one of the conclusions from the investigation of the enormous's sinking was the rudder, the device that steers a deliver, was too small. The deliver couldn't exchange path fast enough to get out of the way of the iceberg. now not the only, or primary element within the tragedy, however a major contributing thing.

How prepared is your enterprise to change guidelines when threat, or tragedy, is looming? every business will face challenges on the way to make its proprietor need to consider or without a doubt alternate course.

here are a number of the conditions we are facing today that may cause us to trade path:

worry of a recession because of slow downs in elements of the economy.
No responding to the changing conditions of economic realities--like the rise of China and India as the quickly to be international economic powers.
The predominant changes in the economic, banking and real property markets. these three sectors will see major modifications within the way they're each regulated and function.
viable political shifts-an election year with a perceived horrific economy may additionally purpose a shift in economic polity. If we get a one celebration majority in the Oval workplace and Congress welcome to the countrywide version of Taxachussets. trace--to organized for that feasible alternate examine, or re-examine, "Atlas Shrugged" by means of Ayn Rand.
Even greater competition from the begin up of recent organizations--primarily by displaced personnel--and larger corporations increasing into your local markets.
generation adjustments that can render your product or service vain. assume type writers and rotary dial phones.
huge government and private debt, combined with fear of an monetary sluggish down and whole sectors of producing jobs shifting to--you guessed it--India and China.
any one or a aggregate of them is going to motive you to reconsider the course of your business. inside the occasion something occurs is your business ready to make modifications in strategy and approaches?

right here are eight warning symptoms your enterprise rudder is to small and no longer able to fast alternate path whilst wished:

no longer following trends in your field or enterprise. not choosing your head up to "see how your waters have grown."
A slavish recognition of enterprise norms.
now not actively seeking out new markets or programs on your services or products.
Too little, or no courting together with your current customers, clients or sufferers.
Spending way too much time operating on obstacles of access into your industry or field.
No goal advertising and no longer looking for new niches.
No deliberate movement to find sources of new thoughts--newsletters, networking outdoor your subject or exposure to mastermind organizations--even maintaining an concept report.
enterprise and Self assist books at the shelf without a cracks on the binding. Even worse--no books on the shelf!
Your business is your ship. make certain you may trade instructions as markets and situations warrant. in case you can't, the case study in your company or practice's death will list to small a rudder as a prime contributing element.

How a lot of you're taking the same way to work each day? Come on, boost your hand. Did you raise your hand? the general public people usually do. So inform me, what would your response be in case you suddenly had, for a break up 2nd, the notion of going a exclusive way? "Oh no, I can not try this"!

that's what I thought. you notice, we all stay with the mind of being in our comfort area and if we had been to do some thing out of our perceived ordinary habitual, we feel as though some thing awful will manifest to us. The fact is that habitual has been instilled in us from an early age and there isn't something wrong with recurring. nicely, not anything wrong, till our recurring keeps us from getting in which we need to head and while we need to get there. there may be nothing incorrect with recurring, except it is maintaining you from what you need. Do  what you want and where you want to go?

converting direction takes a variety of courage as we are now travelling into the unknown. How will your life exchange from this? would it not be all that terrible? ought to there likely be some precise in converting direction? You guess there's! converting path opens our eyes, mind and heart to opportunities with a view to enrich our lives. changing course offers you the possibility to discover new things approximately yourself in addition to see the beauty of others. Open your eyes and your thoughts to the possibilities.

So how do you realize while is the proper time to exchange course?

We don't, however if you take a moment to sit again and reflect onconsideration on your lifestyles, you can have already replied that question for yourself. wherein have you ever been, in which are you now and where do you want to be? perhaps you lately misplaced a job or don't sense you have got what you idea you will have had through now. perhaps you had a health setback that kept you from some thing you was hoping for. For all and sundry, the timing to alternate route is as simple as trying greater out of existence and also you trying to start as quickly as feasible. Is it ever the proper time for any alternate of route? Why else do you suspect changing path may be so difficult? you can make the change in course in case you truely want to.

Now you will be asking, "How do I change guidelines to get in which I need to be?"

Ask yourself how did you get in which you are these days, however don't consciousness on the past as tons as focusing on the destiny. After you have figured out how you got in which you're, use that as the idea to changing direction and transferring toward in which you want to be. all of us have made alternatives and choices that are becoming us wherein we're. some had been top selections and some had been terrible selections. it's referred to as life, however in case you take a second to recognize that your beyond alternatives and choices are experience, you can analyze from the ones reports and alternate path pretty effortlessly.

