Russell v. Armitage

Decision Date02 May 1997
Docket NumberNo. 95-364,95-364
PartiesSherry RUSSELL v. John ARMITAGE.
CourtVermont Supreme Court

Agnes S. Hughes, Child Support Collections Attorney, Rutland, for Vermont Office of Child Support.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for defendant-appellant.


GIBSON, Justice.

Defendant John Armitage appeals from an order of the Rutland Family Court that ordered him incarcerated for failing to purge himself of civil contempt in this child-support enforcement action. Defendant contends that the court erred by (1) failing to appoint counsel to represent him at the initial contempt hearing; (2) holding him in contempt without first finding that he had the present ability to pay the child support; and (3) imposing a purgative condition so indefinite that he was unable to comply. In addition, the Defender General moves to withdraw as counsel on the ground that the public defender act, 13 V.S.A. §§ 5201-5277, does not authorize assignment of a public defender in a civil contempt proceeding. We affirm the trial court's order of incarceration and deny the motion to withdraw.

Sherry Russell and John Armitage were married in 1980 and divorced in 1986. They have two daughters. The final order of divorce granted custody to plaintiff and ordered defendant to pay child support in the amount of $35 per week per child, with support payments to increase annually by $2 per week per child. Defendant soon fell behind in his support payments, and in 1989 a wage assignment was ordered. In 1992, the Office of Child Support (OCS) brought enforcement proceedings, and the magistrate issued a new order, which the family court affirmed, entering judgment for accumulated arrearages and setting support at $389 per month. In 1993, OCS filed another petition for contempt. The court again entered judgment for arrearages and renewed the support order.

In March 1994, OCS commenced this enforcement proceeding, alleging once more that defendant had willfully failed to comply with the child-support order. The magistrate issued another order maintaining defendant's support obligation at $389.97 per month, but noted that defendant shortly expected to settle a workers' compensation claim, and accordingly, scheduled a hearing for November 1994 to review the support order. Following the November hearing, the magistrate found that defendant owed child-support arrearages of $28,847.85 and would have the ability to pay the arrearages upon settlement of his workers' compensation claim, but that he had refused to settle the claim because he did not want plaintiff to have the money. Based on these findings, the magistrate referred the matter for contempt proceedings before the family court judge. See 4 V.S.A. § 462(a).

At a December 8, 1994 hearing, the court found that defendant had presented no medical evidence to show that he is unable to work, and had made little effort to find employment or settle his workers' compensation claim. The court concluded that defendant was in contempt of the magistrate's orders but stated that it would allow defendant to purge himself of the contempt before ordering incarceration. In its written order, issued on December 12, 1994, the court set four conditions that defendant was required to satisfy to purge himself of contempt:

1. Defendant shall report to the Vocational Rehabilitation office in Bennington, Vermont no later than December 16, 1994 and get himself enrolled in their program. He shall participate fully in any programming recommended by that agency. He shall provide documentation at the next hearing that he has complied with this order.

2. Defendant shall, no later than December 16, 1994, go to Dr. Block's office and review the results of his MRI test. If Dr. Block is not available due to his schedule to review the MRI results by December 16, 1994, Defendant shall make an appointment by December 16, 1994 to review the test results as soon as possible.

3. Within 14 days of the above review of Defendant's MRI test results, he shall provide a statement from his treating physician(s) to this Court regarding the nature of his medical condition, his ability to work, and any restrictions on his ability to work.

4. Defendant shall diligently pursue his worker's compensation claim and provide documentation at the next hearing regarding the progress of the claim.

The court further ordered that a hearing be scheduled to monitor defendant's compliance with the court's conditions. Defendant took no appeal from the contempt order.

At a hearing on May 19, 1995, defendant admitted that he had failed to meet with Dr. Block to review his MRI results, and as a result had not obtained an evaluation of his medical condition sufficient to satisfy the second, third, and fourth contempt conditions. Based on defendant's statements, the OCS attorney requested that defendant be incarcerated for failing to purge himself of contempt. The court responded:

Well, before I can consider incarcerating an individual for nonpayment of child support, I have to appoint an attorney to represent [defendant], and I will do that at this point. We will call someone from the public defender's office to come over and talk to you [defendant], before we continue with this hearing.

