Bigelow v. Bigelow, No. 99-116.

• Docket Nº: No. 99-116.
• Citation: 759 A.2d 67
• Case Date: June 16, 2000
• Court: United States State Supreme Court of Vermont

759 A.2d 67

Harold and Sheila BIGELOW (Randy Olley, Appellee)
v.
Carolyn BIGELOW (Marvin Wolf, Appellant)

No. 99-116.

Supreme Court of Vermont.

June 16, 2000.

Motion for Reargument Denied July 19, 2000.

759 A.2d 68

A. Jeffry Taylor of Abatiell & Valerio, Rutland, for Appellee Olley

Marvin Wolf, White River Junction, Appellant.

PRESENT: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

Appellant Marvin Wolf appeals from a family court order imposing sanctions of attorney's fees and expenses, totaling $3610, payable to appellee Randy Olley, Ph.D., and a further fine of $2500, payable to the court, for violations of V.R.C.P. 26(g). Appellant contends: (1) the court failed to provide proper notice that sanctions would be imposed under Rule 26; (2) the evidence failed to support an award of sanctions; (3) the sanctions awarded were excessive; and (4) the court abused its discretion in awarding sanctions after its recusal from the case. We affirm that portion of the order awarding the remedial sanction of attorney's fees and expenses, and reverse that portion imposing the punitive sanction of $2500.

A full recitation of the procedural history is necessary to appreciate the tortured and convoluted road this case has traveled. It originated as two petitions filed by Harold and Sheila Bigelow requesting emergency relief from abuse on behalf of their two grandchildren against their daughter, the children's mother. By order dated January 23, 1997, the court ordered a psychiatric evaluation of mother by Otto Marx, M.D. The order provided that the results of the examination, including reports or other documents in connection therewith, should be made available to counsel for plaintiffs, counsel for defendant mother, counsel for the minor children, and the guardian ad litem. As part of the psychiatric evaluation, a psychologist, Randy Olley, performed psychological testing of mother.

Following a hearing in June 1997, the court issued a final relief-from-abuse order, awarding grandparents temporary custody of the minors. All of the parties were represented by counsel at the hearing except mother, who appeared pro se. Thereafter, mother obtained counsel, appellant, who filed a motion under V.R.C.P. 60(b) to vacate the order. The court denied the motion, and mother appealed.¹ Coinciding with the appeal, the grandparents filed a guardianship petition in the probate court, which, in January of 1998, was transferred to the family court and merged with the abuse docket.

In December 1997, while the appeal was pending, appellant wrote to Olley requesting copies of her testing data, notes, and all other documents in her files pertaining to mother, and enclosed a medical release signed by mother. Olley's attorney, Jeffry Taylor, wrote back and reported that his client declined to supply the material requested because Olley had performed only a forensic evaluation, rather than treatment, and therefore mother was not a patient entitled to the materials. Appellant responded with a motion to compel Olley to produce the requested records. Attorney Taylor filed an opposition, arguing that mother's letter and subsequent motion to compel had no basis in law, and suggesting that appropriate discovery procedures be utilized.

Appellant's response to the opposition characterized Olley's position that mother was not a patient as "ludicrous," argued that Olley and Dr. Marx were "indispensable parties" who could be joined in the

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action, ridiculed the "supposed mental health experts [who] are busy playing symantical (sic) games," and asserted that Olley's position "reeks of bias and un-professionalism." Attorney Taylor responded with a motion for sanctions under V.R.C.P. 11(b),² arguing that the motion to compel had no legal basis, that the allegation that Olley and Marx could be joined as parties was frivolous and unsupported by existing law, and that the personal attacks against Olley and her attorney were reckless and unwarranted. Appellant responded, describing Attorney Taylor's motion as "vexatious and inane." Attorney Taylor filed a supplemental memorandum in support of the motion for sanctions, again claiming that the legal and factual allegations in the response to the opposition were frivolous, reckless, unsupported by law, and "blind, personal attacks" warranting sanctions under Rule 11. Appellant filed a supplemental response in which he declined to "bore the Court with the all too easy attacks that it could launch against Mr. Taylor and this insidious motion for sanction" but noted that, as the request for documentation from Olley was a discovery request, Rule 11 was inapplicable. See V.R.C.P. 11(d) (making subdivisions (a) through (c) of the rule inapplicable to "discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37").³ One day later, attorney

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Taylor filed a supplemental memorandum arguing that appellant's motions, "unique though they may be," were not founded on discovery rules and therefore were subject to Rule 11

In March 1998, the court held a hearing on the motion to compel and the motion for sanctions. The court questioned counsel at the threshold as to whether Rule 11 or Rule 26 applied and whether it mattered, observing that "whether you had chosen [Rule] 11 or [Rule] 26, we were kind of coming to the same issues." The court then strongly admonished appellant for the tone of his pleadings, explaining that there was no place for such language in court, and that he would not tolerate "repeated filings of pleadings that really get down to name-calling." The court indicated that appellant's "lack of civility is going to be punished." The court also observed that the materials sought by appellant were discoverable through proper discovery procedures and urged appellant to channel his efforts in that direction. The court thus denied the motion to compel and granted the motion for sanctions. The court reserved ruling on the amount of sanctions to be imposed, but stated that they would not be "anything Draconian."

Appellant subsequently served a request to produce on Olley, which triggered a new round of responses and counter-responses. Appellant also filed a motion to reconsider the decision granting sanctions. Attorney Taylor responded with a motion for monetary sanctions, requesting that appellant be ordered to pay some or all of the reasonable attorney's fees and expenses incurred as a result of the Rule 11 violation.

On August 26, 1998, the court issued its opinion and order regarding sanctions. The court determined that Rules 26 and 37, rather than Rule 11, governed. The court further found that there was no legal basis for either the motion to compel or for the assertion that Olley and Dr. Marx could be joined as parties; and that appellant had engaged in personal attacks and name-calling intended to harass Olley and her attorney. The court thus concluded that appellant had violated Rule 26(g) by signing the pleading, thereby certifying falsely that it was "warranted by existing law" and "not interposed for any improper purpose, such as to harass." V.R.C.P. 26(g). The court imposed two sanctions against appellant, ordering him to reimburse Olley for attorney's fees and expenses, and to pay the Rutland Family Court the sum of $2500 "as an appropriate sanction for his egregious violations of Rule 26(g) of the Vermont Rules of Civil Procedure." Attorney Taylor subsequently submitted a statement of attorney's fees and expenses, and the court ordered appellant to pay Olley a total of $3610.

In September, appellant moved to reconsider the order on sanctions,...