Weekly(ish) Update: October 17, 2020

No originality with this photo

By Andy Delaney 

Seven opinions yesterday. Seems like the new clerks are hitting their stride.

Our first case involves a relief-from-abuse order. Sister and brother are estranged, though mom got them to call a “truce” before mom’s death. Days before mom died, she deeded the house to sister. Brother did not like this. He filed an action challenging the deed in the probate division. He also drove by the house and honked his horn on several occasions to express his displeasure. Sister sought a relief-from-abuse order and the trial court provided one, finding that brother’s horn-honking and driving constituted stalking under our statutes. Brother appeals. SCOV reverses, concluding that brother’s behavior does not meet the definition of stalking. Scheffler v. Harrington, 2020 VT 93.

Our second case explores termination of parental rights and voluntary guardianship petitions by family members. The trial court first consolidated the juvenile case and the relatives’ guardianship petitions but then revoked the consolidation and used an if/then approach: if the termination-of-parental-rights action was denied, then the guardianship petitions would go to the probate division. The trial court treated the guardianship proceedings as “on hold” during the termination-of-parental-rights proceedings. Ultimately, the trial court terminated the parents’ rights due to drug use, violence, and a lack of engagement. That means no more guardianship petition proceedings. And both parents appeal. SCOV says the trial court’s approach was just fine and within the trial court’s discretion. No error in terminating parents’ rights. In re A.M., 2020 VT 95.

The third case for the week deals with enforcement of judgments and the interplay between final divorce orders and the renewal-of-judgment rules. Wife attempted to enforce a 2011 property division order—actually an enforcement order of a 2007 order—in 2019. Husband argued the statute of limitations had expired. SCOV agrees with husband. The bottom line is that a judgment in the family division is subject to the same rules as any other judgment and must be renewed in a separate action every eight years or you’re SOL. Justice Robinson concurs because she agrees that the result is proper under the statutes, but probably not what the legislature intended with regard to enforcement of property division orders stemming from divorces. Blake v. Petrie, 2020 VT 92.

Our fourth case also deals with statutes of limitation, but in the criminal context. The opinion explores the evolution of the statutes of limitation on sexual assault. Complainant alleged that defendant had sexual contact with her from the late 1980s to mid-1990s when she was a child. At the time of the latest acts alleged at trial, the applicable statute of limitations was the earliest of six years from when the complainant first disclosed to law enforcement or reached the age of twenty four (in 2013, the statute of limitations was amended to 40 years; in 2019, the limitation was removed entirely). The complainant turned 24 in 2007. SCOV reasons that the statute of limitations had expired in this case when the complainant reached 24 and reverses defendant’s conviction and sentence. State v. Caron, 2020 VT 96.

Case number five is about the elements of the de facto parent statute, which is something I was unaware of until  today. This is one of the strangest opinions I have read recently. I’m not going to comment on the facts because I’m likely to say something offensive to someone, so I’ll just throw out a handful of phrases from the opinion: “high-school student,” “polyamorous relationship,” “matching tattoos and rings,” “FBI interrogation techniques,” and “whore shoes.” Read it yourself and tell me what you think. The legal-concept takeaway here is that if a person wants to establish de facto parentage, that person must show all the elements of the statute are met by clear and convincing evidence. Here, the trial court found that certain elements were not met and declined to find in plaintiff’s favor. On appeal, SCOV affirms, concluding that the trial court’s findings are supported by the record. Lanfear v. Ruggerio, 2020 VT 84.

The sixth opinion this week is a consolidated criminal—DUI 3—appeal in which both defendants argue that the trial court should have suppressed their evidentiary breath-test results because the information they were given by the police rendered their consent to the tests involuntary and therefore violative of Article 11 of the Vermont Constitution. It’s a good argument, but SCOV doesn’t buy it, reasoning that the tests fall within the consent exception to the Vermont Constitution’s warrant requirement and the trial court made the correct decision. State v. Williams, 2020 VT 91.

Case number seven is a lengthy opinion dealing with double jeopardy and the Blockburger test, which simply stated, provides that there must be an additional element to convict a person of both a greater and lesser crime arising from the same act. Defendant was convicted of three sex offenses against his former high school student, who also lived with defendant and defendant’s wife part time after defendant was fired from the school. The majority concludes that one of the convictions was duplicative and reverses that conviction. Because it wouldn’t make a difference in the sentence, there’s no sentencing remand. Justice Robinson dissents because, in her view, the legislature did not intend for the offenses defendant was convicted of to be treated as separate offenses—the State was required to elect one from the other. Because the dissent would reverse an additional conviction, the dissent would also remand for resentencing. State v. Nelson, 2020 VT 94.