Medveskas v. Karparis

• Decision Date: 28 February 1994
• Docket Number: No. 92-157,92-157
• Citation: 161 Vt. 387,640 A.2d 543
• Parties: , 36 A.L.R.5th 887 Zafa MEDVESKAS v. Charles KARPARIS.
• Court: Vermont Supreme Court

Page 543

640 A.2d 543

161 Vt. 387, 36 A.L.R.5th 887

Zafa MEDVESKAS v. Charles KARPARIS.

No. 92-157.

Supreme Court of Vermont.

Feb. 28, 1994.

Patrick L. Biggam of Biggam, Fox & Skinner, Montpelier, for plaintiff-appellant.

Robert Halpert, Montpelier, for defendant-appellee.

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

JOHNSON, Justice.

Plaintiff-wife appeals from a superior court order dismissing her suit to recover on a money judgment obtained by her in the Massachusetts courts against defendant-husband for child support arrearages due pursuant to a Massachusetts child custody and support decree. The issue on appeal is whether wife can recover on a Massachusetts contempt judgment based on a Massachusetts custody and support decree that modified a prior Vermont custody and support decree without a finding of substantial change of circumstances. We affirm.

The parties were divorced by an order of the Washington Superior Court in 1974. Originally, the court ordered joint custody of the three minor children, Charles, Jr., Andrew, and Zafa. During the ensuing years, the parties filed several modification petitions. As a result of one of these petitions, husband obtained physical custody of Charles, Jr. In March 1977, husband brought a petition for modification in Washington Superior Court in which he sought custody of Andrew. Wife obtained counsel and entered an appearance in this proceeding. The court declined to resolve the petition, however, until after Andrew was evaluated by Washington County Mental Health Services. In August 1977, the counselor recommended that Andrew live with husband.

Subsequently, wife moved to Massachusetts with her new husband, Andrew, and Zafa. On September 10, 1977, wife instituted an action in Massachusetts seeking custody of Andrew and Zafa. On September 15, 1977, the Massachusetts court awarded wife temporary custody of Andrew and Zafa. Husband obtained counsel and appeared in the Massachusetts custody action.

The two custody actions proceeded simultaneously, and Vermont pronounced judgment first. On November 7, 1977, the Vermont court transferred custody of Andrew from wife to husband, and ordered that husband would be relieved of paying wife support payments of $25 per month for Andrew "[w]hen [he] obtain[ed] physical custody of Andrew." Nevertheless, wife refused to relinquish custody of Andrew, and he ultimately continued to reside with wife until his emancipation. The court made no modification of support regarding Zafa, which continued at $25 per month. Zafa also resided with wife until her emancipation.

Following entry of the Vermont custody order, husband's Massachusetts counsel moved to dismiss the proceedings in that state, arguing res judicata and comity. The Massachusetts court acknowledged that a Vermont court had given custody of Andrew to husband, but found that it was in the best interests of Andrew and Zafa to remain with wife. On June 30, 1978, the Massachusetts court granted custody of Andrew to wife and ordered husband to make support payments of $25 per child per week. The court also granted visitation rights to husband.

In 1985, wife sought a contempt order in Massachusetts seeking support arrearages for both children under the June 30, 1978 Massachusetts custody order. Husband failed to appear, and wife obtained a default contempt judgment for $18,952 on October 17, 1985. Six years later, on July 3, 1991, wife filed a complaint in the Washington Superior Court seeking enforcement of the Massachusetts default judgment and requesting interest from October 17, 1985 to July 3, 1991 in the amount of $12,887.36 and interest from the date of her complaint. It is this suit on the Massachusetts contempt judgment that is the subject of this current Vermont action.

The trial court dismissed plaintiff's suit. The court found that normally, under the Full Faith and Credit Clause of the United States Constitution, ¹ the judgment that is last in time controls. In this case, however, the court ruled that the last-in-time rule should yield because: (1) wife approached the court with unclean hands in that she was in contempt of court for refusing to comply with the November 7, 1977 Vermont custody order, and (2) the Massachusetts custody order was not based on a substantial change in circumstances, and thus was unenforceable. Consequently, the court found that the subsequent contempt proceeding based on the Massachusetts order was equally unenforceable. This appeal followed.

