GAVALA v. Classen, 02-059.

• Citation: 819 A.2d 760
• Decision Date: 14 February 2003
• Docket Number: No. 02-059.,02-059.
• Parties: Artemie GAVALA v. Mary B. CLAASSEN.
• Court: United States State Supreme Court of Vermont

819 A.2d 760

Artemie GAVALA v. Mary B. CLAASSEN.

No. 02-059.

Supreme Court of Vermont.

February 14, 2003.

Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ., and ALLEN, C.J. (Ret.) Specially Assigned.

ENTRY ORDER

¶ 1. Father, who is seeking modification of a Massachusetts order in Vermont family court based on mother's residence in Vermont and his claim that he is no longer living in Massachusetts, appeals decisions of the magistrate and the family court setting aside an earlier order and dismissing his modification petition. We affirm.

¶ 2. The parties were divorced under a 1988 Massachusetts order. Mother moved to Vermont with the parties' minor daughter in 1993. In September 1999, father filed a motion in the Windsor Family Court to register and modify the February 1999 Massachusetts order setting father's child support obligation at $300 per week. In February 2000, following several days of hearings, the magistrate registered the Massachusetts order in Vermont based on evidence presented by father indicating that he was a Pennsylvania resident. In June 2000, the Office of Child Support (OCS) filed a motion to reopen the registration of the Massachusetts order and to dismiss father's modification petition. The magistrate denied the motion in an August 9, 2000 decision following a July 14 hearing.

¶ 3. In October 2000, OCS filed a renewed motion to reopen, citing newly discovered evidence indicating that no certificate of occupancy had been issued for the house at the address claimed by father as his Pennsylvania residence. On December 1, 2000, one week before the scheduled hearing on the motion to reopen, OCS moved to permit a Pennsylvania planning commissioner to testify by telephone as to what he found when he recently inspected the house father was claiming as his residence. The magistrate granted the motion on the day of the hearing, and the planning commissioner testified that the house in question was under construction and unoccupied. On cross-examination, the planning commissioner conceded that he had not actually entered the basement of the house. Based on the planning commissioner's testimony and other evidence, the magistrate found that father had falsely claimed to be a Pennsylvania resident to avoid Massachusetts jurisdiction over his child support obligation. Accordingly, the magistrate granted OCS's motion to reopen and dismissed father's modification petition. Father appealed to the family court, and filed a motion asking the court to allow him to submit the testimony of his landlord, who had been present when the planning commissioner inspected his claimed residence. The court denied the motion and upheld the magistrate's decision.

¶ 4. On appeal to this Court, father argues that (1) the planning commissioner's speculative testimony was insufficient for the magistrate to find fraud by clear and convincing evidence; and (2) the family court was compelled by statute to grant his motion to submit the testimony of his landlord.

¶ 5. With respect to his first argument, father correctly states that, to obtain relief under V.R.C.P. 60(b)(3), OCS was required to demonstrate fraud by clear and convincing evidence. See Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 82, 370 A.2d 212, 213 (1977) (in all cases where fraud is alleged, including motions to reopen under Rule 60(b)(3), moving party must prove fraud by clear and convincing evidence). We find no merit, however, to father's argument that the evidence of fraud in this case was not clear and convincing. Notwithstanding the planning commissioner's acknowledgment on cross-examination that he did not physically enter the basement of the unfinished structure that father claimed to be his residence, his testimony of the state of the structure demonstrated to a high degree of certainty that it was unoccupied, and that father did not run his engineering consulting business from that address, as he claimed. Indeed, coupled with other evidence, including father's elaborate rerouting of mail between Pennsylvania and Massachusetts, the fact that mail sent to the unfinished structure was returned as undeliverable, and father's own testimony, some of which was directly contradictory to the planning commissioner's undisputed testimony, the evidence of father's fraud was clear and convincing, if not overwhelming. The family court acted well within its discretion in upholding the magistrate's order finding fraud on father's part and dismissing his motion to modify child support. See In re N.H., 168 Vt. 508, 512, 724 A.2d 467, 470 (1998) (clear and convincing is rigorous standard but does not require wholly uncontradicted or unimpeached evidence; nor is reviewing court free to ignore trial court's findings, which must be upheld as long as they are not clearly erroneous, even when standard of proof is clear and convincing evidence); Bingham v. Tenney, 154 Vt. 96, 99, 573 A.2d 1185, 1186 (1990) ("The decision on a Rule 60(b) motion is committed to the sound discretion of the trial court and will stand on review unless the record clearly and affirmatively indicates that such discretion was withheld or otherwise abused.").

¶ 6. Father complains, however, that he did not have an opportunity to rebut the...