Following a recess, during which defendant was found to be a financially needy person who qualified for assigned counsel, attorney William Buckman from the Rutland Public Defender's Office appeared in response to the court's call.

After reviewing defendant's circumstances, Mr. Buckman conceded that defendant had not complied with the contempt order but claimed, as his defense, the inability to comply. He requested a continuance to allow him to become more familiar with the case and to amass evidence to support the defense. The court granted a continuance until June 28, 1995 and indicated that the burden would be on defendant to show an inability to comply with the order.

Before the June 28 hearing, Mr. Buckman moved to withdraw as counsel on the ground that the public defender act did not authorize assignment of a public defender to represent a defendant in a civil contempt proceeding. At the hearing, the court denied the motion to withdraw without rationale. Mr. Buckman then stated that he had no evidence to present for the defense. Later, he claimed that defendant had met with the doctor to review the MRI results and presented a letter from an employer indicating that defendant was currently working for him as a painter. The court found that defendant continued to be in contempt and ordered him incarcerated under 12 V.S.A. § 122. Defendant was told that he could purge himself of contempt by complying with the four conditions of the December order. Mr. Buckman requested clarification of the order, and the court stated that it would accept letters from the people with whom defendant was required to meet indicating that he had complied. The present appeal followed.


Defendant was entitled to appointment of counsel prior to being incarcerated under our decision in Choiniere v. Brooks, 163 Vt. 625, 625, 660 A.2d 289, 289 (1995) (mem.), where we held that the Due Process Clause of the Fourteenth Amendment requires the appointment of counsel in a civil contempt proceeding in which an indigent defendant faces "actual imprisonment." Although the United States Supreme Court has not ruled on this issue, its decisions on related issues compel this result. In Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012-13, 32 L.Ed.2d 530 (1972), the Court held that, under the Sixth Amendment to the United States Constitution, "no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Subsequently, in Scott v. Illinois, 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1161-62, 59 L.Ed.2d 383 (1979), the Court clarified Argersinger, holding that the Sixth Amendment right to counsel extended only to those criminal defendants faced with "actual imprisonment," not simply "fines or the mere threat of imprisonment." The Court has held that, under the Due Process Clause of the Fourteenth Amendment, a child has a right to counsel in juvenile delinquency proceedings that may result in commitment to an institution, In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527 (1967), noting that such proceedings, while denominated civil, are "functionally akin to a criminal trial." Gagnon v. Scarpelli, 411 U.S. 778, 789 n. 12, 93 S.Ct. 1756, 1763 n. 12, 36 L.Ed.2d 656 (1973). Against this background, we adopted the rule of Choiniere, requiring assignment of counsel for indigent defendants in civil contempt proceedings that result in incarceration.

As we noted in Choiniere, "the overwhelming majority of other jurisdictions" have reached the same conclusion. 163 Vt. at 626, 660 A.2d at 289. Indeed, every federal circuit court of appeal that has addressed the issue has determined that due process prohibits incarceration of an indigent defendant in a civil contempt proceeding absent appointment of counsel. See, e.g., Walker v. McLain, 768 F.2d 1181, 1185 (10th Cir.1985) (due process requires appointment of counsel for indigent defendant incarcerated in civil contempt proceeding for nonsupport), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986); Sevier v. Turner, 742 F.2d 262, 267 (6th Cir.1984) (same); Ridgway v. Baker, 720 F.2d 1409, 1415 (5th Cir.1983) (same); Henkel v. Bradshaw, 483 F.2d 1386, 1389 (9th Cir.1973) (same); see also United States v. Bobart Travel Agency, Inc., 699 F.2d 618, 620-21 (2d Cir.1983) (defendant entitled to counsel in civil contempt proceeding for failure to produce records that resulted in his incarceration); United States v. Anderson, 553 F.2d 1154, 1156 (8th Cir.1977) (same). And the vast majority of state courts have...

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