HUNT_V_HUNT.93-424; 162 Vt. 423; 648 A.2d 843
[Opinion Filed August 5, 1994]
Filed 05-Aug-1994
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 93-424
Linda Lee Hunt Supreme Court
On Appeal from
v. Essex Family Court
Eugene Earl Hunt December Term, 1993
Alan W. Cook, J.
Jeffrey L. Martin, Waterbury, for appellee Office of Child Support, Agency
of Human Services
Jean A. Swantko, Island Pond, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J. Defendant Eugene Hunt was found in contempt of court for
failure to comply with an order to pay child support. He appeals both the
finding of contempt and the underlying support order, alleging that their
imposition violates his right to free exercise of religion, as guaranteed by
the First Amendment to the United States Constitution and Chapter I, Article
3 of the Vermont Constitution. We affirm the order of support, but vacate
the judgment of contempt.
Defendant belongs to the Northeast Kingdom Community Church in Island
Pond. In keeping with their faith in an "everlasting covenant" with God,
described in Christian scriptures, members of the Church lead an ascetic,
communal existence. Members eschew all personal possessions and work for
the benefit of the community, often in one of the various Church-run
business enterprises that offer goods to the public and provide income to
the Church. A recognized nonprofit corporation, the Church pays taxes and
meets all other obligations to the State. Defendant files tax returns
reporting dividend income from the Church, but has no access to the funds
themselves, which apparently are retained in the Church treasury. In
return, the Church provides for each member's housing and living
necessities. The Church does not believe in no-fault divorce, and forbids a
member to support an estranged spouse or children who live outside the
community.
Defendant has been a member of the Church for the past fourteen years.
Except for a brief period, defendant and his family lived in the Church
community at Island Pond. Plaintiff left the community with their children
sometime in 1989, but defendant remained. Plaintiff began receiving Aid to
Needy Families with Children (ANFC) benefits, and assigned all rights of
child support to the Vermont Department of Social Welfare. Defendant
refused to enter into a voluntary agreement to make periodic support
payments in an amount satisfactory to the Commissioner of Social Welfare.
Defendant maintained, and has continued to maintain, that he cannot sanction
his wife's choice to leave him without just cause in the eyes of the Church,
and therefore cannot support his children outside the community. Further,
defendant contends that because he himself owns nothing and cannot,
consistent with his faith, work outside the community, he cannot earn money
to meet a support obligation. Nevertheless, he expresses concern for his
children and his desire to care for them, which he asserts is possible only
if they reside in the community with him. He has provided the children with
shoes from the community cobbler shop where he works.
In early 1990, the Department of Social Welfare sought an order fixing
a monthly child support payment amount and appropriate arrearages. A
hearing was held before the Human Services Officer, at which defendant
represented himself. On April 18, 1990, the Human Services Officer ordered
defendant to pay fifty dollars per month for the support of his children,
and to pay past amounts due for ANFC benefits already received.(FN1)
Plaintiff filed for divorce in August 1990, and the Office of Child
Support (OCS) intervened on the issue of child support. Defendant appeared
and testified at the hearings, but did not contest the divorce. In the
final decree, plaintiff was given full parental rights and responsibilities
for the minor children. On July 3, 1991, the family court, which assumed
the former appellate jurisdiction of the Human Services Board, "affirmed"
the decision of the Human Services Officer. The court ordered a fifty-
dollar-per-month child support obligation, and liability for amounts past
due. After nearly a year with no payments, OCS filed a petition in August
1992 to find defendant in contempt of the family court's order. On April
20, 1993, at a conference before the family court concerning the contempt
petition, defendant contended that he never had a proper opportunity to
appeal the Human Service Officer's finding that he had the ability to make
child support payments. The family court granted defendant a de novo
hearing on the issue of his ability to pay child support, as part of the
hearing on the OCS contempt petition.
At the contempt hearing, the court took testimony from plaintiff,
defendant, and an official of the Church. The court found, as the Human
Services Officer had, that defendant has a ninth-grade education and no
physical or mental infirmities that would prevent him from earning enough to
meet the monthly support obligation. The court acknowledged defendant's
claim that the Church does not sanction no-fault divorce and that working
outside the community would constitute a breach of faith, and found that his
beliefs were sincerely held. The court further found that defendant had
given up all his worldly possessions. For the purposes of its analysis, the
trial court accepted "at full face value" the proposition that defendant's
faith does not permit church members to earn an independent income.
Nevertheless, the court concluded that defendant is an otherwise able-
bodied individual, whose claim of incapacity arises from a conscious,
controllable choice to adhere to certain religious tenets. Therefore, the
court concluded, defendant has the ability to pay child support as "a matter
of law." It also noted that "[m]atters of religious belief, as a matter of
law, do not furnish an exemption from that ability [to pay]."