There are endless blessings to converting direction.

There are countless possibilities to enhance your lifestyles by way of the places you go, the people you meet and your new manner of questioning. sure, you will consider so much greater with each trade of route you're making. it is your existence to do with, what you want. Will you agree for the equal ho hum course or will you challenge yourself to make a change of route and attain the rewards for doing so? most effective you recognize for positive. What I realize for certain about me is that nothing modifications unless I determine to trade it. The equal is going for you. Make that change of direction nowadays as you will be glad you probably did!

Umm, a different kind of vested. 

Collins v. Collins, 2017 VT 70

By Andrew Delaney

You might notice this case is over a year old. It happens we have a backlog. We can always use more writers. If you’re interested in joining our merry band, email me. A sense of humor and a basic grasp of the English language are the only requirements.

This case is about the effect a third party changing trust beneficiaries around can have on a property division in a divorce. The parties were married for about 30 years. The primary marital asset was the home. There was a vested inheritance of about $4K on wife’s side and wife owed $16K on a student loan for the parties’ son. All that is background.

Husband’s parents established a revocable trust about twenty years back (we like to round the numbers ‘round here). Parents put their real estate in the trust, named themselves as trustees and made husband the sole beneficiary. Husband would become successor trustee upon parents’ incapacity. Upon both parents’ death, the trust would become irrevocable and be distributed to the beneficiary. There was also a $38K CD in the trust that the parties used to secure a $38K loan for themselves.

Husband’s dad moved in in 2011 after husband’s mom died. The parties split in 2014 and husband filed for divorce. Dad got moved to a nursing home.

There was a January 2015 status conference where the parties discussed the significance of this case and the Legislature’s amendment of the property settlement statute in response. Here’s the 10-second version if you don’t want to parse through it yourself. In 2011, SCOV held that inheritances are pretty danged close to a sure thing and can be considered in the trial court’s property distribution. The Legislature then amended the property settlement to say that inheritances don’t get factored in unless they’re vested.

So, in February 2015, husband’s dad—with an attorney’s help—amended the trust and made the parties’ adult son the sole beneficiary.

Wife served subpoenas for production of medical records and testimony on husband’s dad. Husband moved to quash, and then a lawyer stepped in for dad and also moved to quash the subpoenas. The trial court took some testimony and granted the motions to quash.

The medical-records subpoena was quashed on the doctor-patient privilege. The testimony subpoena was quashed based on the amended property-settlement statute, which provides that a third party isn’t required to provide documentation or testimony about revocable estate planning instruments. The trial court rejected wife’s argument that husband’s dad lacked testamentary capacity and that made the trust pretty much irrevocable.

The trial court closed the evidence in March of 2016 and husband’s dad died the next month. Wife moved to reopen the evidence. She argued the “death meant that husband had acquired a significant amount of assets from the trust.” The trial court granted the motion and held a hearing. The parties mostly argued about the CD and son’s student loan (in wife’s name). Wife argued that the trust assets should be included in the marital estate because the parties’ son was a beneficiary in name only and that husband had equitable ownership of the trust’s assets.

In the final order, the family court considered the factors and found the parties on roughly equal footing. The court did note that husband is ten years older and so has fewer income-earning years left.

The court didn’t find that the parties’ son was a nominee beneficiary—a beneficiary in name only—for the trust. There wasn’t any evidence of an agreement between husband and son, The trial court didn’t directly address the equitable-ownership argument.

And though the court didn’t treat the trust assets as part of the marital estate, it did look at how he was benefitting from the trust. For example, husband lived rent-free in his parents’ house. Wife also spent significant time during the marriage caring for husband’s family members. So, the court ordered that wife got exclusive possession of the house for the next nine years, but the house would be sold if either she or the husband moved out for fourteen months. Both parties were held responsible for the CD-secured loan. But if husband paid off the loan within the following year, then wife’s right to stay in the marital home would terminate, they’d sell the house and split the equity. Yeah, I know. Seems a bit complicated to me too.

Wife appeals.

