Alexandra Fox v. Nathan Fox

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2022 VT 27

No. 2021-095

Alexandra Fox Supreme Court

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

Nathan Fox November Term, 2021

David Barra, J.

Antonietta A. Girardi of Facey Goss & McPhee P.C., Rutland, for Plaintiff-Appellee.

Nathan Fox, Pro Se, Poultney, Defendant-Appellant.

PRESENT: Eaton, Carroll and Cohen, JJ., and Treadwell, Supr. J., and Dooley, J. (Ret.),
Specially Assigned

¶ 1. COHEN, J. Father appeals a sanctions order imposed by the family division

enjoining him from submitting filings in this case unless the filing is signed by a licensed attorney

or he first obtains permission from the court. We affirm the sanction but remand to the family

division to provide additional guidance regarding the procedure and standards for father’s future

filings.

¶ 2. The sanction on appeal follows a long procedural history. Because the amount and

content of father’s filings are important to the legal analysis, they are outlined in detail. As

explained more fully below, the court acted within its discretion in sanctioning father given his

pattern of filing numerous motions that lacked factual or legal support, failing to adhere to

procedural rules, and acting without good faith. We conclude, however, that the court’s order was
overly broad in scope because it applies to all of father’s submissions to the court in this matter

and does not clearly provide father with instructions on how to comply. Therefore, we remand for

the court to amend its sanctions decision accordingly.

I. Procedural History

¶ 3. Mother and father married in 2014 and have one child together, a daughter born in

2016. They divorced in 2018, by which time mother and daughter had been living in Vermont for

over a year. At that time, father was on active military duty and stationed in Florida. In the final

divorce order based on the parties’ stipulation, mother was awarded sole physical and legal

parental rights and responsibilities (PRR) for daughter, subject to father’s right to parent-child

contact (PCC) and mother’s duty to keep father informed as to legal decisions made for daughter.

The decree provided father with the right to overnight visitation when he traveled to Vermont and

permitted father to pay for daughter to travel to Florida for long weekends. The parents agreed to

alternate holidays with daughter. In 2019, father left the military and relocated to New York state.

He began to seek increased visitation time with daughter.

¶ 4. Over the next several years, father and mother engaged in constant litigation related

to PRR, PCC, and child support. Mother had counsel throughout the process, and father

represented himself. Father regularly filed multiple motions in a short timeframe. For example,

he filed three motions on December 3, 2019, four motions on February 21, 2020, and four motions

in the span of three days in March 2020. A pattern emerged in father’s filings: they were numerous,

duplicative, lacked factual or legal support, did not conform to procedural rules, and appeared to

be made without good faith. The family division and court personnel repeatedly explained to

father how to file properly, but he either did not respond or refused to follow the correct procedure.

Many times during the litigation, mother alleged that father was abusing the court process and

continuously failed to properly serve mother when he filed motions with the court; on more than

one occasion, she sought sanctions against him. The following provides a chronological sampling

2
of father’s behavior throughout the underlying litigation. Although most of the chronology relates

to the PCC and PRR litigation, father engaged in the same behavior regarding the parties’ child-

support litigation, including making multiple requests that were without merit and not in

conformance with procedural rules.

¶ 5. The family division held a hearing in May 2020 to consider a multitude of motions

and rule on the parties’ contradictory factual assertions, including father’s allegations that he was

being denied all visitation. In its order later that month, the court concluded that the evidence and

best-interests-of-the-child factors from 15 V.S.A. § 665(b) supported sole legal and physical

custody remaining with mother. The May 2020 order created a new schedule for PCC contact that

allowed father to have visits with daughter every other weekend, provided each parent with the

right for daily fifteen-minute calls whenever daughter was with the other parent, and required each

parent to inform the other whenever they took daughter outside of their home state or changed

their contact information or residence.1

¶ 6. In August 2020, mother filed a motion for contempt and enforcement of the May

2020 order, alleging that father had violated the order by failing to inform her that his address had

changed. She also alleged that father repeatedly refused to inform her where his visitation with

daughter was occurring. As a result, mother asked the court to find father in contempt of the order

and to enforce the order by suspending PCC until father demonstrated strict compliance with the

order. The family division ordered father to respond within fourteen days, but he did not do so.

