Office of Child Support Ex Rel. Stanzione v. Stanzione

¶ 1. Joyce Stanzione appeals a family court order revoking her driver’s license for failure to pay child support arrears. She argues that the trial court erred in three ways: (1) in finding that she had the ability to pay; (2) in ordering the license suspension when it will not produce payment and infringes upon her free exercise of religion; and (3) in denying her motion to continue. We affirm.

¶ 2. Joyce and Neil Stanzione are parents to five children, and the entire family lived at one time in the Twelve Tribes Community. When the parties separated in March 1990, father and parties’ three sons left the Community while mother remained with their two daughters. In April 1991, father assigned his child support rights to the State of Vermont as a condition of receiving public assistance for the three minor children living with him. The Office of Child Support (OCS) intervened in October of 1991 and mother was ordered to pay $50 in child support and $12.50 in arrears payments per month. In 1995, one of the daughters left the Community and joined father and her three brothers. Father filed for divorce in 1997, and mother again was ordered to pay $50 per month in child support and $12.50 in arrears payments. The parties were divorced on February 12, 1998. Mother did not appeal either order, and has never made any support payments. On July 31, 1999, the last child in the family attained majority.

¶ 3. In 2001, OCS petitioned to enforce the order, and the court issued an ar*630rears-only enforcement order on February 13, 2002, reducing the arrears to a judgment of $4800 and ordering payment to OCS in the sum of $62.50 per month. The magistrate found that at all times since the initial 1991 order mother had been a member of the Community, “a religious group in which the members live together and share all things in common. As a member of the Community, her needs (food, shelter, etc.) are met by the other members, and mother devotes her efforts to meeting the needs of the Community by providing care to the children of the Community, cooking, and taking care of other members.” The magistrate found that mother was healthy, a high school graduate, fifty-one years old, and had not worked outside the Community since she joined in 1983. The magistrate also noted, “[a]s a member of the Community, mother receives a pro rata share in the income that the Community generates. Her share in 2000 was $4889. Her share in 2001 will not exceed $5000. (The Community is a recognized religious non-profit corporation which pays taxes and meets all other obligations to the State.)” The magistrate entered judgment in favor of OCS in the amount of $4800, but declined to award a civil penalty.

¶ 4. On January 2,2003, OCS again petitioned to enforce the arrears order and also to suspend mother’s driver’s license pursuant to 15 V.S.A. § 798(b) because mother had made no payments on the $4800 arrears judgment. A notice of the February 26, 2003, hearing was generated on January 13, 2003, and the docket entries note that service was complete on January 21, although it was signed by another person. The week prior to the hearing, mother moved to dismiss and to stay further enforcement of arrears on the grounds that she is a member of the Community, the children had attained majority, she was in ill health, had not competed in the job market for twenty years, and the remedy requested by OCS would unconstitutionally restrict the free exercise of her religion. In the alternative, mother moved to continue the hearing because illness prevented her from returning to Vermont from Florida for the February 26 hearing. The magistrate denied all three motions.

¶ 5. Mother failed to attend the February 26 hearing, and the magistrate granted OCS’s petition on that date. The magistrate ruled that although service had been inadequate, mother’s three motions filed with the court demonstrated that she had received notice and knowledge of the hearing based upon which the court made findings of actual knowledge and notice. The magistrate also found that mother had the ability to comply with the child support order, and, based on father’s uncontested testimony, that mother can serve the church in ways not requiring an operator’s license, that the suspension was not an unreasonable restriction on her religious freedom and was the least restrictive remedy available. The order provided that mother could move to reinstate her license upon a lump sum payment of $750 and six continuous monthly payments of $62.50 each. On Mai'ch 27, 2003, mother filed a V.R.C.P. 59 motion for reconsideration and for further relief, stating she wished to present evidence of hardship and restriction on her religious freedom. The magistrate denied the motions, ruling that all issues could have been raised at the hearing date which mother failed to attend. Mother appealed the magistrate’s decision to the family court on March 28, 2003. That court affirmed all of the magistrate’s rulings, and this appeal followed.

