Are they really lies?
If there’s a privilege, it won’t
support a defamation claim 

Couture v. Trainer, 2017 VT 73

By Andrew Delaney

Dad sued mom and aunt because he claimed that they coached daughter in saying “Daddy hit me.” He also alleged that they submitted defamatory audio and video recordings of daughter’s statements to his parole officer, and that mom made false statements to his parole officer and in mom’s petition for relief from abuse. Dad also brought claims on the basis that he’d loaned mom money without explicitly detailed theories. Dad also moved for a court-appointed expert.

The trial court denied the request for a court-appointed expert. It then concluded that the recordings and statements were absolutely privileged, imputed legal theories on the money claims, and dismissed the whole case.

Dad appeals.

SCOV pieces together the facts because the trial court didn’t do so. After dad was released from prison on parole, he got together with mom and they had daughter together. They all lived together in an apartment. They planned to buy a house. So dad paid off mom’s credit cards, paid the rent, and paid a bunch of other bills as part of that plan.

They then had a falling out. Dad was escorted out of the apartment. Pursuant to a later court order, they were to share custody of daughter, but dad was to have no contact with mom.

Nonetheless, dad picked up daughter early at mom’s place on March 20, 2014. He said it was at mom’s insistence. Dad suspected sex abuse and contacted DCF. He then contacted his parole officer and took daughter to a doctor.

Later that same day, mom filed a relief-from-abuse (RFA) complaint against dad on her and daughter’s behalf, alleging that daughter (two years old at the time) told her and aunt, “Daddy hit me.” She alleged that they made recordings but didn’t include them with the RFA complaint.

Mom and aunt also contacted dad’s parole officer, told the same story and handed over the recordings. So dad got arrested and thrown in jail for parole violations.

Dad filed two different suits. One was against mom for money damages based on defamation and negligence, as well as the earlier-mentioned-loans-and-such claims. The other suit was against aunt for defamation and negligence. He also filed a motion for a court-appointed expert to show that the recordings were false due to coaching. This motion was denied.

Mom filed a motion to dismiss for failure to state a claim and aunt filed a motion for summary judgment.

The trial court converted mom’s motion to dismiss into a motion for summary judgment and consolidated the two suits based on common questions of law and fact. The court then granted both motions for summary judgment, even assuming for purposes of assessing the summary judgment motions that the audio and video recordings had been “falsified as alleged” based on a growing trend to recognize absolute privilege in these circumstances (claims of abuse) and the public policy reasons—that it minimizes exposure of victims of violence to the risk of defamation claims when they report incidents of abuse—behind that trend.

On appeal, dad argues that the court messed up when it: (1) concluded that mom’s recordings and statements should be protected by absolute privilege (they should instead be protected by qualified privilege), and (2) denied his monetary claims against mother.

SCOV notes that it reviews a grant of summary judgment using the same standard of review as the trial court and that summary judgment should be upheld only 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.” All allegations made by the non-moving party are taken as true.

There’s a sizable discussion about litigation privileges and defamation. Because we like to grossly oversimplify things here, we’ll just say that SCOV recognizes an absolute privilege in judicial and quasi-judicial (like parole board) proceedings and it doesn’t stray far from that idea. SCOV upholds the trial court’s grant of summary judgment on the defamation claims.

On the monetary claims, SCOV goes in a different direction. The trial court had gone with promissory estoppel and unjust enrichment theories to conclude that dad’s claims should be dismissed. SCOV doesn’t necessarily see an issue with that approach, but the facts themselves aren’t clear enough to make a decision. So, because there are “inconsistencies and uncertainties” regarding the alleged loans to mom, SCOV reasons that summary judgment was not appropriate and kicks the monetary claims back to the trial court.

In a pair of footnotes, SCOV reasons that dad didn’t brief his negligence claims so SCOV isn’t going to dig into those; SCOV also notes that the court’s power to appoint an expert is wholly discretionary and SCOV finds no basis in the record for an abuse of discretion.