Wednesday, May 8, 2013

A Modifiable Feast



OCS/Pappas v. O’Brien, 2013 VT 11.

Nothing explodes into a festering cauldron of prolonged litigation quite like a jurisdictional battle over children.  Unless, that is, the battle is over unpaid child support.  Today’s case is a tangled web anchored in two enforcement actions, three states, and some four or five independent questions of law.  Hold on, folks—this interstate highway is unpaved.


As this case shows us, sometimes the bitter disputes between former co-parents carries on well beyond the relevant time frame, and regardless of the dollar amount.  Mother and Father divorced almost twenty years ago, their sons, P.P. and A.P., are “either in or approaching their thirties,” and the amount in controversy is roughly $7,600 (owed to Father) and $34,100 (owed to Mother).

Mother and Father married at the end of the seventies and roamed.  They lived, at first in Oklahoma (where the boys were conceived), then New York.  Within seven years of marrying, parents divorced in California.  In 1986, when their boys were 6 (A.P.) and 3 (P.P.), Mother and Father got joint legal custody of the children, with primary physical custody for Mother and a child support obligation for Father.  Eventually parents moved to different states, Father to Oklahoma, and Mother to Georgia with the kids.  In Georgia, Mother domesticated the divorce order and got an increase in child support (the “Georgia Support Order”).

Mother moved the children to New York when they were teenagers.  A few years later, and shortly before A.P., their eldest, turned eighteen, Father in Oklahoma took unofficial custody of their youngest, P.P. 

In 1999, Father initiated proceedings in Oklahoma, and obtained an order (the “Oklahoma Support Order”) giving him official custody of P.P. and child support from Mother, ending Father’s child support obligation, and granting Father a judgment for Mother’s arrears.  Only then did Mother begin putting up her jurisdictional dukes. 

Mother tried to limit her appearance in Oklahoma to just the jurisdiction over custody issue.  After the court found in Father’s favor, Mother requested two new trials on jurisdictional grounds.  The result was a denial followed by a withdrawal when P.P. moved back in with Mother in 2000, after his two-year stint with Dad.  Mother appealed neither the initial Oklahoma Support Order nor the denial of her request for a new trial.

When P.P. went back to live with Mother, Father decided to enforce his Oklahoma Support Order.  He obtained an administrative order in Oklahoma for the amount of arrears Mother owed him at that time, around $7,600.

Fast forward about ten years.  Mother now lives in Vermont, Father is still in Oklahoma.  At some point, the government, as it is wont to do, got involved.  An attempt by the State of Oklahoma in 2008 to collect child support from Mother was transferred to Vermont’s Office of Child Support (“OCS”).  OCS tried to domesticate the Oklahoma Support Order in Vermont under the Uniform Interstate Family Support Act (UIFSA).

As you might imagine, OCS stuck a toe into Mother’s jurisdictional sore spot.  A decade after the Oklahoma proceedings, Mother raised lack of subject matter, personal jurisdiction, and notice in an attempt to set aside the Oklahoma Support Order.  A magistrate eventually issued an order registering the Oklahoma Support Order in Vermont and granting Father judgment against Mother for the amount owed. 

Mother appealed to Chittenden Superior Court’s Family Division.  The Family Court affirmed.  Mother’s appeal of the Family Court’s decision is Case No. 1 of two the SCOV mashes into jurisdictional pulp in today’s case.

Case No. 2 was a new enforcement action by Mother, who, I imagine, said to herself, “Oh yeah?!  I got one o’ those child support orders in Georgia!”  Mother asked a Vermont magistrate to register and enforce her Georgia Support Order, grant her judgment for roughly $34,100 in arrears, and also stay enforcement of the Father’s Oklahoma Support Order.

OCS jumped right into the cauldron in Case No. 2, on Father’s behalf, and requested intervention and dismissal.  Father/OCS was granted dismissal for lack of personal jurisdiction under UIFSA over Father.  Mother appealed to the Family Court, who affirmed.  Mother appealed the Family Court’s decision again, and the SCOV squished it with Case No. 1 bringing us to the present monstrous shape before the SCOV.

Before we jump into the SCOV’s reasoning, let’s take a step back for a moment to look at our upcoming jurisdictional feast.  Case No. 1, consisted of three courses of juicy jurisdictional justice and was brought by OCS in Vermont to register and enforce Father’s Oklahoma Support Order.  Case No. 2 represents the fourth course, dessert.  It was brought by Mother in Vermont to register and enforce her Georgia Support Order.  Mother lost in both cases, and appealed both. 

