Thursday, April 11, 2013

You Have Been Served

Welch v. Welch, 2013 VT 20

This is quickie from the SCOV that answers a burning question: do you have to personally serve an order on a party in a family law case before you file a motion for contempt?

I know.  I know.  The question has kept you up for weeks too, right?

Well, rest easy group.  The SCOV is here with a definitive answer.  

No special service is required for the underlying order on which a contempt action is based. 

Here is how we get there.  Husband and Wife divorced in 1993.  Husband was ordered to pay $600 in monthly support to wife until she re-married or died (guess which is going to come first).  In the meantime, Husband moved to Wyoming where, presumably, the wide-open range led him to space-out and miss periodic support payments. 

Wife eventually filed a motion seeking payment on the overdue installments.  On June 27, 2011, the trial court issued an order finding that Husband had failed to comply with the support payment obligations and was chronically late in making such payments.  The court ordered Husband to pay Wife $3776 in overdue payments, interest, costs, and attorney’s fees within 30 days.  A copy of this order was mailed to Husband’s attorney who had represented husband in the matter.   

Husband made no payment s within the time set by the court.  So in early October, Wife filed a motion for contempt seeking additional penalties, costs, and fees.  Wife had husband personally served with her motion, but she did not include a copy of the June 27th order.  At the time, Husband, through his attorney, made a $50 payment to Wife in compliance with the June order.

At the contempt hearing, neither Husband nor Husband’s attorney appeared, and the trial court found Husband in contempt and doubled the amount owed. 

At this point, Husband, again through his attorney, forwarded several payments to Wife nearly equal to and in compliance with the amounts owed under the June 27th order, but Husband denied that he was in contempt.  His position was that because he was not personally served with the June 27th order, the trial court lack jurisdiction to find him in contempt.  At a January 17, 2012 hearing, his attorney argued just that.

Let’s take a step back to discuss service.  In litigation there are all kinds of ways you can “serve” another party with a document.  The one most people are familiar with is personal service.  This is the classic idea of having someone (usually a sheriff or other professional process server) personally hand the documents to the individual as proof that the individual received them.  It is the source of reality shows and mediocre romantic comedy.  It is also not necessary in most cases.  Personal service is required at the beginning of a case to bring in the defendant(s).  But after that, personal service is usually only required for certain filings (subpoenas, revised complaints, and trustee process being three examples).  For the rest, service is made by putting the motion or order in the mail to the other side’s attorney.  It is laid out in the Rules of Civil Procedure under Rule 5. 

The take away is that personal service is only required in a few circumstances.  For the rest of the time, mail will suffice.  This makes sense.  It would be absurd to require personal service for every motion, order, discovery response, or letter that the parties filed with the court or that the court filed with the parties.  For all of this, simply mailing the document to the attorneys is enough.

So how did Husband come to argue that personal service was necessary?  The answer lies further in the rules and statutes surrounding contempt.  In particular, 12 V.S.A. § 122 states that contempt occurs when an order is served on a party and that party then violates the order.  Husband, looking to language from an earlier SCOV case argued that this language meant personal service and the failure to include the order in the papers that Wife served on him meant that contempt had never begun.

Not so fast rules the SCOV.  Section 122 only requires that the order underlying the contempt “be served.”  It does not specify personal service.  Looking to Rule 5, the SCOV concludes that this language only requires the normal service required for a motion, which was to mail it to the attorney.  Since that was done, the order was effectively served and the trial court was correct in taking up the contempt motion and granting it. 

A few other facts drive this point home.  First, the Husband had received the order because he had made a partial payment under the order prior to the contempt hearing.  This means his argument was purely technical.  He had a copy of the order and was aware of it.  His argument is the classic form over substance position (which is almost never a winner). 

Second, the SCOV notes that if Section 122 intended to add personal service, it would have specified as other provisions do.  For example, Wife’s contempt motion required personal service under Rule 16 of the family court rules.  In other words, the courts and the legislature know how to require personal service and are specific when they do.

Third, the SCOV notes that the sole case summoned by Husband in support of his position is distinguishable from his issue.  That case dealt with a decision by the trial court to dismiss a contempt motion but still award the unpaid child support sought.  While some of the language in the motion suggests personal service, the SCOV notes that it is tangential to the case, not binding on the SCOV, and incorrect. 

With this, Husband’s highly technical argument crumbles like the Rockies and tumbles like Gibraltar.  The SCOV affirms.  Contempt was proper.  Service was achieved, and Husband will have to pay double. 

Any further objection will have to be addressed to the hand.

Cue the Chaka Khan.

No comments:

Post a Comment