Contempt in Probate Matters
Posted on Jul 23, 2012
In drafting a piece for the Vermont Bar Journal that will discuss the enforcement of probate bonds in probate court, our Trust and Estate Department will be recommending that the jurisdiction of the probate court be maintained to enforce such bonds. To make sure that the litigants and the court understand the inherent powers and statutory powers of the probate court under 4 V.S.A. § 364, the Probate Rules Committee has now proposed a procedural rule for civil contempt proceedings. I have reprinted the rule here for its consideration by practitioners. The contempt statute has been in the Vermont statutes for well over a hundred years, as the below Reporter’s notes indicate, but it has been underutilized in recent history. Our Department believes contempt proceedings, like those in family court, may protect litigants from recalcitrant family members. Litigants must consider, however, how such proceeding articulates with statutory bond enforcement procedures
Civil Contempt Proceedings
(a) Scope. This rule governs proceedings seeking remedial sanctions for civil contempt in any proceeding under these rules. The rule implements and supplements the inherent and statutory powers of the court to impose such sanctions for failure to comply with a court order. The rule does not apply to proceedings seeking punitive sanctions for criminal contempt, to summary proceedings for contempt in the presence of the court, or to the imposition of sanctions for which a different procedure is specifically authorized by other provisions of these rules or by statute.
(b) Procedure. (1) Initiation of Proceeding. A proceeding under this rule may be initiated by order of the court, either on its own motion or on the motion of a party. The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court. An order on the court's own motion must set forth the order violated and the specific facts alleged to constitute the contempt. An order on the motion of a party must be accompanied by the motion, which must be supported by an affidavit setting forth the order violated and those facts.
(2) Notice; Service. The order of the court initiating the proceeding shall set the matter for evidentiary hearing and shall order that notice of the hearing, together with a copy of the order initiating the proceeding and any motion and affidavit, shall be served upon the respondent by the appropriate method provided in Rule 5(b) of these rules. The notice shall set forth the title of the action and the date, time, and place of the hearing and shall allow the respondent a reasonable time, not less than 15 days before the date set for hearing, to file an answer and prepare a defense. The notice may include an order to produce documents requested by the moving party or the court. The notice shall contain a warning that if the court finds the respondent to be in contempt, the court may impose sanctions, whether or not the respondent has answered or appeared in the proceeding. If the court has determined that it may consider imprisonment as a sanction, the notice shall so state and shall also advise the respondent that failure to retain or request counsel will result in a waiver of the right to be represented by counsel at the hearing.
(3) Answer. The answer shall be made under oath and shall specifically address the factual allegations in the order initiating the proceeding or in an accompanying motion and affidavit. If the answer asserts that respondent is unable to make payments of money previously ordered by the court, it shall be accompanied by an affidavit of income and assets, which shall be in a form prescribed by the court administrator, as well as other information as the court may direct. Upon request of either party, or the court, the other party shall furnish information documenting the affidavit.
(4) Hearing. At the hearing, the moving party, or the court in a proceeding on its own motion, has the burden of establishing the elements of contempt. The respondent may present evidence in defense and mitigation.
(5) Order of Contempt. If the court finds that the respondent is in contempt, the court may enter judgment imposing appropriate sanctions as provided in subdivision (c) of this rule or may defer the imposition of sanctions until the respondent has had an opportunity to meet specific conditions that will purge the contempt. An order imposing sanctions or conditions must contain a clear description of the action that is required to purge the contempt. The order may set a date for hearing to determine whether the contempt has been purged.
(6) Failure to Answer or Appear. If the respondent fails to answer or appear as required, the court may consider the factual allegations of the order or motion admitted and may find the respondent to be in contempt. After any further hearings that the court deems necessary, the court shall enter judgment imposing appropriate sanctions as provided in subdivision (c) of this rule.
