Fox v. Fox, 2021-095

Docket Nº2021-095
Citation2022 VT 27
Case DateJune 17, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 27

Alexandra Fox
v.
Nathan Fox

No. 2021-095

Supreme Court of Vermont

June 17, 2022


On Appeal from Superior Court, Rutland Unit, Family Division David Barra, J.

Antonietta A. Girardi of Facey Goss & McPhee P.C., Rutland, for Plaintiff-Appellee.

Nathan Fox, Pro Se, Poultney, Defendant-Appellant.

PRESENT: Eaton, Carroll and Cohen, JJ., and Treadwell, Supr. J., and Dooley, J. (Ret.), Specially Assigned

COHEN, J.

¶ 1. Father appeals a sanctions order imposed by the family division enjoining him from submitting filings in this case unless the filing is signed by a licensed attorney or he first obtains permission from the court. We affirm the sanction but remand to the family division to provide additional guidance regarding the procedure and standards for father's future filings.

¶ 2. The sanction on appeal follows a long procedural history. Because the amount and content of father's filings are important to the legal analysis, they are outlined in detail. As explained more fully below, the court acted within its discretion in sanctioning father given his pattern of filing numerous motions that lacked factual or legal support, failing to adhere to procedural rules, and acting without good faith. We conclude, however, that the court's order was

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overly broad in scope because it applies to all of father's submissions to the court in this matter and does not clearly provide father with instructions on how to comply. Therefore, we remand for the court to amend its sanctions decision accordingly.

I. Procedural History

¶ 3. Mother and father married in 2014 and have one child together, a daughter born in 2016. They divorced in 2018, by which time mother and daughter had been living in Vermont for over a year. At that time, father was on active military duty and stationed in Florida. In the final divorce order based on the parties' stipulation, mother was awarded sole physical and legal parental rights and responsibilities (PRR) for daughter, subject to father's right to parent-child contact (PCC) and mother's duty to keep father informed as to legal decisions made for daughter. The decree provided father with the right to overnight visitation when he traveled to Vermont and permitted father to pay for daughter to travel to Florida for long weekends. The parents agreed to alternate holidays with daughter. In 2019, father left the military and relocated to New York state. He began to seek increased visitation time with daughter.

¶ 4. Over the next several years, father and mother engaged in constant litigation related to PRR, PCC, and child support. Mother had counsel throughout the process, and father represented himself. Father regularly filed multiple motions in a short timeframe. For example, he filed three motions on December 3, 2019, four motions on February 21, 2020, and four motions in the span of three days in March 2020. A pattern emerged in father's filings: they were numerous, duplicative, lacked factual or legal support, did not conform to procedural rules, and appeared to be made without good faith. The family division and court personnel repeatedly explained to father how to file properly, but he either did not respond or refused to follow the correct procedure. Many times during the litigation, mother alleged that father was abusing the court process and continuously failed to properly serve mother when he filed motions with the court; on more than one occasion, she sought sanctions against him. The following provides a chronological sampling

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of father's behavior throughout the underlying litigation. Although most of the chronology relates to the PCC and PRR litigation, father engaged in the same behavior regarding the parties' child-support litigation, including making multiple requests that were without merit and not in conformance with procedural rules.

¶ 5. The family division held a hearing in May 2020 to consider a multitude of motions and rule on the parties' contradictory factual assertions, including father's allegations that he was being denied all visitation. In its order later that month, the court concluded that the evidence and best-interests-of-the-child factors from 15 V.S.A. § 665(b) supported sole legal and physical custody remaining with mother. The May 2020 order created a new schedule for PCC contact that allowed father to have visits with daughter every other weekend, provided each parent with the right for daily fifteen-minute calls whenever daughter was with the other parent, and required each parent to inform the other whenever they took daughter outside of their home state or changed their contact information or residence.[1]

¶ 6. In August 2020, mother filed a motion for contempt and enforcement of the May 2020 order, alleging that father had violated the order by failing to inform her that his address had changed. She also alleged that father repeatedly refused to inform her where his visitation with daughter was occurring. As a result, mother asked the court to find father in contempt of the order and to enforce the order by suspending PCC until father demonstrated strict compliance with the order. The family division ordered father to respond within fourteen days, but he did not do so. The court temporarily granted mother's motion on September 14, 2020, suspending father's PCC until a hearing could be held and stating that the motion to suspend PCC and the motion for contempt would be heard together.

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¶ 7. Over the next month, father filed at least seven motions. He filed a motion for extension of time, which was granted. He filed motions to clarify, for additional extension of time, to expedite, to modify the temporary PCC order, and "to cease child abuse," all of which the court denied on the merits or as moot. He also filed a substantive motion addressing mother's factual assertions, to which the family division responded that father could attend and present arguments at the evidentiary hearing on October 14.

¶ 8. Mother responded to father's motion to expedite the hearing, alleging that father's motions and claims amounted to harassment. That same day, mother also filed a motion for contempt, asking the family division to further limit PCC to address mother's concerns about father allegedly violating the court's order suspending PCC. Separately, mother responded to another of father's motions, denying father's allegations, suggesting the family division order a mental examination of father pursuant to Rule 5 of the Vermont Rules for Family Proceedings, and noting that father continuously failed to follow the relevant procedural rules when filing documents with the court.

¶ 9. The family division held a two-hour hearing on October 14, 2020, during which it heard testimony and took the matter of mother's motions to enforce and for contempt under advisement. The family division then issued an order stating that the temporary suspension of father's in-person contact with daughter would remain in place and asking the parties to provide arguments regarding a specific evidentiary question.

¶ 10. Father filed two motions a few days after the hearing, one of which included an asserted timeline of events but failed to make any legal arguments. The other was a motion to clarify that asserted the family division had failed to explain why it suspended his visitation. The family division denied both motions, determining that the first motion did not clearly seek any form of relief and the motion to clarify did not actually ask the court to clarify any existing order. Father also filed a one-page motion in late October, essentially asking the court to update him on

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the matter. On October 30, the family division issued an order restoring father's PCC and denying mother's motions for contempt and to enforce because mother failed to prove by clear and convincing evidence that father had acted in contempt of the May 2020 order.

¶ 11. In the interim, mother filed a petition for relief from abuse (RFA) in mid-October, alleging that father had stalked her and daughter. After a contested hearing before a different judge, the family division granted the RFA petition on October 30, finding that father had stalked mother and ordering father not to contact mother directly or indirectly for one year, except that father could call daughter as allowed by the custody order. Subsequently, mother filed a motion asking the family division to include daughter's identifying information in the RFA order, and an emergency motion to resolve the apparent conflict between the court's RFA order and its order restoring father's PCC. The family division clarified that although its October 2020 PCC order restored the May 2020 order giving father the right to visitation, the October 2020 RFA order temporarily limited father's contact with daughter to calls rather than in-person visits. The family division also determined that an evidentiary hearing was necessary to resolve mother's motion to clarify the RFA order, as well as mother's motion for contempt of the May 2020 order.

¶ 12. The family division scheduled a hearing for December 7. Between the family division's October 2020 order restoring father's PCC and the December 2020 hearing, father filed five additional, largely duplicative motions, including a motion for emergency hearing, motion to clarify, motion for emergent clarification, "emergency motion-answers now," and emergency motion for contempt, enforcement, and a hearing. He referred to the family division as the "Dishonorable Court," alleged that court employees did not treat him professionally, and made several personal comments about the judge, the judge's family, and the judge's work schedule. On November 25, the family division acknowledged father's repeated motions in an entry order. The court determined that the motions did not assert grounds sufficient for being heard on an emergency basis and stated that...

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