The court temporarily granted mother’s motion on September 14, 2020, suspending father’s PCC

until a hearing could be held and stating that the motion to suspend PCC and the motion for

contempt would be heard together.

1
In the period between the hearing and the court’s decision, mother filed an emergency
motion for an interim order in which she requested the family division to ask father to “cease and
desist filing further specious motion[s]” or, in the alternative, to suspend PCC until the court could
make a final determination on the issue of PCC. This motion was not addressed in the May 2020
order, which made a final determination on the parties’ dispute over PCC.
3
¶ 7. Over the next month, father filed at least seven motions. He filed a motion for

extension of time, which was granted. He filed motions to clarify, for additional extension of time,

to expedite, to modify the temporary PCC order, and “to cease child abuse,” all of which the court

denied on the merits or as moot. He also filed a substantive motion addressing mother’s factual

assertions, to which the family division responded that father could attend and present arguments

at the evidentiary hearing on October 14.

¶ 8. Mother responded to father’s motion to expedite the hearing, alleging that father’s

motions and claims amounted to harassment. That same day, mother also filed a motion for

contempt, asking the family division to further limit PCC to address mother’s concerns about father

allegedly violating the court’s order suspending PCC. Separately, mother responded to another of

father’s motions, denying father’s allegations, suggesting the family division order a mental

examination of father pursuant to Rule 5 of the Vermont Rules for Family Proceedings, and noting

that father continuously failed to follow the relevant procedural rules when filing documents with

the court.

¶ 9. The family division held a two-hour hearing on October 14, 2020, during which it

heard testimony and took the matter of mother’s motions to enforce and for contempt under

advisement. The family division then issued an order stating that the temporary suspension of

father’s in-person contact with daughter would remain in place and asking the parties to provide

arguments regarding a specific evidentiary question.

¶ 10. Father filed two motions a few days after the hearing, one of which included an

asserted timeline of events but failed to make any legal arguments. The other was a motion to

clarify that asserted the family division had failed to explain why it suspended his visitation. The

family division denied both motions, determining that the first motion did not clearly seek any

form of relief and the motion to clarify did not actually ask the court to clarify any existing order.

Father also filed a one-page motion in late October, essentially asking the court to update him on

4
the matter. On October 30, the family division issued an order restoring father’s PCC and denying

mother’s motions for contempt and to enforce because mother failed to prove by clear and

convincing evidence that father had acted in contempt of the May 2020 order.

¶ 11. In the interim, mother filed a petition for relief from abuse (RFA) in mid-October,

alleging that father had stalked her and daughter. After a contested hearing before a different

judge, the family division granted the RFA petition on October 30, finding that father had stalked

mother and ordering father not to contact mother directly or indirectly for one year, except that

father could call daughter as allowed by the custody order. Subsequently, mother filed a motion

asking the family division to include daughter’s identifying information in the RFA order, and an

emergency motion to resolve the apparent conflict between the court’s RFA order and its order

restoring father’s PCC. The family division clarified that although its October 2020 PCC order

restored the May 2020 order giving father the right to visitation, the October 2020 RFA order

temporarily limited father’s contact with daughter to calls rather than in-person visits. The family

division also determined that an evidentiary hearing was necessary to resolve mother’s motion to

clarify the RFA order, as well as mother’s motion for contempt of the May 2020 order.

¶ 12. The family division scheduled a hearing for December 7. Between the family

division’s October 2020 order restoring father’s PCC and the December 2020 hearing, father filed

five additional, largely duplicative motions, including a motion for emergency hearing, motion to

clarify, motion for emergent clarification, “emergency motion—answers now,” and emergency

motion for contempt, enforcement, and a hearing. He referred to the family division as the

“Dishonorable Court,” alleged that court employees did not treat him professionally, and made

several personal comments about the judge, the judge’s family, and the judge’s work schedule.

On November 25, the family division acknowledged father’s repeated motions in an entry order.

