Hunt v. Hunt

• Decision Date: 05 August 1994
• Docket Number: No. 93-424,93-424
• Citation: 648 A.2d 843,162 Vt. 423
• Parties: Linda Lee HUNT v. Eugene Earl HUNT.
• Court: Vermont Supreme Court

Page 843

648 A.2d 843

162 Vt. 423

Linda Lee HUNT v. Eugene Earl HUNT.

No. 93-424.

Supreme Court of Vermont.

Aug. 5, 1994.

Jeffrey L. Martin, Waterbury, for appellee Office of Child Support, Agency of Human Services.

Jean A. Swantko, Island Pond, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Defendant Eugene Hunt was found in contempt of court for failure to comply with an order to pay child support. He appeals both the finding of contempt and the underlying support order, alleging that their imposition violates his right to free exercise of religion, as guaranteed by the First Amendment to the United States Constitution and Chapter I, Article 3 of the Vermont Constitution. We affirm the order of support, but vacate the judgment of contempt.

Defendant belongs to the Northeast Kingdom Community Church in Island Pond. In keeping with their faith in an "everlasting covenant" with God, described in Christian scriptures, members of the church lead an ascetic, communal existence. Members eschew all personal possessions and work for the benefit of the community, often in one of the various church-run business enterprises that offer goods to the public and provide income to the church. A recognized nonprofit corporation, the church pays taxes and meets all other obligations to the state. Defendant files tax returns reporting dividend income from the church, but has no access to the funds themselves, which apparently are retained in the church treasury. In return, the church provides for each member's housing and living necessities. The church does not believe in no-fault divorce, and forbids a member to support an estranged spouse or children who live outside the community.

Defendant has been a member of the church for the past fourteen years. Except for a brief period, defendant and his family lived in the church community at Island Pond. Plaintiff left the community with their children sometime in 1989, but defendant remained. Plaintiff began receiving Aid to Needy Families with Children (ANFC) benefits, and assigned all rights of child support to the Vermont Department of Social Welfare. Defendant refused to enter into a voluntary agreement to make periodic support payments in an amount satisfactory to the Commissioner of Social Welfare. Defendant maintained, and has continued to maintain, that he cannot sanction his wife's choice to leave him without just cause in the eyes of the church, and therefore cannot support his children outside the community. Further, defendant contends that because he himself owns nothing and cannot, consistent with his faith, work outside the community, he cannot earn money to meet a support obligation. Nevertheless, he expresses concern for his children and his desire to care for them, which he asserts is possible only if they reside in the community with him. He has provided the children with shoes from the community cobbler shop where he works.

In early 1990, the Department of Social Welfare sought an order fixing a monthly child support payment amount and appropriate arrearages. A hearing was held before the Human Services officer, at which defendant represented himself. On April 18, 1990, the Human Services officer ordered defendant to pay fifty dollars per month for the support of his children, and to pay past amounts due for ANFC benefits already received. ¹

Plaintiff filed for divorce in August 1990, and the Office of Child Support (OCS) intervened on the issue of child support. Defendant appeared and testified at the hearings, but did not contest the divorce. In the final decree, plaintiff was given full parental rights and responsibilities for the minor children. On July 3, 1991, the family court, which assumed the former appellate jurisdiction of the Human Services Board, "affirmed" the decision of the Human Services officer. The court ordered a fifty-dollar-per-month child support obligation, and liability for amounts past due. After nearly a year with no payments, OCS filed a petition in August 1992 to find defendant in contempt of the family court's order. On April 20, 1993, at a conference before the family court concerning the contempt petition, defendant contended that he never had a proper opportunity to appeal the Human Service officer's finding that he had the ability to make child support payments. The family court granted defendant a de novo hearing on the issue of his ability to pay child support, as part of the hearing on the OCS contempt petition.