The court went on to find that the monthly support and arrearages were
valid and enforceable obligations, and that defendant had the present
ability to comply with the order. Defendant was held in contempt for his
willful failure to comply with the order. On September 9, 1993, defendant
was committed to the custody of the Commissioner of Corrections pending
payment of $640, approximately one-quarter of his total obligation as of
April 30, 1993. Defendant was released pending this appeal.
Defendant makes two interrelated claims, alleging violations of his
right to free exercise of religion under the United States and Vermont
constitutions. First, he contends that the support order is invalid because
the hearing officer and the family court erred in finding that he has the
ability to pay child support in any amount whatsoever. Second, defendant
contends that the family court should have considered alternatives to
contempt and incarceration to enforce the support order.
I.
We begin with defendant's claim regarding the validity of the support
order itself.
A.
The State of Vermont recognizes the general duty of child support on
the part of a parent: "The legislature . . . finds and declares as public
policy that parents have the responsibility to provide child support." 15
V.S.A. { 650. To promote this policy, the family court must order "either
or both parents . . . to pay an amount for the support of the child," id.
{ 658(a), which is allocated between the parents in proportion to their
respective incomes, id. { 656(a). However, in the case of the noncustodial
parent, the family court may depart from the presumed total support
obligation, as determined under the support guideline adopted under { 654.
If the noncustodial parent's gross income is less than
the lowest income figure in the support guideline . . .
or is less than the self-support reserve, the court
shall use its discretion to determine support using the
factors in section 659 of this title and shall require
payment of a nominal support amount.
Id. { 656(b) (emphasis added). This Court has noted in construing these
provisions that "it is clear that the Legislature . . . intended to require
at least a nominal child support award in all cases." Viskup v. Viskup, 150
Vt. 208, 210, 552 A.2d 400, 402 (1988).
In determining defendant's support obligation, the hearing officer
calculated a monthly gross income of $480 in accordance with the relevant
guidelines of 15 V.S.A. { 653(5):
"Gross income" means actual gross income of a parent.
Gross income shall include:
. . .
(B) expense reimbursements or in-kind payments
received by a parent in the course of employment or
self-employment or operation of a business if they
reduce personal living expenses;
(C) in its discretion, the court may consider as
gross income the difference between the amount a parent
is earning and the amount a parent has earned in cases
where the parent voluntarily becomes unemployed or
underemployed, unless the parent is physically or
mentally incapacitated.
15 V.S.A. { 653(5)(B), (C) (1989).(FN2) Of the $480, $180 was attributed to
{ 653(5)(B) in-kind payments, which must be included in gross income. The
hearing officer exercised discretion under { 653(5)(C) to include the
remaining $300 that defendant "could be receiving either through wages,
worker's compensation or disability payments."
Defendant contends that imputing the $300 as gross income was an abuse
of discretion, because his religious beliefs, not personal choice, bar him
from accepting state benefits or wages from employment outside the
community. Had this amount not been included, however, the mandatory
inclusion of in-kind payments still would have resulted in a monthly gross
income, for purposes of { 653, of $180. Since the hearing officer
determined that the $480 monthly income amount was less than the self-
support reserve defendant was entitled to under { 653(7), an income of $180
would also fall below this minimum maintenance level. In either case,
defendant has a gross income greater than zero but less than the self-
support reserve, which requires the court to exercise discretion,
considering the factors of { 659, in figuring a monthly support obligation.
See 15 V.S.A. { 656(b). Therefore, if the hearing officer erred in not
exercising discretion to exclude the income described in { 653(C), the error
is harmless.
Defendant also asserts that { 659 may be construed to exempt him from
the legal obligation to support his children. When defendant's child
support obligation was first computed, { 659(a) read, in relevant part:
The total support obligation shall be presumed to be
the amount of child support needed. If the court finds
that a child support order based on the support
guidelines would be inequitable, the court shall
establish support after considering all relevant
factors, including but not limited to:
(1) the guidelines for child support established
under section 654 of this title;
(2) the financial resources of the child;
(3) the financial resources of the custodial parent;
(4) the standard of living the child would have
enjoyed had the marital relationship not been
discontinued;
(5) the physical and emotional condition of the
child;
(6) the educational needs of the child;
(7) the financial resources and needs of the
noncustodial parent; and
(8) inflation with relation to the cost of living.
15 V.S.A. { 659(a) (1989) (emphasis added).(FN3)
Defendant argues that the language "all relevant factors, including but
not limited to," permits consideration of his ability to provide support in
light of his religious beliefs, and gives the family court discretionary
powers to relieve him of any support responsibility. We agree that the
plain language of the statute ensures flexibility in situations in which a
parent cannot meet the support amount suggested in the child support
guideline, and that the non-exclusive list of relevant factors would not
rule out consideration of religious beliefs in fixing the support amount.
