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Fox v. Fox

Supreme Court of Vermont

August 14, 2014

Neal Fox
v.
Eugene Fox

Page 920

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Windsor Unit, Family Division. Robert P. Gerety, Jr., J. (final judgment); M. Patricia Zimmerman, J. (Ret.), Specially Assigned (motion to reconsider).

Reversed.

Tavian M. Mayer of Mayer & Mayer, South Royalton, and Katherine Z. Pope (On the Brief) of Law Office of Katherine Pope, Tunbridge, for Plaintiff-Appellee.

Cabot Teachout of DesMeules, Olmstead & Ostler, Norwich, for Defendant-Appellant.

Michele Olvera, Supervising Attorney, and Ariana Barusch, Law Clerk (On the Brief), Montpelier, for Amicus Curiae Vermont Network Against Domestic and Sexual Violence.

Present: Reiber, C.J., Dooley, Skoglund, Robinson and Crawford, JJ.

OPINION

Page 921

Robinson, J.

[¶1] This case requires us to evaluate the constitutional requirements for personal jurisdiction over a nonresident defendant in the context of a relief-from-abuse (RFA) order. Nonresident defendant appeals the family court order granting plaintiff's request for a final RFA order. Defendant argues: (1) the family court lacked personal jurisdiction over him to issue the final order, (2) defendant and plaintiff are not family members for purposes of the domestic abuse prevention statute, (3) plaintiff failed to establish that a final RFA order was necessary, and (4) the court erred in finding that defendant engaged in stalking, as defined in Vermont's stalking statute. We conclude that the trial court lacked personal jurisdiction to enter a final RFA order, and reverse.

[¶2] Plaintiff Neal Fox's brother adopted defendant Eugene Fox when defendant was an infant. On April 6, 2012, defendant, a New Hampshire resident now in his sixties, and plaintiff, a Vermont resident, attended a probate court hearing in Manchester, New Hampshire. Following the hearing, defendant followed plaintiff to his car and proceeded to punch, kick, and step on plaintiff. Plaintiff was hospitalized as a result of the encounter.

[¶3] Plaintiff filed a complaint for relief from abuse with the family division of the Windsor Superior Court. The trial court granted a temporary RFA order, which was extended multiple times. Before the hearing on the final RFA order, defendant filed a motion to dismiss for lack of jurisdiction, arguing that the Vermont court lacked personal jurisdiction over him to hear the RFA case. He further argued that even if the court had jurisdiction, the uncle-nephew relationship did not constitute " family" for purposes of the domestic abuse prevention statute. The court denied defendant's motion, interpreting 15 V.S.A. § 1102 to establish jurisdiction in RFA cases even in the absence of minimum contacts between defendant and the forum state. The court also concluded that, while " family" is not defined by the relevant statute, except to include reciprocal beneficiaries not at issue in this case, the blood relation between plaintiff and defendant's adoptive father is a sufficient family relationship to trigger the protections of the statute.

[¶4] During the final RFA hearing on March 25, 2013, defendant stipulated on

Page 922

the record at the final RFA hearing that abuse had occurred. Plaintiff testified that, at some point during the incident in New Hampshire, defendant made note of plaintiff's Vermont license plate and stated that he was recording the license plate in case he needed it again. Defendant admitted that he made note of plaintiff's license plate, but he could not recall what he said to plaintiff. Defendant also stated that he understood that plaintiff had changed his license plate since the incident. Outside of court appearances, plaintiff has had no contact with defendant since the incident.

[¶5] At the close of the RFA hearing, defendant renewed his motion to dismiss for lack of personal jurisdiction. The court denied the motion to dismiss on the ground that personal jurisdiction for the final RFA order was not materially different from the question of jurisdiction at the temporary order stage. The court then granted plaintiff's request for a final RFA order that prohibited defendant from coming within 300 feet of plaintiff or his home, vehicle or place of employment, except in connection with a court appearance. In that order, the court made a finding that defendant had stalked plaintiff as defined in 12 V.S.A. § 5131(6). The court denied defendant's motion to reconsider his motion to dismiss, and defendant appealed.

[¶6] In the meantime, defendant, a New Hampshire resident, was charged criminally in New Hampshire and pled guilty to simple assault. In February 2013, the New Hampshire court sentenced defendant to twelve months of incarceration, with the entire sentence suspended contingent on good behavior and compliance with certain conditions. The conditions on defendant's suspended sentence included a no-contact provision stating that defendant " shall have no contact with [plaintiff] or members of his immediate family, including wife and children. No contact means direct, indirect, through third parties or through social media."

[¶7] The threshold questions are whether the trial court must have personal jurisdiction over a nonresident defendant in order to issue a final RFA order and, if so, whether it had jurisdiction in this case. Defendant argues that the trial court had no jurisdiction to issue an RFA order against him because he has no contacts with Vermont whatsoever, and his connections therefore do not satisfy the minimum contacts ...


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