Sunday, December 31, 2017

"A Very Difficult Case"

Yep. That's about the sentiment. 
Knutsen v. Cegalis, 2017 VT 62

By Andrew Delaney

This case has previously been described as “heartbreaking.” This is the fourth published opinion in this case I’m aware of. You can read summaries of the second and third opinions by clicking on the respective links. The first opinion predated this blog.

This time mom is appealing from the trial court’s denial of her motion to modify parental rights and responsibilities. She argues that the trial court’s findings don’t support its conclusions. Specifically, even though the trial court found that mom had shown a real, substantial, and unanticipated change in circumstances, and that dad and stepmom weren’t credible, the court nonetheless chose not to modify parental rights and responsibilities because it reasoned that transferring custody to mom wasn’t in the kiddo’s best interests. SCOV says, more or less, “We guess that’s within the trial court’s discretion, but if dad and stepmom keep up the alienation stuff, then that’s probably going to warrant a change.”

Mom also appeals the trial court’s denial of her motion for attorney’s fees. On that point, SCOV sides with mom, reasoning that she’s “entitled to such fees given father’s egregious and ongoing effort to alienate her from” kiddo, which is what brought all this about.

Sunday, December 10, 2017

Roof not Required

Structure? 
State v. Lampman, 2017 VT 114

By Elizabeth Kruska

Any time I see a last name ending with “-man” I tend to think that person might be some sort of superhero, like Spider-Man or Superman. I don’t know Mr. Lampman, but I immediately envisioned him like this: all dark clothing* with red gloves, and an emblem of an old-timey gas lantern on his chest that has a yellow glow around it. And obviously there’s a cape, because I suspect nobody gets into the superhero business without the promise of a cape.
Superhero Interviewer: “You’ll bring lightness to the world.”
Potential Superhero: “Do I get a cape?”
Superhero Interviewer: “No, sorry, our cape budget is maxed out.”
Potential Superhero: “You know, I have a degree in electrical engineering. I don’t need this nonsense.” *storms out*
(*Anyone able to tell me why superheroes always wear tights? Can’t someone be super in, say, a pair of Levi’s and a hoodie? I’m wearing a hoodie right now with a big outline of the state of Michigan on the front, and I gotta say, it’s comfy and I feel pretty super. Also, as an expatriated Michigander and Wolverine, I am duty bound to add, “Go Blue!”)

Anyway, it appears that Lampman in this case has a completely different superpower, which is stealing building materials from partially constructed structures.

Form Over Substance

You can't ride a bicycle with one
wheel because then it's a unicycle. 
State v. Heffernan, 2017 VT 113

By Elizabeth Kruska

This is what happens when a rule is followed to the letter and ends up having an unfortunately bad effect in the long run.

Mr. Heffernan was charged with simple assault and disorderly conduct in 2015 after he and another man got into a sidewalk fight in Burlington. Mr. Heffnernan worked (maybe still works, I don’t know) at Nectar’s. He wears glasses and usually rides his bike to work. The complainant in the case often went to Nectar’s. A bouncer recognized them both.

The bouncer’s version of the facts is that at some point on the night in question, he saw Mr. Heffernan and the complainant having a “close conversation” but he couldn’t really hear what they were saying. A fight started, but he couldn’t see exactly how. A patron at Esox, another bar nearby, also saw the fight and had a similar story.

Sunday, December 3, 2017

Take It or Leave It

Because when there’s no applicable photo,
we go with a photo of a cute puppy.
State v. Love, 2017 VT 66

By Elizabeth Kruska

Here’s a new twist on an old theme: probation. For a little while there SCOV was deciding a probation-related case almost every other day. This case answers a probation-related question that does come up from time to time but isn’t as common as some of the other probation issues we frequently see.

When we’re talking about probation, there are a couple different ways to get there in Vermont. Someone could be sentenced to a suspended sentence and supervised on probation with a requirement to complete certain conditions for a period of time. Often, it’s a fixed period of time, sometimes it’s an indefinite period. Let’s suppose someone gets a sentence of 6-12 months, all suspended, and a probation term of 2 years. That means they’re on probation for 2 years, and if they screw up on probation, they could have to serve that 6-12 month sentence in jail. If the person does well, or with permission of the court, they can be discharged from probation supervision earlier than their ordered term.

The other way someone ends up on probation is with a deferred sentence. Deferred sentences operate a little differently. A person is adjudicated guilty, but isn’t sentenced just yet. Sentencing gets deferred for a certain period of time. During that period of time, he or she could be supervised on probation, and have to follow certain probation conditions. When the person reaches the end of the deferred sentence period, if they’ve complied with their conditions, the conviction gets expunged from the person’s record and the matter is treated as if it didn’t happen. The other side of the sword, though, is that if the person violates probation, since they’ve already been adjudicated guilty, they just get sentenced at that point and the conviction stays on their record.