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.