Lueders v. Lueders, 88-436

• Decision Date: 21 July 1989
• Docket Number: No. 88-436,88-436
• Citation: 152 Vt. 171,566 A.2d 404
• Parties: Margaret A. LUEDERS v. Denis A. LUEDERS.
• Court: Vermont Supreme Court

Page 404

566 A.2d 404

152 Vt. 171

Margaret A. LUEDERS v. Denis A. LUEDERS.

No. 88-436.

Supreme Court of Vermont.

July 21, 1989.

Suzanne R. Brown of Perry & Schmucker, South Burlington, for plaintiff-appellee.

Joseph S. Wool and Kurt M. Hughes of Wool & Murdoch, Burlington, for defendant-appellant.

Before ALLEN, C.J., and PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiff brought an action in superior court seeking to recover child support arrearages plus the balance remaining due on a 1983 Arizona default judgment for support and maintenance arrearages. She obtained a judgment on the pleadings in the amount of $16,168.73 plus an award of $1,983.31 for attorney's fees and costs. We affirm the order as to the principal amount due, but reverse the allowance of attorney's fees.

Plaintiff sought arrearages from September 1983 to December 1984 in addition to the balance due on the Arizona judgment. Following denial of her motion for summary judgment, plaintiff filed a motion asking the court to take judicial notice of the 1983 Arizona judgment and of certain child support payment records of the Arizona trial court for the period following that judgment up to December 1984. That motion was granted, and plaintiff then moved for judgment on the pleadings, which defendant opposed on grounds that there were genuine issues of material fact. The trial court, however, granted plaintiff's motion.

On appeal, defendant argues that the motion for judgment on the pleadings was essentially a second motion for summary judgment and that his answers to plaintiff's interrogatories had raised genuine issues of material fact, requiring a hearing on the merits. Defendant is correct that plaintiff's motion for judgment on the pleadings was in essence a motion for summary judgment under V.R.C.P. 56, since "matters outside the pleadings [were] presented to and not excluded by the court." V.R.C.P. 12(c). But defendant did not raise genuine issues of fact as to any of the trial court's findings or conclusions.

The most critical issue addressed by the court involves its finding that "[o]n September 21, 1983 the Maricopa County Superior Court issued a judgment for Margaret A.V. Lueders against Denis A. Lueders in the amount of $21,850." Defendant argues that the judgment is not entitled to full faith and credit because he was not present for the Arizona proceedings and "does not even recall being served with notice of those proceedings." That defendant was in fact served is clear on the record, and he does not mount even a pro forma defense to recognition of the Arizona judgment in Vermont. See Cukor v. Cukor, 114 Vt. 456, 461-62, 49 A.2d 206, 209-10 (1946) (duly attested judgment of another state is entitled to full faith and credit; in an action on a judgment, jurisdiction of the state that rendered the judgment is to be presumed until the contrary appears).

Every other financial figure recited in the trial court's decision is admitted by defendant. Defendant admits that he was entitled to a credit of $17,079.27 from the sale of the parties' house and a credit in the amount of about $1,036 for child support paid in 1983 and 1984 (his interrogatory answer actually claims a slightly smaller credit). The court's finding of $9,000 as the amount of child support that accrued following the Arizona judgment is addressed in defendant's response to plaintiff's request for admission:

21. That Defendant was obligated to pay the sum of Nine Thousand Dollars ($9,000) for child support for the period of September 1983 through December of 1984.

RESPONSE: Defendant is without knowledge as to the allegations contained in paragraph 21 of Plaintiff's Request for Admission. Defendant believes that the figure appears accurate.

The only other...