Appeal from Superior Court, Addison Unit, Family Division
Helen M. Toor, J.
Weaver, Pro Se, North Ferrisburgh, Plaintiff-Appellant.
Otero-Weaver, Lincoln, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and
Grearson, Supr. J., Specially Assigned.
1. Mother appeals an order of the family court holding her in
contempt for willful failure to comply with a ruling that
placed the parties' minor son in his father's
physical custody and temporarily suspended mother's
contact with the child. We affirm the contempt order, but
remand the matter for the family court to consider whether
father's attorney, who is also his wife, should be
disqualified from further representing father in this case.
2. In May 2017, the court temporarily suspended all contact
between mother and the parties' son N.W., who was then
sixteen years old, after mother repeatedly violated prior
parent-child contact orders issued by the court that gave
father legal and physical rights and responsibilities for
Despite the order, N.W. remained at mother's home. Father
moved to hold mother in contempt. See 15 V.S.A. §
603(a); Wells v. Wells, 150 Vt. 1, 6, 549 A.2d 1039,
1043 (1988) (noting "obstruction of court-ordered
visitation can be redressed by means of contempt
proceedings"). Following a hearing, the court found
mother in contempt for willfully failing to comply with the
May 2017 order. It ordered mother to pay $100 for each day
that N.W. remained at mother's home after October 31,
2017. The court stated that the fine was intended to
compensate father for lost contact with his son. It therefore
permitted father to deduct any fines incurred from his
maintenance payments to mother. Mother appealed.
3. We review an order of contempt solely for abuse of
discretion. Hunt v. Hunt, 162 Vt. 423, 436, 648 A.2d
843, 853 (1994). We find none here. The family court found by
clear and convincing evidence that mother had willfully
violated the May 2017 order by failing to do anything to
ensure that N.W. lived with father. Instead of complying with
the order, she wrote to the parties' three older sons to
ask them to intervene in the dispute, telling them that
father was trying to make them homeless, lying about her in
court, and bullying and abusing N.W. She also attempted to
sign school forms for N.W. that she had no right to sign,
threatened to ruin the reputations of father and his wife in
the community, told father to "enjoy your piece of
paper" when the May 2017 order was issued, and said that
he would never come between her and her sons. Although mother
wrote to father that she could not force N.W. to go to
father's and that she was going to call the police to
have them take N.W. to father's home, there was no
evidence that she ever did so. The court found that she was
"merely making a record and bluffing." The record
supports these findings, and the findings in turn support the
court's conclusion that mother willfully violated the
parent-child contact order. See 15 V.S.A. § 603(f)(3)
(providing that violation of court order is willful if person
"had the ability to comply with the order and failed to
4. Moreover, the court did not exceed its discretion by
ordering mother to pay a compensatory fine to father. Such a
sanction is expressly permitted by law. See V.R.F.P. 16(c)(3)
(providing that person found in contempt may be ordered to
pay fine to aggrieved party to compensate for loss or injury
caused by contemnor). While "purely prospective fines
are not favored in Vermont, " we have upheld the
imposition of prospective civil contempt fines when necessary
to compensate complainants or as a coercive sanction. Vt.
Women's Health Ctr. v. Operation Rescue, 159 Vt.
141, 151, 617 A.2d 411, 417 (1992). The record supports the
family court's determination that prospective fines were
warranted by the "extreme and extraordinary"
circumstances of this case, namely, mother's continual
and unrepentant disregard of the court's custody orders
and by extension, her son's best interests, and the
resulting harm to father's relationship with N.W. The
sanction was not impermissibly punitive because mother could
avoid the fines by complying with the May 2017 order and
returning N.W. to his father. See DeGrace v.
DeGrace, 147 Vt. 466, 471, 520 A.2d 987, 991 (1986)
(affirming $10, 000 fine imposed by court for father's
contempt in interfering with visitation rights; fine was not
punitive sanction because it was reducible to judgment only
if father failed to comply with visitation rights in future).
Nor was it improper for the court to order that any fines
accrued by mother be offset from father's maintenance
obligation; the court has discretion to impose the equitable
remedy of setoff in such situations. See Schwartz v.
Haas, 169 Vt. 612, 739 A.2d 1188, 1191 (1999) (mem.)
(holding that family court appropriately ordered $50, 000 sum
owed by wife for wrongfully diverting assets from marital
estate to be offset from husband's maintenance obligation
in order to avoid multiplicity of actions); cf.
Weaver, 2017 VT 58, ¶ 42 (holding that family
court may not offset maintenance overpayment against either
past or future child support obligations).
5. While we affirm the contempt ruling, we remand the matter
for the family court to consider whether father's wife
should be disqualified from further representing him in this
case because her continued involvement may run afoul of at
least two ethical rules. Under Vermont Rule of Professional
Conduct 3.7, a lawyer is generally prohibited from acting
"as advocate at a trial in which the lawyer is likely to
be a necessary witness." V.R.Pr.C. 3.7(a); Lumbra v.
Lumbra, 136 Vt. 529, 533, 394 A.2d 1139, 1142 (1978)
("A lawyer is prevented by ethical considerations from
testifying in his client's cause."); see also
Kennedy v. Eldridge, 135 Cal.Rptr.3d 545, 555 (Ct.
App. 2011) (affirming trial court's disqualification of
paternal grandfather, an attorney, from representing father
in child custody proceedings against mother where grandfather
was likely to be fact witness). The record shows that
father's attorney is intimately involved in the
parties' dispute, raising the question of whether she has
crossed the line from advocacy to testimony in some of her
written and oral statements to the family court. Furthermore,
Rule 1.8 prohibits an attorney from acquiring a proprietary
interest in the cause of action. See V.R.Pr.C. 1.8(i)
("A lawyer shall not acquire a proprietary interest in
the cause of action or subject matter of litigation the
lawyer is conducting for a client . . . ."). Mother has
argued, not unreasonably, that father's attorney has a
direct financial interest in the outcome of the parties'
disputes over custody and maintenance because it will affect
her household income. See Weaver, 2017 VT 58, ¶
36 (holding that trial court erred by preventing mother from
discovering father's wife's income where father and
wife lived together and shared household expenses because
information was plainly relevant to father's ability to
pay maintenance); Attorney Grievance Comm'n of Md. v.
O'Leary, 69 A.3d 1121, 1134 (Md. 2013) (disbarring
attorney for, inter alia, violating Rule 1.8(i) by
representing husband in divorce proceeding where attorney had
proprietary interest in amount of husband's child support
obligation because she and husband shared all household
expenses including payment of support).
6. Although the record raises concerns about father's
wife's representation of him, we decline to decide the
issue for the first time on appeal. As we have recognized in
the past, disqualification questions are inherently
fact-specific, and further development of the record may be
necessary. See Cody v. Cody, 2005 VT 116, ¶ 16,
179 Vt. 90, 889 A.2d 733. We therefore remand the matter to
the trial court for it to consider, after giving the parties
an opportunity to address the issue, whether to exercise its
discretion to disqualify father's attorney.
family court's October 24, 2017 order holding mother in
contempt is affirmed, and the matter is remanded for the
court to consider whether father's attorney should be
disqualified from representing father in this