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 soufflé.
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 Soufflé.
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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