Nevertheless, the plain language of the statutory scheme mandates at least a
nominal payment, notwithstanding the court's conclusions drawn from evidence
regarding the ability to meet a regular support obligation. See 15 V.S.A.
{ 656(b).
Defendant does not contest the amount of the support award, but the
fact that any payment at all was ordered. As a matter of fairness, the
family court may depart from the presumed child support obligation in cases
of hardship, but the Legislature has clearly required that SOME payment must
be made. Cf. Ainsworth v. Ainsworth, 154 Vt. 103, 109-12, 574 A.2d 772,
775-78 (1990) (court has narrow discretion under { 659 to depart from
guideline presumption). We cannot agree with defendant that the family
court has the discretion not to order any support obligation if, as in this
case, the parent has gross income as defined in { 653. Therefore, the order
must stand unless it impermissibly infringes upon defendant's constitutional
right to free exercise of religion.
B.
The First Amendment to the United States Constitution mandates that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. This
provision binds the states through the Due Process Clause of the Fourteenth
Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The Free
Exercise Clause precludes all "governmental regulation of beliefs as such."
Sherbert v. Verner, 374 U.S. 398, 402 (1963). Government may, however,
under certain circumstances, impinge on an individual's actions in accor-
dance with those beliefs in exercising the power to prescribe or proscribe
conduct. See, e.g., Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 890 (1990) (members of Native American Religion who smoked peyote
as part of ritual ceremony not exempt from general criminal ban on the
substance); United States v. Lee, 455 U.S. 252, 261 (1982) (Amish employer
must pay Social Security taxes despite religious prohibition against
participation in governmental support programs); Reynolds v. United States,
98 U.S. 145, 166-67 (1878) (no exemption for adherents of Mormon faith from
laws prohibiting polygamy).
Before Smith, no clear standard existed for determining whether
governmental interference with free exercise was legitimate. See Smith, 494 U.S. at 876-89 (discussing inconsistent use of strict scrutiny standard
promulgated in Sherbert v. Verner and other approaches to free exercise
cases); cf. Note, Smith and the Religious Freedom Restoration Act: An
Iconoclastic Assessment, 78 Va. L. Rev. 1407 (1992) (agreeing that no
standard consistently employed, but differing with some of Smith's
conclusions). The Supreme Court attempted to forge a uniform standard in
Smith, holding "that a law that is neutral and of general applicability need
not be justified by a compelling governmental interest even if the law has
the incidental effect of burdening a particular religious practice." Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217, 2226
(1993).
In response to Smith's "virtual elimination" of the mandate that
government justify burdening religious practice through neutral laws, the
United States Congress passed the Religious Freedom Restoration Act of
1993, P.L. 103-141, 107 Stat. 1488 (codified at 5 U.S.C. { 504; 42 U.S.C.
{{ 1988, 2000bb, 2000bb-1 to -4), explicitly overruling Smith. The Act's
stated purpose is "to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972) and to guarantee its application in all cases where free exercise of
religion is substantially burdened." 42 U.S.C { 2000bb(b)(1). The Act
provides that government "shall not substantially burden a person's
exercise of religion even if the burden results from a rule of general
applicability," unless the government demonstrates that burdening the person
(1) furthers a compelling governmental interest, and (2) advances that
interest in the least restrictive means possible. Id. { 2000bb-1(a),(b).
In short, the Act demands that all governmental action that substantially
interferes with the free exercise of religion be justified under a
traditional strict scrutiny analysis.(FN4)
The fact that the Act was passed in November 1993, after the entry of
the support and contempt orders at issue, does not prevent its application
in this case.(FN5) Section 6, entitled "Applicability," states that the Act
"applies to all Federal and State law, and the implementation of that law,
whether statutory or otherwise, and whether adopted before or after the
enactment of th[e] Act." Id. { 2000bb-3(a) (emphasis added). The statutory
language evinces clear congressional intent that the law apply retroactive-
ly. Thus, we conclude that the Religious Freedom Restoration Act controls
our analysis of defendant's free exercise claim under the federal constitu-
tion. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837
(1990) (act must be retroactively applied if congressional intent clear).
To assess the validity of the child support order, we must first make
the threshold determination of whether it substantially burdens defendant's
sincerely held beliefs. If so, we proceed to scrutinize the nature of the
State's interest and the means used to further that interest. Defendant
must show the burden on his religious practice. Abington Sch. Dist. v.
Schempp, 374 U.S. 203, 223 (1963). The State has the burden of proving its
actions are the least restrictive means of advancing a compelling interest.
