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Posts Tagged ‘Vermont civil unions’

Vermont Supreme Court Finds Civil Union Dissolution Statute Still Relevant After Obergefell

Posted on: September 28th, 2016 by Art Leonard 2 Comments


Responding to the difficulties encountered by same-sex couples who entered into Vermont civil unions (and, beginning in 2009, same-sex marriages) and then lived in other states where their legal unions were denied recognition for purposes of dissolution or divorce, Vermont amended its divorce and annulment law in 2012 to provide that couples legally united in Vermont and living elsewhere who sought to dissolve their unions but had no vehicle to do that in the courts of their domiciliary state could obtain a dissolution in Vermont without meeting any residency requirement there. (Traditionally, states have required that at least one spouse be a resident of the state in order to seek a divorce in its courts.)  In Solomon v. Guidry, 2016 VT 108, 2016 Vt. LEXIS 111, 2016 WL 5338492 (September 23, 2016), the court unanimously ruled that this law remains relevant, even though the result of Obergefell v. Hodges is that all states must recognize legally contracted same-sex marriages, because there is still no uniformity about interstate recognition of civil unions.

Melissa Solomon and Jane Guidry entered into a civil union on July 24, 2001, in Brattleboro, Vermont, shortly after Vermont became the first state in the nation to provide civil unions for same-sex couples. They currently reside in Wake County, North Carolina.  They separated by May 2014. They have no children.  In 2015, they agreed to dissolve their civil union to avoid any legal complications from its continued existence, and filed an uncontested complaint in the Vermont Superior Court, Windham Division, accompanied by a stipulation as required by the amended divorce statute.  Judge Karen R. Carroll dismissed the complaint, finding that “the parties failed to produce evidence that they attempted to obtain a dissolution of the civil union in North Carolina.”  Judge Carroll opined that if they first sought such a dissolution in the North Carolina courts and were turned down, “the proper appeal should be taken here.”  Carroll asserted that if the Vermont courts “continue to accept these filings and allow courts in other states to ignore precedent [set by Obergefell], the situation will never be resolved.”

Solomon appealed the dismissal, arguing that the court had exceeded its constitutional authority by imposing a requirement not specifically required by the statute, which was reversible error, by incorrectly applying Obergefell, which does not deal with the recognition of civil unions across state lines, and by misconstruing the plain language and legislative intent of the statute, which was intended to provide a way for out-of-state couples who entered civil unions in Vermont to be able to dissolve them if they lived in states that did not recognize them.

Surveying the legislative history of the statutory provision in question, 15 Vt. Stat. Ann. Section 1206(b), the court noted that the purpose of the amendment passed in 2012 was “to provide access to a civil union dissolution or a divorce to nonresident couples joined in a Vermont civil union or Vermont marriage who are legally barred from dissolving the union in their state of residence.” The Legislature specifically noted: “While an opposite-sex out-of-state couple who marries in Vermont can get divorced in the state of residence of either party, most same-sex out-of-state couples joined in a Vermont civil union or marriage do not have this option,” since at that time most states recognized neither civil unions nor same-sex marriages.  Of course, Obergefell changed this situation respecting same-sex marriages as of June 26, 2015, but the U.S. Supreme Court did not address the issue of civil unions, which was not presented in the context of the marriage equality litigation.

Under the Vermont statute, a nonresident civil union can be dissolved by the Family Court in the county where the civil union certificate was originally filed if the following criteria are met: the civil union was established in Vermont, neither party’s state of legal residence recognizes the Vermont civil union for purposes of dissolution, there are no minor children who were born or adopted during the civil union, and the parties file a stipulation together with a complaint that resolves all issues in the dissolution action.  The exclusion of couples who have children is likely due to the fact that a Vermont court would not have jurisdiction over non-resident children for the purposes of deciding issues of their custody and visitation.  This process is not available for contested dissolutions that would involve litigation over property disposition, for example, since a Vermont court would not have jurisdiction to allocate property rights of non-residents, either.  Both parties have to sign the stipulation, submitted under oath, which has to attest that all these criteria are met, including the criterion that their domiciliary states do not recognize the civil union or provide a legal mechanism for its dissolution.

Wrote Justice Marilyn Skoglund for the court, “Because civil marriage and civil unions remain legally distinct entities in Vermont and because Obergefell mandated that states recognize only same-sex marriages, uncertainty remains as to whether Obergefell requires other states to recognize and dissolve civil unions established in Vermont.  For that reason, Section 1206(b) is still necessary to remedy the issue originally addressed by the Legislature in 2012.”  In this case, the parties followed the requirements of that statute to the letter, and went even further by submitting an affidavit from a North Carolina attorney whose practice is “dedicated to providing services to the lesbian, gay and transgender community, including domestic relations, estate planning, and life planning.”  In this affidavit, the attorney attested that while North Carolina “grudgingly” follows Obergefell and recognizes same-sex marriages for divorce proceedings, “it will accord no recognition to a ‘civil union’ or ‘domestic partnership’ for [dissolution] purposes.”  The Vermont Supreme Court agreed with Solomon and Guidry that this affidavit is sufficient to satisfy the criteria of the statute, and there was no need for them to go through the motions of seeking a dissolution in a North Carolina court before applying for one in Vermont.