Simple, no?  So why did this seemingly innocuous set of complicated facts garner a 32-page opinion with 21 footnotes from our normally succinct high court?

As the SCOV notes up front, three facts combine in this case to make a rather thorny onion: 1) P.P. spent a short stint living with Father; 2) both parents think they’re owed back child support; and 3) when Father sought child support in Oklahoma neither he nor Mother lived in California, where the original divorce order was issued, or Georgia, where Mother domesticated the California order.  Add to these facts the complex latticework of interstate child support statutes, primarily UIFSA, that produce a different result in parents’ situation.  The result is an impressive invocation on the SCOV’s part of the long-windedness gods.

The SCOV clears the air initially by setting its standard of review (clearly erroneous) and the law that will apply (Vermont as the forum state).  The first three courses after the formalities address Mother’s challenges to Father’s Oklahoma Support Order in Case No. 1.  They are subject matter jurisdiction cocktail, filet du personal jurisdiction, and notice soufflĂ©.

Course 1: Subject-Matter Jurisdiction Cocktail. 

The SCOV considers first whether Mother may attack Father’s Oklahoma Support Order for lack of subject-matter jurisdiction.  The problem with this approach is that lack of subject-matter jurisdiction is not on the short list of defenses UIFSA allows Mother to raise. 

No matter: the SCOV finds some useful language in Vermont’s version of UIFSA allowing enforcement of an out-of-state order “if the issuing tribunal had jurisdiction.”  Problem solved.  Subject-matter jurisdiction is, after all, sort of the ultimate trump card.  After all, if the court below couldn’t hear the case, then the court itself finds itself standing on thin air when asked to review the lower court’s decision.

As excited as our readers may be in anticipation of an adventurous romp through the merits of Mother’s subject-matter jurisdiction challenge, the SCOV disappoints on this issue.  Because Mother fully litigated the issue of whether Oklahoma had jurisdiction to register the Georgia support order, she is precluded from raising the issue now.

As the SCOV notes, their conclusion here seems to “fly in the face” of the traditional notion that subject-matter jurisdiction can always be raised.  But the SCOV has been bitten before, by an even higher court.  The U.S. Supreme Court reversed the SCOV on this same question in Cook v. Cook, 342 U.S. 126 (1951).  The SCOTUS declared that a judgment from one state (Florida) on the question of subject-matter precludes a collateral attack on the same grounds in another state (Vermont) unless subject-matter jurisdiction was not adequately litigated in the first state (Florida).

This concept was reinforced in another SCOTUS decision twelve years later and, the SCOV notes, is incorporated into the Restatement (Second) of Judgments.  If subject-matter jurisdiction was fully and fairly litigated, the SCOV concludes, the issue is resolved and closed.

Applied to the Oklahoma proceedings, the SCOV concludes Mother can’t raise subject-matter jurisdiction now.  Mother was a party in the Oklahoma proceedings, she raised subject-matter jurisdiction under the Uniform Child Custody and Jurisdiction Enforcement Act (“UCCJEA”) there, and she later argued subject-matter jurisdiction under UIFSA.  When the Oklahoma court ruled against her, Mother briefed the issue extensively in her request for a new trial.  She lost that time too, and did not appeal the Court’s order.  In short, says the SCOV: Mother had her shot, she doesn’t get another.

Before we get into Course 2, a dip into UIFSA is warranted.

UIFSA limits which states a parent petitioning to modify a child support order can go to without the consent of the other parent.  Basically, if the state is not the residence of the other parent, not the original forum, and not the residence of the child, then the petitioning parent is out of luck.  This is because the UIFSA and other interstate child support laws discourage forum shopping by parents who move away from the other parent and seek to open a new docket in their new home state.  In other words, if you started it Georgia, it must continue in Georgia, unless it is convenient to the other party or to the children. 

What does that mean for this case?  At the time Father won his Oklahoma Support Order, he was the only family member who was a resident of Oklahoma.  Thus, Mother crows triumphantly, Oklahoma didn’t have jurisdiction under UIFSA to decide child support when it modified the Georgia Support Order. 

Right?

Ha!

Here comes one of our “complicating facts.”  If you recall, teenage P.P. went to stay with Father for about two years, an event that ostensibly started this whole mess.  As it turns out, the Georgia Support Order that Father “modified” in Oklahoma and Mother later tried to register in Vermont automatically terminated when “a court of competent jurisdiction” changed custody.  Because P.P. changed parental hands, the Georgia Support Order expired the moment the Oklahoma court granted Father custody of P.P.  There was technically nothing to “modify,” so Father’s resulting support order was a “new and independent request for child support.” 