The court determined that the motions did not assert grounds sufficient for being heard on an

emergency basis and stated that they would be considered at the December 7 hearing.

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¶ 13. The family division issued another entry order on December 3, clarifying the issues

that would be heard on December 7. In this order, the family division noted that the May 2020

final order had not been appealed and was therefore final and binding. The court also indicated

that the only remaining issue to be resolved was how to facilitate father’s contact with daughter

without violating the RFA’s restriction against contact with mother. A few days later, on

December 6, father filed a motion for contempt and the family division responded by noting that

father had failed to provide proof of service pursuant to Vermont Rule of Civil Procedure 5. The

court ordered father to provide a certificate of service within ten days or the motion would be

denied.

¶ 14. After the December 7 hearing concluded, the family division issued an entry order

clarifying father’s visitation with daughter. The order required father to provide mother with a

telephone without video capability for him to have a daily call with daughter and for visitation

exchanges to occur at the Castleton Police Department. It otherwise maintained in effect the

October 2020 RFA order and the May 2020 final order. The court also noted that many of the

motions for contempt, to enforce, and to modify filed over the previous months did not comply

with the applicable rules of procedure, and it ordered father to file a motion within ten days,

consistent with those rules, specifying what relief he still sought.

¶ 15. On December 9, father sent an email to the Rutland Judiciary email address stating,

“Consider this my certificate of service IRT [the December 4 motion for contempt] and the Entry

Order just received today dated 12/6/20. Will the court now consider my motion?” Father

forwarded this email to mother’s attorney. Father also attempted to provide mother with a video-

capable phone, but her attorney refused it. That same day, father filed a motion to compel and

emailed it to the family division and mother’s attorney in an attempt to serve the attorney.

¶ 16. The following day, father filed a document entitled “motion for appeal.” The filing

asked “to appeal the decision to take [his] scheduled rotating visitation from 15 Sep 2020- 20 OCT

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2020” but did not identify which order father sought to appeal. By letter, court staff informed

father on the same day that his appeal was incorrectly filed and that he must file the appropriate

form, filing fee of $295, and certificate of service to mother. The court also noted that father’s

motion would be dismissed if this did not occur within a month.2

¶ 17. Mother filed a motion for relief from judgment on December 16, asking the family

division to revise a paragraph from its December 7 entry order that seemed to mistakenly attribute

the motions that lacked compliance with the Vermont Rules of Civil Procedure to both parties

rather than solely to father. On December 17, father filed another motion claiming mother was in

contempt of the May 2020 final order and asking the court to modify the December 7 order. He

requested the court modify the order to temporarily provide him with full custody, to require

mother to undergo a psychological examination due to his allegation that mother and maternal

grandmother suffered from mental-health issues and were abusing prescription medications, and

to order mother to undergo a hair test to assess drug use. The court acknowledged both parties’

filings in a December 17 entry order, in which the court set expectations for the timing of responses

and reiterated that father’s December 10 motion for appeal was improperly filed without the

appropriate appeal form and filing fee. Father did not respond to mother’s motion for relief from

judgment, and on January 4, 2021, the court granted mother’s motion in part, confirming that the

sentence in question applied solely to father’s motions but declining to revise and re-enter the

December 7, 2020, order.

¶ 18. In the interim, on December 18, mother moved to further restrict father’s contact

with daughter, arguing that father’s harassing behavior was a real, substantial, and unanticipated

2
It does not appear that the superior court sent this appeal to the Vermont Supreme Court.
A notice of appeal should always be sent to this Court, even if the appropriate filing fee has not
been paid. V.R.A.P. 3(b)(1). Likewise, the family division’s denials of father’s December 9 and
February 24 motions to appeal likely did not follow proper procedure. Infra, ¶¶ 20, 22. Regarding
interlocutory appeals, a party in a civil action must seek permission to appeal from the trial court
pursuant to V.R.A.P. 5(b). However, it does not appear that the family division treated father’s
December 9 motion as a motion for interlocutory appeal.
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change of circumstances pursuant to 15 V.S.A. § 668(a) and therefore warranted modifying PCC.

