Modification Mess

Put it on the books

Baron v. McGinty, 2021 VT 6

By Andy Delaney

This decision is a civil procedure case cloaked as an appeal from a child-support magistrate’s decision. If I’d known how important civil procedure was going to be in practice, I would’ve spent a lot more time in my first-year civ pro class taking notes and a lot less time playing Yahoo Pool against my classmates. Or maybe not. I remember sitting in the back of the class and looking over a sea of laptops with not one screen displaying anything remotely related to civil procedure. And we all had close-to-dial-up-speed internet connections back then. But I digress.

Our parties are Mr. Baron and Ms. McGinty. They got married in ’96 in Utah and separated in 2015. In 2016, Ms. McGinty got a Virginia divorce while Mr. Baron was in the pokey. Ms. McGinty was awarded sole physical and legal custody of the kiddos. The child-support order required Mr. Baron to pay $1757 per month in child support. About a year later, Ms. McGinty got a Texas court to enforce the Virginia judgment and she obtained a ~$22K judgment against Mr. Baron. Ms. McGinty then moved to Vermont. 

So, Mr. Baron filed a petition to register and retroactively modify the Virginia child-support order in Vermont. He alternatively argued that the Virginia order should be modified under Rule 60 because it was based on a “clerical error”—his pre-incarceration income. Ultimately, the family court magistrate opined that the Virginia order was not based on a clerical error and declined to exercise jurisdiction to register or modify the Virginia order because Ms. McGinty said she was moving back to Texas. Mr. Baron appealed directly to SCOV (a procedural error), and SCOV threw a boomerang—sending it back to the family division, which affirmed, and put the case back on SCOV’s doorstep.

SCOV affirms the magistrate on the Rule 60 decision, though on different grounds. SCOV reasons that the Uniform Interstate Family Support Act (UIFSA) lays out how an out-of-state order can be modified under the act and it does not authorize modification under Rule 60. SCOV drops a footnote to explain that the magistrate’s decision to rule on the Rule 60 motion’s merits was inconsistent with the not-exercising-jurisdiction aspect of the rest of the magistrate’s decision. SCOV reasons that while the UIFSA allows for new-jurisdiction modification of orders, it doesn’t allow for new-jurisdiction Rule 60 modifications—which would be retroactive by nature—in a new forum because that would encourage forum shopping and inconsistent application of the law.

Turning to the registration-and-modification analysis, however, SCOV departs from the family division’s reasoning. The UIFSA has a “shall” when it comes to registration and SCOV concludes there’s no discretion to deny a petition to register a child-support order unless a statutory exception applies—and no such exception applies here. In other words, mom saying “I’m gonna move” doesn’t defeat registration. There’s a small detour where SCOV deals with the family division’s finding of mootness on appeal—because mom did, in fact, move to Texas like she said she was going to—and SCOV reasons that because jurisdiction existed in the initial registration proceedings, it continues through all proceedings stemming from the petition. Ms. McGinty can’t defeat personal jurisdiction, once established, by moving out of state.

While modification of the child-support order is not mandatory (the difference between “shall” and “may”), all the elements necessary to modify the order were present here. The magistrate was required to register the order—this is an automatic process—and the magistrate had no discretion to decline to exercise jurisdiction. Accordingly, SCOV sends this one back to the magistrate to consider whether the child-support order should be modified.