42 U.S.C. {{ 2000bb-1(b), 2000bb-2(3).
At the contempt hearing, in which the court considered de novo the
question of ability to pay, defendant produced uncontested evidence of the
nature of his religious beliefs and life in the community. We emphasize
that matters of faith "need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment protection."
Thomas v. Review Bd. of Ind. Empl. Sec. Div., 450 U.S. 707, 714 (1981). It
follows that the court must accept at face value the asserted impact of
government action on an individual's free exercise of religion, provided the
beliefs are sincerely held. Lee, 455 U.S. at 257. In this case, the trial
court found that defendant is sincere in his religious devotion. The court
acknowledged defendant's claim that he cannot support his wife and family in
their lives outside the community, and that seeking employment outside the
community to meet a support obligation would be completely contrary to his
faith.
Nevertheless, the court concluded that a support obligation would
burden defendant only incidentally. Neither the evidence offered nor the
court's findings, however, support this conclusion. See V.R.C.P. 52(a);
Nickerson v. Nickerson, 158 Vt. 85, 88-89, 605 A.2d 1331, 1333 (1992)
("Findings of fact, from which conclusions of law flow, will not be set
aside unless clearly erroneous."). A state-imposed obligation that
indirectly compels defendant to risk significant penalties if he chooses to
adhere to his faith creates a substantial free exercise burden. Cf. Yoder,
406 U.S. at 218 (impact of compulsory school attendance law on Amish
religion "severe and inescapable" because of threat of criminal sanction).
In this case, to conclude otherwise unjustly denigrates the importance of
defendant's religious beliefs.
We proceed to consider the nature of the State's interest and the means
used to advance that interest. Unquestionably, the State has a significant
interest in promoting the health and welfare of children, which includes
ensuring that parents who have separated bear responsibility for support.
See 15 V.S.A. { 650. The support obligation seeks to provide the children
with stability by maintaining their accustomed standard of living, and to
lessen the drain on public resources caused by public assistance programs.
As a matter of social policy, the support obligation also fosters respon-
sibility in parents for their children. We conclude that parental support
of children is a compelling state interest.
The child support order is valid if the order to pay support is the
least restrictive means to further the state interest. 42 U.S.C. { 2000bb-
1(b)(2). The evidence is undisputed that the State requested that defendant
voluntarily assume his portion of the total support responsibility, and that
defendant refused for the same religious reasons he contends render him
unable to meet any payment obligations. Leaving aside the question of
arrearages, defendant's lack of custody of his son (FN6) prevents defendant
from providing for him in the future in accordance with the tenets of his
faith.
Vermont has no other established means for the State to require
parents to meet their support obligations. Lacking any other practical
means to impose the support obligation, a court order is the least
restrictive means to establish such an obligation to further the State's
interest in child support.
We conclude, then, that the order was legitimately imposed, despite the
fact that it burdens defendant's free exercise of religion by saddling him
with a legally enforceable obligation to support his children outside of
marriage and the Church community. The order represents the least re-
strictive means for the State to further a paramount interest in having
parents recognize their obligation to provide material support for their
children. Therefore, the order does not offend defendant's right to free
exercise under the First Amendment to the United States Constitution.
C.
This does not end our scrutiny of the order, however, because defendant
also claims that its imposition violates his rights under Chapter I, Article
3 of the Vermont Constitution. In relevant part, Article 3 establishes:
That all men have a natural and unalienable right, to
worship Almighty God, according to the dictates of their
own consciences and understandings, as in their opinion
shall be regulated by the word of God; . . . and that no
authority can, or ought to be vested in, or assumed by,
any power whatever, that shall in any case interfere
with, or in any manner control the rights of conscience,
in the free exercise of religious worship.
Vt. Const., ch. I, art. 3. We bear in mind that First Amendment restric-
tions on the State preclude a construction of Article 3 that would afford an
individual less protection of the right to free exercise of religion than
that guaranteed under the federal constitution. See In re E.T.C., 141 Vt.
375, 378, 449 A.2d 937, 939 (1982). Of course, the state constitution may
afford greater protections to this right. See State v. Badger, 141 Vt. 430,
449, 450 A.2d 336, 347 (1982). But in light of the Religious Freedom
Restoration Act, greater protection under the state charter would require
even greater obstacles to state action than those raised by the strict
scrutiny test.