¶ 6. Mother challenges the magistrate’s determination of her ability to pay. Inability to pay is a statutory defense to a license suspension, and the noncomplying party has the burden to demonstrate inability to comply with an order to pay. 15 V.S.A. § 798(a). We re*631view a civil sanction determination such as a license suspension for clear error. Mayo v. Mayo, 173 Vt. 459, 462, 786 A.2d 401, 406 (2001) (mem.) (review of contempt finding is for clear error). We will not disturb the judgment on appeal, then, “unless the court’s discretion was entirely withheld or was exercised on grounds clearly untenable.” Id. (citation omitted). We will not set aside findings of fact unless clearly erroneous, and we review them in the ‘light most favorable to the prevailing party, disregarding modifying evidence, with the burden on the appellant to show that there is no credible evidence to support the findings.” Id.

¶ 7. Although the February 2003 license suspension order does not contain specific findings regarding mother’s ability to pay, at the hearing the magistrate referenced the findings in the February 2002 enforcement order. In the 2002 order, the magistrate addressed mother’s membership in the Community, her pro rata share of the Community’s income, and her age, health, and education level.

¶ 8. Mother does not dispute those findings as erroneous; instead, she contends that, lacking actual personal income, she has no ability to pay. Where an obligor claims financial inability to pay, the court must find a present ability before imposing a civil sanction. Hunt v. Hunt, 162 Vt. 423, 436, 648 A.2d 843, 853 (1994). The magistrate found, within the exercise of her discretion, a present ability to pay based on mother’s pro rata share of the Community income and her age, health, and education. This is in accord with the definition of “available income” in our child custody and support statute. 15 V.S.A. § 653. The Legislature has defined “available income” as “gross income” — with deductions not applicable under these facts — and “gross income,” in turn, as “expense reimbursements or in-kind payments received by a parent in the course of employment... if they reduce personal living expenses.” Id. § 653(1), (5)(A)(i)-(ii). “Gross income” also includes, under the statute, “the potential income of a parent who is voluntarily unemployed or underemployed.” Id. § 653(5)(A)(iii). Mother failed to meet her burden to prove inability to pay. She is not “powerless” to comply with the order; instead, she “refuses to abide by [it].” Mayo, 173 Vt. at 462, 786 A.2d at 406. We find no abuse of discretion.

V 9. Our decision in Lambert v. Beede does not compel a different result. 2003 VT 75, ¶¶ 8-9, 175 Vt. 610, 830 A.2d 133 (mem.). There, father’s inability to pay due to physical disability was undisputed; the issue was whether an obligor “with an inability to pay can be denied reinstatement of his license under § 798(e).” Id. ¶ 9; see 15 V.S.A. § 653(5)(A)(iii)(I) (excluding from “available income” the potential income of a parent who is physically or mentally disabled). Father had become disabled subsequent to the license suspension and, in recognition of his resultant inability to pay, the magistrate reduced both the child support and arrearage orders to $0 per month yet refused to reinstate his driver’s license because of father’s lack of “good faith” efforts of payment prior to onset of his disability. We held that § 798(c) necessarily includes an inability-to-pay defense and so reversed the magistrate’s order denying reinstatement because it “improperly transform[ed] a measure designed to coerce payment into a punitive device.” Lambert, 2003 VT 75, ¶ 1. “[C]ivil sanctions aim to compel compliance rather than to punish,” and the proper tool to determine whether the sanction amounts to coercion rather than punishment is the ability-to-pay analysis. Id. ¶ 12. Here, mother has the ability to pay under the statutory definition of “available income,” and her claim that there is no reasonable likelihood that the order will coerce her into compliance *632does not strip the State of an available enforcement remedy, so long as it does not infringe upon mother’s free exercise of her religion.