Essentially, the parties are advancing two inconsistent and competing custody orders that differ in two ways. The Vermont order awards custody of Andrew to husband, while the Massachusetts order awards custody of Andrew to wife. The Vermont order also obligates husband to pay support payments of $25 per month per child, whereas the Massachusetts order imposes that amount on a weekly basis.

Ordinarily, we would turn to the Parental Kidnapping Prevention Act, (PKPA), 28 U.S.C. § 1738A, to resolve this dispute. Shute v. Shute, 158 Vt. 242, 245, 607 A.2d 890, 893 (1992). When it was enacted in 1980, the PKPA established national standards for the enforcement and modification of child custody determinations. The PKPA prohibits a state from exercising jurisdiction in any proceeding to determine custody when the action is filed during the pendency of a custody proceeding in the courts of another state, as long as the other state is acting consistently with the PKPA. Id. § 1738A(g). It also prevents a second state, which would otherwise have jurisdiction over the matter, from modifying a foreign custody determination unless the original state no longer has jurisdiction or has declined to exercise its jurisdiction. Id. § 1738A(f). Otherwise, the PKPA requires states to enforce a foreign custody determination made consistently with the PKPA. Id. § 1738A(a).

If we were to apply the PKPA to this case, we could not enforce the Massachusetts custody order. Vermont was the children's home state ² at the time of the divorce, and Vermont would have had continuing jurisdiction to modify its custody order. See id. § 1738A(c), (d). Therefore, Massachusetts could not have modified that order absent exigent circumstances. See id. Moreover, Massachusetts exercised jurisdiction while a custody determination was pending in another state that was exercising jurisdiction consistently with the PKPA, which would have violated the PKPA. See id. § 1738A(g). The conflicting judgments, however, were entered prior to the enactment of the PKPA. Thus, we must look to the law as it existed before the PKPA.

Prior to the enactment of the PKPA, courts applied general conflict-of-laws principles to determine which of two conflicting judgments to enforce. Wife argues that the Massachusetts judgment awarding her custody of Andrew and setting the child support level for Andrew and Zafa at $25 per child per week was valid and enforceable because it was later in time than the Vermont custody order and therefore superior under the Full Faith and Credit Clause of the United States Constitution, art. IV, § 1, and 28 U.S.C. § 1738. Husband counters that the Full Faith and Credit Clause does not mandate recognition of a foreign judgment in the forum state when the forum state issued a prior, conflicting judgment binding the same parties with respect to the same subject matter. Wife responds that husband's argument is without merit because Vermont custody orders are subject to modification, and thus are not entitled to full faith and credit. Therefore, wife argues, the Massachusetts court was not required to grant full faith and credit to the prior Vermont custody order.

Before addressing the parties' arguments, it is important to define the limits of this case. As previously noted, all of the relevant judgments occurred prior to the passage of the PKPA. Moreover, Andrew and Zafa are now emancipated. This case is not about who should have custody of the children or whether they are being adequately supported. Rather, the sole issue is child support arrearages. Thus, we focus solely on the provisions for support in the Vermont and Massachusetts orders, and not on the findings or provisions regarding custody of Andrew.

Wife is correct that Vermont custody orders are modifiable. Vermont permits modification of a custody order if the petitioning party demonstrates a substantial change in material circumstances from the earlier decree. Valeo v. Valeo, 132 Vt. 526, 527, 322 A.2d 306, 308 (1974). Likewise, Massachusetts permits modification of a Massachusetts custody order or a foreign custody order upon a "showing of material change in circumstances." Buchanan v. Buchanan, 353 Mass. 351, 231 N.E.2d 570, 571 (1967). Wife concludes that Massachusetts did not deny Vermont's order full faith and credit because it was modifiable. See Lowery v. Lowery, 156 Vt. 268, 271, 591 A.2d 81, 83 (1991) ("prospective [spousal] maintenance orders are not entitled to full faith and credit if they can be modified in their state of origin").

What wife's analysis overlooks is the reason a substantial change in circumstances is required before a custody order can be modified--that "[o]therwise, the doctrine of res judicata prevents a judgment of modification." French v. French, 128 Vt. 138, 139, 259 A.2d 778, 779 (1969); see also In re Forslund, 123 Vt. 341, 343, 189 A.2d 537, 539 (1963) (foreign child custody decree "is res adjudicata as between the parents upon facts as they existed on the date of the decree"). Thus, the Vermont custody order was res judicata on the issue...