At the contempt hearing, the court took testimony from plaintiff, defendant, and an official of the church. The court found, as the Human Services officer had, that defendant has a ninth-grade education and no physical or mental infirmities that would prevent him from earning enough to meet the monthly support obligation. The court acknowledged defendant's claim that the church does not sanction no-fault divorce and that working outside the community would constitute a breach of faith, and found that his beliefs were sincerely held. The court further found that defendant had given up all his worldly possessions. For the purposes of its analysis, the trial court accepted "at full face value" the proposition that defendant's faith does not permit church members to earn an independent income. Nevertheless, the court concluded that defendant is an otherwise able-bodied individual, whose claim of incapacity arises from a conscious, controllable choice to adhere to certain religious tenets. Therefore, the court concluded, defendant has the ability to pay child support as "a matter of law." It also noted that "[m]atters of religious belief, as a matter of law, do not furnish an exemption from that ability [to pay]."

The court went on to find that the monthly support and arrearages were valid and enforceable obligations, and that defendant had the present ability to comply with the order. Defendant was held in contempt for his willful failure to comply with the order. On September 9, 1993, defendant was committed to the custody of the Commissioner of Corrections pending payment of $640, approximately one-quarter of his total obligation as of April 30, 1993. Defendant was released pending this appeal.

Defendant makes two interrelated claims, alleging violations of his right to free exercise of religion under the United States and Vermont constitutions. First, he contends that the support order is invalid because the hearing officer and the family court erred in finding that he has the ability to pay child support in any amount whatsoever. Second, defendant contends that the family court should have considered alternatives to contempt and incarceration to enforce the support order.

I.

We begin with defendant's claim regarding the validity of the support order itself.

A.

The State of Vermont recognizes the general duty of child support on the part of a parent: "The legislature ... finds and declares as public policy that parents have the responsibility to provide child support...." 15 V.S.A. § 650. To promote this policy, the family court must order "either or both parents ... to pay an amount for the support of the child," id. § 658(a), which is allocated between the parents in proportion to their respective incomes, id. § 656(a). However, in the case of the noncustodial parent, the family court may depart from the presumed total support obligation, as determined under the support guideline adopted under § 654.

If the noncustodial parent's available income is less than the lowest income figure in the support guideline ... or is less than the self-support reserve, the court shall use its discretion to determine support using the factors in section 659 of this title and shall require payment of a nominal support amount.

Id. § 656(b) (emphasis added). This Court has noted in construing these provisions that "it is clear that the Legislature ... intended to require at least a nominal child support award in all cases." Viskup v. Viskup, 150 Vt. 208, 210, 552 A.2d 400, 402 (1988).

In determining defendant's support obligation, the hearing officer calculated a monthly gross income of $480 in accordance with the relevant guidelines of 15 V.S.A. § 653(5):

"Gross income" means actual gross income of a parent. Gross income shall include:

....

(B) expense reimbursements or in-kind payments received by a parent in the course of employment or self-employment or operation of a business if they reduce personal living expenses;

(C) in its discretion, the court may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.

15 V.S.A. § 653(5)(B), (C) (1989). ² Of the $480, $180 was attributed to § 653(5)(B) in-kind payments, which must be included in gross income. The hearing officer exercised discretion under § 653(5)(C) to include the remaining $300 that defendant "could be receiving either through wages, worker's compensation or disability payments."

Defendant contends that imputing the $300 as gross income was an abuse of discretion, because his religious beliefs, not personal choice, bar him from accepting state benefits or wages from employment outside the community. Had this amount not been included, however, the mandatory inclusion of in-kind payments still would have resulted in a monthly gross income, for purposes of § 653, of $180. Since the hearing officer determined that the $480 monthly income amount was less than the self-support reserve defendant was entitled to under § 653(7), an income of $180 would also fall below this minimum maintenance level. In either case, defendant has a gross income greater than zero but less than the self-support reserve, which requires the court to exercise discretion, considering the factors of § 659, in figuring a...