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Ocs/Glenn Pappas v. Nan O'brien

March 1, 2013

OCS/GLENN PAPPAS
v.
NAN O'BRIEN NANCY BERNHEIM P/K/A NAN O'BRIEN
v.
GLENN PAPPAS M. PATRICIA ZIMMERMAN, J. (10-398) THOMAS J. DEVINE, J. (11-165)



On Appeal from Superior Court, Chittenden Unit, Family Division

The opinion of the court was delivered by: Dooley, J.

OCS/Pappas v. O'Brien (2010-398) and Bernheim v. Pappas (2011-165)

2013 VT 11

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. These consolidated cases present disputes over child support so stale that the parties' children are now in and approaching their thirties. The basic questions are whether father can register and enforce a child support order obtained in Oklahoma against mother and, inversely, whether mother can register and enforce an earlier child support order obtained in Georgia against father. We conclude that mother's various jurisdictional challenges to the Oklahoma order are without merit and are, in any event, precluded by the unappealed adjudication in Oklahoma. We further conclude that the Vermont court has personal jurisdiction over father with respect to mother's child support claims against him and a statutory immunity provision in the Uniform Interstate Family Support Act (UIFSA) does not apply. As a result, we affirm the superior court's dismissal of mother's enforcement action (Supreme Court Docket Number 2011-165), we affirm the superior court's jurisdictional holdings with regard to the Oklahoma order (Supreme Court Docket Number 2010-398), but we remand the adjudication of father's enforcement action (Supreme Court Docket Number 2010-398) for consideration of counterclaims raised by mother.

¶ 2. Mother and father were married in Oklahoma in 1979. They had two sons, P.P. and A.P. The couple moved to New York in 1983, where they lived until they separated in 1985. The parties were divorced in Los Angeles County, California, in October 1986. Pursuant to the California divorce order, the parties were awarded joint legal custody of the children, then ages three and five. Primary physical custody was awarded to mother, and father was ordered to pay child support in the amount of $237 per month for each child. Eventually, father returned to Oklahoma, and mother moved with the children to Atlanta, Georgia. In October 1994, the Superior Court of Gwinnett County, Georgia, issued an order domesticating the California divorce order and modifying the child support obligation. Finding that father's financial condition had improved and that the needs of the children had increased, the court ordered father to pay $350 per month for each child, as well as a percentage of any bonuses father should receive in addition to his salary. This order stated that child support would cease if "custody is changed by a Court of competent jurisdiction." In 1996, mother moved with the children to New York.

¶ 3. Beginning in July 1998, the younger child, P.P., moved from his mother's home in New York to his father's home in Oklahoma. In November 1998, the older child, A.P. turned eighteen years of age. In April 1999, father filed documents to initiate a child custody proceeding in Oklahoma under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 43 Okla. Stat. Ann. § 551-101 et seq. Father initially petitioned to have custody of P.P. transferred to him and to have his child support obligation for both children ended--for A.P. because he had attained the age of majority and for P.P. because he was residing with father. Mother moved to bifurcate the issues of custody and child support. A hearing was held in October 1999, at which mother attempted to make a limited appearance for the purposes of the child custody determination. During the hearing, father requested an order obligating mother to pay him child support for P.P. in addition to changing the child's custody. The Oklahoma court awarded custody to father and retroactively relieved him of any child support obligation as of April 22, 1999, the date he moved for a change of custody. Furthermore, the court ordered mother to pay child support to father in the amount of $338.50 per month, retroactive to April 22, including an arrearage of $2724.00. Mother made two motions for new trials in the Oklahoma court raising jurisdictional concerns. The court denied the first, and mother withdrew the second, after P.P. returned to her custody.*fn1 She did not appeal either the initial Oklahoma order or the denial of her motion for a new trial.

