Hixson v. Plump, No. 96-578

Docket NºNo. 96-578
Citation704 A.2d 1159, 167 Vt. 202
Case DateOctober 24, 1997
CourtUnited States State Supreme Court of Vermont

Page 1159

704 A.2d 1159
167 Vt. 202
Evelyn P. HIXSON
v.
Ralph Eric PLUMP.
No. 96-578.
Supreme Court of Vermont.
Oct. 24, 1997.

Page 1160

J. Eric Anderson, Manchester Center, for plaintiff-appellee.

Philip M. Johnson, Taftsville, and Norman E. Watts, Woodstock, for defendant-appellant.

Before AMESTOY, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

AMESTOY, Chief Justice.

Ralph Plump appeals a Windsor Family Court order that he pay $1,000 per month to Evelyn Hixson, his former spouse and the mother of their two children. Plump argues that (1) under applicable New York and Vermont statutes of limitations, the court lacked authority to enter such an order, and (2) the court erred by ordering monthly payments without entering judgment for the total amount owed by him to Hixson. We affirm.

Defendant Ralph Plump and plaintiff Evelyn Hixson married in New York State in 1959. The couple's two children were born in 1960 and 1961. The parties divorced in 1973, and under the terms of the divorce order, defendant was to pay child support to plaintiff, who retained custody of the two minor children.

In 1981 plaintiff sued defendant in New York's Supreme Court to collect past-due child support. Defendant made a personal appearance, but later ceased participation in the litigation. In 1984, the New York Supreme Court rendered a default judgment ordering defendant to pay plaintiff a total of $63,371.81 for child support arrearages, accumulated interest, and costs. Defendant did not appeal the judgment.

As of 1990, defendant had made no payments on the 1984 judgment and had also moved his residence to Vermont. In April 1990, plaintiff came to Vermont and sued in Windsor Superior Court to domesticate the 1984 New York judgment. 1 Defendant signed a stipulation for judgment "in the amount of $96,642.02 as of January 27, 1990, together with interest at the legal rate of twelve (12%) percent per annum accruing from that date forward." The court entered judgment for plaintiff on those exact terms.

Plaintiff thereafter made several unsuccessful attempts to collect money from defendant pursuant to the 1990 Vermont judgment. In 1992 she filed a motion for trustee

Page 1161

process in an attempt to secure defendant's goods and, in 1993, she moved the Windsor Family Court to compel discovery of defendant's financial records. Twice in 1994 the court found defendant in contempt of court orders relating to this litigation.

In November 1995, continuing her effort to collect on the 1990 judgment, plaintiff filed motions in Windsor Family Court to hold defendant in contempt of court under 15 V.S.A. § 603 and to suspend defendant's automobile driver's license under 15 V.S.A. § 798. In its initial inquiry on the motions, the family court found that defendant had the ability to satisfy his financial obligation to plaintiff, but had theretofore neglected to pay the debt.

On the issue of contempt the court found that defendant's ability to pay the debt had not been previously determined by a tribunal, and that a contempt order was not appropriate in advance of such a finding. For the same reason, the court declined to suspend his driver's license. The court also interpreted the automobile license suspension statute as more appropriately applied in situations where defendant is required to make periodic payments, instead of a single payment as under the 1990 judgment. See 15 V.S.A. § 798(b) (suspension of operator's license appropriate where obligor fails to make payment on "one-quarter of the annual support obligation"). Accordingly, while the family court denied plaintiff's motions for contempt and license suspension, it nonetheless ordered defendant to pay plaintiff a minimum of $1,000 per month toward satisfaction of the 1990 Vermont judgment and accrued interest thereon.

Defendant's first argument on appeal to this Court is essentially a two-pronged challenge to the family court's order on the theory that relevant New York and Vermont statutes of limitations render the order unenforceable. We address these arguments in turn.