“It would reach beyond both the written letter and the Legislature’s intent to hold that the ‘acknowledgment’ must also include actual showing of an attempt to file in the other state,” wrote Justice Skoglund. The court reversed the trial judge’s ruling and remanded the case for that court to “follow the dictates of Section 1206(b).”

Solomon is represented by Amy K. Butler of Montpelier, Vermont. Guidry, who urged the court to grant Solomon’s appeal, is pro se in this matter.

Kentucky Court Rules Against Marital Evidentiary Privilege for Vermont Civil Union Partners

Posted on: September 27th, 2013 by Art Leonard No Comments

A Kentucky judge denied a motion by a lesbian murder defendant to invoke the spousal privilege to present her Vermont civil union partner from testifying at the trial.  Ruling on September 23, Jefferson Circuit Judge Susan Schultz Gibson held that because a Vermont civil union is not a marriage, Kentucky’s marital testimonial privilege does not apply.

Bobbie Jo Clary and Geneva Case were united in a civil union in Vermont in 2004, and later came to Kentucky.  Clary is now on trial for the October 29, 2011, murder of George Murphy.  The Prosecutor claims that shortly after the murder, Clary phoned Case to pick her up, told Case what she had done, and enlisted Case to obtain cleaning materials to remove blood stains from Clary’s van.  The Prosecutor wants to call Case as a witness at the trial.

Under Kentucky ‘s evidence rules, “The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage.  A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.”  The rule also provides, consistent with Kentucky law, that marriage “refers only to the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.”  The state also forbids same-sex couples from marrying and refuses to recognize same-sex marriages contracted elsewhere.  The voters ratified a constitutional amendment to this effect in 2004.

Clary and Case have never dissolved their Vermont civil union.  Under Vermont law, civil union partners are entitled to invoke the spousal testimonial privilege.  In 2009, the Vermont legislature adopted a marriage equality law, which provided that civil union partners could convert their relationship to a marriage by obtaining a marriage license, but that civil unions would not be automatically converted to marriages.  At the time Murphy was murdered, Clary and Case were not living together.

Clary and Case argued that because their Vermont civil union gave them the same rights associated with marriage, there was essentially no distinction between a Vermont civil union and a Vermont marriage, and that Kentucky’s failure to recognize their spousal status would violate the United States and Kentucky constitutions, constituting a violation of their right to marry “on an arbitrary basis – the couples gender or sexual orientation.”  They invoked the Full Faith and Credit Clause of the U.S. Constitution as well as the equal protection requirements of both constitutions.  They also relied on the Supreme Court’s recent decisions in U.S. v. Windsor (DOMA) and Hollingsworth v. Perry (California Proposition 8), arguing that “it follows from these decisions that it is unconstitutional to create a system where a same-sex marriage is legal in the state where consummated, recognized by the federal government, but not recognized by the state in which the same-sex couple resides.”

Judge Gibson rejected these arguments.  “It is abundantly clear that under black-letter Kentucky law, same-sex marriages or their equivalent cannot be performed in this state, and if solemnized outside this state in a jurisdiction which permits them, will not be recognized as valid marriages or unions with this state,” she wrote.  “It is also abundantly clear, as pointed out in both briefs on behalf of movants, that the legal, social and moral landscape against which this issue is playing out is rapidly changing and progressing, that acceptance of same-sex marriage is growing, and that an increasing number of citizens of this country and this state believe that extension of basic rights taken for granted by heterosexual couples to same-sex couples will not result in the destruction of civilization.”  But she said that it wasn’t the role of the court to judge the legislature’s policy decisions in the context of this case “because the arguments of the Defendant and Ms. Case fail not simply because they are not considered married in Kentucky, but because they are not considered married in Vermont.”

A Vermont civil union is not a marriage, Judge Gibson concluded.   Clary and Case did not apply for a Vermont marriage license to convert their civil union after the new law passed in 2009, and their civil union remained just that.  “Without application for a marriage license, and solemnization of the marriage, the Defendant and Ms. Case remain in a civil union recognized by the state of Vermont, but not recognized under Kentucky law.”

Furthermore, Gibson found that under Kentucky precedent, the marital privilege is narrowly construed, and some courts have found that it no longer applies “when the reason supporting the privilege, marital harmony, no longer exists.”  In this case, Clary and Case were no longer living together at the time of the murder.  Finally, wrote Gibson, “The fact that Vermont may extend the marital privilege to couples who have entered into a civil union does not require Kentucky to do so.”

Consequently, Case can be compelled to testify and held in contempt if she refuses to do so.