¶ 4. In early July 2000, P.P. returned to live with mother in Georgia. At that time, father sought enforcement of the child support judgment for the time when P.P. had been in his custody. On July 18, 2000, an Oklahoma Administrative Law Judge issued an administrative order awarding judgment to father in the amount of $2369.50 for child support for the period from January through July of 2000. When this amount was added to the previous judgment, the total arrearage became $5093.50. That amount was reduced in June 2001 by an involuntary payment of $1366.46 made by an administrative offset. Under Oklahoma law, interest on arrears accumulated at a rate of 10% per year. Including the interest and principal, the total amount due through December 31, 2009 comes to $7611.30. The parties do not dispute this calculation.

¶ 5. Mother is now a resident of Vermont; father continues to reside in Oklahoma. In 2008, the Oklahoma Department of Human Services sought to collect the outstanding child support from mother. These enforcement efforts were transferred to Vermont, and, on September 4, 2009, Vermont's Office of Child Support (OCS) filed a petition to register the Oklahoma support order in Vermont, pursuant to UIFSA. Mother responded on October 16, 2009, by filing a motion to set aside the Oklahoma order, contesting inter alia the subject matter jurisdiction, personal jurisdiction, and notice in the Oklahoma proceedings. After three days of hearings, a magistrate issued an order registering the Oklahoma support order and granting judgment against mother in the amount of $7611.30. Mother appealed the magistrate's order to the Chittenden Superior Court, Family Division, pursuant to Vermont Rule for Family Proceedings 8(g). On September 15, 2010, the superior court affirmed, concluding that collateral estoppel barred mother from challenging the Oklahoma court's subject matter jurisdiction, that Oklahoma had personal jurisdiction in light of mother's physical presence and participation, and that mother had received adequate notice of the Oklahoma hearings.

¶ 6. Mother also responded to father's enforcement action by pursuing her own enforcement. She filed three documents simultaneously on April 21, 2010, within thirty days from the date of the magistrate's decision: (1) an appeal of the magistrate's decision to the family court; (2) a request for a stay of the magistrate's decision; and (3) an application to register and enforce the Georgia child support order to collect support owed by father to mother under that order. The stay request argued that father owed back child support to mother*fn2 and it would be inequitable for father to collect back child support owed to him, without paying the child support he owed to mother. The application to enforce the Georgia order was to have the Vermont court determine the amount of back support owed to mother.*fn3 She claimed that the amount due under the Georgia order, with interest, amounted to $34,093.50. On May 12, before the application was accepted as a separate case, the court denied the stay saying: "If [mother] is entitled to collect past due child support from [father], she may seek appropriate enforcement."

¶ 7. Mother served father with the application, and, in addition, the court notified OCS of the filing. OCS intervened and moved to dismiss. On August 11, 2010, the magistrate granted OCS's motion and dismissed mother's petition, concluding that Vermont courts lacked personal jurisdiction over father under UIFSA. The magistrate added: "Proper forum more likely state of [father]'s residence. Case could have been initiated in this court but transferred to proper forum to be heard." Mother appealed the magistrate's order to the family division of the superior court, challenging both the determination that personal jurisdiction was absent and the participation of OCS. In an April 18, 2011 order, the Family Division affirmed the magistrate's decision.

¶ 8. Mother appeals from both adverse decisions--one allowing registration of the Oklahoma order and one denying her attempt to register and enforce the Georgia order. We have consolidated these matters on appeal. In both cases, the primary question is whether Vermont has the authority under UIFSA to register and enforce an out-of-state child support order. This is a question of law, and we consider it de novo. See Office of Child Support ex rel. Lewis v. Lewis, 2004 VT 127, ¶ 6, 178 Vt. 204, 882 A.2d 1128. In doing so, we accept the magistrate's findings of fact unless they are clearly erroneous. See Cavallariv. Martin, 169 Vt. 210, 220-221, 732 A.2d 739, 746-47 (1999).

