Volume 148 — Vermont Reports

<bold>1. Constitutional Law — Due Process — Withholding of Evidence by</bold> <bold>Prosecutor</bold> Under <italic>Brady v. Maryland,</italic> <cross_reference>373 U.S. 83</cross_reference> (1963), prosecutor violates individual's due process rights if evidence that is material either to guilt or to punishment is suppressed and nondisclosure might have affected outcome of trial; defendant's due process rights are not violated unless omitted evidence creates reasonable probability that, had evidence been disclosed, trial outcome would have been different. <bold>2. Constitutional Law — Due Process — Withholding of Evidence by</bold> <bold>Prosecutor</bold> In trial for aggravated assault, where only State witness who was present when incident occurred was intoxicated and could not remember events in question, witness's testimony did not amount to evidence that would have had bearing on material issues of guilt or punishment; thus, there was no reasonable<page_number>Page 36</page_number> probability that, had impeaching evidence of witness's prior theft convictions been disclosed to defense, trial outcome would have been different. <bold>3. Constitutional Law — Due Process — Withholding of Evidence by</bold> <bold>Prosecutor</bold> Although prosecutor has obligation to disclose to defendant wide range of material and information, see V.R.Cr.P. 16, violation of rule must be coupled with showing of prejudice in order to produce reversible error. <bold>4. Constitutional Law — Due Process — Withholding of Evidence by</bold> <bold>Prosecutor</bold> In trial for aggravated assault, there was no evidence that State deliberately withheld fact that State witness had criminal record, or that State used withheld information to benefit its position; although defendant contended that witness's criminal record would have assisted defense in attacking her credibility, prosecutor's failure to disclose it did not prevent defense from demonstrating through cross-examination that witness could not remember details of evening in question; thus, failure to disclose witness's criminal convictions did not result in prejudice to defendant and omission was harmless.

<bold>1. Domestic Relations — Child Custody — Jurisdiction</bold> In child custody proceeding, trial court properly concluded that at least one parent had significant connection with Vermont and that substantial evidence concerning children's present or future care, protection, training and personal relationships existed in Vermont, <cross_reference>15 V.S.A. § 1032</cross_reference>(a)(2)(A) and (B); thus, trial court properly invoked its jurisdiction under Uniform Child Custody Jurisdiction Act. <bold>2. Domestic Relations — Child Custody — Uniform Child Custody</bold> <bold>Jurisdiction Act</bold> Purpose of Uniform Child Custody Jurisdiction Act (UCCJA) is to assure that litigation concerning custody of children takes place ordinarily in state with which children and their family have closest connection and to deter unilateral removals; "home state" jurisdiction is not exclusive basis for jurisdiction, as UCCJA contemplated alternate grounds for subject matter jurisdiction. <cross_reference>15 V.S.A. § 1032</cross_reference>(a)(1), (a)(2), (a)(3), (a)(4). <bold>3. Domestic Relations — Divorce Proceedings — Service by</bold> <bold>Publication</bold> Uniform Child Custody Jurisdiction Act (UCCJA) provides that reasonable notice and opportunity to be heard be given before making decree under UCCJA, <cross_reference>15 V.S.A. § 1033</cross_reference>, and further, that notice of exercise of jurisdiction over person outside state be given pursuant to Vermont Rules of Civil Procedure, <cross_reference>15 V.S.A. § 1034</cross_reference>(a). V.R.C.P. 80(b) provides that service by publication is available in divorce action pursuant to V.R.C.P. 4. Process in divorce action may be served on out-of-state defendant by publication. V.R.C.P. 4(e), (g). <bold>4. Domestic Relations — Divorce Proceedings — Service by</bold> <bold>Publication</bold> Where plaintiff averred that she believed defendant had left jurisdiction to avoid service of process and defendant's whereabouts were unknown to plaintiff at time plaintiff moved to serve by publication pursuant to V.R.C.P. 4(g) and 80(b), and there was no indication that plaintiff fraudulently withheld knowledge of defendant's Vermont mailbox, superior court had reasonable evidentiary basis upon which to conclude that service could not be made by means other than publication and that due diligence to obtain defendant's address had been made by plaintiff. V.R.C.P. 4(g)(1).