Though this court has had few opportunities to construe the Article 3
guarantee, we find one of the more recent cases, State v. DeLaBruere, 154
Vt. 237, 577 A.2d 254 (1990), particularly instructive for its comprehensive
analysis of Vermont's free exercise provision. DeLaBruere concerned a free
exercise challenge under the state and federal constitutions to the State's
compulsory education law. The defendants had supported their claim for
greater state constitutional protection with a variety of interpretational
approaches: historical analysis, examination of the text, other states'
interpretations of similar provisions in their own constitutions, and
sociological materials. Id. at 262-63, 577 A.2d at 268. We concluded "that
at least with respect to the claims made in this case, we can find no basis
for the argument that the Vermont Constitution affords additional
protection to defendants." Id. at 265, 577 A.2d at 270. Though DeLaBruere
was decided before the promulgation of the Religious Freedom Restoration
Act, this conclusion endures, because the First Amendment analysis in that
case essentially duplicates the strict scrutiny standard now mandated under
the Act for free exercise claims. See id. at 249, 577 A.2d at 261.
Based on DeLaBruere, we see no principled basis to say that the
Vermont Constitution offers greater protection for a free exercise claim
such as defendant's than the strict scrutiny standard at issue. An
examination of the relevant case law revealed Article 3 to be more an anti-
discrimination provision, adopted by a people whose "'militant sense of
freedom . . . was somewhat reserved in expression of religious liberty.'"
Id. at 264, 577 A.2d at 269 (quoting Swart v. South Burlington Town Sch.
Dist., 122 Vt. 177, 182, 167 A.2d 514, 517, cert. denied, 366 U.S. 925
(1961)). In addition, an examination of relevant decisions from other
states' constructions of their own free exercise provisions revealed that,
almost without exception, none offered more protection to religious practice
than that required by strict scrutiny. See id. at 266-69, 577 A.2d at 270-
72.
Defendant fails to offer, and we have not discovered, reason to
construe Article 3 to provide any greater protection than that afforded by
strict scrutiny. See Varnum v. Varnum, 155 Vt. 376, 381-87, 586 A.2d 1107,
1110-13 (1990) (post-DeLaBruere case with no analysis, separate and distinct
from First Amendment, of Article 3 claim that family court violated mother's
free exercise rights by factoring religious beliefs and practices into child
custody determination). As evidence that Article 3 guarantees greater
deference to religious liberty, defendant points to Beauregard v. City of
St. Albans, in which this Court found "mere interference" with free exercise
sufficient to invalidate a will provision that restricted the religious
affiliation of members of a public school board. 141 Vt. 624, 632, 450 A.2d 1148, 1152 (1982). But in DeLaBruere we scrutinized Beauregard and
concluded that despite its broad pronouncement, the decision lacked real
analysis and "fell squarely within the anti-discrimination construction of
Article 3." DeLaBruere, 154 Vt. at 265, 577 A.2d at 270.
Therefore, in the context of a free exercise challenge founded on an
order to pay child support, we hold that Chapter I, Article 3 of the Vermont
Constitution protects religious liberty to the same extent that the
Religious Freedom Restoration Act restricts governmental interference with
free exercise under the United States Constitution. As a result, the court
order to pay child support, valid under the First Amendment, also withstands
scrutiny under the Vermont Constitution.
II.
In contrast to the support order, the contempt order does not stand up
to scrutiny under either the federal or state constitution, because the
order has not been shown to be the least restrictive means of furthering the
State's interest in parents supporting their children.
A.
Under 15 V.S.A. { 603, "[a] person who disobeys a lawful order or
decree of a court or judge . . . may be proceeded against for contempt."
Upon determining that the subject of a valid, enforceable order is capable
of complying but refuses to do so, the family court may exercise its
discretion to impose sanctions for contempt. See Andrews v. Andrews, 134
Vt. 47, 49, 349 A.2d 239, 241 (1975). In cases of noncompliance due to a
claimed financial inability, the court must find a present ability to pay
before the defendant may be found in contempt. Steele v. Steele, 142 Vt.
112, 114, 453 A.2d 400, 401 (1982). Ordinarily, use of the contempt power
is subject to review only for an abuse of discretion. Brown v. Brown, 140
Vt. 56, 58, 435 A.2d 949, 951 (1981).
In this case, defendant contends he failed to comply with the support
order because of financial inability -- that his religious beliefs preclude
him from personal ownership of property or employment outside the community.
As part of the contempt proceeding, the trial court conducted a de novo
hearing on defendant's ability to meet the child support obligation, both
at the time of the contempt hearing and at the time the original support
order was entered. Conceding the sincerity of defendant's religious
beliefs, the court found that nothing other than those beliefs prevented him
from earning enough, either at the time the order was originally imposed or
at the time of the contempt hearing, to meet a support obligation.
Concluding that defendant, capable of compliance, had willfully failed to
comply with a valid court order, the court found him in contempt and ordered
incarceration.