First off, she argues that the trial court screwed up when it granted the motions to quash her subpoenas “because this evidence would have showed that father lacked the testamentary capacity to amend his trust.” Next, she makes a two-pronged argument for why the trust assets were part of the marital estate. Husband had full control over the trust assets before and after the beneficiary change and treated the property as if it were his own. Then there’s the son-as-nominee argument—that husband’s dad named the parties’ son as the beneficiary only to shield the assets from wife.

SCOV is cool with the trial court granting the motions to quash. It reasons that even if the family court was the place to make lack-of-testamentary-capacity arguments, the statute bars such testimony. SCOV begins by noting that lack-of-testamentary-capacity claims as to trusts are within the probate division’s exclusive jurisdiction over matters involving the administration of trusts. So, really, this whole tussle shouldn’t even be happening in the family division, where son isn’t a party to the proceeding.

And even if the family division has jurisdiction to determine husband’s dad’s testamentary capacity, the statute bars wife's subpoena for husband’s dad’s testimony. SCOV reasons that the statute exempts third parties from subpoenas unless a party’s interest in an instrument is vested. So wife can’t compel testimony from husband’s dad to prove he’s incapacitated and that therefore the interest is vested. It’s too circular.

Here, on the face of the trust, husband’s interest had not vested before the subpoena. The trust could be amended until both grantors died, and husband’s dad was still alive. SCOV reasons that because husband’s interest was not vested—and in fact he had no post-amendment interest in the trust assets—the statute’s plain language prohibits husband’s dad’s compelled testimony.

SCOV also reasons that the family court was fine excluding the trust assets from the marital estate. SCOV rejects all the arguments that wife makes.

SCOV begins with the something’s-rotten-in-Denmark argument. SCOV reasons that revocable trusts—by their very nature—may be freely modified or revoked. And this trust “explicitly provided that the grantors could revoke, alter, or amend the trust at any time.” Since husband’s dad could do whatever he wanted with the trust assets during his lifetime, there was nothing hinky about husband’s dad’s changing the beneficiary of the trust.

SCOV also rejects wife’s son-is-just-a-nominee-beneficiary argument. There’s no law or facts that support the idea that this is just a hide-the-assets-from-the-wife-while-the-son-holds-the-assets-for-dad situation. Husband didn’t own the assets when they were transferred to son. It’d be a different story if husband took the marital home and put it in son’s name, but that’s not what happened. Because husband’s interests in the trust assets were always subject to his parents’ whims, he never owned the assets and they never became marital property.

SCOV notes that wife’s arguments are mostly about the “suspiciousness” of the transfer and not supported by citations to the record. There’s no evidence that son agreed to hold the assets for husband’s benefit. So, that’s the end of that. There’s a little swipe about lack of transcripts (only select transcripts were ordered). Make sure to order all the relevant transcripts, kids.

On the “equitable ownership” argument, SCOV just kind of throws up its collective hands and says, “We’re not even sure what the heck you’re talking about!” SCOV isn’t sure if wife is asking it to craft an equitable remedy based on husband’s alleged unjust enrichment by use of the trust’s assets, but if that is, in fact, the idea, SCOV isn’t going to do that.

There’s also a pierce-the-trust-veil-like-it’s-a-corporate-veil pitch. SCOV goes with the old, not-raised-below-not-getting-into-it response. And even if it were to entertain the idea, it’s not sure how that little legal marriage would work. “That’s apples and oranges,” says SCOV (Delaney’s Paraphrasing™). There’s no indication of fraud or improper behavior here.

The trial court properly excluded the trust’s assets and it also considered husband’s lifestyle and benefits from the trust in making its final order. That was the right way to deal with the facts wife uses in support of her arguments in this case. So, according to SCOV, the trial court did the right thing here.

There’s a lot to learn here about managing assets in a divorce. Though “all property owned by either or both of the parties, however and whenever acquired” goes into the pot, it doesn’t include stuff that someone else can theoretically take away. Now, would it be different if the beneficiary never changed (and assuming dad didn’t die a month after the final order)? I guess we’ll find out next time this issue comes up. Trust me.

Now, if you look closely . . . 

Rainforest Chocolate, LLC v. Sentinel Insurance Co., Ltd., 2018 VT 140

By Andrew Delaney

Insurance coverage can be a tricky beast. Exclusions can be fluffier than an Arctic Fox’s fur coat. And sometimes, in all that confusion, the trial court might apply an exclusion that doesn’t fit.

That’s what happened in this case.