¶ 9. Before we address the legal issues, we make one observation to explain, in part, the length and coverage of this opinion. Although the facts may seem commonplace at first, they are not when understood in the context of the applicable law. The combination of three factual elements complicates the analysis of the legal issues: (1) at the time that father sought child support, neither he nor mother nor either of the children resided in the state in which the original child support order was created--California--or in the state in which it was domesticated and modified--Georgia; (2) one of the children moved from the custody of one parent to the custody of the other; and (3) each party alleges that the other party owes back child support. The first factual element has been the subject of a number of decisions from other jurisdictions as we discuss below. The second factual element is rarely present in the reported decisions, and its significance is largely unexplored. The same is true of the third factual element. We can find few reported child support decisions under the governing law where the first element is present with either of the other two, and the few that exist are distinguishable.

¶ 10. The three elements of factual complexity are combined with an element of particular legal complexity. There are two legal regimes governing interstate enforcement and modification of child support orders and each, read in isolation from the other, would not likely produce the same result on some of the legal issues in this case. The two are UIFSA, 15B V.S.A. §§ 101-904, and the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B. We explored these legal regimes to some degree in Cavallari, 169 Vt. at 216-220, 732 A.2d at 743-46. In doing so, we noted at the outset: "The simple question raised by this case requires the Court to confront the legal jigsaw puzzle of state and federal statutes applicable to the interstate enforcement of child support orders." Id. at 211, 732 A.2d at 740. In this case, we have to apply the "legal jigsaw puzzle" to a complex factual scenario as noted above.

¶ 11. In addressing the questions of law in this case, we generally apply Vermont law. With limited exceptions that do not apply here, both UIFSA and FFCCSOA mandate that the law of the forum state governs child support enforcement actions. See 28 U.S.C. § 1738B(h) ("In a proceeding to establish, modify, or enforce a child support order, the forum State's law shall apply . . . ."); 15B V.S.A. § 303 ("Except as otherwise provided by this title, a responding tribunal of this state . . . shall apply the procedural and substantive law, including the rules of choice of law, generally applicable to similar proceedings originating in this state . . . ."); Official Comment, 15B V.S.A. § 303 ("To insure the efficient processing of the huge number of interstate support cases, it is vital that decision-makers apply familiar rules of local law to the maximum degree possible."). Accordingly, insofar as there are differences between Vermont law and that of Oklahoma, our decision is based on Vermont law.

I.

¶ 12. We begin by considering the validity of the Oklahoma child support order, which mother contests on several grounds under UIFSA. In considering mother's arguments, we focus primarily on UIFSA, only occasionally touching upon the application of FFCCSOA,*fn4 because this is how the parties framed the issues. Mother's first and major argument is that the Oklahoma court lacked subject matter jurisdiction to issue the order. The essence of this argument is that, under UIFSA, the Oklahoma court could not decide the issue of child support unless father registered the Georgia child support order in Oklahoma and then petitioned in Oklahoma to modify the Georgia order. But the argument runs father into a dead end because under UIFSA the Georgia order could not be modified in Oklahoma on father's request and over mother's objection because Oklahoma was his state of residence. See 43 Okla. Stat. Ann. § 601-611(A) (describing requirements for modifying child support order from another state including either non-residence of petitioner or residence of child and consent of all parties); see also U.L.A. Unif. Interstate Family Support Act, Refs & Annos, Prefatory Note II.D.2 (1996) ("Except for modification by agreement or when the parties have all moved to the same new State, the party petitioning for modification must submit himself or herself to the forum State where the respondent resides."). Because Oklahoma was not authorized under UIFSA to modify the Georgia order, mother contends that its order is void for lack of subject matter jurisdiction.