Defendant contends that the contempt order and subsequent incarceration
violated his free exercise rights. To assess the merit of his claim under
the First Amendment, we again employ the framework of the Religious Freedom
Restoration Act: the State may substantially burden defendant's religious
liberty only after demonstrating that its actions with regard to defendant
are the least restrictive means of advancing a compelling state interest.
42 U.S.C. { 2000bb-1(b).
The argument regarding enforcement differs from that regarding
imposition of the original support obligation. Defendant's objection to the
support obligation, which is distinct from how that obligation is enforced,
proceeds from the Church's proscription of no-fault divorce. There is no
evidence that the obligation per se offends any other tenet of his faith.
The State's manner of enforcement, however, compelled defendant to choose
between jail time and violation of another religious belief: that he not
earn an independent income outside the Church community. Either option
would result in defendant's separation from the community. Therefore, the
order and possibility of incarceration substantially burdened defendant's
free exercise of religion.
Enforcement of child support orders furthers the same policies promoted
by imposition of the original obligation. As noted above, the State has a
compelling interest in securing support for children from parents no longer
sharing the same household. Contempt and incarceration represent means of
furthering that interest, but the Religious Freedom Restoration Act puts the
burden upon the State to show that they are the means least restrictive of
defendant's religious freedom.
In the contempt hearing, the State offered no evidence that it was
pursuing the least restrictive alternative. Essentially, the State sought a
harsh sanction in a case of imputed income. At oral argument before this
Court, counsel for OCS acknowledged that his office exercises considerable
discretion in pursuing delinquent obligors. OCS generally follows up on
cases with a "reasonable possibility" of successful collection -- generally,
not delinquent obligors without assets or employment. The State has failed
to establish that contempt and jail are the least restrictive means to
further the State's compelling interest in enforcing the child support
obligation. Contempt and incarceration are not, per se, impermissible
infringements on free exercise, and may be imposed provided the State makes
the requisite showing as mandated by the Religious Freedom Restoration Act.
In this case, however, the State has failed to make this showing, and
therefore the contempt order impermissibly burdens defendant's free exercise
rights as guaranteed by the federal constitution.
III.
In summary, we hold that the child support order, though a substantial
burden on defendant's rights to free exercise of religion under the United
States and Vermont constitutions, is the least restrictive means of
furthering a compelling governmental interest. The contempt order, however,
must be vacated because the State has not demonstrated that contempt and
incarceration are the means to enforce the support order least restrictive
of defendant's free exercise rights under the United States Constitution.
The order of the Human Services Officer imposing a monthly support
obligation and requiring payment of arrearages is affirmed. The order of
the family court finding defendant in contempt is vacated and the matter is
remanded for a hearing as to the least restrictive means to enforce
defendant's support obligation.
FOR THE COURT:
_____________________________
Chief Justice
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Footnotes
FN1. In May 1990, defendant filed a notice of appeal from the hearing
officer's decision with the Human Services Board, but no further action was
taken because plaintiff had filed for divorce. In the interim, the Board
was divested of jurisdiction in support cases. See 4 V.S.A. { 454(1)
(family court has exclusive jurisdiction over support proceedings for all
cases filed or pending on or after October 1, 1990).
FN2. Section 653(5) was substantially amended, effective October 1, 1990.
FN3. Section 659(a) was amended, effective October 1, 1990:
The total support obligation shall be presumed to be the
amount of child support needed. Upon request of a party, the
court shall consider the following factors in respect to both
parents. If, after consideration of these factors, the court
finds that application of the guidelines is unfair to the child
or to any of the parties, the court may adjust the amount of child
support:
(1) The financial resources of the child.
(2) The financial resources of the custodial parent.
(3) The standard of living the child would have enjoyed had
the marital relationship not been discontinued.
(4) The physical and emotional condition of the child.
(5) The educational needs of the child.
(6) The financial resources and needs of the noncustodial
parent.
(7) Inflation.
(8) The costs of meeting the educational needs of either
parent, if the costs are incurred for the purpose of increasing
the earning capacity of the parent.
(9) Extraordinary travel expenses incurred in exercising
the right to periods of visitation or parent-child contact.
(10) Any other factors the court finds relevant.
FN4. In overruling Smith and re-establishing the strict scrutiny
standard as the touchstone for permissible governmental interference with
free exercise rights, Congress has construed the Free Exercise Clause of the
United States Constitution. Thus, though a federal law guides our
analysis, because the Act defines the meaning of the federal constitution
our resolution of this case rests on a constitutional as well as statutory
basis. We express no opinion on the constitutionality of the Act.
FN5. The effect of the Religious Freedom Restoration Act was not
addressed in the briefs, because it became law after they were submitted to
this Court. The parties were given the opportunity to review their
positions in light of its requirements. Defendant agrees with the
retroactive applicability of the Act; the State contends, contrary to our
conclusion, that the Act may be applied only prospectively.