Mother asserted that modifying PCC was in daughter’s best interests pursuant to 15 V.S.A.

§ 665(b) and requested attorney’s fees for the costs of the motion on the basis that father was

engaging in vexatious litigation in an effort to stalk and abuse mother. Father did not respond.

¶ 19. The court granted mother’s motion to modify PCC and motion for attorney’s fees

on January 8, 2021, noting that father’s behavior made communication “dangerous and difficult,

if not impossible.” The court found that “[f]ather has routinely and with increasing frequency and

virulence, violated the orders of this court and behaved in an erratic and abusive manner to those

around him” and that his abuse of mother “has negatively impacted [daughter].” It also

acknowledged that father had been arrested twice in two weeks due to conduct related to the

ongoing litigation: once for allegedly violating the RFA order and another time for allegedly

engaging in disorderly conduct related to calling the Vermont State Police. As a result, the court

modified PCC, finding that father’s escalating behavior constituted a real, substantial, and

unanticipated change in circumstances under 15 V.S.A. § 668(a) and that modifying PCC was in

daughter’s best interests under the nine factors listed in 15 V.S.A. § 665(b). The court ordered

father to obtain mother’s prior written permission before taking daughter from Vermont, limited

phone contact between father and daughter to a nightly phone call between 5:30 and 6:00 p.m. for

a maximum of fifteen minutes on a phone without video-call capacity, clarified that

communications between mother and father were not required if they violated any terms of the

RFA order, and required all in-person visits between father and daughter to be supervised by

someone approved by mother and to be limited to specific days and times. The family division

also granted mother attorney’s fees in connection with the filing of her motion to modify because

it found that father’s actions were not taken in good faith, and it asked mother to file an affidavit

regarding her attorney’s fees related to the motion.

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¶ 20. Shortly afterwards, in two separate entry orders on January 11, 2021, the family

division denied father’s motion for contempt from December 17, denied father’s motion to compel

mother to accept the video-capable phone from December 9 as moot, and denied father’s

December 9 motion to appeal because he failed to file the appropriate forms and fee despite being

directed to do so by the family division in its December 17 order.

¶ 21. Mother filed the attorney’s fees affidavit on January 12. Father filed a motion on

January 25 contesting the family division’s grant of mother’s request for attorney’s fees and asking

the family division to consider the fact that mother chose to hire an attorney and father chose to

represent himself. On January 27, the family division granted mother $1155 in attorney’s fees

pursuant to its January 11 decision. The family division determined that father’s motion did not

raise any issues appropriate for a hearing because the motion belatedly discussed the merits of the

motion for attorney’s fees, which had already been granted in the court’s January 11 decision.

¶ 22. On February 11, father submitted an emergency motion for hearing, in which he

made a variety of factual assertions alleging both mother and the family division committed

deception and misconduct, and he expressed dissatisfaction with the existing PCC schedule. He

submitted a duplicate copy of the motion two days later. The family division sent a letter to father

stating that he must first file a motion to modify PRR and PCC, as well as submit the filing fee.

Father also attempted to appeal the October 2020 RFA order in mid-to-late February, but he did

not submit the filing fee. The family division later denied father’s motion to appeal the RFA order

on February 24, noting that the time for appeal had passed.

¶ 23. Meanwhile, on February 21, father emailed the family division asking for the

dismissal of all associated filing fees due to the Judiciary’s emergency administrative order

addressing the COVID-19 pandemic. A magistrate judge responded on February 22, denying

father’s motion to waive all filing fees because the continuation of the administrative order did not

constitute a sufficient basis for a fee waiver. The judge informed father that he could apply to

9
waive the filing fee and attached the application form. The family division subsequently also

denied father’s motion to waive all filing fees on February 24.