At this point the SCOV distinguishes the present case from a previous decision, Spencer v. Spencer, a New York case considering the definition of “modification” under another set of federal child support statutes: the Full Faith and Credit for Child Support Orders Act (“FCCSOA”).  This Act gets a few paragraphs of mention, and its own multi-paragraph treatment in one of the SCOV’s David Foster Wallace-length footnotes.  It is a bit of a cul-de-sac because the FCCSOA doesn’t figure much into the SCOV’s ultimate conclusion here because Mother and Father here framed their arguments in terms of UIFSA. 

Still, Practitioners take note.

After exploring, the SCOV decides that, unlike in Spencer, where the two orders were inconsistent with each other, here Father’s Oklahoma Support Order in Oklahoma was consistent with the Georgia order, which, if you recall, ended automatically when Oklahoma gave custody of P.P. to Father.

In case you are not still with me, you should probably understand that you are not alone.  The SCOV is in a maelstrom of dense, cross-jurisdictional, multiple interstate statute and guidelines, child-support discussion here, and they are fighting the descent.  In fact, I may have single handedly stifled my own husband’s will to reason by reading out loud one of the sentences from the SCOV’s opinion in this section.

The SCOV justifies its decision by noting the practicality of its approach, treating the whole situation as if there were no child support in place the moment Oklahoma switched custody from Father to Mother.  If it were to rule otherwise and treat the Oklahoma Support Order as a modification of the Georgia Support Order, Father would be barred from seeking child support payments in his home state after taking custody of P.P.  In other words, after taking custody of P.P. and establishing residency for both of them in Oklahoma, Father would still have to go to Georgia or New York to get money from Mother to support P.P.  This result would be inconsistent with the intent of UIFSA, and the SCOV won’t have it.

Course 2: Filet Du Personal Jurisdiction. 

If you recall, Mother tried to preempt personal jurisdiction in Oklahoma by “limiting” her appearance to just arguing Oklahoma’s UCCJEA jurisdiction to award Father child-support.  As so often happens, however, Mother became embroiled in the Oklahoma proceedings.  This fact, as we shall see, spells her legal demise—at least where today’s case is concerned.

The SCOV initially disagrees with the trial court, who found that the issue of personal jurisdiction was already litigated, and thus a settled and precluded matter.  Challenging custody under the UCCJEA does not allow a court to assert jurisdiction over the issue of child support because a parent merely participates in the UCCJEA proceedings.  Nor did Mother waive her personal jurisdiction hedge by “requesting substantive relief” and touching on issues outside of jurisdiction during the proceedings.  Mother did not change her position that Oklahoma lacked personal jurisdiction over her.

However, the SCOV takes the long view here.  Remember that Mother did have sex with Father in Oklahoma, and P.P. may have been conceived as a result in the Sooner state.  This, the SCOV declares, is “a valid basis for jurisdiction” under Oklahoma law, even though the UIFSA was not in effect when Mother got up the spout.  Nevertheless, after delving into the merits of Mother’s personal jurisdiction argument, the SCOV ultimately concludes that it doesn’t need to decide this issue.  Even if Mother did not concede personal jurisdiction, she litigated it like she did with subject-matter jurisdiction and lost in Oklahoma in a final decision on the merits.  Therefore, she is precluded from re-litigating it in Vermont.

Course 3: Notice SoufflĂ©.  

Or, as I like to call it: Mother’s last stand. 

This last series of arguments for Case No. 1 represents an effort to squash Mother’s obligation to pay child support for the brief time Father had custody of P.P.  Mother’s first challenge on notice grounds claims that, because Father didn’t ask for child support in his initial custody petition in Oklahoma, she did not have adequate notice that Oklahoma would make a decision on child support. 

Notice is a due process argument.  Without adequate notice that a court will be considering child support obligations and an opportunity to have your side heard regarding such allocations, a court should not, constitutionally, be able to issue a decision about child support order that obligates you to pay child support.  The SCOV initially feints at the same conclusion it drew from Courses 1 and 2: Mother had opportunity to argue inadequate notice in Oklahoma, and is precluded from doing so in Vermont now.

But the SCOV adds insult to injury, and goes so far as to reject Mother’s notice argument on the merits.  Mother was supposed to know what would happen when Oklahoma changed custody of P.P. to Father:  Obviously, Father would then have the right to request child support.  Oklahoma didn’t need to give Mother notice that she, as much as Father, would be responsible for contributing monetarily for P.P.’s support, and that Oklahoma would consider this once Father got custody.

