Tuesday, May 6, 2014

Reach Out (With Your Long Arm) And Touch Someone

Pahnke v. Pahnke, 2014 VT 2

By Elizabeth Kruska

I was a 1L sometime between when the earth cooled and when the first iPhone was released for sale. That is also roughly the last time I thought about hot civil procedure topics like personal jurisdiction. When I originally read this case and saw that it cited to International Shoe, I had the same reaction as when I first read that case in law school: “International Shoe” is a funny name for a corporation. I know it’s about long-arm statutes. It’s still a funny name. 

There’s a lot of background to this case, and the SCOV marches through the procedural history very clearly over the course of sixteen paragraphs. The long and short of it is this: The parties divorced in Michigan in 1997. Mom moved to Vermont shortly after. Dad had custody of the parties’ four kids, and moved to Vermont so they could be closer to their mom. Mom was paying child support. Things changed, and by 2000, Mom had custody of all four kids. She filed a motion to modify the custody order in the Vermont court so she had full parental rights and responsibilities. For whatever reason, she did not register the Michigan child support order until 2004. It was never modified until the Office of Child Support (OCS) moved to modify the order on September 16, 2008. Twice Dad did not appear for the hearing, so the magistrate ordered that the sheriff serve notice by tack process.

Let’s talk about a tack order. If you Google “tack order” you’ll get sites for ordering horse-riding accessories (aka “tack”). For people who like to ride horses (like me), this is potentially dangerous. I found a pretty good sale on some nice riding boots and got a little distracted. It might be a touch ironic in this context that the riding boots I like come from England. International Riding Boots.

But a tack order in this context is where the court orders a sheriff to go all Martin Luther on somebody’s door and literally tack service to their door if the sheriff can’t find them some other way in order to serve them.

The modification hearing happened in February 2009 without Dad’s presence or participation. The magistrate ordered Dad had to pay Mom about $1000/month in support. Mom appealed to the Family Court, because it wasn’t retroactive to when she took custody of the 4 kids back in 2000.

Dad apparently got wind of the order, and filed a motion that summer to set aside the magistrate’s order. He also gave an address in Indiana. The family court denied his motion, and Dad appealed to SCOV, saying notice was inadequate. OCS admitted it knew the house where the tack process happened wasn’t where Dad lived (it was where Dad’s mother lived). So SCOV sent it back to the lower court.

Then Dad alleged the court had no personal jurisdiction, and this was denied in March of 2011. The magistrate found Dad had sufficient contacts with Vermont to support personal jurisdiction. Notice was sent to Dad at least a month before the scheduled hearing date. Dad responded, filed a change of address, and participated in the 2-day hearing by phone. The court found Mom owed Dad no child support from the date Mom was granted custody in 2000 until September 16, 2008, which is when OCS moved to modify. Dad appealed to the Family Court.

The Family Court found it had jurisdiction under the UCCJA and affirmed the child support order on September 14, 2012.

Dad appealed to SCOV, raising three issues: (1) insufficient service; (2) lack of personal jurisdiction; (3) that the family court violated UIFSA. Since they’re issues of law, SCOV considers them de novo, and applies the clear error standard to the magistrate’s factual findings.

Service: This one is pretty easy. Dad complained about insufficient service, but then participated in subsequent hearings. The point of service is for notice, and if you get notice and show up (either in person or by phone), you can’t really say you didn’t get notice. If a party has a beef with insufficient service, it’s got to be raised very early on. You don’t get to wait several years and have a bunch of hearings and then complain about bad original service.

Personal jurisdiction: The Uniform Interstate Family Support Act (UIFSA) creates jurisdiction for out-of-state parents. Sometimes people get divorced in one state and move to another state. UIFSA enables child support orders to follow people around so child support can continue. There’s got to be a way to reach out and touch someone out of state, and that’s through a long-arm statute.

To use a long-arm statute to pull in an out of state party, the court has to find that the party has minimum contacts with the state, and that holding suit in that particular state doesn’t “offend traditional notions of fair play and substantial justice.” That’s right out of good ol’ International Shoe. The court analyzes the parties’ interests with respect to the particular forum state, and whether it’s reasonable to require a defendant to defend suit in that state.

SCOV finds jurisdiction. Mom lives in Vermont, and the kids who were the subject of the child support live with her in Vermont. Although Dad doesn’t live in Vermont, he was able to participate in the hearings by phone; it’s not much of a burden for him to participate in legal proceedings here. The Court also found that Dad previously lived in Vermont and even had an unrelated court case in Vermont at one point. The long-arm statute can haul him back here for this case.

Subject matter jurisdiction/UIFSA: Dad tried to argue that the Vermont court could not modify the Michigan order. UIFSA is pretty strict about when an out of state order can be modified after registration. At the time OCS moved to modify – September 16, 2008, both Mom and Dad were living in Vermont. This gave the Vermont court jurisdiction, which didn’t go away just because Dad moved away.

Yikes. This is getting long. Bravo to you if you’re still reading.

Arrearage: So – all this to get to talk about the arrearages. Because, you know, at this point this has been bouncing around in Vermont courts for the better part of fourteen years, and if nobody’s paying support, that means someone’s got an arrearage. But, when does it start? Because we’re dealing with an out-of-state order registered under UIFSA, it’s subject to the same requirements as a Vermont-issued order. In Vermont, there can’t be retroactive modification to arrears accrued before a motion to modify is filed. The original Michigan order also didn’t allow that.

Although Mom had custody of the kids starting in 2000, there’s no legal way to get the child support back to when she started being the sole custodian. It can only start at the time of the motion to modify. It makes perfect sense that the magistrate “zeroed out” Mom’s support obligation; under the Michigan order she was the person paying, but by 2000 she was also the one with the kids full time. It wouldn’t make any sense at all for her to have to pay support AND have the kids full time.

The court found that notice was established by the September 16, 2008 date (when OCS filed its motion to modify); that is the date upon which the magistrate should calculate the support obligation. Dad shouldn’t be surprised that he’d have to pay support, since at that point he hadn’t had custody of the kids in eight years or so.

Long story short (too late for that, I know): Mom gets support starting September 16, 2008, which the magistrate has to calculate, I found a good sale on some nice English riding boots, and the name International Shoe is still kind of funny.

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