On Appeal from Superior Court, Franklin Unit, Family Division January Term, 2013 Linda Levitt, J.
Rhonda Cameron Rollo, Pro Se, St. Albans, Plaintiff-Appellee.
David W. Cameron, Pro Se, Newport, Defendant-Appellant.
Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals pro se from a final relief-from-abuse order issued by the family division of the superior court. He raises numerous claims, including allegations that he was not properly served with the temporary order or the final order. We affirm.
¶ 2. The record discloses that plaintiff filed a complaint on April 23, 2012, seeking to extend an existing relief-from-abuse order against defendant issued a year earlier based on threats that defendant would kill plaintiff when released from prison. Plaintiff failed to appear at the final hearing however, and the order expired on April 26, 2012. Plaintiff then filed a new complaint on May 1, 2012, alleging that she had been unable to appear because of a death in the family, that defendant would soon be eligible for release from prison, and that he had threatened to harm her as soon as he was released. The court issued a temporary order that included notification of a final hearing to be held on May 7, 2012 at the family division of the superior court in St. Albans, Vermont at 8:30 a.m. The temporary order, along with the complaint and supporting affidavit, was sent to defendant at the Lee Adjustment Center in Beattyville, Kentucky. The record contains a return of service by a prison official from the Center, dated May 2, 2012, indicating that he personally served the order on defendant and that defendant refused to sign the acceptance of service.
¶ 3. Plaintiff was present at the hearing on May 7, 2012. Defendant, however, failed to appear in person or by telephone. The court issued a final order, effective until May 7, 2015, that imposed restrictions on defendant that were contained in the temporary order and that precluded defendant from contacting or threatening plaintiff. Defendant was personally served with the final order, again at the Lee Adjustment Center in Kentucky, and the record contains a return of service, dated May 8, 2012, indicating that a prison official from the Center hand delivered the final order to defendant, and that defendant refused to sign the acceptance of service.
¶ 4. On appeal, defendant contends that he did not receive notice of the final hearing. As noted, however, the record contains a return of service indicating that the complaint and the court’s temporary order containing notice of the hearing, scheduled for May 7, 2012, were personally served on defendant on May 2, 2012. He had actual notice. Accordingly, we find no merit to the claim.
¶ 5. Defendant also argues that he was not properly served because service was made by a prison official rather than a law enforcement officer. He challenges service under both Vermont Rule of Civil Procedure 4(c) and the statute governing service of “a complaint or ex parte temporary order of final order” issued under Title 15, Chapter 21, Abuse Prevention, § 1105.
¶ 6. By statute, relief-from-abuse proceedings are governed by the Vermont Rules for Family Proceedings. 15 V.S.A. § 1106(a); see V.R.F.P. 9. In turn, the family rules specify that these proceedings are governed by the Vermont Rules of Civil Procedure unless there is a conflict with a specific family rule or a statute. V.R.F.P. 9(a)(1). Generally, service of a complaint is governed by Civil Rule 4, which provides, in part, that service “shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable.” V.R.C.P. 4(c). Service of a court order is governed by Civil Rule 5(b), which provides that service may be made upon an attorney or party “by delivering a copy to the attorney or party.” See also 4B C. Wright & A. Miller, Federal Practice and Procedure § 1143 (3rd ed. 1998).
¶ 7. When an emergency relief order is sought in family court, the court can issue a temporary order when certain findings are made. See V.R.F.P. 9(a). Then, service of the court order is made “in accordance with the rules of civil procedure and may be served by any law enforcement officer.” 15 V.S.A. § 1105(a). The service of the court order includes the complaint so as to provide notice to the defendant as to the allegations asserted that gave rise to the temporary relief from abuse order of the court. See id. The question is whether Civil Rule 4 controls in the special circumstances presented by the service of the temporary order given that the statute requires that the original complaint is part of the collective documents served upon defendant.
¶ 8. Confusion is created by the inclusion of the “complaint” within 15 V.S.A. § 1105, the statute governing service of an ex parte temporary order or final order. Section 1105 provides that service of a complaint or ex parte temporary order or final order shall be in accordance with the rules of civil procedure, and “ may be served by any law enforcement officer.” (Emphasis added.) It does not require service by a law enforcement officer.
¶ 9. Defendant maintains that service was not effectuated in accordance with Civil Rule 4. His primary complaint focuses on a lack of evidence that the prison official was a person listed authorized to serve a complaint under Civil Rule 4. See V.R.C.P. 4(c) (“Service... shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable....”). Defendant posits that no order appointed the prison official at the Lee Adjustment Center to effectuate service on him. Nothing in the record answers the question of whether the prison official who served the complaint in this matter is the equivalent of a sheriff or constable for purposes of service, ...