Hunt v. Hunt

Morse, J.,

concurring and dissenting. In my view this case does not necessarily present a clash between the free exercise of defendant’s religion and a child’s right to support. I would therefore reverse on a narrower ground and not remand.

Defendant’s inability to pay child support is no different had he worked for any employer who for any reason paid compensation other than with money. I agree with the dissent of Justice Dooley that “[i]n an economic sense, the church is defendant’s employer” and that the burden should be on the State to collect child support in cases like this from the custodian of the money held for defendant’s benefit. I believe the State could proceed directly against the church under garnish*439ment, given the broad definition of “wages” in 15 V.S.A. § 780(9), or trustee process. The sanction of imprisonment for contempt is the most drastic remedy, and its imposition is an abuse of discretion if alternative effective remedies are reasonably available. See Spallone v. United States, 493 U.S. 265, 276 (1990) (in selecting civil contempt sanctions, court must use least possible power to achieve desired end). The challenge based on free exercise of religion is premature at this point.

I would reverse the order of contempt, which would leave the State free to pursue, if it wishes, alternative remedies.