because of the different approaches in Vermont and New Hampshire, I thought it would be interesting if we did a survey of the public to see what you think.
Here is the link to the survey. Particularly for those of you whose parents were divorced or separated during your childhood, or those who are now in a divorced or separated households with minor children, we hope this survey will give voice to your concerns and opinions.
Vermont Energy Efficiency Standards for residential construction–a potential trap for builders and a cause of action for injured homeowners
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Fishy Law Facts
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If you are found to be using the waders, you will be assessed 5 points on your hunting/fishing license, and $130.00 fine. Since you lose your license if you are assessed 10 points or more, this infraction is serious.
For more information, see the Vermont and Wildlife Department
Six Mistakes to avoid in settling accident claims
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- Information about the accident, including all police and eyewitness reports, police photographs, photographs of the scene of the accident, and if necessary, accident reconstruction expert reports
- Medical reports concerning the injury caused by the accident, and any related previous injuries
- Summary of all medical and related health care expenses, whether or not paid for by your insurance or other third party provider
- Lost income information.
- Information about other expenses (mileage, nursing, housekeeping expenses)
- Expert reports on medical diagnosis and prognosis, lost earning capacity, vocational rehabilitation, permanent disability
- Information concerning loss of consortium claims by spouse and children
- Information inability or limited ability to do activities of daily living as a result of the accident