A Rainforest Chocolate, LLC (Rainforest) employee got an email from his manager. The email told the employee to pop roughly $20K into an outside account with an electronic-funds transfer. What the employee didn’t know is that what SCOV calls an “unknown individual” and we’ll call a “hacker” had hijacked the manager’s email account and sent the email.

An aside and a PSA: this type of scam is getting prevalent. Just last week at my office, someone took the time to learn that one of our of-counsel attorneys was likely not physically in the office and sent emails from an account purporting to be him to everyone in the office. Nobody was fooled and we all had a lot of fun asking for his credit card info so we could buy the requested Amazon gift cards, but it could have been a disaster. The hacker in this case was far more sophisticated and hijacked the manager’s actual account. Stay safe out there, kids, and pick up the phone to verify when you get weird, transfer-some-money-to-another-account emails.

At any rate, the Rainforest employee did as the email instructed. Rainforest caught on quickly, called the bank, and stopped the bleeding at just over $10K.

Sentinel covered Rainforest under a business-owner policy, so Rainforest reported the loss to Sentinel. In a series of letters, Rainforest noted provisions covering “losses due to Forgery, for Forged or Altered Instruments, and for losses resulting from Computer Fraud.” Sentinel denied coverage. Rainforest then “claimed coverage under a provision of the policy for the loss of Money or Securities by theft. Sentinel again denied coverage, primarily relying on an exclusion for physical loss or physical damage caused by or resulting from False Pretense that concerned ‘voluntary parting’ of the property—the False Pretense Exclusion.”

Things ended up in court, eventually leading to cross-motions for summary judgement. The trial court denied Rainforest’s motion and granted Sentinel’s motion. SCOV block-quotes the trial court and we will too:

The complicated nature of this policy, with its layers of coverages and exclusions, is almost impossible to follow without a compass and a guide. It took the court many hours of reading and rereading the policy and the briefs to reach a clear understanding of how the various provisions fit together. How any insured, however sophisticated, is supposed to determine that it is getting what it paid for with a policy like this is a mystery to the court. Nonetheless, the court concludes that the terms of the policy, while confusing, are not ambiguous and must be enforced as written.

The trial court entered judgement for Sentinel. Rainforest appeals.

SCOV reviews summary judgment decisions de novo, using the same standard as the trial court. If you don’t know the standard for summary judgment by now, then you need to read a few older posts. It’s gotta be in 50% of the civil cases. But just in case you’ve been living under a rock: “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

No dispute over material facts here. We’re just dealing with interpreting an insurance policy. SCOV’s review is nondeferential and plenary. In plain English, that means SCOV gets to do whatever the heck it feels like in interpreting the policy. Terms are given their ordinary meanings, but any ambiguities are resolved in favor of coverage.

SCOV first looks at various provisions of the policy to suss out what is and isn’t covered. Long story short, the case boils down to “whether the False Pretense Exclusion bars coverage for the loss experienced by Rainforest.” The key here is that the exclusion applies only to “physical loss or physical damages” and, Rainforest argues, the loss here wasn’t a physical loss.

Turns out that in September 2018, the U.S. District Court for the District of Montana interpreted this exact provision in pretty much the same case. SCOV concludes the District Court’s reasoning is sound and runs with it. The only significant differences between our story and the Montana case are that the Montana case had more transfers and the claimant in the Montana case wasn’t able to catch the fraud quickly and stop the bleeding money wound.

The relevant provisions of the insurance policies are identical. The arguments are identical. And the claimant in the Montana case also argues that even though the claimant voluntarily parted with its money as contemplated by the False Pretense Exclusion (which excludes physical loss), electronic funds are intangible, and there’s no “physical loss.” Sentinel’s counter is that claimant lost control of money and it’s still a “physical” loss.

The District Court of Montana reasons that it would be reasonable to accept Sentinel’s it’s-basically-the-same-thing argument. Practically, losing money from a bank account has the same effect as losing cash. But the insurance policy itself seems to make a distinction between “loss or damage” and “physical loss or damage.” And the “physical” part becomes key. All of a sudden, the lost property has to be tangible rather than theoretical.

Thus, the Montana court concludes that it’s also reasonable to interpret the policy to find that the claimant didn’t suffer a physical loss. Boom. We’ve got ambiguity, and ambiguity means coverage.

SCOV agrees with the Montana District Court’s reasoning. The trial court here shouldn’t have found the False Pretenses exclusion unambiguous. Even though the trial court noted that electronic transfers might not be “physical,” it went with the rationale that funds qualified as “money” under the policy.

