I.S.H. v. M.D.B.

Decision Date01 May 2013
Docket NumberNo. 11–P–224.,11–P–224.
Citation987 N.E.2d 223,83 Mass.App.Ct. 553
PartiesI.S.H. v. M.D.B.
CourtAppeals Court of Massachusetts

OPINION TEXT STARTS HERE

Lloyd D. Godson, Lynnfield, for M.D.B.

I.S.H., pro se.

Present: KAFKER, COHEN, & TRAINOR, JJ.

KAFKER, J.

At issue in this case are numerous questions regarding personal jurisdiction over the defendant (father). The plaintiff (mother) moved with her child from Florida to Massachusetts allegedly due to domestic violence by the father, a Florida resident and the putative father of the child. In the Probate and Family Court (Probate Court) in Massachusetts, the mother sought and received a paternity judgment against the father, which included orders for payment of child support and uninsured medical expenses. The father had been served but had not appeared in person or through counsel until after the judgment entered and contempt proceedings had begun against him. Thereafter he filed a pro se modification request, essentially denying the allegations of domestic abuse, claiming that he expected all matters to be dealt with in Florida, and contesting the substance of the order. He then hired counsel, who filed a motion pursuant to Mass.R.Dom.Rel.P. 60(b)(4) based on lack of jurisdiction. The probate judge denied the motion on the grounds that the father had been served, judgment had entered after the period for filing an answer had expired, and the father had filed a modification request after the paternity judgment entered.

The father appeals, contending that the Probate Court lacked personal jurisdiction over him at the time the paternity judgment entered and that he never waived this defense. The mother argues that either the Probate Court had personal jurisdiction over the father because his domestic violence forced her to flee to Massachusetts, or the father subsequently waived any objection to jurisdiction. We conclude that the father has not waived his personal jurisdiction defense by either failing to appear prior to the paternity judgment or filing a pro se modification request that included an objection to jurisdiction. Based on the judge's exclusive reliance on waiver, the absence of fact finding on jurisdiction, and the current incomplete record, we are unable to determine whether a basis existed for the Probate Court to exercise personal jurisdiction over the father in 2007. We therefore reverse the order denying the rule 60(b)(4) motion and remand for further proceedings consistent with this opinion.

Background. The father and mother, who were never married to each other, lived together in Florida for a period of time ending in August, 2006. In July, 2006, the mother gave birth to a child, whose birth certificate does not list a father. No paternity testing has been performed relating to the child. The paternity judgment and orders for support and medical expenses at issue here relate to this child.

On or about December 27, 2006, the mother sought and obtained, in a Florida court, an ex parte “temporary injunction for protection against domestic violence” against the father, and a temporary order of custody over the child.1 The matter was set for a hearing on January 11, 2007; the case was dismissed because the mother did not appear on that date. Since then, the mother has resided in Massachusetts, and the father has resided in Florida.

On October 12, 2007, the mother filed a complaint in the Probate Court seeking a judgment of paternity, custody of the child, and support, as well as other relief.2 A hearing was held in the Probate Court on November 19, 2007, which was apparently not recorded, after which the judge ordered that [a]ll issues (custody, retroactive support, protective order, health insurance and visitation) will be addressed at Pretrial Conference on: December 19, 2007.”

At the pretrial conference, the mother appeared pro se, and the father did not appear. The mother testified that the defendant is the father of the child, and that nobody else could be the father. The judge noted that only the mother's name, and not the father's, was on the child's birth certificate. The judge also asked the mother if the father “was notified and has chosen not to appear at this moment, although he lives in Florida,” and the mother responded, “Um-hmm.” The judge further asked, [H]as he contacted you in any way or said anything to you about being here or support?” and the mother responded, “Yes, I contacted him with regard to my ... son [who] might have hydrocephal[u]s ... and [the father] just started screaming at me.”

Neither the mother nor the judge addressed below the basis for personal jurisdiction over the father. There were two references to domestic abuse at the pretrial conference. First, in response to a question about visitation, the mother stated that she wanted only supervised visitation because [t]here was domestic violence involved.” Additionally, in response to a question from the judge about the father's income, the mother said there was “a record of ... five domestic violence reports [inaudible].” 3 The reports were not introduced in evidence. On that same day, the judge issued the paternity judgment establishing the defendant as the child's father, granted sole legal and physical custody of the child to the mother, set child support based on an income figure of $100,000 for the father retroactive to the child's birth, and ordered the parties to share the child's uninsured medical expenses.