Furthermore, Mother asked that the issues of custody and child support be bifurcated—heard separately—so she clearly knew that child support would be decided eventually.  Although, she also thought that the court would be allocating support payments owed to her and not from her. 

The SCOV concludes, however, that “owing and being owed child support are sufficiently related.”  Due process was not violated under these circumstances, even if Mother had inadequate notice that Oklahoma would be deciding whether she owed child support.  After all, the SCOV opines, Mother must have had some “ominous inkling” that she’d end up owing child support after Father took custody before the decision, and doubly so when she decided not to appeal it.

The SCOV also rejects Mother’s second argument on notice grounds, claiming that she never got notice of the Oklahoma magistrate hearing resulting in default judgment against her for Father’s $7,600 claim.  Instead of challenging the amount of the judgment, Mother attacked the validity of the Oklahoma Support Order that got her into this mess.  The magistrate noted that the parties did not seem to disagree on the amount of arrearages owed and issued default judgment in Father’s favor.  Here too, Mother failed to appeal.

At any rate, the SCOV concludes, the magistrate’s order simply determined how much was owed, and it was unrelated to the jurisdictional challenges Mother raises to the Oklahoma Support Order.  Mother does not have a defense to the registration and enforcement of the Oklahoma Support Order.  Father wins on Case No. 1—the trial court was correct.

Course 4: Dessert

Now we come to the piece de resistance—dessert.  Before both the magistrate and the trial court, OCS won and Mother lost on the question of whether Vermont had personal jurisdiction over Father (an Oklahoma resident, in case you’ve forgotten) to collect child support under Mother’s Georgia Support Order.  On appeal, Mother argues that, because Father’s Oklahoma Support Order incorporated her Georgia Support Order, when Father registered his order in Vermont, he “necessarily registered” Mother’s order in Vermont, and thereby waived any objection to personal jurisdiction.

Fortunately for Mother, the SCOV disagrees with the trial court on this question.  Father submitted to personal jurisdiction in Vermont.  By initiating the proceeding in Vermont to register and enforce his Oklahoma Support Order, he filed a “responsive document” that, under UIFSA, waives personal jurisdiction.  This is true, the SCOV concludes, even though OCS, not Father, initiated the proceedings in Vermont.  Technically Father is the plaintiff in the action, and OCS could not have gotten involved if he had not requested its aid. 

The SCOV also decides that UIFSA’s limited immunity provision does not apply here. This provision protects an individual seeking to enforce child support from risking waiver of personal jurisdiction in “another proceeding.”  Under this rule, the trial court had found that Father did not submit to personal jurisdiction merely by filing to register and enforce his Oklahoma Support Order.

Not so, says the SCOV, where the court is considering claims for outstanding child support between the same parties.  A second dispute concerning child support obligations between the same parents involving the same child, or even the same parents and a different child, are sufficiently related to justify asserting personal jurisdiction over Father despite UIFSA’s immunity provision. 

The aim of UIFSA’s limited immunity provision was prevent a parent from waiving personal jurisdiction claims as a result of litigating collateral claims.  In this case, the SCOV decides, Father’s arrearages owed to Mother in this case are not collateral to Mother’s arrearages owed to Father, for two reasons.

First, a child support obligation exists for the benefit of the child or children, and not the receiving parent.  A parent’s expectation that she will be able to collect past due child support ultimately benefits the children.  The SCOV finds this justification compelling even though sometimes it means arrearage is collected well after the kids have long since flown the nest.  Both parents have a duty to meet their obligations as parents by “pick[ing] up the financial slack” and aiding the custodial parent with child support. 

Second, UIFSA was intended to “cure the problem of conflicting support orders entered by multiple courts.”  It is not only fair, reasonable, and efficient to have both child support claims be resolved in a single forum, it is in the interest of all parties involved.  When the dispute is over arrearages involving the same parents, the policy considerations justify an implicit override of UIFSA’s immunity provision.  The trial court got it wrong; Father was subject to personal jurisdiction in Case No. 2.

This means that Case No. 2 goes right back down to the trial court to be heard on the merits.  This includes Mother’s arguments as well as Father’s potential defenses.  Furthermore, the SCOV notes that this case should be treated as a counter-claim to Case No. 1.  So Father can bank today’s judgment against any obligations found.

In the end, even though Mother loses in Case No. 1, she gets a sweet remand in Case No. 2 for her arrearages claims.  A small victory for both parties seems only proper after such an epic battle. 

I don’t know about you, but after all that, I could use something to eat.

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