Office of Child Support v. Stanzione, 04-426.

Citation910 A.2d 882,2006 VT 98
Decision Date13 September 2006
Docket NumberNo. 04-426.,04-426.
PartiesOFFICE OF CHILD SUPPORT, ex rel. Neil STANZIONE v. Joyce STANZIONE.
CourtUnited States State Supreme Court of Vermont

Present: REIBER, C.J., SKOGLUND, J., BURGESS, District Judge, Specially Assigned, DOOLEY and JOHNSON, JJ.

ENTRY ORDER

¶ 1. Joyce Stanzione appeals a family court order revoking her driver's license for failure to pay child support arrears. She argues that the trial court erred in three ways: (1) in finding that she had the ability to pay; (2) in ordering the license suspension when it will not produce payment and infringes upon her free exercise of religion; and (3) in denying her motion to continue. We affirm.

¶ 2. Joyce and Neil Stanzione are parents to five children, and the entire family lived at one time in the Twelve Tribes Community. When the parties separated in March 1990, father and parties' three sons left the Community while mother remained with their two daughters. In April 1991, father assigned his child support rights to the State of Vermont as a condition of receiving public assistance for the three minor children living with him. The Office of Child Support (OCS) intervened in October of 1991 and mother was ordered to pay $50 in child support and $12.50 in arrears payments per month. In 1995, one of the daughters left the Community and joined father and her three brothers. Father filed for divorce in 1997, and mother again was ordered to pay $50 per month in child support and $12.50 in arrears payments. The parties were divorced on February 12, 1998. Mother did not appeal either order, and has never made any support payments. On July 31, 1999, the last child in the family attained majority.

¶ 3. In 2001, OCS petitioned to enforce the order, and the court issued an arrears-only enforcement order on February 13, 2002, reducing the arrears to a judgment of $4800 and ordering payment to OCS in the sum of $62.50 per month. The magistrate found that at all times since the initial 1991 order mother had been a member of the Community, "a religious group in which the members live together and share all things in common. As a member of the Community, her needs (food, shelter, etc.) are met by the other members, and mother devotes her efforts to meeting the needs of the Community by providing care to the children of the Community, cooking, and taking care of other members." The magistrate found that mother was healthy, a high school graduate, fifty-one years old, and had not worked outside the Community since she joined in 1983. The magistrate also noted, "[a]s a member of the Community, mother receives a pro rata share in the income that the Community generates. Her share in 2000 was $4889. Her share in 2001 will not exceed $5000. (The Community is a recognized religious non-profit corporation which pays taxes and meets all other obligations to the State.)" The magistrate entered judgment in favor of OCS in the amount of $4800, but declined to award a civil penalty.

¶ 4. On January 2, 2003, OCS again petitioned to enforce the arrears order and also to suspend mother's driver's license pursuant to 15 V.S.A. § 798(b) because mother had made no payments on the $4800 arrears judgment. A notice of the February 26, 2003, hearing was generated on January 13, 2003, and the docket entries note that service was complete on January 21, although it was signed by another person. The week prior to the hearing, mother moved to dismiss and to stay further enforcement of arrears on the grounds that she is a member of the Community, the children had attained majority, she was in ill health, had not competed in the job market for twenty years, and the remedy requested by OCS would unconstitutionally restrict the free exercise of her religion. In the alternative, mother moved to continue the hearing because illness prevented her from returning to Vermont from Florida for the February 26 hearing. The magistrate denied all three motions.

¶ 5. Mother failed to attend the February 26 hearing, and the magistrate granted OCS's petition on that date. The magistrate ruled that although service had been inadequate, mother's three motions filed with the court demonstrated that she had received notice and knowledge of the hearing based upon which the court made findings of actual knowledge and notice. The magistrate also found that mother had the ability to comply with the child support order, and, based on father's uncontested testimony, that mother can serve the church in ways not requiring an operator's license, that the suspension was not an unreasonable restriction on her religious freedom and was the least restrictive remedy available. The order provided that mother could move to reinstate her license upon a lump sum payment of $750 and six continuous monthly payments of $62.50 each. On March 27, 2003, mother filed a V.R.C.P. 59 motion for reconsideration and for further relief, stating she wished to present evidence of hardship and restriction on her religious freedom. The magistrate denied the motions, ruling that all issues could have been raised at the hearing date which mother failed to attend. Mother appealed the magistrate's decision to the family court on March 28, 2003. That court affirmed all of the magistrate's rulings, and this appeal followed.

¶ 6. Mother challenges the magistrate's determination of her ability to pay. Inability to pay is a statutory defense to a license suspension, and the noncomplying party has the burden to demonstrate inability to comply with an order to pay. 15 V.S.A. § 798(a). We review a civil sanction determination such as a license suspension for clear error. Mayo v. Mayo, 173 Vt. 459, 462, 786 A.2d 401, 406 (2001) (mem.) (review of contempt finding is for clear error). We will not disturb the judgment on appeal, then, "unless the court's discretion was entirely withheld or was exercised on grounds clearly untenable." Id. (citation omitted). We will not set aside findings of fact unless clearly erroneous, and we review them in the "light most favorable to the prevailing party, disregarding modifying evidence, with the burden on the appellant to show that there is no credible evidence to support the findings." Id.