¶ 24. On February 23, mother filed an opposition to father’s motions, noting that father

had submitted four motions in ten days via email (the emergency motion for hearing, its duplicate,

a motion for modification of child support, and the appeal of the RFA order), arguing that each of

the motions failed to comply with the applicable rules, and alleging that the motions failed to raise

substantive issues of law. Father filed a motion to modify PRR and PCC on March 5 that requested

an emergency hearing, waiver of all filing fees, and an order of contempt against mother. He did

not submit an application to waive the filing fee, and instead argued that he should be granted a

waiver of the filing fees on the merits of his legal arguments. Also on March 5, father appealed

the family division’s decision to grant mother’s motion for attorney’s fees. The family division

acknowledged receipt and directed father to submit a filing fee or file the correct form to waive

the filing fee. The response included the forms and informed father that he needed to respond

within a month or the motions would be dismissed. This time, the family division transmitted the

notice of appeal to this Court. This Court acknowledged receipt of father’s notice of appeal on

March 5 and sent him a letter with the docket number and instructions under the Vermont Rules

of Appellate Procedure for filing a docketing statement and ordering transcripts.

¶ 25. For the first time, father filed the proper application to waive filing fees and service

costs on April 1, which the superior court clerk denied the next day because father’s responses on

the application indicated that he was ineligible for a waiver. The application informed father that

he had the right to appeal the denial, but that his appeal must be filed within seven days of the

order. Father filed an appeal from the denial of his filing fee waiver application on April 15,

asserting that the costs were incorrect and that he had tried to contact the court multiple times, and

requesting that he not be charged any fees until the family division corrected his child support

guidelines, an issue unrelated to the filings he was appealing.

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¶ 26. This Court responded to father’s appeal from both the waiver-of-fee decision and

the attorney’s-fees decision in an entry order on April 15, noting that father had failed to appeal

the waiver-of-fee decision within the required seven days pursuant to Vermont Rule of Civil

Procedure 3.1(d) and informing father that he needed to pay the filing fee by the end of April or

his attorney’s-fees appeal could be dismissed without further notice. This Court dismissed the

attorney’s-fees appeal as untimely filed on April 19, noting that father failed to file his notice of

appeal within thirty days of the family division’s January 27, decision, pursuant to Vermont Rule

of Appellate Procedure 4(a)(1). The Court further acknowledged that father did not need to pay

the filing fee because the appeal was dismissed.

¶ 27. While the above appeals were ongoing, the family division on March 8, 2021,

issued an entry order asking mother to respond within ten days to father’s motions. In response,

mother filed a motion for sanctions on March 16.

¶ 28. In her motion, mother emphasized father’s “record of noncompliance and

disobedience” with supervised visitation; his violations of the RFA order and subsequent arrests;

and his numerous motions alleging facts against mother that the trial court had already found to be

false. She characterized father’s actions as “mak[ing] harassing and baseless representations to

the court” that amounted to vexatious litigation and argued that he was continuously stalking her

using the court system. Mother also argued that father repeatedly failed to conform his pleadings

to the Vermont Rules of Civil Procedure, in particular Rules 5 and 11(a). Finally, mother asked

the court to impose Rule 11 sanctions against father to deter what she characterized as harassment

of her and abuse of the judicial process.

¶ 29. Mother did not note specific motions or filings that she wanted father to correct or

withdraw in either her attorney’s communications with father or her motion for sanctions, but she

noted that father filed four documents in ten days and asserted that almost all of the motions father

had filed over the several months leading up to March 2021 did not contain legal or factual support.

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Mother had provided father with a draft of the sanctions motion and a certificate of service in

February, but father did not correct any filings, withdraw any motions, or otherwise respond within

the required twenty-one days.

¶ 30. Father filed a response to mother’s motion for sanctions on March 26 that solely

disputed mother’s factual claims. Later that day, the family division issued an entry order that

noted this failure to respond to mother’s substantive legal arguments, and it directed father to

respond within fourteen days in a written filing five pages or fewer and containing his legal

arguments against the sanctions. Father responded on April 2 with a five-page motion that did not

address the sanctions motion, instead repeating his factual allegations from his prior motions

seeking modification of PRR, a contempt order, and modification of child support, and making

policy arguments about parental involvement in their child’s life, the COVID-19 pandemic, and

child mental health.

¶ 31. On April 20, the family division granted mother’s request for sanctions.