FN6. Of the three children, only the youngest is still a minor. The
court may not order support payments after a child has attained the age of
majority or has terminated secondary education, whichever is later. 15
V.S.A. { 658(c).
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Concurring and Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 93-424
Linda Lee Hunt Supreme Court
On Appeal from
v. Essex Family Court
Eugene Earl Hunt December Term, 1993
Alan W. Cook, J.
Jeffrey L. Martin, Office of Child Support, Waterbury, for plaintiff-
appellee
Jean A. Swantko, Island Pond, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
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 garnishment, given the broad definition of
"wages" in 15 V.S.A. { 780(9), or trustee process. The sanction of impris-
onment for contempt is the most drastic remedy and its imposition is an
abuse of discretion if alternative effective remedies are reasonably avail-
able. 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.
__________________________________
James L. Morse, Associate Justice
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Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 93-424
Linda Lee Hunt Supreme Court
On Appeal from
v. Essex Family Court
Eugene Earl Hunt December Term, 1993
Alan W. Cook, J.
Jeffrey L. Martin, Waterbury, for appellee Office of Child Support, Agency
of Human Services
Jean A. Swantko, Island Pond, for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J., dissenting. I do not believe that the order to pay child
support in this case can stand consistent with the First Amendment as
interpreted by the Religious Freedom Restoration Act of 1993. Two factors
are critical to my view.
First, the real source of the controversy is the communal living
arrangement required by the Northeast Kingdom Community Church. Defendant
works as a cobbler and salesman in the church cobbler shop. All income from
his work effort goes directly to the church and, in turn, all of his needs
are met by the church. Defendant has no individual income or assets. This
communal living arrangement is commanded by church doctrine; defendant
cannot be a church member without residing in the church community and
participating in its economy.
Second, the issue is whether defendant can be required to pay a nominal
amount of child support even though the guideline calculation would
otherwise exempt him. Under our guideline system, an obligor spouse is
assigned a "self-support reserve," which is "an amount sufficient to
provide a reasonable subsistence compatible with decency and health." 15
V.S.A. { 653(7). The point of the self-support reserve is that it
represents an income floor beneath which the obligor should not be taken in
order to pay child support. Thus, when the obligor's income is above the
self-support reserve, but a support order calculated under the guidelines
would leave the obligor with income below the self-support reserve, the
support amount is presumed to be the difference between the obligor's income
and the self-support reserve. See id. { 656(c). This rule leaves the
obligor the amount of the reserve to meet his or her own needs. When the
obligor's income starts out below the self-support reserve, the policy is
essentially the same except that the court must "require payment of a
nominal support amount." Id. { 656(b).
Although the requirement of at least a nominal payment is
understandable, it has the perverse effect of leaving the lowest income
obligor with a smaller income than that retained by an obligor with an
income slightly above the guidelines. In this case, it also creates a
constitutional conflict. Defendant has no cash income, so he is well below
the self-support reserve. The trial courts imputed income to defendant
because he has the employment history and current skills that would allow
him to work and support his children outside the church. They also noted
that defendant's individual income tax returns reflected income of $2,300
per year, which represented that portion of total church income assigned by
the church to defendant. Even after income imputation, however, defendant's
income falls below the self-support reserve.
As the majority recognizes, the purpose of the Religious Freedom
Restoration Act was to restore the compelling interest test as set forth in
Sherbert v. Verner, 374 U.S. 398, 403 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). Sherbert noted that "a rational relationship to some
colorable state interest" is insufficient; instead, "'[o]nly the gravest
abuses, endangering paramount interests, give occasion for permissible
limitation.'" Sherbert, 374 U.S. at 406 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). Yoder explained that "only those interests of the
highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion." Yoder, 406 U.S. at 215.
I emphatically agree with the majority about the importance of child
support obligations and requiring that parents honor them. Therefore, I
would ordinarily find that child support laws further a compelling
governmental interest. In this case, however, we have a clash of principles
with virtually no economic or social substance. The sole policy in issue
requires every parent with a child support obligation, no matter how low his
or her income, to pay at least a small amount of child support to maintain
that sense of obligation. I support that policy, but I can not accept that
it involves a "paramount" state interest or an "interest "of the highest
order." The very nature of First Amendment balancing requires us to be
discerning about the interests involved and the methods employed. See
Yoder, 406 U.S. at 221 (when Amish refused to send children to public school
beyond the eighth grade, Court could not accept "sweeping claim" of
compelling interest in compulsory education; Court must "searchingly
examine" state interest in policy in dispute). The symbolism of a
"nominal" child support order does not rise to the level of state interest
necessary to substantially burden a parent's free exercise of religion.