¶ 13. Father, through OCS, responds that the Georgia order "terminated automatically" when custody was changed due to language in the order stating that "monthly payments shall be made on the first (1st) day of each consecutive month thereafter until . . . custody is changed by a Court of competent jurisdiction." It is the position of father and OCS, therefore, that there was no longer anything to modify--that the Georgia order had expired. Mother responds, however, that even if father's payment obligations terminated, this does not mean that the order itself ceased to exist so as to extinguish child support owed to her and to excuse an Oklahoma proceeding from UIFSA requirements. Insofar as the Georgia order continued to exist, mother argues, the Oklahoma court was required to abide by the UIFSA modification requirements. Because the court did not abide by these requirements, she concludes that the Oklahoma court lacked subject matter jurisdiction.*fn5

¶ 14. UIFSA--which has also been adopted in Vermont--contains only a short list of allowable defenses for a party seeking to contest the registration of an out-of-state order. See 15B V.S.A. § 607(a). As the official comment explains, the statute "places the burden on the nonregistering party to assert narrowly defined defenses to registration of a support order." Official Comment, 15B V.S.A. § 607. Although the list specifically includes, among other things, a lack of personal jurisdiction, 15B V.S.A. § 607(a)(1), it does not include a lack of subject matter jurisdiction. But cf. FFCCSOA, 28 U.S.C. § 1738B (requiring that states recognize other states' child support orders so long as there was subject matter jurisdiction, personal jurisdiction, and proper notice). Although this omission is noteworthy, it is not necessarily decisive. Section 603, which describes the effect of registering a child support order, states, "a tribunal of this state and the office of child support shall recognize and enforce . . . a registered order if the issuing tribunal had jurisdiction." 15B V.S.A. § 603(c). This language suggests that, although not listed as a defense, a lack of subject matter jurisdiction in the issuing tribunal is a barrier to registering and enforcing an order.

¶ 15. Nevertheless, we reject mother's attempt to contest the validity of the Oklahoma order on the basis that the Oklahoma court lacked subject matter jurisdiction. Her argument fails for two reasons. First, we conclude that mother is precluded from challenging subject matter jurisdiction because she thoroughly litigated that issue in the Oklahoma proceeding. Second, mother's argument fails on the merits insofar as we conclude that the Oklahoma court's child support order was not a modification for the purposes of UIFSA.

A.

¶ 16. The superior court concluded that mother is collaterally estopped from raising subject matter jurisdiction.*fn6 We affirm the court's conclusion. Because the issue of subject matter jurisdiction was decided by the Oklahoma court after having been litigated there, we must give that determination full faith and credit.

¶ 17. The conclusion that mother is precluded from collaterally challenging the Oklahoma court's subject matter jurisdiction may appear to fly in the face of the traditional notion that subject matter jurisdiction can be raised at any time as a collateral challenge to a judgment. See, e.g., In re Taft Corners Assocs., 162 Vt. 638, 639, 650 A.2d 520, 521 (1994) (mem.) ("Subject matter jurisdiction may not be waived . . . ."). Mother relies on this legal principle. This understanding would seem to overcome any obstacle raised because subject matter jurisdiction was litigated previously. Cf. Boisvertv. Boisvert, 143 Vt. 445, 447, 466 A.2d 1184, 1185 (1983) ("It is well settled that a court's lack of subject matter jurisdiction may be raised at any time.").

¶ 18. The conception of subject matter jurisdiction as perpetually open to collateral attack is not entirely correct and is contrary to the modern understanding, particularly in this jurisdiction, and is incorrect in the context before us. When a court of another state has fully and fairly litigated an issue--including an issue of jurisdiction--and has reached a final judgment, we are required to give full effect to that state's determination. See Durfeev. Duke, 375 U.S. 106, 111-13 (1963). Although we may inquire into whether a court of another state had jurisdiction before giving that state's judgment full faith and credit, we are required to give credit to that court's determination that it had jurisdiction where the issue was fully contested. See Driver v. Driver, 148 Vt. 560, 562, 536 A.2d 557, 558 (1987) ("[T]he jurisdiction of [another state's] court may be subject to collateral attack in Vermont if jurisdiction had not been contested and determined by the [other] court."). This principle, derived from the Full Faith and Credit Clause of the United States Constitution, U.S. Const. art. IV, § 1, has been established in a number of United States Supreme Court ...


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