Specifically, it enjoined father “from filing any further pleadings in this case unless signed by an

attorney licensed to practice law in the State of Vermont or without first obtaining permission from

this Court.” Despite this order, father filed two additional motions for contempt against mother

on April 21 and May 6, alleging that she did not facilitate biweekly video calls between father and

daughter. Father also filed an appeal to this Court from the April 2021 sanction order. It is this

appeal that is before us now.3

II. Analysis

¶ 32. On appeal, father argues that the family division is biased against him and has

continually violated his constitutional rights. Father’s three-page brief does not cite to any legal

authority other than the U.S. Constitution, and his arguments are difficult to discern. Although he

3
The family division recently made additional rulings addressing the sanction. The parties
have not argued that the family division’s rulings affect this appeal. The order is not a part of the
record of this appeal. V.R.A.P. 10.
12
appears to challenge prior orders of the family division throughout this case, the only appeal that

is properly before us is from the April 2021 sanctions order. Accordingly, we limit our review to

that order.

¶ 33. We review an order imposing sanctions under Rule 11 for abuse of discretion. State

v. Delaney, 157 Vt. 247, 256, 598 A.2d 138, 143 (1991) (“Absent an abuse of discretion, we will

not reverse a trial court’s determination of a Rule 11 motion.”); see also Zorn v. Smith, 2011 VT

10, ¶ 13, 189 Vt. 219, 19 A.3d 112. We will “uphold the trial court’s factual findings absent clear

error.” State v. Brooks, 2013 VT 27, ¶ 9, 193 Vt. 461, 70 A.3d 1014 (quotation omitted).

¶ 34. Rule 11(b) governs representations to the court, and provides that:

By presenting to the court (whether by signing, filing, submitting,
or later advocating) a pleading, written motion, or other document,
an attorney or unrepresented party is certifying that to the best of the
person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost
of litigation;
(2) the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have evidentiary
support, or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a lack of
information or belief.

V.R.C.P. 11(b). Rule 11(c) governs the imposition of sanctions for violations of Rule 11(b),

stating, “[i]f, after notice and a reasonable opportunity to respond, the court determines that [Rule

11(b)] has been violated, the court may, subject to the conditions stated below, impose an

appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or

are responsible for the violation.” V.R.C.P. 11(c). A sanction under Rule 11(c) must “be limited

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to what is sufficient to deter repetition of such conduct” and “may consist of, or include, directives

of a nonmonetary nature.” V.R.C.P. 11(c)(2).

¶ 35. In Zorn, this Court considered whether a prefiling injunction against a litigant is an

appropriate sanction under Rule 11. 2011 VT 10. We employed the analysis used by the United

States Court of Appeals for the Second Circuit, which included the following five factors:

(1) the litigant’s history of litigation and in particular whether it
entailed vexatious, harassing or duplicative lawsuits; (2) the
litigant’s motive in pursuing the litigation, e.g., does the litigant
have an objective good faith expectation of prevailing?; (3) whether
the litigant is represented by counsel; (4) whether the litigant has
caused needless expense to other parties or has posed an
unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts
and other parties.

Id. ¶ 18 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). These factors attempt

to strike a balance between a litigant’s right to court access and the need to protect the court and

other parties from wasting resources. Id. As we indicated in Zorn, “[t]he ultimate question is

‘whether a litigant who has a history of vexatious litigation is likely to continue to abuse the

judicial process and harass other parties.’ ” Id. (quoting Safir, 792 F.2d at 24). This appeal

requires us to consider two issues: whether the family division acted within its discretion in

imposing a prefiling injunction and whether the imposed injunction is sufficiently precise.

a. Discretion to Impose Sanctions

¶ 36. We conclude that the family division acted within its discretion in imposing a

prefiling injunction in this case. On appeal, father does not challenge any of the court’s findings

other than its determination that his filings were made in bad faith, which he seems to contest by

listing a summation of facts that he asserts justifies his behavior. However, the family division, as

the trial court in this matter, “is in the best position to determine the credibility of the evidence and

witnesses before it and to then weigh that evidence.” State v. Huston, 2020 VT 46, ¶ 10, 212 Vt.