SCOV compares other provisions in the policy, concluding that fitting within the definition of “money” doesn’t make loss automatically “physical.” The Policy’s differing use of “loss or damage” and “physical loss or damage” without definition lends ambiguity in favor of coverage. Whether this was “sloppy drafting” or not, doesn’t matter—“sloppiness should not excuse an insurer from covering losses that a reasonable insured party would expect to be covered, based on a reasonable reading and interpretation of the policy language.”

SCOV points to the different interpretations of “physical loss” in various cases to illustrate the point (some for coverage, some against). Sounds ambiguous to us.

So, because SCOV is bound to interpret the ambiguity in favor of coverage, SCOV concludes that “the loss suffered was not physical, and thus coverage is not barred by the False Pretense Exclusion.”

Whether the loss is covered remains open to debate and SCOV kicks it back to the trial court to see if one of the potentially applicable coverages applies.

Some like holes in the ground

Long v. City of Burlington, 2018 VT 103

By Eric Fanning

I’m going to start this post on a somewhat wonky, possibly pedantic, law nerd kick. Just bear with me (or, switch to reddit—your call). The Public Records Act is Vermont’s public-records-transparency law. Not to sound grandiose, but this statute (and others like it in our sister states, and at the federal level) forms part of the bedrock of our constitutional republic. The idea is that government officials, employees, etc. derive any and all of their official power from the people, and therefore are “servants” of the public (this is actually a part of Vermont’s Constitution—one of my favorite Articles of Ch. 1, incidentally). If you take this one step further, then you see that public officers must be accountable to the people in all respects of the performance of their official duties. This concept doesn’t really mean anything unless the public is free to access and inspect documents prepared and used by the government—“even though such examination may cause inconvenience or embarrassment.” Thus, we have the Public Records Act.

Thanks for sticking with me there—now let’s get down to the nitty gritty . . . let’s get this show on the road. The factual background of this case shouldn’t be news to most people (at least those of us who live in the greater Burlington area). The City of Burlington sought to create a public-private partnership with the owners of several downtown blocks which used to comprise the Burlington Town Center Mall, more commonly referred to nowadays as “that giant hole in the ground.” The City and the property owners/developers, BTC Mall Associates want to redevelop said city blocks into a new and improved mix of residential units, office space, retail shops and a parking lot.   

To undertake this project, the City contracted with a consulting firm called ECONorthwest to aid in the nuts and bolts of the public-private partnership. BTC and ECONorthwest signed a nondisclosure agreement (NDA) which basically said that BTC would provide confidential business information to ECONorthwest so that it could complete its assessment of the project, provided that it not release such information to anyone, including the City.

  Plaintiff/appellant The Coalition for a Livable City is opposed to this project (I’ll refer to them as CLC). Specifically in this case, CLC was concerned that Burlington and its developer partners shielded pertinent information about the project and its economic feasibility from the public, and subsequently brought the Public Records Act suit that is the subject of this appeal.

The problem arose when the City and BTC Mall Associates released a redacted copy of a Market Feasibility Assessment prepared by ECONorthwest. The study, as released by the City, contained many redactions which appeared to block out dollar figure amounts for things like estimated rents, revenues, costs and other financial information about the proposed project. CLC demanded that the City release a copy of the unredacted study pursuant to the Public Records Act. The City refused (claiming, in part, that they didn’t actually have an unredacted copy), and CLC sued.

The trial court granted summary judgment for the City and BTC Mall Associates on two grounds: (1) the study is not a “public record” under the PRA; and (2) even if it were a public record, the redacted information is exempt as a “trade secret.” 

 SCOV affirms, but does so without reaching the question of whether the study is a public record.

Just what are the exceptions to disclosure under the PRA? Like the hearsay rule, there are many. If you’d like to dive on in, here’s the statute. For purposes of this case, we’re only interested in one particular exception which reads:

Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it, except that the disclosures required by 18 V.S.A. § 4632 are not exempt under this subdivision

In case you were wondering, 18 V.S.A. § 4632 refers to the mandated disclosure of expenses and gifts of drug manufacturers to the Attorney General, but that’s not important right now.

