U.S. v. Kerley, 04-4537-CR.
| Citation | 416 F.3d 176 |
| Decision Date | 28 July 2005 |
| Docket Number | No. 04-4537-CR.,04-4537-CR. |
| Parties | UNITED STATES of America, Appellant, v. Clifford KERLEY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Harry A. Chernoff, Assistant United States Attorney, for David N. Kelley, United States Attorney for the Southern District of New York, New York, N.Y. (Peter G. Neiman, on the brief), for Appellant.
Henry E. Mazurek, Law Offices of Gerald Shargel, New York, NY, for Defendant-Appellee.
Eliot Spitzer, Attorney General of the State of New York (Michelle Aronowitz, Deputy Solicitor General, and Benjamin N. Gutman, Assistant Solicitor General, of counsel), New York, NY, for amicus curiae the State of New York, in support of Appellant the United States of America.
Michael A. Cardozo, Corporation Counsel of the City of New York (Larry A. Sonnenshein and Sharyn Michele Rootenberg, of counsel), New York, NY, for amicus curiae the City of New York, in support of Appellant the United States of America.
Before: McLAUGHLIN, STRAUB, and HALL, Circuit Judges.
The Government appeals from the dismissal of a one-count information in the Southern District of New York (Jones, J.). The information charged Clifford Kerley with violating the Deadbeat Parents Punishment Act (the "DPPA"), 18 U.S.C. § 228, which criminalizes the failure to pay child support in certain instances. The district court dismissed the information, holding that the support order Kerley failed to comply with was entered by a New York Family Court Hearing Examiner who lacked subject matter jurisdiction. United States v. Kerley, No. 02 CR. 1529(BSJ), 2004 WL 1555119 (S.D.N.Y. July 9, 2004). We now hold that defendants charged with violating the DPPA cannot collaterally challenge the subject matter jurisdiction of the state court that entered the underlying support order. Thus, we vacate and remand the case for further proceedings.
In 1988, Clifford Kerley had a brief relationship with Judith Lopez, the apparent result of which was the birth of twin girls in New York about a year later. Kerley and Lopez ended their relationship before the twins' birth.
In 1990, the Commissioner of Social Services for the City of New York commenced a proceeding against Kerley in New York State Family Court. The Commissioner sought support payments for the twins on behalf of their mother, who had become a welfare recipient. After Kerley's initial appearance before a Hearing Examiner, at which Kerley denied paternity, the Hearing Examiner ordered blood tests for Kerley, Lopez, and the children in order to determine paternity.
In May 1990, Lopez and the children appeared for their blood tests; Kerley did not. He also failed to appear for the next scheduled court date in July 1990. Despite Kerley's absence, a Family Court judge heard testimony and entered orders of filiation with respect to each child.
The Family Court judge remanded the case to the Hearing Examiner for entry of an appropriate final support order. This he did without the formality of first entering a temporary support order. The very same day that the orders of filiation were entered, the Hearing Examiner held an inquest and entered a final support order. The support order, which remains in effect, requires Kerley, inter alia, to pay a total of $737 per month in child support.
According to Kerley, he attempted to attend the July 1990 hearing but, due to complications with his wife's pregnancy, he arrived after the orders of filiation and support had been entered, and the court refused to recall his case.
Kerley has consistently failed to meet his court-ordered child support obligations. Shortly after the support order was entered, he moved to Indiana with his wife and their children. While his wages in Indiana were occasionally garnished, such garnishment only amounted to about $7,000.
In 1995, Kerley filed a motion in Family Court seeking to vacate the support order, offering "illness" as his explanation for missing the July 1990 court appearance, an excuse different from the one he now tenders. A Family Court judge denied his motion.
By 2002, Kerley owed more than $100,000 in child support. In July of that year, he was arrested for willfully failing to pay child support in violation of the DPPA. He waived indictment and was charged in a one-count information in the Southern District of New York.
In 2003, Kerley moved to dismiss the information on several grounds, including his claim that the Hearing Examiner lacked subject matter jurisdiction to enter the support order. In 2004, the district court agreed that the support order was invalid and therefore granted Kerley's motion to dismiss the information. United States v. Kerley, No. 02 CR. 1529(BSJ), 2004 WL 1555119 (S.D.N.Y. July 9, 2004).