¶ 10. Because we find the license suspension order otherwise affirmable, we consider whether it impermissibly infringes upon mother’s free exercise of her religious beliefs under the federal and state constitutions. Even under the most stringent potential test, we conclude that it does not. See Brady v. Dean, 173 Vt. 542, 546, 790 A.2d 428, 433-34 (2001) (mem.) (discussing potential tests under state constitution). Under the strictest test, a state may burden religious liberty if the license suspension advances a compelling governmental interest and the state uses the least restrictive means to advance that interest, but mother must first make a threshold showing that the license suspension is a substantial burden on the free exercise of her sincerely-held religious beliefs. Hunt, 162 Vt. at 432, 648 A.2d at 850; Brady, 173 Vt. at 546, 790 A.2d at 433-34.1

¶ 11. Mother has not made this threshold showing. Mother had notice of the hearing and was absent, and so presented no evidence on this point. The magistrate was instead persuaded by the testimony of father, a former Community member, that mother could exercise her religious beliefs without a driver’s license. Mother has not shown that suspending her driver’s license would substantially burden her free exercise of religion, and we need not proceed further in the free exercise analysis.

V 12. Mother also attempts to challenge the underlying 1997 child support order imposing $50 per month. Mother never appealed that order; this appeal arises from an enforcement action. Accordingly, this claim is out of time. V.R.C.P. 60(b).

¶ 13. Finally, mother argues that the magistrate abused her discretion in refusing to grant a continuance of the license suspension hearing. The denial of a motion to continue will not be reversed absent a clear abuse of discretion, State v. Stenson, 169 Vt. 590, 593, 738 A.2d 567, 571 (1999) (mem.), and to support an abuse of discretion claim mother must show that the magistrate either totally withheld her discretion or exercised it on grounds clearly untenable. Trotier v. Bassett, 174 Vt. 520, 523, 811 A.2d 166, 170 (2002) (mem.).

¶ 14. Mother argues that the magistrate abused her discretion for several reasons. First, she claims the magistrate *633wrongly dismissed her motion as untimely because although mother did receive actual notice, service was inadequate so the magistrate had no proof of when mother actually received notice. But mother sought a continuance for health reasons, not because of inadequate service, and thus waived this claim. Mother next argues that the magistrate ignored the evidence substantiating her claim that illness limited her ability to travel. The record reveals she had a radiology consultation and a note from a physician acknowledging his treatment of mother, but there is no evidence that mother could not travel. As to other arguments, the fact that OCS did not oppose mother’s motion and mother had no history of seeking continuances did not require the magistrate to grant the continuance, nor was the magistrate required to make written findings to support the denial of the continuance. See V.R.C.P. 52(a)(3) (setting forth circumstances when motion decisions require written findings).

¶ 15. Finally, mother charges that she was denied due process because the court did not instruct that she could participate in the hearing by telephone. This argument does not have merit. In Town of Randolph v. Estate of White, on which mother relies, this Court held that the town failed to provide adequate notice of a zoning violation and therefore did not satisfy due process when it instructed the defendant to remove violating junk or face fines, but failed to inform him that he could contest the administrator’s decision. 166 Vt. 280, 283, 285, 693 A.2d 694, 695, 696-97 (1997). Here, there is no dispute that mother received actual notice of the hearing and that the notice reasonably informed mother of the opportunity to present her objections at that hearing. Any lack of notice regarding participation by telephone as an additional potential opportunity to be heard does not amount to a due process violation, and does not help mother’s claim regarding denial of a continuance. We find no abuse of discretion.

Affirmed.

Although we need not decide which test applies to mother’s claim, we note that the stringent test has not applied to generally-applicable state laws since 1997. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (“RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.”). See also Sherbert v. Verner, 374 U.S. 398, 406-09 (1963) (requiring compelling government interest); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (requiring, in addition, that the challenged law employ the least restrictive means to achieve the compelling interest); see also Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-l(b) (purporting to forbid state and federal governments from substantially burdening religious exercise via generally-applicable laws except when such laws are the least restrictive means to further a compelling government interest). To the extent that Hunt, decided as it was during RFRA’s brief tenure of application to state laws, depended on the stringent RFRA test, it is inapposite here. 162 Vt. at 431-38, 648 A.2d at 850-54 (holding imposition of child support obligation permissible under RFRA, but holding contempt sanction violative of same).