NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
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before this opinion goes to press.


                                             

                                            No. 2017-402

Nicola Weaver                                                     Supreme Court

                                                                  On Appeal from
   v.                                                             Superior Court, Addison Unit,
                                                                  Family Division

David Weaver                                                      April Term, 2018


Helen M. Toor, J.

Nicola Weaver, Pro Se, North Ferrisburgh, Plaintiff-Appellant.

Wanda Otero-Weaver, Lincoln, for Defendant-Appellee.


PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and Grearson, Supr. J.,
         Specially Assigned


        ¶ 1.   SKOGLUND, J.          Mother appeals an order of the family court holding her in

contempt for willful failure to comply with a ruling that placed the parties’ minor son in his father’s

physical custody and temporarily suspended mother’s contact with the child. We affirm the

contempt order, but remand the matter for the family court to consider whether father’s attorney,

who is also his wife, should be disqualified from further representing father in this case.

        ¶ 2.   In May 2017, the court temporarily suspended all contact between mother and the

parties’ son N.W., who was then sixteen years old, after mother repeatedly violated prior parent-

child contact orders issued by the court that gave father legal and physical rights and

responsibilities for N.W.1 Despite the order, N.W. remained at mother’s home. Father moved to


        1
        We recently affirmed the May 2017 order in Weaver v. Weaver, 

, __Vt.__,
__A.3d__. A detailed history of the parties’ custody dispute is set forth in that decision.
hold mother in contempt. See 15 V.S.A. § 603(a); Wells v. Wells, 

, 6, 

,

1043 (1988) (noting “obstruction of court-ordered visitation can be redressed by means of

contempt proceedings”). Following a hearing, the court found mother in contempt for willfully

failing to comply with the May 2017 order. It ordered mother to pay $100 for each day that N.W.

remained at mother’s home after October 31, 2017. The court stated that the fine was intended to

compensate father for lost contact with his son. It therefore permitted father to deduct any fines

incurred from his maintenance payments to mother.2 Mother appealed.

       ¶ 3.    We review an order of contempt solely for abuse of discretion. Hunt v. Hunt, 

, 436, 

, 853 (1994). We find none here. The family court found by clear and

convincing evidence that mother had willfully violated the May 2017 order by failing to do

anything to ensure that N.W. lived with father. Instead of complying with the order, she wrote to

the parties’ three older sons to ask them to intervene in the dispute, telling them that father was

trying to make them homeless, lying about her in court, and bullying and abusing N.W. She also

attempted to sign school forms for N.W. that she had no right to sign, threatened to ruin the

reputations of father and his wife in the community, told father to “enjoy your piece of paper”

when the May 2017 order was issued, and said that he would never come between her and her

sons. Although mother wrote to father that she could not force N.W. to go to father’s and that she

was going to call the police to have them take N.W. to father’s home, there was no evidence that

she ever did so. The court found that she was “merely making a record and bluffing.” The record

supports these findings, and the findings in turn support the court’s conclusion that mother




       2
          The amount of father’s maintenance obligation has been the subject of three prior appeals
to this Court. Weaver v. Weaver, No. 2017-414, 

(Vt. May 4, 2018) (unpub.
mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo17-414.pdf
[https://perma.cc/9GHU-MRKA]; Weaver v. Weaver, 

, __Vt.__, 

;
Weaver v. Weaver, No. 2015-326, 

(Vt. Feb. 11, 2016) (unpub. mem.),
https://www.vermontjudiciary.org/sites/default/files/documents/eo15-326.pdf
[https://perma.cc/V3TB-NBCH].
                                                2
willfully violated the parent-child contact order.3 See 15 V.S.A. § 603(f)(3) (providing that

violation of court order is willful if person “had the ability to comply with the order and failed to

do so”).

       ¶ 4.    Moreover, the court did not exceed its discretion by ordering mother to pay a

compensatory fine to father. Such a sanction is expressly permitted by law. See V.R.F.P. 16(c)(3)

(providing that person found in contempt may be ordered to pay fine to aggrieved party to

compensate for loss or injury caused by contemnor). While “purely prospective fines are not

favored in Vermont,” we have upheld the imposition of prospective civil contempt fines when

necessary to compensate complainants or as a coercive sanction. Vt. Women’s Health Ctr. v.

Operation Rescue, 

, 151, 

, 417 (1992). The record supports the family

court’s determination that prospective fines were warranted by the “extreme and extraordinary”

circumstances of this case, namely, mother’s continual and unrepentant disregard of the court’s

custody orders and by extension, her son’s best interests, and the resulting harm to father’s

relationship with N.W. The sanction was not impermissibly punitive because mother could avoid

the fines by complying with the May 2017 order and returning N.W. to his father. See DeGrace

v. DeGrace, 

, 471, 

, 991 (1986) (affirming $10,000 fine imposed by court

for father’s contempt in interfering with visitation rights; fine was not punitive sanction because it

was reducible to judgment only if father failed to comply with visitation rights in future). Nor was



       3
          We do not find Hancock v. Hancock, 

, 420 (N.C. Ct. App. 1996), the case
cited by mother in her brief, to be persuasive. In Hancock, North Carolina’s intermediate appellate
court reversed a trial court decision holding a mother in contempt for interfering with the father’s
visitation with the parties’ minor child because the evidence showed that the mother had prepared
the child to go, encouraged the child to visit his father, and told him that he had to go, but the child
“simply refused.” 

