LaVoice v. LaVoice

• Decision Date: 05 October 1965
• Docket Number: No. 1054,1054
• Citation: 125 Vt. 236,214 A.2d 53
• Parties: Agatha U. LaVOICE v. Arthur A. LaVOICE.
• Court: Vermont Supreme Court

Page 53

214 A.2d 53

125 Vt. 236

Agatha U. LaVOICE v. Arthur A. LaVOICE.

No. 1054.

Supreme Court of Vermont.

Oct. 5, 1965.

Bloomer & Bloomer, Rutland, for plaintiff.

Corsones & Hansen, Rutland, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

This is a contempt matter. The petition below was based on a temporary order made four and a half years ago, while a divorce libel was pending, as it still is. The order had run two hundred weeks and the libellee was alleged to be $4,675.00 in arrears at the time of the contempt hearing. No proceedings, either by way of enforcement of the temporary order or requests to amend or modify it, had been had in the interim.

The libellee defended on the ground that the minor children, for whom three-fourths of the weekly forty dollar payment was allocated, had all left the libellant's custody and become self-supporting. One girl had attained her majority; another girl had married; and the youngest, a boy, had enlisted in the armed forces with his mother's consent. Although the lower court did find the libellee in contempt, it agreed with his measure of his financial responsibility for the children's support, and found him to be in arrears only to the extent of $635.00.

The libellant contended that so long as the court order was in effect without modification, the libellee was bound to obey it according to its terms, with burden on the libellee to seek any appropriate changes.

It is certainly true that a party subject to an order is bound to bring before the court any alteration in the circumstances of the parties, if he is to obtain a change in the provisions of that order. Hall v. Hall, 124 Vt. 410, 412, 206 A.2d 786. The fact that this was a temporary order did not affect his responsibility in this connection.

The libellant, also, cannot escape a measure of responsibility for the situation in this case. Unless the court is informed that its order is not being obeyed, it cannot know that respect for its decrees is jeopardized. Unless enforcement machinery is put into motion by the party in whose favor the order runs, the delinquencies may accumulate to the point where full recovery is impossible. In such a case, compelling payment under a contempt order of less than the total amount due is not to excuse the violation of the libellee, nor is it an amendment of the order. It is a recognition that complete performance is an impossible requirement because of the long-continued noncompliance by the libellee, unreported by the libellant.

There is another disturbing aspect to this proceeding. The divorce libel has apparently gone unheard long enough to be eligible for discontinuance under County Court Rule 3(2). (12 V.S.A.App. II). The parties remain married. For four years the temporary order has performed the function properly reserved to an order under 15 V.S.A. § 293, dealing with support and maintenance for minor children whose parents are living apart. This is an inappropriate use of a temporary order in divorce proceedings, and the matter should be remedied below.

The county court interpreted 15 V.S.A. § 672 as not contemplating support for children except during their minority. This was correct. That section reads:

Either party may apply for temporary relief, and the court to which the cause is returnable, or a superior judge, on such notice to the adverse party as the court or judge directs, may make such order as is just in regard to temporary alimony and funds to support the wife and minor children, and maintain the litigation during the pendency of the libel.

Under this, the judicial authority to order the provision of support for children during the period between the bringing and hearing of a libel exists only during their minority, and...