State v. Mott, Nos. 95-433

• Docket Nº: Nos. 95-433
• Citation: 692 A.2d 360, 166 Vt. 188
• Case Date: January 10, 1997
• Court: United States State Supreme Court of Vermont

Page 360

692 A.2d 360 166 Vt. 188 STATE of Vermont
v.
Joseph Mitchell MOTT.
Joanne E. MOTT (LEWIS)
v.
Joseph Mitchell MOTT. Nos. 95-433, 96-023. Supreme Court of Vermont. Jan. 10, 1997.

Page 361

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for plaintiff-appellee in No. 95-433.

Robert Appel, Defender General, and Anna Saxman, Appellate Defender, Montpelier, for defendant-appellant in Nos. 95-433 and 96-023.

Lila Shapero, Vermont Legal Aid, Burlington, for amicus curiae Vermont Network Against Domestic Violence and Sexual Assault.

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

Page 362

DOOLEY, Justice.

Defendant Joseph Mott appeals his district court conviction for violating an abuse prevention order, see 13 V.S.A. § 1030, and separately appeals from the family court's denial of his motion for relief from the same abuse prevention order. Defendant contends that the order, issued to his ex-wife pursuant to 15 V.S.A. §§ 1103 and 1104, was void because he had no opportunity to be heard and the court failed to make any findings in support of the order; and that he can raise these defects in defense of the criminal charge. In the criminal case, he also argues that the district court erred (1) in failing to instruct the jury that specific criminal intent was required for the crime; (2) in failing to instruct an element of the offense; and (3) in refusing to recognize an implied exception to the offense for the administration of justice. We affirm both the conviction and the refusal to reopen the order.

Defendant and his ex-wife divorced in 1990, and, prior to the 1994 abuse prevention order at issue, have been involved in extensive proceedings in the family court, centered on defendant's visitation rights to the three minor children of the parties. The divorce order gave defendant the right of visitation "at reasonable times and places," but gave his wife the right to require the presence of an adult supervisor at defendant's visitation. Apparently, defendant did not seek to exercise his visitation rights until he was imprisoned for property crimes in 1992. Defendant's attempts to exercise visitation at the prison, over the wife's objections, led to a series of orders, including a June 1994 order terminating defendant's visitation rights. Visitation was allowed again on May 22, 1995 when defendant was released on parole, but was terminated on December 4, 1995 after defendant's parole was revoked.

The court also issued a series of abuse prevention orders against defendant. In 1992, defendant's ex-wife alleged that defendant was telephoning her and threatening physical violence upon his release from prison. The court issued an order forbidding telephone contact and communication of threats by any means. At the expiration of the 1992 order, defendant's ex-wife sought a new order based on the history of threats and violence and the expected release of defendant from prison. The court issued another order, but it expired at the end of October 1993.

The ex-wife sought the order at issue in these cases in August 1994, while defendant was incarcerated at the Chittenden County Correctional Facility, alleging that defendant would attempt to approach her upon his release. The emergency order, issued on August 15, 1994, forbade phone contact and mail contact and ordered defendant to stay 100 feet away from his ex-wife. Defendant was served with the order in jail.

On August 24, 1994, the family court held a required hearing on whether to extend or modify the emergency order. Defendant was also served with notice of this hearing. Defendant did not appear in family court to resist extension of the emergency order, and the court entered a final year-long abuse prevention order containing the same terms as the emergency order. Defendant was served with the final order in jail.

On November 8, 1994, defendant sent his ex-wife a letter, requesting a Christmas visit with his children. She turned it over, unopened, to the police, and defendant was subsequently charged, pursuant to 13 V.S.A. § 1030, with violating the abuse prevention order's no-mail-contact provision.

In March 1995, defendant moved in family court to strike the order on the ground that it was void for lack of jurisdiction because defendant had been denied due process by the state when he was not transported to the hearing on extension of the emergency order. Defendant moved to dismiss the district court criminal case on the same ground. Both motions were denied.

Defendant was convicted of violating the abuse prevention order, pursuant to 13 V.S.A. § 1030. After the trial, he filed a motion to acquit and for a new trial, making some of the arguments he makes to this Court. This motion was denied after a hearing on August 9, 1995.

Page 363

I. The Criminal Case

A.

Although defendant argues that the criminal conviction should be overturned for several reasons, his main argument is that the abuse prevention order was void because it was issued in violation of defendant's procedural due process rights. Defendant claims that the family court lacked jurisdiction over him because he was incarcerated and was denied an opportunity to attend the hearing where the final order was issued.

Defendant's argument hinges on the fact that he had been provided transportation from prison to eight previous family court hearings without an affirmative request on his part. He argues that he had a reasonable expectation that the family court and prison officials would transport him to family court hearings, whether or not he requested transportation. Because he relied on the state's previous course of action, defendant argues that the state created an expectation of transportation, and then denied him the opportunity for a hearing by changing its policies without telling him.

We do not generally allow a person who is under a court order to challenge it by violating it. See State v. Carlson, 133 Vt. 562, 564, 349 A.2d 237, 238 (1975). Moreover, defendant's arguments involve a collateral attack on the abuse prevention order. Although collateral attacks are generally prohibited, defendant seeks to fit within a limited exception to the prohibition authorized in State v. Putnam, 137 Vt. 410, 413, 407 A.2d 161, 163 (1979). The defendant in Putnam was charged with operating a motor vehicle after his license to operate was suspended, and he attempted to defend by challenging the legality of the suspension. We allowed a limited defense, with the following explanation:

We recognize the cogency of the State's argument that litigation must cease sometime, and that there is a strong public policy favoring resistance of the license suspension when it is imposed, not later. But, on the opposite side of the scale, there is also force to the defendant's argument that he should not be bound, in any proceeding, by a suspension levied without constitutionally adequate notice, or without subject matter jurisdiction. Although the doctrines of res judicata and collateral estoppel are not strictly applicable, because of the different burden of proof in criminal prosecutions and license suspensions, they furnish excellent analogy. We accordingly hold that, consistent with [State v.] Cady [136 Vt. 29, 383 A.2d 607 (1978)], in a prosecution for driving with license suspended, collateral attack upon the suspension is permissible for, and limited to, questions of jurisdiction over the defendant and the subject matter in the original suspension proceedings.

Id. (citations omitted). Defendant argues primarily that the abuse prevention order was issued without an opportunity for him to be heard and, therefore, in violation of his due process rights. He asserts that Putnam allows this kind of collateral attack in the criminal proceeding based on his violation of the order.

We agree that the Putnam standard applies to allow the defense that the abuse prevention order was issued in violation of defendant's due process rights. We are not convinced, however, that defendant has shown a violation of due process.

Due process of law in this circumstance requires that defendant receive notice and an opportunity to be heard. See Lucas v. Hahn, 162 Vt. 456, 459, 648 A.2d 839, 842 (1994). It is undisputed that defendant received notice of the abuse prevention hearing. The question is whether he had an opportunity to be heard.

We agree that preventing defendant from any meaningful access to the...