On May 30, 2008, the mother filed a complaint for an abuse prevention order against the father pursuant to G.L. c. 209A.4 Shortly thereafter, she filed a complaint for contempt, asserting nonpayment of child support, and a complaint for modification, seeking payment of medical expenses. On or about July 15, 2008, the father sent to the Probate Court, via facsimile transmission, a statement contesting service of process,5 denying any violence on his part, and stating his belief that his rights were to be decided at a Florida court hearing in January, 2007, at which the mother did not appear.6 He also provided a telephone number for the court to contact him during a hearing scheduled for the following day. He was not contacted by the court, nor did he appear at the hearing. On October 29, 2008, the judge entered judgments in the mother's favor on both complaints, holding the father in contempt and increasing his obligation to pay for medical expenses.

On October 7, 2009, the father filed a complaint for modification, requesting a reduction in child support. In the complaint, he again contested service of the original complaint, provided income figures far lower than what the mother had stated, and added: [The defendant] faxed 7/15/08 request for phone presence at second hearing[, which was] ignored. All matters in this case were to be heard in Orange County [Florida] Court 1/11/07, case # 06–DR–0019910–0.” The mother answered and counterclaimed for arrearages in child support and medical expenses. The judge held a pretrial conference, at which the mother was present and the father appeared by telephone. A trial date on the father's modification complaint was set for September 13, 2010.

Shortly before this scheduled trial date, the father, represented for the first time by counsel, moved for relief from the paternity judgment on the basis that the Probate Court lacked personal jurisdiction over him, and therefore the paternity judgment was void except as to custody of the child. 7 The mother did not file a timely opposition. The judge held a brief, nonevidentiary telephonic hearing with counsel and denied the motion. On September 10, 2010, she endorsed the motion as follows: “The within motion is hereby denied. [The defendant] was properly served at the address he continues to reside in. Case went to Judgment at a Pretrial Conference hearing on 12–16–07 [ sic ], after the answer period had expired. Defendant has filed a modification set for trial 9–13–10.” She made no further findings or rulings specifying the basis for personal jurisdiction over the father.

Discussion. 1. Void judgments. A motion for relief from judgment pursuant to Mass.R.Dom.Rel.P. 60(b)(4), which is identical to Mass.R.Civ.P. 60(b)(4), 365 Mass. 828 (1974), seeks to set aside a final judgment on the basis that it is void. “A judgment is void if the court from which it issues lacked jurisdiction over the parties, lacked jurisdiction over the subject matter, or failed to provide due process of law.” Harris v. Sannella, 400 Mass. 392, 395, 509 N.E.2d 916 (1987). See Colley v. Benson, Young & Downs Ins. Agency, Inc., 42 Mass.App.Ct. 527, 533, 678 N.E.2d 440 (1997)( Colley ). “A court must vacate a void judgment. It may not vacate a valid one. No discretion is granted by the rule.” Field v. Massachusetts Gen. Hosp., 393 Mass. 117, 118, 469 N.E.2d 819 (1984). See Colley, supra at 533, 678 N.E.2d 440. “Notwithstanding the powerful interest in finality of judgments, a motion for relief from a judgment which was void from its inception lies without limitation of time.” Bowers v. Board of Appeals of Marshfield, 16 Mass.App.Ct. 29, 31, 448 N.E.2d 1293 (1983).

2. Permissible status orders absent personal jurisdiction over defendant. In determining what, if any, part of this judgment is void for lack of personal jurisdiction, it is important to recognize that “a court may adjudicate matters involving the status of the relationship between multiple parties even where personal jurisdiction over all of the parties is not established.” Caplan v. Donovan, 450 Mass. 463, 468, 879 N.E.2d 117, cert. denied, 553 U.S. 1018, 128 S.Ct. 2088, 170 L.Ed.2d 817 (2008)( Caplan ). For example, “a Massachusetts court can award temporary emergency custody of a child to a parent fleeing to Massachusetts from an allegedly abusivesituation in another State ... without personal jurisdiction over the out-of-State parent.” Id. at 469, 879 N.E.2d 117, quoting from Lamarche v. Lussier, 65 Mass.App.Ct....

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