<bold>1. Trusts and Trustees — Termination of Trust — Material Purpose</bold> <bold>of Settlor</bold> Active trust may not be terminated, even with consent of all beneficiaries, if material purpose of settlor remains to be accomplished. <bold>2. Trusts and Trustees — Support Trust — Creation of</bold> Support trust is created where trustee is directed to use trust income or principal for benefit of individual, but only to extent necessary to support individual; where terms of trust provided that when educational purpose of trust has been accomplished and trustee, in his discretion, has so determined, income and such part of principal as may be necessary shall be used by trustee for welfare of lifetime beneficiaries so that they may live in style and manner to which they are accustomed, trustee must, at very least, pay all trust income to lifetime beneficiaries; thus, trust cannot be characterized as support trust. <bold>3. Trusts and Trustees — Spendthrift Trust — Creation of</bold> Trust in which by terms of trust or by statute valid restraint on voluntary and involuntary transfer of interest of beneficiary is imposed is spendthrift trust; while no specific language is needed to create spendthrift trust, terms of trust instrument in case sub judice did not manifest settlor's intention to create such trust. <bold>4. Trusts and Trustees — Termination of Trust — Material Purpose</bold> <bold>of Settlor</bold> Where settlor provided that trustee must provide for care, maintenance and welfare of lifetime beneficiaries so that they may live live in style and manner to which they are accustomed, for and during remainder of their natural lives, settlor's intention to assure life-long income to lifetime beneficiaries would be defeated if termination of trust were allowed; thus, termination of trust cannot be compelled because material purpose of settlor remained unaccomplished.

<bold>1. Appeal and Error — Administrative Appeals — Retirement Board</bold> <bold>Decisions</bold> While legislature may deny judicial review of administrative agency decisions, legislature did not express such intent in legislation establishing Vermont state retirement system; former <cross_reference>21 V.S.A. § 628</cross_reference> set forth clear legislative intent to foreclose judicial review of decisions rendered by State Board of Employee Benefits, while language of <cross_reference>3 V.S.A. § 466</cross_reference>, taken at its plain meaning and in context of remainder of act, does not foreclose judicial review of Retirement Board's decisions. <bold>2. Appeal and Error — Administrative Appeals — Retirement Board</bold> <bold>Decisions</bold> While no right of direct appeal from decisions of Retirement Board exists, V.R.C.P. 75 allows appeal of Board's decisions to superior court with subsequent appeal to supreme court; thus, jurisdiction to hear appeal from superior court's affirmance of decision of Retirement Board existed pursuant to V.R.C.P. 75. <bold>3. Administrative Law — Delegation of Legislative Authority</bold> <bold>— Discretionary Authority</bold> Although legislature cannot delegate its legislative functions, it may confer upon administrative agencies power to apply general provisions of law to particular circumstances; enabling legislation of virtually every administrative agency must include degree of discretion given to agency to deal with issues unforeseen by its creators; such discretion delegated by legislature must not be unrestrained and arbitrary. <bold>4. Administrative Law — Delegation of Legislative Authority</bold> <bold>— Discretionary Authority</bold> Since Retirement Board was granted discretionary authority under <cross_reference>3 V.S.A. § 466</cross_reference> to determine how to offset workers' compensation award against occupationally related disability pension, but was not granted discretion whether or not to do so, § 466 was not unconstitutional delegation of legislative authority, for it gives clear mandatory guidelines for Board to follow in arriving at its decisions. <bold>5. Statutes — Rules of Construction — Plain Meaning</bold> Given plain language of statute (<cross_reference>3 V.S.A. § 466</cross_reference>), supreme court will give effect to its obvious terms and not attempt to construe it; words used in statute which have not been specifically defined in that statute are to be given their plain and commonly accepted meaning.<page_number>Page 532</page_number> <bold>6. Statutes — Rules of Construction — Legislative Intent</bold> While statute was remedial legislation and thus should be construed liberally in favor of plaintiff, if language of statute is clear, legislative intent must be ascertained from statute itself, and supreme court must enforce statute according to its obvious terms. <bold>7. Administrative Law — Retirement Board — Discretionary</bold> <bold>Authority</bold> Manner in which Retirement Board offset plaintiff's workers' compensation award was within discretion of Board; it is not within discretion of Board to determine whether or not to offset such awards; supreme court will not interfere with decision of administrative board made in performance of discretionary duty in absence of showing of abuse of discretion resulting in prejudice to one of the parties. <bold>8. Administrative Law — Disability Retirement Payments — Minimum</bold> <bold>Payments</bold> Where Retirement Board offset plaintiff's disability retirement allowance by his workers' compensation award, manner of offsetting workers' compensation award was within Board's discretion; legislature having expressly provided minimum payments for only one group of state employees, public safety employees, absence of any action by legislature to guarantee minimum payments to other employees should be taken as evidence of legislative intent not to guarantee minimum payments to other employees.