The court held that the mother’s actions did not rise to the level of
willful contempt of the visitation order where she “did everything possible short of using physical
force or a threat of punishment to make the child go with his father.” 

contrast, there
was no evidence of any efforts by mother to get N.W. to comply with the parent-child contact
schedule. Rather, mother has repeatedly told her children that father is trying to make them
homeless and that he only sought custody of N.W. to reduce his child support obligations and to
get tax deductions. Having deliberately alienated N.W. from father, she cannot now use N.W.’s
alleged refusal to see father as a shield in this contempt proceeding.
                                                    3
it improper for the court to order that any fines accrued by mother be offset from father’s

maintenance obligation; the court has discretion to impose the equitable remedy of setoff in such

situations. See Schwartz v. Haas, 

, 

, 1191 (1999) (mem.) (holding that

family court appropriately ordered $50,000 sum owed by wife for wrongfully diverting assets from

marital estate to be offset from husband’s maintenance obligation in order to avoid multiplicity of

actions); cf. Weaver, 

, ¶ 42 (holding that family court may not offset maintenance

overpayment against either past or future child support obligations).

       ¶ 5.    While we affirm the contempt ruling, we remand the matter for the family court to

consider whether father’s wife should be disqualified from further representing him in this case

because her continued involvement may run afoul of at least two ethical rules.4 Under Vermont

Rule of Professional Conduct 3.7, a lawyer is generally prohibited from acting “as advocate at a

trial in which the lawyer is likely to be a necessary witness.” V.R.Pr.C. 3.7(a); Lumbra v. Lumbra,

, 533, 

, 1142 (1978) (“A lawyer is prevented by ethical considerations

from testifying in his client’s cause.”); see also Kennedy v. Eldridge, 

, 555

(Ct. App. 2011) (affirming trial court’s disqualification of paternal grandfather, an attorney, from

representing father in child custody proceedings against mother where grandfather was likely to

be fact witness). The record shows that father’s attorney is intimately involved in the parties’

dispute, raising the question of whether she has crossed the line from advocacy to testimony in



       4
           Mother, who is not represented by counsel, has not filed a formal motion to disqualify
father’s attorney. However, mother has repeatedly asserted that father’s attorney has a conflict of
interest because she is N.W.’s stepmother. We expressed our concern with the situation in a
previous decision. See Weaver, 

, ¶ 4 n.2. Having reviewed the record for a second
time, we find it necessary to direct the trial court to address the issue.

        We also note that while courts are guided by the Vermont Rules of Professional Conduct
in considering disqualification questions, courts may “bring to bear considerations beyond those
applicable in a disciplinary proceeding, and . . . are not bound by the requirements of those rules
in the disciplinary context.” In re L.H., 

, ¶ 16, __Vt.__, __A.3d__. Thus, the fact that
disqualification of father’s attorney may be required does not automatically mean that the attorney
has violated the Rules of Professional Conduct or should be subject to discipline for an ethics
violation. See 

n.6.
                                                   4
some of her written and oral statements to the family court. Furthermore, Rule 1.8 prohibits an

attorney from acquiring a proprietary interest in the cause of action. See V.R.Pr.C. 1.8(i) (“A

lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation

the lawyer is conducting for a client . . . .”). Mother has argued, not unreasonably, that father’s

attorney has a direct financial interest in the outcome of the parties’ disputes over custody and

maintenance because it will affect her household income. See Weaver, 

, ¶ 36 (holding

that trial court erred by preventing mother from discovering father’s wife’s income where father

and wife lived together and shared household expenses because information was plainly relevant

to father’s ability to pay maintenance); Attorney Grievance Comm’n of Md. v. O’Leary, 

, 1134 (Md. 2013) (disbarring attorney for, inter alia, violating Rule 1.8(i) by representing

husband in divorce proceeding where attorney had proprietary interest in amount of husband’s

child support obligation because she and husband shared all household expenses including

payment of support).

       ¶ 6.    Although the record raises concerns about father’s wife’s representation of him, we

decline to decide the issue for the first time on appeal. As we have recognized in the past,

disqualification questions are inherently fact-specific, and further development of the record may

be necessary. See Cody v. Cody, 

, ¶ 16, 

, 

. We therefore

remand the matter to the trial court for it to consider, after giving the parties an opportunity to

address the issue, whether to exercise its discretion to disqualify father’s attorney.

        The family court’s October 24, 2017 order holding mother in contempt is affirmed, and the
matter is remanded for the court to consider whether father’s attorney should be disqualified from
representing father in this proceeding.

                                                 FOR THE COURT:



                                                 Associate Justice




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