SCOV reviews grants of summary judgment de novo, i.e. without deference to the trial court. The ever-enduring standard for summary judgment is that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

As I noted above, SCOV disposes of this case by ruling on the somewhat narrower issue of whether the redacted portions of the study are trade secrets. Therefore, they don’t have to go any further and attempt to suss out the broader question of whether the study is a public record. Why? Because they don’t need to. Even if they decided the study was a public record, it meets one of the statutory exemptions from disclosure. This is sufficient for a competent ruling on the case, so that’s as far as SCOV chooses to go.

The thrust of CLC’s argument to SCOV is that BTC provided the information contained in the unredacted Study to the City’s contractor in the course of evaluating a public project that would entail substantial taxpayer financing, which is significant enough to raise of presumption in favor of disclosure; and alternatively, it’s not clear that the City did not have the redacted information (contrary to what the City had maintained). Moreover, CLC says the redacted information is not exempt from disclosure because BTC did not take sufficient steps to ensure the secrecy of the information.

SCOV’s not convinced by CLC’s arguments. It comes to the conclusion that based on the plain meaning of the statute, the relevant case law, and the trial record, the withholding of information contained in the Study was lawful. SCOV rests its opinion on two central points: (1) the figures that were redacted are the type of information that “gives its user or owner an opportunity to obtain business advantage over competitors who do not know or use it”; and (2) BTC made reasonable efforts to keep the information secret.

Going to the first point, SCOV says there’s sufficient information in the record to come to the conclusion that BTC would lose a business advantage over competitors if the disclosures were made public. They rely primarily on the uncontested affidavit from BTC’s principal, which states that “the anticipated project costs and revenues, financial projections, and confidential lease terms with a major prospective tenant contained in the document are the types of information considered highly sensitive in the real estate development industry,” and that “if competitors had access to BTC’s financial projections and lease information, they could ‘reverse engineer’ BTC’s pricing and forecasting models and use the information to undercut BTC’s pricing and terms.” Taking the principal at their word, BTC would be put at a substantial economic disadvantage if the figures were made public, and therefore constitute the kind of information that is protected from disclosure.

In response to CLC’s assertion that BTC didn’t take sufficient steps to protect the confidentiality of the information at issue, SCOV believes the record clearly supports the City’s position to the contrary. SCOV again cites an uncontested affidavit from BTC that explains, in pertinent part, that they only shared information when absolutely necessary, and only on the condition that such information not be shared with anyone without BTC’s consent, that they required ECONorthwest to sign the NDA before proceeding, and that BTC asked the City to acknowledge the NDA. SCOV says the evidence shows reasonable efforts to protect the confidential information.

CLC argues that the reasonableness of BTC’s efforts to maintain secrecy are undermined due to the fact that no NDA was entered into with the City, and because the “acknowledgement” of the NDA between BTC and ECONorthwest wasn’t binding on the city. SCOV rejects this argument too, reasoning that there seems to be no requirement in the law that an entity enter into a binding NDA with a government agency before disclosing trade-secret information in order to invoke the PRA exemption. In other words, the statutory exemption from disclosure is not waived just because you didn’t contract with the government to explicitly protect the information from public disclosure.

SCOV affirms summary judgment for the City; and yet we still have a giant hole in the ground.

Can you hear me now?

In re B.C., 2018 VT 126

By Elizabeth Kruska

This is an appeal of a CHINS case, but the issue is really about evidence. So, although the name of the case is B.C., the appeal isn’t exactly about B.C. Sort of like how “Alice’s Restaurant” was not the name of the restaurant, it was always just the name of the song.

The child involved in this case is B.C., who was born December 31, 2016. At that point, Mom had 2 other children and was already working with DCF relative to those kids. DCF’s work with Mom centered around issues of domestic violence and substance abuse.

I could get bogged way down in the facts of this case, and honestly, in my first draft of this post I did. The truly relevant facts are these. There was an existing CHINS case involving Mom, Dad, and B.C., which was filed shortly after his birth. The child was taken into DCF custody and lived apart from his parents. Initially the goal was to get B.C. home with both parents, but the parents split up, and Mom wanted to try to get to parent B.C. on her own. A merits hearing was held in early spring 2017 and taken under advisement. While that decision was under advisement, DCF started to worry about Mom, due to a relapse and the fact she missed a visit and a counseling appointment.



A series of incidents occurred between Mom and Dad over the course of the day on May 5, 2017. At this point Mom and Dad had split up and didn’t live together. Dad came over to Mom’s apartment to pick up some belongings. Mom tried to get Dad to leave, but didn’t succeed. She called the police, who didn’t think they could make him leave. Then there was an argument, where Dad may have thrown a table at Mom. Mom called her own dad, who came over to help and called the police. Again, the police said they couldn’t help. Mom tried to get a restraining order, and for reasons that are unclear, that didn’t work either.

B.C. was not present in the home during this series of events. He was supposed to come over for a visit the next day around 9:00 a.m. The person who was bringing him over was also scheduled to supervise the visit between B.C. and Mom. When they arrived, Dad was there. The supervisor told Dad he couldn’t be present during Mom’s visit. The supervisor left briefly, and returned with B.C. just as Dad was leaving. The visit happened at Mom’s apartment.

Around 10:30 a.m., police went to a report of a stabbing. They found Dad in a grocery store parking lot not far from Mom’s apartment. Dad had a stab wound, and said Mom did it. Police went over to Mom’s apartment and found her still visiting with B.C. They arrested her for the stabbing and took her to jail. She got out 2 days later.

Sidenote: if the visit with B.C. was still going on when the police arrived at Mom’s, and the visit was supervised, it seems like the person supervising the visit might be able to say, “Hey, police, Mom never left the apartment to go stab Dad in the grocery store parking lot during the time of the visit.” But, what do I know?

All this goes on while the court still had the initial merits hearing from the earlier CHINS petition under advisement. About two weeks later, on May 17, the State filed a new CHINS petition alleging that B.C.—who was still in DCF custody at the time—was again in need of care and supervision because of Dad’s pending charges, the parents’ relationship struggles, Mom’s suspected impairment, Mom’s missed visit and missed appointment, and the stabbing allegation along with the events leading up to it.

On May 19, the court held a hearing and denied the May 17 petition, stating the State couldn’t prove that at the time of filing B.C. was at substantial risk of harm. The court did maintain B.C. in DCF custody under the original petition. Then B.C. was placed into Mom’s custody in September 2017, so that she and the baby could participate in a program at the Lund Center together. Later in the fall of 2017, the State amended the May 17 CHINS petition to May 19, because that’s the day the court denied the May 17 CHINS petition. (This makes my head hurt.)

They finally get to have the merits hearing on the May petition on December 11. On January 30, 2018 the court granted the CHINS petition concluding that B.C. was again in need of care and supervision when the second petition was filed. The facts the court relied on were Mom’s relapse, Mom’s struggles with engagement with DCF in the time leading up to the petition; Mom’s missing appointments and visits, and Mom’s being in an altercation in “close temporal proximity to a visit with B.C. at the location of the visit.” The court also included in its findings the fact that Mom had previously exposed one of her older kids to an abusive former partner, which was reflected in a CHINS finding relative to that child in the past.

Mom appealed on several bases, and SCOV reverses on the basis that the trial court improperly admitted some statements made by Dad. The statement in question, I believe, is the statement Dad made accusing Mom of stabbing him. Without that statement, the remainder of the evidence admitted could not support the CHINS finding.

Hearsay is an out-of-court statement used to prove the truth of the matter asserted in that statement. Hearsay is not admissible except for when it is. Hearsay is confusing.

The Vermont Rules of Evidence exclude certain out-of-court statements from the definition of hearsay. If a party’s own statement is offered against himself or herself, then that statement is not hearsay. SCOV finds that Dad’s statements were not properly offered against him in the proceeding—they were offered against Mom, which wasn’t proper.

I honestly can’t tell which party proffered these statements, and I can’t tell who the witness was that the statements were admitted through. If Dad were there, he could have testified, “I was in the parking lot and Mom stabbed me.” That wouldn’t be hearsay, because it would be a description of an event about which Dad has firsthand knowledge. This leads me to assume it was some other witness who said, “Dad told me Mom stabbed him,” which would be hearsay. It would appear that the proponent of this evidence argued that since Dad is a party to the CHINS proceeding, and it’s Dad’s statement, that it’s covered by the rule that says a statement by a party-opponent is not hearsay.

This is confusing; I’ll try to explain. Suppose Mom had said to the police, “I stabbed him” and a party sought to use that statement against Mom to prove that she stabbed Dad. That would be fine, because by definition it is the use of Mom’s own statement against her. But here, the proponent of Dad’s statement, “Mom stabbed me” was meant to be used against Mom to prove the truth of the matter asserted in the statement—that she stabbed him. It’s self-serving for Dad, and the statement is not Dad speaking against his own interest. That’s why it’s hearsay, and that’s why it should be excluded.

Furthermore, if Dad isn’t there, and someone else is saying it, the other parties lack the ability to cross-examine Dad on this out of court statement to test the credibility of the statement. Suppose it was a police officer who said “Dad said Mom stabbed him.” Okay, that’s fine—we can believe the officer that those words came out of Dad’s mouth; what we aren’t so readily able to believe is whether what Dad said is actually true. And the other parties can’t cross examine on the truth because the officer doesn’t know what’s true—he just knows what he’s been told.

Here, because Dad was noncustodial, and because the CHINS allegations were all basically pointed at Mom (Mom’s drug use, Mom’s missing appointments, etc.), the State could have proceeded on its petition without Dad’s participation at all. His participation (or not) would not have had any bearing on the outcome of the case. He didn’t participate, and because he didn’t participate, his out of court statements could not be properly offered against him. There was nothing to offer them against.

If Dad’s statement that Mom stabbed him was taken out, there wasn’t anything else that the trial court could have relied on in making its findings relative to the ongoing altercation and any impact on B.C. The only admissible evidence before the court at that point would be that on the morning of the visit, Dad was briefly present and left before the visit took place. The court also credited Mom’s description of the events from the night before, including the altercation, the two attempts at police assistance, and the attempt at getting a restraining order. The court found that Mom and Dad had an altercation close in time to the visit. SCOV determines that without Dad’s statements about the stabbing, what’s really borne out is that Mom tried her best to address some domestic violence concerns, and was repeatedly turned away by police the day before the alleged stabbing happened.

SCOV also examines the sufficiency of the other evidence.

First is the concern Mom had relapsed. There was evidence that Mom used benzodiazepines once on May 5. There was no evidence that she had ongoing drug use issues. At this point B.C. was in DCF custody and not in Mom’s care. That doesn’t seem especially probative to a CHINS petition filed 2 weeks later. It also does not appear there was any evidence offered that during the May 6 visit that Mom was impaired due to her May 5 use.

There was some testimony that during a meeting and a visit in the spring of 2017, Mom showed some signs of impairment. The witness testified that Mom had told her she had taken too much of her prescribed medication on the particular day in question. The witness also testified that Mom wasn’t as attuned to B.C. as she normally was. Although the trial court credited this, SCOV finds it too thin that Mom’s attunement was off during one visit. This wouldn’t be enough to support a CHINS determination.

The trial court also admitted findings from some prior CHINS petitions involving Mom and her other kids. The bases of those petitions had to do with Mom exposing those children to domestic abuse. The court didn’t make findings with respect to this piece of evidence, so SCOV says this doesn’t demonstrate that B.C. was in need of care and supervision at the time of the filing.

This is reversed. SCOV notes in a footnote, though, that there were some subsequent trial-level proceedings in this case, and before the opinion was issued, B.C. was sent home with Mom and the trial court case closed.

This case isn't about coffee.
I just like coffee.

Alpine Haven Property Owners’ Association v. Brewin, 2018 VT 127 (mem.)

By Elizabeth Kruska

There’s not a lot to this particular opinion, as it’s an entry order on a pretty discrete issue.

Briefly, if a party appeals to the Supreme Court and does not prevail, the other party may seek costs. The party seeking costs has to make its request within 14 days of the judgment. That party can ask for more time, but it’s got to be a pretty good reason. Let’s suppose there’s a government shutdown and mail isn’t moving. That’s probably a good reason. “I forgot,” probably isn’t a good reason.

Anyway, in this case, there were a couple moving pieces that might have made things a little bit confusing. Originally, this case was heard and an opinion on the merits was issued on August 17, 2018, reversing and remanding the trial court’s original decision. There were some post-judgment motions filed, which were granted. None of those motions sought to extend the time to file for costs.

In October 2018 the appellant filed a motion seeking reimbursement of their appeal costs. This is what’s at issue in this entry order.

The motion was denied because the motion was filed outside the 14-day period. The appellant took the position that the fact of the other motions, including a motion for rehearing, were pending, that should have extended the deadline for filing for costs.

Although on one hand this would make sense, it’s not within the language of the statute. Unfortunately for the appellants, their motion for costs was denied as untimely.