(c) Sanctions. The court may impose any of the following sanctions on a person found to be in contempt:
(1) Coercive Imprisonment. A person found to be in contempt may be committed to an appropriate correctional facility until the person purges the contempt by performing the affirmative act required by the court's previous order.
(2) Coercive Fine. A person found to be in contempt may be assessed a fine to be paid to the State of Vermont: (A) in a specific amount to be paid by a date certain if the person has not purged the contempt by performing an affirmative act required by the court's previous order or by ceasing to engage in conduct prohibited by the court's previous order; or (B) in a specific amount to be paid for each day that the person fails to purge the contempt by performing such an affirmative act or ceasing to engage in such prohibited conduct.
(3) Compensatory Fine. In addition to, or as an alternative to, sanctions imposed under paragraphs (1) or (2) of this subdivision, if loss or injury to a party in an action or proceeding has been caused by the contempt, the court may enter judgment in favor of the person aggrieved for a sum of money sufficient to compensate the aggrieved party for the loss or injury and to satisfy the costs and disbursements, including reasonable attorney's fees, of the aggrieved party.
(4) Additional Relief. The court may also order additional relief that may be appropriate. (d) Purging Contempt. At a time set in the order of contempt issued under paragraph (b)(5), or on motion of either party, the court may hold a hearing to determine whether the contempt has been purged because (1) conditions set in the order of contempt have been met, or (2) the terms of the order violated have been complied with. The respondent has the burden of showing that the contempt has been purged. If the court finds that the contempt has been purged, the respondent will be relieved of any coercive sanctions imposed under paragraph (c)(1) or (2). If conditions set in the order of contempt have not been met, the court may set additional conditions or may impose sanctions in accordance with subdivision (c). If the order violated has not been complied with, any sanctions previously imposed may be continued or additional sanctions may be imposed.
Rule 72 is added to provide a uniform procedure for enforcement of probate division orders by contempt proceedings. The Vermont Statutes Annotated (4 VSA §364, as amended effective February 1, 2011) allows the probate division of the superior court to commit a person who does not comply with an order of the court to the custody of the commissioner of corrections until compliance is given. Rule 72 is modeled on Family Court Rule 16. It sets forth procedures consistent with the constitutional rights of those accused of contempt. The Reporter’s Notes to Family Rule 16 may serve as a guide to the interpretation and application of Rule 72. The statutory authority for contempt in Family Court is found in 15 VSA §603, which authorizes the Family Court to proceed as provided in 12 VSA §122 (which sets for the contempt powers of the Superior Court or District Court). For historic reasons, the statutory contempt power of the probate division of superior court is currently found in 4 VSA §364.
Rule 72 was drafted against the background of the holding in the venerable case of In re Bingham, 32 Vt. 329 (1859). This case held that a probate court did not have the inherent or statutory authority to enforce the payment of the final sum due by an executor because, inter alia, (1) the probate court was attempting to collect a debt that was merged with the executor’s bond and (2) the probate court was a court of limited jurisdiction. For its part, the case of Leach v. Peabody, 58 Vt. 485 (1886) confirmed that the probate court, although a court of limited jurisdiction, did have the inherent power to enforce an order imposing a ministerial duty on an executor, in this case the payment of a spousal allowance.
The drafters of Rule 72 believed that the distinction between debts owed an estate under administration by an executor and a payment to be made by the executor to a spouse is a distinction that no longer has legal validity with the elimination of separate equity jurisdiction and modern court structures. The argument that the probate division does not have the inherent and statutory power to enforce all of its orders through contempt proceedings based on the logic that it is a court of limited jurisdiction no longer appears to have legal traction. Since these two 19th century decisions were issued, the Family Court, a court of limited jurisdiction, repeatedly has been found to have the inherent and statutory power to enforce its orders in a variety of circumstances. Indeed, without such authority, many child support and property settlement orders would be difficult, if not impossible, to enforce. The separation of equity and law in different courts also is a vestige of another age.