Paula Pahnke/ Support v. Pahnke

• Decision Date: 10 January 2014
• Docket Number: Nos. 12–387,12–416,13–007.,s. 12–387
• Citation: 2014 VT 2,88 A.3d 432
• Court: Vermont Supreme Court
• Parties: Paula PAHNKE/Office of Child Support v. Jonathan PAHNKE.

88 A.3d 432

2014 VT 2

Paula PAHNKE/Office of Child Support

v.Jonathan PAHNKE.

Nos. 12–387, 12–416, 13–007.

Supreme Court of Vermont.

Jan. 10, 2014.

Sarah B. Haselton, Burlington, for Plaintiff–Appellee.

Jonathan A. Pahnke, Pro Se, Findlay, Ohio, Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and CRAWFORD, Supr. J., Specially Assigned.

CRAWFORD, Supr. J., Specially Assigned.

¶ 1. Father appeals from the modification of a foreign child support order. He argues that he was never properly served with the motion to modify child support, that the Vermont family division lacks personal and subject matter jurisdiction over him and this matter, and that the magistrate improperly ruled that mother did not owe him arrears for the period preceding the modification. We affirm in part, but remand for recalculation of mother's child support arrearage.

¶ 2. Father and mother were divorced in Michigan in 1997. The Michigan decree awarded custody of the parties' four children to father. Mother was ordered to pay child support of $48 per week.

¶ 3. Following the divorce, mother moved to Vermont. Within a short period of time, father also moved to Vermont with the children so that they could be closer to mother. He then left Vermont with the two younger children and moved to Nashville, Tennessee to further his education. The two older children remained behind with mother in Vermont. Father later brought the two younger children back to Vermont, and by 2000, all four children were living in Vermont with mother. The four children have remained with mother in Vermont since 2000. The youngest is now 19.

¶ 4. In August 2000, mother filed an emergency motion in the Chittenden Family Court to modify parental rights and responsibilities. She sought legal and physical custody of the children. The family court issued an amended order on August 15, 2000 granting sole physical and legal parental rights and responsibilities for the children to mother. The court issued the order on an emergency basis and ordered mother to submit proof of service of the amended order within three days. Within a few weeks, father signed an acknowledgment of service of the amended custody order.

¶ 5. In January 2004, the court suspended father's parent-child contact until furtherorder. Later that year, OCS sought to register the Michigan child support order with the Chittenden Family Court. Father signed two acceptance-of-service forms acknowledging receipt of the request for registration and prior motions filed in the case. He provided a post office box address in Shelburne, Vermont. The family court issued an order approving registration of the Michigan order in December 2004.

¶ 6. In 2006, the parties returned to family court after mother filed a relief-from-abuse petition. Both parties appeared for the final hearing, and the court denied mother's request for a final order. Mother also moved for a modification of parent-child contact. Father did not file a response to the motion. The court ordered no contact with father until further order.

¶ 7. On September 16, 2008, OCS filed a motion to modify the Michigan support order. The court scheduled hearings in November and December 2008 that were continued due to lack of service on father. In January 2009, the family court issued an order for alternative service at an address in Shelburne.¹ Service by tack process occurred on January 12, 2009.

¶ 8. The magistrate issued a default child support order on February 23, 2009, which modified mother's child support obligation to $0, relieved her of any obligation to pay arrears, and established a support obligation for father of $1063.31 per month. Mother appealed the order because the award of support was not retroactive to the change of custody in August 2000. In July 2009, the family court denied mother's appeal and affirmed the decision of the child support magistrate.

¶ 9. In August 2009, father filed an emergency motion to set aside the magistrate's February order. He provided an address in Kendallville, Indiana. He challenged the service by tack order on the grounds that he was not living at his mother's home in Shelburne in January 2009 when the sheriff served the motion to modify. He also challenged the substance of the support calculation, which was based on estimates of support he had received over the years from his mother. The family court denied the motion for emergency relief on the grounds that service of the hearing notice was proper and father could request a modification of support if his financial situation had changed. Father appealed to this Court, which determined that the service by tack order was inadequate after OCS admitted that the Shelburne address was not father's “dwelling house or usual place of abode.” See Pahnke v. Pahnke, No. 2010–032, 2010 WL 7789284, at *2 (Vt. Dec. 8, 2010) (unpub.mem.), https:// www. vermont judiciary. org/ UPEO 2006– 2010/ eo 10– 032. pdf. We reversed the default child support order and remanded the case for further proceedings. Id.