This appeal followed.
The Government challenges the district court's dismissal of the information on two independent grounds. First, the Government argues that the DPPA does not permit collateral challenges to support orders on any ground, including subject matter jurisdiction. Second, the Government argues that even if Kerley could mount a collateral challenge, the Hearing Examiner had subject matter jurisdiction to enter the support order.
Because the district court's dismissal of the information involves questions of law, we review the dismissal de novo. United States v. Leyland, 277 F.3d 628, 631 (2d Cir.2002).
Every circuit that has addressed the issue has stated that defendants in DPPA prosecutions cannot collaterally challenge the substantive merits of the underlying support order.1 See United States v. Bigford, 365 F.3d 859, 869 (10th Cir.2004); United States v. Molak, 276 F.3d 45, 50-51 (1st Cir.2002); United States v. Faasse, 265 F.3d 475, 488 n. 11 (6th Cir.2001); United States v. Kramer, 225 F.3d 847, 851 (7th Cir.2000); United States v. Brand, 163 F.3d 1268, 1275-76 (11th Cir.1998); United States v. Bailey, 115 F.3d 1222, 1232 (5th Cir.1997); United States v. Johnson, 114 F.3d 476, 481 (4th Cir.1997). Similarly, we have earlier noted that the DPPA "accepts the validity of the State court judgment and the family policies that judgment embodies." United States v. Sage, 92 F.3d 101, 107 (2d Cir.1996).
While the case law is clear with respect to merits-based collateral challenges in DPPA prosecutions, Kerley challenges the underlying support order on the basis of subject matter jurisdiction. The parties have not cited nor have we found any reported cases addressing Kerley's challenge. The Seventh and Tenth Circuits, however, have held that defendants charged with violating the DPPA can collaterally challenge the personal jurisdiction of the court that issued the underlying support order. See United States v. Bigford, 365 F.3d 859 (10th Cir.2004); United States v. Kramer, 225 F.3d 847 (7th Cir.2000).
Here, the district court recognized that collateral challenges to support orders are generally not permitted in DPPA prosecutions. It held, however, that the language of the DPPA allows for collateral challenges to support orders based on lack of subject matter jurisdiction. It buttressed this holding by looking to the "traditional rule" that judgments entered by a court lacking subject matter jurisdiction are subject to collateral attack. We do not agree.
Under the DPPA, any person who "willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000," commits a felony. 18 U.S.C. § 228(a)(3). The statute defines "support obligation" as "any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living." Id. § 228(f)(3).
In wrestling with the statute, the district court focused on the definition of "support obligation," particularly the phrase "pursuant to the law of a State." The district court found that this phrase "requires that the underlying order must be lawful in order to form the basis of a DPPA prosecution; otherwise, the statutory language would be superfluous." The court concluded that while a defendant cannot collaterally challenge a support order "as a general matter," a "collateral attack ought to be permitted where the court rendering the underlying support order did not have jurisdiction."
In holding that the DPPA allows collateral challenges to support orders based on personal jurisdiction, the Tenth Circuit in Bigford interpreted the phrase "pursuant to the law of a State" in the same fashion as the district court has done here. Bigford, 365 F.3d at 869. To give "operative effect" to the language and at the same time foreclosing collateral challenges based on "substantive issues of family law," the Bigford court interpreted the DPPA as "permitting collateral challenges based on jurisdictional issues." Id. at 869-70.
While we do not decide here whether lack of personal jurisdiction is ever cognizable as a basis for attacking a support order underlying a DPPA prosecution as a constitutional matter, we do not agree with the district court's and the Tenth Circuit's holding that the language of the statute itself permits jurisdictional challenges. Both courts recognized that the substantive merits of a support order cannot be re-litigated (or litigated for the first time) in a DPPA prosecution, and thus limited collateral challenges to jurisdictional issues. Yet, if the statutory language the district court and Bigford relied upon — "pursuant to the law of a State" — allows collateral challenges based on jurisdiction, we fail to see how that same language does not also allow collateral challenges based on...
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