In evaluating the state interest involved here, it is instructive how
the issue of nominal payment is handled in the federal child support
enforcement scheme and in the other states, which like Vermont have adopted
child support guidelines. Pursuant to the Family Support Act of 1988,
states are required to adopt child support guidelines and adopt a rebuttable
presumption that in each individual case the amount of child support ordered
will be based on the guidelines. See 42 U.S.C. { 667 (1988); 45 C.F.R. {
302.56 (1993). There is no requirement in federal law that courts order at
least a nominal amount of support in every case, no matter how low the
income and resources of the obligor parent. Although I do not have an exact
count, the reported decisions suggest that unlike Vermont, most states do
not require very low income obligors to pay child support. See Hannah v.
Hannah, 582 So. 2d 1125, 1126 (Ala. Civ. App. 1991) (when noncustodial
parent has no ability to pay, it is improper to order parent to pay child
support); Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. Ct. App. 1991)
(absent finding of bad faith, trial court cannot order child support
against parent unable to pay because of unemployment); State ex rel. Wilcox
v. Strand, 442 N.W.2d 256, 258 (S.D. 1989) (upholding refusal of trial court
to order child support against parent because of parent's limited ability to
pay); Glenn v. Glenn, 848 P.2d 819, 822 (Wyo. 1993) (incarcerated parent
without income or assets not subject to child support order). The different
attitudes on obtaining support orders in every case is demonstrated by
Wilcox, in which an attempt by the state to obtain an order against a parent
because she was capable of working but was voluntarily unemployed brought a
hostile reaction from the court: "[t]he burden on the judicial caseload
enhanced by this sort of action and appeal is not appreciated." Wilcox, 442 N.W.2d at 258.
Although the parties have not raised this point, there is a serious
question whether Vermont's requirement for a support order from every non-
custodial parent is consistent with the federal requirement that guidelines
take into consideration the income of the absent parent and operate as
rebuttable presumptions. See 42 U.S.C. { 667(b)(2). The issue was
litigated in New York, which by statute requires an award of at least $25
per month per child, and the New York Court of Appeals struck down the
nominal amount requirement as inconsistent with federal law. See Rose v.
Moody, 629 N.E.2d 378, 381, 607 N.Y.S.2d 906, 909 (N.Y. 1993), cert. denied,
114 S. Ct. 1837 (1994). The Court reasoned, "For a judicial decree to
declare that [the parent] . . . owes what she cannot realistically or
legally pay is not only unjust and inappropriate, it is a legal pretense."
Id. Thus, the nominal-amount provision violated the federal requirement
that the obligor be able to rebut the guideline amount when he or she can
show that application of the guidelines would be "unjust or inappropriate"
in a particular case. Id.
I think it ironic that a policy the New York Court of Appeals found not
to be legally sustainable is found by this Court to involve a compelling
state interest that overrides a claim of religious liberty. Whether the New
York Court is right or wrong, it is clear that we can reach the majority's
result only by accepting that virtually any state interest is sufficient to
trump a religious liberty claim under the Sherbert and Yoder decisions. The
Religious Freedom Restoration Act plainly demands more than this lip-service
tribute to the free exercise of religion.
Even if I agreed that a child support order in this case advanced a
compelling state interest, I cannot agree that it advances the "interest in
the least restrictive means possible." Whatever income is earned from
defendant's labor is retained by the church. In an economic sense, the
church is defendant's employer. By requiring wage withholding in most child
support cases involving employed obligors, 15 V.S.A. { 781(a), the State has
found that employers have an obligation to help create a workable system of
child support enforcement. I see no reason why the State could not
legislate that the income that flows to the church from defendant's labor is
encumbered by defendant's obligation of support. Thus, the payment
obligation would be placed on the church, which has the income and assets
from which collection is achievable. This obligation is no different from
those placed on the church by taxation or Social Security laws with which it
must comply. See, e.g., Jimmy Swaggart Ministries v. Board of Equalization,
493 U.S. 378, 392 (1990).
Although the majority is remanding to determine whether there is a less
alternative than contempt, there is no indication of an alternative under
present law. Thus, it is highly likely, if not inevitable, that we will
again imprison defendant in an attempt to make him pay what he does not
have. The real dispute here is between the State and the church, and I do
not believe that we are justified in holding a church member hostage to
this dispute. If the State is correct that its interests are so fundamental
that they must be enforced in these circumstances, this Court should insist
that they be enforced directly against the church that retains the income in
issue.
For the above reasons I would hold that the nominal support payment
order can not be enforced against defendant consistent with his right to
free exercise of religion. I dissent.
_____________________________
Associate Justice