¶ 10. On remand, father moved to dismiss the renewed motion to modify child support for lack of personal jurisdiction. The child support magistrate denied father's motion on March 10, 2011. She found numerous contacts between father and the State of Vermont prior to September 2008, when OCS filed the motion to modify child support, including residence in the state while he cared for his mother in 2008. The magistrate ordered OCS to serve father with another copy of the motion to modify and a hearing notice, and stated that the motion to modify would be set for hearing once the court received proof of service. The family court dismissed an appeal of this ruling because it was not a final order.

¶ 11. On June 15, 2011, OCS sent father the motion to modify child support by regular mail. The magistrate scheduled mother's motion to modify child support for a hearing on October 10, 2011, and court staff sent notice of the hearing to both parties and OCS on September 1, 2011.² Father filed a motion for leave to proceed in forma pauperis, which was granted by the clerk. In September he also filed a “Notice of Change of Address” requesting that “[h]enceforth please send all notices to: [a street address] in Wooster, Ohio.”

¶ 12. On September 19, father filed a notice of appeal from the family court order dismissing his appeal from the magistrate's ruling on personal jurisdiction. At the same time, he filed a motion to stay the child support modification hearing. This Court dismissed the appeal on the ground that it was untimely filed. See Pahnke v. Pahnke, No. 2011–331, 37 A.3d 131 (Vt. Oct. 11, 2011) (unpub.mem.).

¶ 13. On October 11, 2011 the family court issued a second hearing notice to the parties, indicating that the child support modification hearing was reset for November 14. Father filed a motion on October 31 asking the magistrate to vacate her 2009 decision to “zero out” the original child support order issued in Michigan at the time of the divorce decree. On November 7, father filed a motion pursuant to Vermont Rule of Civil Procedure 60(b)(4) to vacate the original family court order in 2000 awarding custody of the children to mother. The motion raised issues of service of process and personal and subject matter jurisdiction.

¶ 14. The magistrate held an evidentiary hearing on the motion to modify child support on November 14, 2011 and March 12, 2012. Father participated in both days of the hearing by telephone. On May 10, 2012, the magistrate issued a decision on the motion. The decision confirmed that mother owed father nothing under the Michigan order from the date when mother was granted custody in 2000 to the date that OCS filed the motion to modify in 2008. It awarded mother support from the date of the modification motion forward.³ A child support order incorporating the findings in the magistrate's decision was issued in July. Father appealed the magistrate's May 10 decision to the family court.

¶ 15. On August 1, 2012, the family court denied father's Rule 60(b)(4) motion to vacate the 2000 custody order. It ruled that father's challenge to an existing order under Rule 60(b)(4) on grounds of “voidness” must relate not to the merits of the individual decision but to the larger question of whether the case was of the type over which the family court had jurisdiction. The family court concluded that under the Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. § 1042,⁴Vermont had jurisdiction over motions to modify foreign custody orders under the circumstances alleged in this case. It denied father's challenge to the court's exercise of personal jurisdiction on the grounds that personal presence of the defendant in the state is not mandatory under the UCCJA and that father had failed to appeal previous orders of the court establishing personal jurisdiction.

¶ 16. On September 14, 2012, the family court affirmed the magistrate's decision modifying child support. The court ruled that father had waived any defect in service of process through his filings and appearance at the contested hearing. With regard to the merits, the family court accepted the magistrate's factual findings and her conclusions of law. On October 15, father filed a notice of appeal in this Court from the family court's September 14 decision.⁵

¶ 17. On appeal, father makes three related arguments: first, that service of the hearing notice and motion to modify was insufficient; second, that the family court did not have personal jurisdiction over father; and third, that the family court violated the jurisdictional requirements of the Uniform Interstate Family Support Act (UIFSA), 15B V.S.A. §§ 101–904, when it modified the Michigan child support order. Father also argues that the magistrate erred in “zeroing out” mother's child support arrearage under the Michigan order for the years following the change of custody in 2000 to mother. These are...