¶ 7. Although the February 2003 license suspension order does not contain specific findings regarding mother's ability to pay, at the hearing the magistrate referenced the findings in the February 2002 enforcement order. In the 2002 order, the magistrate addressed mother's membership in the Community, her pro rata share of the Community's income, and her age, health, and education level.

¶ 8. Mother does not dispute those findings as erroneous; instead, she contends that, lacking actual personal income, she has no ability to pay. Where an obligor claims financial inability to pay, the court must find a present ability before imposing a civil sanction. Hunt v. Hunt, 162 Vt. 423, 436, 648 A.2d 843, 853 (1994). The magistrate found, within the exercise of her discretion, a present ability to pay based on mother's pro rata share of the Community income and her age, health, and education. This is in accord with the definition of "available income" in our child custody and support statute. 15 V.S.A. § 653. The Legislature has defined "available income" as "gross income" — with deductions not applicable under these facts — and "gross income," in turn, as "expense reimbursements or in-kind payments received by a parent in the course of employment . . . if they reduce personal living expenses." Id. § 653(1), (5)(A)(i)-(ii). "Gross income" also includes, under the statute, "the potential income of a parent who is voluntarily unemployed or underemployed." Id. § 653(5)(A)(iii). Mother failed to meet her burden to prove inability to pay. She is not "powerless" to comply with the order; instead, she "refuses to abide by [it]." Mayo, 173 Vt. at 462, 786 A.2d at 406. We find no abuse of discretion.

¶ 9. Our decision in Lambert v. Beede does not compel a different result. 2003 VT 75, ¶¶ 8-9, 175 Vt. 610, 830 A.2d 133 (mem.). There, father's inability to pay due to physical disability was undisputed; the issue was whether an obligor "with an inability to pay can be denied reinstatement of his license under § 798(c)." Id. ¶ 9; see 15 V.S.A. § 653(5)(A)(iii)(I) (excluding from "available income" the potential income of a parent who is physically or mentally disabled). Father had become disabled subsequent to the license suspension and, in recognition of his resultant inability to pay, the magistrate reduced both the child support and arrearage orders to $0 per month yet refused to reinstate his driver's license because of father's lack of "good faith" efforts of payment prior to onset of his disability. We held that § 798(c) necessarily includes an inability-to-pay defense and so reversed the magistrate's order denying reinstatement because it "improperly transform[ed] a measure designed to coerce payment into a punitive device." Lambert, 2003 VT 75, ¶ 1, 175 Vt. 610, 830 A.2d 133. "[C]ivil sanctions aim to compel compliance rather than to punish," and the proper tool to determine whether the sanction amounts to coercion rather than punishment is the ability-to-pay analysis. Id. ¶ 12. Here, mother has the ability to pay under the statutory definition of "available income," and her claim that there is no reasonable likelihood that the order will coerce her into compliance does not strip the State of an available enforcement remedy, so long as it does not infringe upon mother's free exercise of her religion.

¶ 10. Because we find the license suspension order otherwise affirmable, we consider whether it impermissibly infringes upon mother's free exercise of her religious beliefs under the federal and state constitutions. Even under the most stringent potential test, we conclude that it does not. See Brady v. Dean, 173 Vt. 542, 546, 790 A.2d 428, 433-34 (2001) (mem...

To continue reading

Request your trial
5 cases
  • Turner v. Roman Catholic Diocese
    • United States
    • Vermont Supreme Court
    • October 9, 2009
    ...relevant standard for evaluating whether plaintiff's negligence claims violate the Free Exercise Clause. See Office of Child Support, ex. rel. Stanzione v. Stanzione, 2006 VT 98, ¶ 10 n. 1, 180 Vt. 629, 910 A.2d 882 (mem.) (stating that Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843 (1994), decide......
  • Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101 (Vt. 10/9/2009)
    • United States
    • Vermont Supreme Court
    • October 9, 2009
    ...relevant standard for evaluating whether plaintiff's negligence claims violate the Free Exercise Clause. See Office of Child Support, ex. rel. Stanzione v. Stanzione, 2006 VT 98, ¶ 10 n.1, 180 Vt. 629, 910 A.2d 882 (stating that Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843 (1994), decided during......
  • Busha v. Busha
    • United States
    • Vermont Supreme Court
    • March 10, 2016
    ...time to prepare for the final hearing. The trial court has broad discretion in ruling on motions to continue. Off. of Child Support ex rel. Stanzione v. Stanzione, 2006 VT 98, ¶ 13, 180 Vt. 629 (mem.). Mother fails to demonstrate an abuse of that discretion here. While mother sought to cont......
  • Iver v. Simpson
    • United States
    • Vermont Supreme Court
    • June 11, 2021
    ...court has discretion in considering a request to continue and father fails to show an abuse of discretion here. See Office of Child Support v. Stanzione, 2006 VT 98, ¶ 13, 180 Vt. 629 (mem.) ("The denial of a motion to continue will not be reversed absent a clear abuse of discretion, and to......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT