Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: To the House Judiciary Committee this Friday afternoon, February sixth, and we're back to H six two eight and thank you, judge, for being so flexible and being able to come over here to kind of address the bill just generally, and

[Hon. Thomas A. Zonay, Chief Superior Judge]: then we may have some specific questions that come up in support. So I'll turn it over to you. So Tom Zone, Chief Superior Judge, age six twenty eight on page three looks like what it does is line 17 through 19 adds a provision under would be subsection F, an order that the defendant continue to pay household bills for which the defendant was responsible at the time the plaintiff requested the order for a fixed period of time. There is, if you look just above that, subsection E, a provision that says if the court finds a defendant had a duty to support the plaintiff in order that they pay living expenses for a fixed period not to exceed three months. When I looked at the new section, the first question I had was, it says for a fixed period of time, but in E, it's a fixed period of three months maximum. In this section, there is no maximum. When we're looking at provisions for a judge to issue a relief from abuse order, if you go back on page two, line six, the court shall make such orders as it deems necessary to protect the plaintiff or the children or both if it finds there has been abuse. Line 16 then says the court order may include the following. And I highlight that because when the court is issuing orders, These are summary proceedings. It is not intended to be a divorce action, a separation action, or for that matter, I use the term palimony. In other words, former partners action. It's intended to be what is necessary for protection. And so if this provision comes in, the court will have to analyze it. Is it necessary for protection? The next question the judge would have is, what's the real difference between E and F? Is there a duty to support the plaintiff in order that they pay the plaintiff's living expenses? That could involve someone having to pay expenses for which they were not previously required to pay. If you look at F, it says, for which the defendant was responsible. So the court will have to first identify, was the defendant responsible for that bill? If the defendant wasn't responsible,

[Rep. Martin LaLonde (Chair)]: the court couldn't order.

[Hon. Thomas A. Zonay, Chief Superior Judge]: But what happens if the parties are jointly responsible? Or what happens if the plaintiff was only responsible? In a divorce action, the court cannot change the ultimate responsibility. For instance, if there's a husband and wife and the husband has a debt to a bank and the wife doesn't, the court in a divorce order can't say that the wife is responsible to it and the bank can't go after your husband. The court can say, well, wife, you have to pay that, but the bank can still come after the husband. So the reason I point that out is here, if the plaintiff is responsible for the bill and the defendant's not, that would not fall under subsection F. That would seemingly fall under subsection E. Question I have is what happens if both parties are responsible for the bill and they've been in default for six months? Do you order someone to pay something that they have shown they can't pay? Although there's no ability to pay here as part of a necessary calculus, it is fair to say that it's something that a judge may look at. And if a judge could look at it and say, for instance, neither of them have the ability to pay. This is not a divorce action. This is some other type of action can take care of that. And so we're gonna let it happen. Both parties are equally responsible. They'll both need to pay because they both have, if you will, inability to pay. And so, even though you don't say, is there an ability to pay, that you have to consider ability to pay, I think it's reasonable that most judges would look at that as they're weighing things out. Ability to pay would however be considered if you order it and they don't. And then the other partner, the plaintiff comes back and says, Well, they're in contempt they haven't paid this. You can't find someone in contempt for the failure to pay if you find they don't have the ability to. I go back to the first one and that is, what's the real difference between E and F? That's what the judge would have to kind of analyze.

[Rep. Martin LaLonde (Chair)]: Is it hard to go back? I'll leave this one to you. I

[Rep. Thomas Burditt (Vice Chair)]: had the same question this morning. Mean, I'm all on for a living, I couldn't see a difference between E and F. And the question that I had, could what is written in F be imposed from the language from e? In in other words, could a judge do what is in f because of the way e is worded?

[Hon. Thomas A. Zonay, Chief Superior Judge]: Do you understand what I'm saying?

[Rep. Martin LaLonde (Chair)]: Yes. Okay.

[Hon. Thomas A. Zonay, Chief Superior Judge]: The definitive answer is it depends. Okay. No. And the reason it depends is because the crux of E is that there's a duty to support. May have, a court could find that you have a duty to support your spouse, for instance, even if you were not responsible for the underlying bills that she's, are necessary for her to support. You have, let's say you have a married couple and for whatever reason they have two apartments and the wife lives in one, the husband lives in the other, And the wife files, you can find, well, you know, the husband has a duty to support her. Vermont law, he's got more money and the court can find there might've been a duty to support her. He's not on the lease for that though. So under F, you couldn't order him to continue to pay the household bills for which he was responsible because he was never responsible for that bill. So for F, you have to have circumstances where on the date of the filing, the person is already, if you will, on the hook for that bill and has a legal obligation for the bill. Not necessarily for the support, but for the bill.

[Rep. Thomas Burditt (Vice Chair)]: That makes sense? Yeah. Yeah. So it so f could be imposed under e if it's applicable.

[Hon. Thomas A. Zonay, Chief Superior Judge]: Yes? Yeah. F could be a subset of e. Okay. However

[Rep. Thomas Burditt (Vice Chair)]: Without without having it in there.

[Hon. Thomas A. Zonay, Chief Superior Judge]: Correct. But it could only be a subset for situations where someone would be where you can find a legal duty to support. Right. Oh, yeah. You don't have legal duties to support in Vermont for a boyfriend and girlfriend. Okay. And so then if you had a couple cohabitating who were not married, F could be viewed differently. F would be different because there's no legal duty to support your girlfriend or your boyfriend. However, if you were living together and you were both on the lease and let's say you're the male, the guy, and you were the one who has the electric and the water in your name under this, you're supposed to, if the court orders it, you're supposed to pay the electric and the water. And the court can order you to continue to have your responsibility for the lease. That makes sense? Yeah, yeah.

[Rep. Thomas Burditt (Vice Chair)]: If I remember right, we also heard this morning that some thought that F was necessary because E wasn't being applied. You

[Hon. Thomas A. Zonay, Chief Superior Judge]: may see For that,

[Rep. Martin LaLonde (Chair)]: I'm asking the other committee members. I think I could have done that. I

[Hon. Thomas A. Zonay, Chief Superior Judge]: can understand that type of inquiry. I don't know that you can say that the F is or is not necessary based upon the lack filing, the lack of courts ordering E. I think it may be more likely that courts don't order E because they find that in that particular case, that order is not necessary at that time to protect the plaintiff. Because remember, have to go back for the What's the purpose of the order? The order is for protection. Subset that allows the financial side, if someone's going to be homeless, they're not gonna have the money to pay their other bills. That can reasonably be viewed as protection. But if both have incomes and they're both equal, I think it becomes a harder determination for the court to possibly make.

[Rep. Thomas Burditt (Vice Chair)]: One last question. How much has this changed once you do the court? It

[Hon. Thomas A. Zonay, Chief Superior Judge]: adds a new dynamic because now instead of looking, okay, is there a duty to support? And looking at it like that, now you have the party saying, well, he or she is responsible for that bill. And the other party goes, no, they're not, never been responsible for that. And so you actually have the ability to make cases a little bit more complicated because you have to have that finding that they were responsible at the time the plaintiff requested the order. And so before it was, what's the living expense and is there a duty of support? And there may be disputes about that. Now it's, what's the bill? Who was responsible for it at the time? And then you have to make that funny. But I think it can complicate things. I can tell you, I've been on the bench nineteen years and this is the final order provision. I can't think of a And this is not because I wouldn't, it's not asked for that much, subsection eight. And I don't know that I've ever ordered it. I know there's been times for temporary, but as part of a final order for three months, usually the divorce or something else is going on. And I can't think of it, maybe a couple times by agreement, but I can't think of any times I've had hearings where parties have contested that and the court's ordered it.

[Rep. Thomas Burditt (Vice Chair)]: So, I lied, that wasn't my last question. So would the same thing happen with F as far as how often it's asked for? Do you think? It could be I I know that's hypothetical.

[Hon. Thomas A. Zonay, Chief Superior Judge]: It could be different because it's a it's a broader group. F would cover married couples. It would cover cohabitating individuals. And so I think F could have a potential more expansive utilization because you don't have to find a duty to support. You just have to find a duty to pay the bill.

[Rep. Martin LaLonde (Chair)]: Before we get this to follow-up, haven't mentioned it. So real quick, you said it'd be more complicated. Would the courts kind of first, preliminary termination is whether the financial component of it is necessary to even dig into for the purpose of protecting?

[Hon. Thomas A. Zonay, Chief Superior Judge]: That's how I view it.

[Rep. Martin LaLonde (Chair)]: So it's like if it doesn't look like we need to get it to be paid for what because they both are self sufficient for whatever are.

[Hon. Thomas A. Zonay, Chief Superior Judge]: And the quirk can say, On more than one case, I'm sure I've said something along the lines of, This is not intended to be a substitute for a divorce. It is intended for immediate summary protection. And the court is Those issues should be addressed in a divorce action. The court is limited to how much it can do in this action and to try to focus the parties on that. With the money disputes, they're generally not something that you wanna take up here. It's similar, the Supreme Court has talked about, you should not address long term parental rights and responsibilities. Parent child contact and RFAs, unless that you really need to, because it's a summary proceeding. We're trying to get it done immediately for that order of protection.

[Rep. Barbara Rachelson (Member)]: So my notes from this morning indicate that for sure, in cases where people weren't married, isn't always clarity. I felt one point that was really interesting is that victims often are not even on the statements for these bills, and so they don't even know what the account is. And so it seems like it is I can't imagine there'd be hundreds of these, but it sounds like in very quirky specific situations, somebody might lose their electricity because they didn't know. But is there anything that you think would be helpful to further clarify? Like when you said, based on ability to pay, would anything make it easier for a judge to look at it?

[Hon. Thomas A. Zonay, Chief Superior Judge]: I think that, again, judges have the ability to consider ability to pay. I think they can. If a judge decides, Well, I think you have to be responsible for this and you're doing it to the exclusion of this individual. Again, it doesn't change the fact that the other party might still be liable. And so, in some ways, what you're really doing is giving the sleeves off the vest, because if you're responsible for it to the creditor on the date of the filing, unless the creditor tells you you're not responsible, you are still responsible. And so, you're still responsible. The question is whether you will continue to pay them. But what if there's a good faith dispute with the bill? Those are the types of nuances that when judges are looking at these situations, our goal is not to have people continue to have stress and be frustrated. Our goal is to have orders of protection. And so, going through my mind, at least when I'm issuing an order is, is this order going to provide protection? And is it going to minimize conflict? And so, if you've had situations where you can order something for here, well, okay, you're responsible, you keep paying, but the guy doesn't have the money or the woman doesn't have the money. Are you gaining anything if you know at the inception it can't be paid? So this is a change because it would take it out of that situation where we have recognized obligations for one party to another, or as the legislature has phrased it, a duty of support, into circumstances where there might not be a duty of support, but you are deciding during this summary proceeding, you're gonna keep paying those expenses. We do have something in our divorce world where when a divorce is filed, we have what's called an IDO, an interim domestic order. And that has provisions that would mimic this and say, you have to keep paying household bills and things like that in the normal course, unless the court tells you not to. And so it is consistent that there are times that we recognize it helps the parties to keep the bills being paid like that. But that's only right now for people who are married or civil union? Correct. What I would say to someone if they're not married and there's no duty and they say, well, they're on the lease and they're not paying the bills, they're not supposed to, the court doesn't have authority over that. And you certainly have the ability to file small claims or a civil action if you wanna get reimbursed for that. Well, and again, I was thinking, do you have

[Rep. Barbara Rachelson (Member)]: to get into like, Oh, the electric bill's in my name, but I buy the food? There may be all kinds of arrangements that don't, on the face of them, appear obvious. There's no bill for the grocery store.

[Hon. Thomas A. Zonay, Chief Superior Judge]: Because when a court is looking at this order, you're going to wanna find, is it necessary? Again, we're not telling someone that they have to do something that they're not already responsible for. We're saying you have to continue to pay the bills you're responsible for, which they should be doing anyway. But when we do that, it gives an expectation that they're gonna be solely responsible when that's not true. Because if they don't, the creditor, again, can still come out to the other party if the other party is responsible. But I do see the benefit to this for an individual who, if you have a couple renting a house and you don't want the power of the electric or the cable, whatever it may be to be shut off, that you can do that. But again, it's expanding it from where we generally have gone and you're putting in something here that is requiring parties who may not have any type of recognized duty to support. Okay, you're gonna be responsible for this at a level that you're not currently responsible or to the exclusion of the other party. Because if I, as a judge, order a boyfriend girlfriend, if I were the boyfriend and say, look, you're on the lease, you gotta keep paying that bill. And he doesn't do it or he does it, is he gonna come back and say, well, to his girlfriend or boyfriend in court and say, well, you were responsible for half that under the lease anyway, so you should pay me back. I think it's hopefully unlikely that that would happen, but you never know.

[Rep. Martin LaLonde (Chair)]: Nothing's easy here. No. You have another question? Yeah. You

[Rep. Thomas Burditt (Vice Chair)]: said something around one of your things you do from the bench is try to, I'm paraphrasing. It's try

[Rep. Martin LaLonde (Chair)]: to make the decisions to calm the conflict down.

[Rep. Thomas Burditt (Vice Chair)]: And and with this, we have more details to work through, which you said potentially is going to increase conflict because

[Rep. Martin LaLonde (Chair)]: of of the little nitpicky things you're have to work on.

[Rep. Thomas Burditt (Vice Chair)]: Kinda goes against, potentially goes against the And way you do that's a policy decision.

[Rep. Martin LaLonde (Chair)]: Right, no, no.

[Hon. Thomas A. Zonay, Chief Superior Judge]: Because on one hand, I foresee, I can see the circumstances and situations where someone is, the party, the plaintiff is losing the house or something's going on and they don't have the money to pay this and the other party has it. And I think it was mentioned, plaintiff may not even know what all the bills are. And so, I can see that. On the other hand, to get to that order, the parties have to put on evidence usually, and will they agree on what the bills are and who was responsible on that day? Those are the things. If you have something like this in the bill, reasonably judges can use it or they can decide not to. And that's the policy decision. I would say though, that if you go in that policy decision direction, you should consider putting a fixed period of time in there. Why is E three months? Look at it this way. E is three months. You have an absolute duty. You have a duty of support. And F is for any time, there's no duty, but there's already a legal obligation if you've been responsible for it. And then the question of course becomes, I'm talking, responsibility an inter party agreement or is it with the creditor? I think, Chair LaLonde, you mentioned something about, I paid this, I paid that. Well, is the court gonna have to start deciding, okay, what are the bills that you said you were responsible for? And what are the bills that you said you were responsible for? Oh, you said you were responsible for food? You were responsible for plowing? That it's not entirely clear, but I think that my first reading of this was when I see the word responsible, I'm thinking there was some type of legal responsibility, by an agreement between the parties. Right. Yeah. So, if that's not the intent, you might wanna make that clear. I read that to

[Rep. Martin LaLonde (Chair)]: Yeah, I read that the same way as well. Yeah.

[Hon. Thomas A. Zonay, Chief Superior Judge]: Or you could, if you really wanna highlight that, you could put was legally responsible. And that way, it makes it very clear that this is, that we're not gonna be hearing disputes of the party saying, Well, no, I paid this bill and you were supposed to pay that one. You don't want to give it to the big crank. Our goal is to enter orders that protect and allow people to move on with their lives safely.

[Rep. Martin LaLonde (Chair)]: Okay. Anything else for you, Judge? Well, thank you very much. We'll be seeing you on case you've gotten in taking for Wednesday morning. Going to talk about the three d docket and lessons learned and just generally get updated for the whole justice. I guess I'll ask, since I'm here, if we could get some of the data as far as clearance rates across the state and have just kind of an update on that, Okay. Timeframes, clearance rate, the data that we provide as part of that duplication. I will ask Lori for that.

[Hon. Thomas A. Zonay, Chief Superior Judge]: I know she's out today, but we'll be

[Rep. Martin LaLonde (Chair)]: in different. And then I think Wednesday afternoon, we're going to try to have you in for the budget. I let Nate know I have a prior appointment with PT that afternoon. Figure out another time. Move things around.

[Hon. Thomas A. Zonay, Chief Superior Judge]: You. All right. Thanks a lot. And I am going My plan is, unless something unforeseen is to be in person again Wednesday morning. I have that kind of blocked out for my segregated time to be here.

[Rep. Martin LaLonde (Chair)]: Over the pavilions. I am, that's 05:00.

[Hon. Thomas A. Zonay, Chief Superior Judge]: I like that, thank you.

[Rep. Martin LaLonde (Chair)]: Thank you very much. We'll adjourn until Tuesday at