363, 236 A.3d 1291. Where, as here, there is conflicting testimony and factual allegations, the

14
trial court “ ‘has the exclusive right to resolve’ ” the conflict and make factual findings. Id.

(quoting Potwin v. Tucker, 126 Vt. 414, 418, 234 A.2d 430, 433 (1967)).

¶ 37. As to the first Safir factor, the evidence supports the family division’s finding that

father’s history of litigation in this matter involved filing vexatious, harassing, and duplicative

motions with no good-faith motive and no support in fact or law. It further found, and noted that

father had admitted, that father was engaging in an escalating pattern of vexatious litigation and

abusive behavior. The family division had previously found that father’s behavior had worsened

over time, and that he had “routinely and with increasing frequency and virulence, violated the

orders of this court and behaved in an erratic and abusive manner to those around him.” In addition

to violating the RFA order, father had made “derisive, inflammatory, and abusive comments” to

opposing counsel and court staff and had “filed numerous ill-conceived motions without following

the proper procedure and/or without substantial basis in law or fact.”

¶ 38. Regarding the second factor, the record supports the family division’s findings that

father appeared to be motivated by the improper purpose of harassing mother and needlessly

increasing the cost of litigation. The vast majority of his legal claims had no basis in existing law,

and the family division repeatedly found that his factual assertions, allegations, and denials of

mother’s factual claims did not have evidentiary support. This lack of evidentiary basis for his

claims indicates a lack of good faith, as do his continued illegitimate assertions that are intended

to embarrass and harass mother.

¶ 39. Turning to the third factor, the family division acknowledged that father

represented himself throughout the proceedings, but, as acknowledged in Zorn, emphasized

father’s obligation to comply with the procedural rules. 2011 VT 10, ¶ 22. Although pro se

litigants “receive some leeway from the courts, they are still ‘bound by the ordinary rules of civil

procedure.’ ” Id. ¶ 22. The record reflects that father repeatedly chose not to comply with relevant

rules even after the judge or court staff instructed father on how to comply.

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¶ 40. In consideration of the fourth factor, the court further noted that father’s filings

burdened mother financially, and needlessly expended valuable court time and burdened the court

and court staff. Moreover, father’s behavior had already resulted in the court awarding mother

attorney’s fees against father.

¶ 41. Moving on to the fifth and final factor, the court determined that requiring an

attorney to sign father’s pleadings would prevent duplicative filings and filings not based in fact

or law, and that requiring father to seek permission to file would reduce the burden on mother by

providing a filter. Filtering father’s impulses through an attorney’s professional obligations or the

court’s discretion to refuse improper and harassing filings is an appropriate and adequate measure

to protect both mother and the court from the burdens of responding to and adjudicating vexatious

litigation. Because father repeatedly violated Rule 11(b), met the majority of the Zorn factors, and

showed no indication of ceasing his harassment, the family division did not abuse its discretion in

concluding that a prefiling sanction under Rule 11(c) was warranted.

¶ 42. The next question is whether the injunction in this case was specific enough as to

procedure to ensure father’s continued access to the court system.

b. Precision of Sanctions

¶ 43. Although a prefiling injunction is warranted under the facts of this case, it must be

imposed with caution so as not to unduly restrict an unrepresented party from access to the court.

See Zorn, 2011 VT 10, ¶ 23. The sanction imposed in this case is distinguishable from the overly

broad one imposed in Zorn, which similarly involved a pattern of vexatious filings by a pro se

litigant.