Defendant attempts a collateral attack on the New York judgment based on expiration of the applicable statute of limitation. "A collateral attack is 'one questioning the validity of a judgment in a proceeding which is not brought for the purpose of modifying, setting aside, vacating or enjoining the judgment.' " Bennett Estate v. Travelers Ins. Co., 140 Vt. 339, 342, 438 A.2d 380, 382 (1981) (quoting Burlington Data Processing, Inc. v. Automated Medical Systems, Inc., 492 F.Supp. 821, 822 (D.Vt.1980)). Collateral attack is only appropriate when a party can demonstrate a want in the court's jurisdiction over the subject matter or the parties to the judgment, or a court has acted outside its statutory authority. Id. at 343, 438 A.2d at 382.

Defendant argues that the original 1984 New York judgment was void from its inception and therefore unenforceable in Vermont because New York's statute of limitations for enforcement of child support had expired by the time plaintiff brought her action in 1981. Defendant cites New York statutory and case law to establish...

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5 practice notes
  • In re Estate of Peters, No. 99-154
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 20, 2000
    ...provides repose for a prospective defendant, and its expiration does not affect a court's jurisdiction to hear the case." Hixson v. Plump, 167 Vt. 202, 206, 704 A.2d 1159, 1162 (1997). The primary purpose of a limitations period is fairness to a defendant. See id. (citing Duffy v. Horton Me......
  • In re Crannell, No. 11–039.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 19, 2012
    ...the logic of this argument. A waiver is an intentional relinquishment of a known right that can occur by conduct. See Hixson v. Plump, 167 Vt. 202, 206, 704 A.2d 1159, 1161 (1997). Calling the Defender General's power to withdraw a “right” is not inconsistent with a waiver. Nor is the inabi......
  • Desrochers v. Desrochers, No. 00-046.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 15, 2002
    ...reduced to a judgment, that judgment takes on legal significance distinct from that of the original child support order. Hixson v. Plump, 167 Vt. 202, 207, 704 A.2d 1159, 1162-63 (1997) ("judgments" automatically arising under § 606(b) are markedly different from a judgment adjudicating the......
  • Stein v. Stein, No. 00-263.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 15, 2002
    ...in a proceeding which is not brought for the purpose of modifying, setting aside, vacating or enjoining the judgment." Hixson v. Plump, 167 Vt. 202, 205, 704 A.2d 1159, 1161 (1997) (internal quotation marks and citations omitted). Such attacks are permissible only when a party can show that......
  • Request a trial to view additional results
5 cases
  • In re Estate of Peters, No. 99-154
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 20, 2000
    ...provides repose for a prospective defendant, and its expiration does not affect a court's jurisdiction to hear the case." Hixson v. Plump, 167 Vt. 202, 206, 704 A.2d 1159, 1162 (1997). The primary purpose of a limitations period is fairness to a defendant. See id. (citing Duffy v. Horton Me......
  • In re Crannell, No. 11–039.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 19, 2012
    ...the logic of this argument. A waiver is an intentional relinquishment of a known right that can occur by conduct. See Hixson v. Plump, 167 Vt. 202, 206, 704 A.2d 1159, 1161 (1997). Calling the Defender General's power to withdraw a “right” is not inconsistent with a waiver. Nor is the inabi......
  • Desrochers v. Desrochers, No. 00-046.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 15, 2002
    ...reduced to a judgment, that judgment takes on legal significance distinct from that of the original child support order. Hixson v. Plump, 167 Vt. 202, 207, 704 A.2d 1159, 1162-63 (1997) ("judgments" automatically arising under § 606(b) are markedly different from a judgment adjudicating the......
  • Stein v. Stein, No. 00-263.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 15, 2002
    ...in a proceeding which is not brought for the purpose of modifying, setting aside, vacating or enjoining the judgment." Hixson v. Plump, 167 Vt. 202, 205, 704 A.2d 1159, 1161 (1997) (internal quotation marks and citations omitted). Such attacks are permissible only when a party can show that......
  • Request a trial to view additional results

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