¶ 44. The plaintiff in Zorn was initially represented by counsel when he sued the

defendant for legal malpractice. The court granted summary judgment and an award of around

$26,000 on his malpractice claim. Over the next several years, the defendant failed to pay, and

the plaintiff obtained a writ of execution on the judgment. By the time the defendant paid his first

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$50 towards the balance, it had risen to roughly $43,500, including interest. The plaintiff filed a

pro se motion for criminal contempt, but the court denied it and explained that civil contempt was

the only avenue available. The plaintiff then filed a series of “largely incomprehensible” motions,

including another motion for contempt, a motion for renewal of judgment, and an amended

complaint that named the trial judge as a defendant, all of which the court denied. Id. ¶ 5. The

plaintiff also filed papers with the superior court alleging that the court had engaged in

“unconstitutional, conspiratorial, and treasonous” actions and indicating that he had made

complaints to the Federal Bureau of Investigation and Internal Revenue Service related to the

court’s denial of his motions. Id. ¶ 6. Over an additional several years, the plaintiff continued to

file motions and appeals that were denied for lack of legal and evidentiary support. Id. ¶¶ 6-9.

¶ 45. Ultimately, the court directed the plaintiff to show cause why he should not be

sanctioned for filing five motions that lacked legal and evidentiary support. The plaintiff did not

address the court’s order in his response, instead submitting a lengthy filing that accused the

defendant and the court of conspiring against him. As a result, the court sanctioned the plaintiff

for violating Rule 11(b)(2)-(3) and directed the court clerk to refuse to accept any future pleadings

from the plaintiff unless they were signed by an attorney. The plaintiff appealed the sanctions.

¶ 46. This Court affirmed the trial court’s decision as within its discretion but modified

the sanctions order regarding two issues. Id. ¶ 13. We limited the sanction to the underlying case

between the plaintiff and the defendant and modified the order to allow the plaintiff to demonstrate

that he did not have the resources necessary to hire an attorney to represent him further in the

matter. Id. In upholding the sanction order, we noted that the trial court had “identified five filings

that plainly violated Rule 11” and “were repetitive and unsupported by fact or law.” Id. ¶ 15.

Although “[t]he right of access to justice is fundamental in our state constitution,” the “right is not

unlimited.” Id. ¶ 16. “[L]itigants are not free to abuse the courts by inundating them with frivolous

suits which burden the administration of the courts for no useful purpose.” Id.

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¶ 47. Here, father has the option of either having a licensed attorney sign his filings or

obtaining permission from the family division before filing further pleadings in this case. Whereas

the sanction in Zorn was overbroad because it appeared to apply to any proceeding involving the

plaintiff and potentially prevented the plaintiff from filing meritorious pleadings due to his

inability to pay for a lawyer, these considerations have already been addressed in the sanctions

order before us. The order is limited to the present case, and father is still permitted to file motions

pro se provided he first obtains permission from the family division. The present sanctions order

is therefore less onerous than the sanction in Zorn.

¶ 48. Nonetheless, the family division’s order in this case was unclear because it did not

inform father of an appropriate procedure to follow for requesting court permission to file future

pleadings. We therefore conclude that the order requires further clarification. The family division

should articulate a procedure for father to follow, such as filing a separate document along with

each future motion that asks for permission and states the relevant facts, law, and motivation for

the motion. Father has demonstrated difficulty with understanding court procedure and

appropriate conduct, but it is vital that the court provides clarity as to the methods by which he can

revise and resubmit his filings in the event there is a legitimate reason for his pleadings.

¶ 49. If father continues to submit non-permitted filings without following the court’s

established procedure for asking permission, the family division need not consider the merits of

the pleading but must inform father that his filing is refused by issuing an appropriate order

indicating that it will not be acted upon. Further, the family division must include the non-

permitted filings in the record to facilitate this Court’s review of whether the family division

appropriately denied permission for a particular pleading if an appeal is taken. Additionally, the

family division must allow father to respond to motions filed by mother and to appeal decisions

by the family division without first obtaining permission from the court unless it is required by

rule. Because we determine that father’s responses to mother’s motions are outside of the scope

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of the sanction, the family division must consider father’s responses; it may not refuse to consider

their merits the way it may do so if father improperly initiates future motions.

III. Conclusion

¶ 50. For these reasons, we affirm the imposition of sanctions and remand this matter to

the family division for it to tailor the sanctions order to outline the appropriate procedure and

standard for father’s future filings with the court.

Affirmed and remanded for further proceedings consistent with this opinion.

FOR THE COURT:

Associate Justice

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