Phifer v. Commonwealth, Record No. 1134-08-4 (Va. App. 9/22/2009)

• Decision Date: 22 September 2009
• Docket Number: Record No. 1134-08-4.
• Citation: Phifer v. Commonwealth, Record No. 1134-08-4 (Va. App. 9/22/2009), Record No. 1134-08-4. (Va. App. Sep 22, 2009)
• Court: Virginia Court of Appeals
• Parties: JAMES E. PHIFER, JR. v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. PAMELA SCORE

Page 1

JAMES E. PHIFER, JR. v.COMMONWEALTH OF VIRGINIA, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, ex rel. PAMELA SCORE

Record No. 1134-08-4.

Court of Appeals of Virginia, Richmond.

September 22, 2009.

Appeal from the Circuit Court of Fairfax County, Robert W. Wooldridge, Jr., Judge.

Bryan P. Collins(Christopher A. Byrne; Marta Tanenhaus; Pillsbury Winthrop Shaw Pittman LLP, on briefs), for appellant.

Elana E. Strom, Assistant Attorney General(Robert F. McDonnell, Attorney General; William C. Mims, Acting Attorney General; Craig M. Burshem, Senior Assistant Attorney General; Beth J. Edwards, Regional Senior Assistant Attorney General; Nancy J. Crawford, Regional Senior Assistant Attorney General; Cameron S. Meals, Assistant Attorney General, on briefs), for appellee.

Present: Judges McClanahan, Petty and Powell.

MEMORANDUM OPINION^*

Judge CLEO E. POWELL.

James E. Phifer, Jr., ("Phifer") appeals the decision of the trial court granting the Virginia Division of Child Support Enforcement's ("DCSE") request for registration of a foreign support order.Specifically, Phifer argues that the default judgment obtained against him in the State of Washington is void as he was denied the constitutional and statutory protections under the Uniform Interstate Family Support Act ("UIFSA") and the Full Faith and Credit for Child Support Orders and Act ("FFCCSOA").Thus, he contends that the trial court erred in registering a void judgment.Finding that Phifer was denied his constitutional right to due process, we reverse and vacate the trial court's decision to register the foreign judgment.

FACTS

Jacob James Score was born to Pamela Lee Score on November 3, 1993, in the State of Washington.The State provided public assistance to Pamela for Jacob from 1993 to 1996.Believing Phifer to be Jacob's father, the Washington Department of Child Support("WDCS"), sought reimbursement from Phifer.On September 13, 1994, Phifer voluntarily contacted the WDCS and indicated that he was willing to cooperate with the WDCS.He provided the WDCS with his contact information, including his address.

On October 6, 1996, the King County Prosecuting Attorney's Office("KCPA") served a summons and parentage petition on Phifer at his home address (the "Washington address").¹A standardized answer form was attached to the summons.In his answer, Phifer denied that he was Jacob's father and requested that genetic testing be performed.In the "Future Notification"section of the answer, Phifer provided an address in Huntington, New York (the "New York address").²

On November 8, 1996, the KCPA filed its parentage petition, along with Phifer's answer, in the Superior Court of the State of Washington for King County("Washington court").On December 10, 1996, the KCPA filed a motion to compel genetic testing for Phifer.On December 13, 1996, the KCPA mailed a copy of its motion compelling genetic testing, the proposed order, and a copy of the scheduling order to Phifer at the New York address.

On January 3, 1997, the Washington court conducted a hearing on the KCPA's motion.Phifer did not appear at the hearing.The Washington court ordered Phifer "to appear at a genetic testing facility . . . on January 7, 1997."The KCPA subsequently mailed a copy of the order to Phifer at the New York address on January 7, 1997 — the same day that the order required Phifer to appear for testing.

Phifer did not appear for testing on January 7, 1997, nor did he arrange for another appointment through the State's Attorney's office.However, on January 13, 1997, the motion compelling genetic testing, the proposed order, and the copy of the scheduling order that the KCPA had sent to Phifer on December 13, 1997 were returned, unopened and stamped "RETURN TO SENDER — ATTEMPTED UNKNOWN."Further, all additional correspondence sent to the New York address was subsequently returned to the KCPA unopened and stamped "RETURN TO SENDER — NO SUCH STREET IN HUNTINGTON, N.Y. 11743 DELIVERY AREA."³

On April 25, 1997, the KCPA moved to have the Washington court strike Phifer's answer and enter an order of default.The KCPA's default judgment motion was set for a hearing on May 15, 1997.The KCPA then mailed copies of its default judgment motion and the hearing notice to Phifer at both the New York address and the Washington address.The notice sent to the New York address was subsequently returned; the notice sent to the Washington address was not.

On May 15, 1997, the Washington court was unexpectedly closed.Accordingly, the hearing was continued until June 5, 1997.On May 22, 1997, the KCPA mailed notice of the continuance to the New York address only.The notice was subsequently returned, unopened, to the KCPA on June 2, 1997 — three days before the scheduled hearing date.

On June 5, 1997, the Washington court conducted a hearing on the KCPA's default judgment motion.The basis of the default was Phifer's failure to attend genetic testing on January 7, 1997 as ordered by the Washington court.As with the prior hearings, Phifer did not appear.The Washington court found that it had proper jurisdiction, that Phifer was served with a copy of the summons and petition on October 6, 1996, that more than 20 days had elapsed since the date of service, that Phifer had responded and appeared, and that Phifer had received notice of the court order requiring him to submit to paternity testing, but failed to submit to such.Accordingly, the Washington court determined Phifer was in default and entered an order striking his answer.The Washington court also entered a default judgment and order establishing parentage and granting other relief (the "Washington judgment").

On June 24, 1997, the KCPA made an inquiry with the United States Postal Service and confirmed that Phifer was living at the Washington address and subsequently sent copies of the default judgment to him at that address.On July 17, 1997, Phifer notified the Washington court that he had not received any of the mailings sent to the New York address.

At some point after he notified the court that he had not received any of the mailings, Phifer moved from the Washington address and eventually settled in Fairfax, Virginia.DCSE subsequently filed two motions with the Fairfax County Juvenile and Domestic Relations District Court: a request for Virginia registration of foreign support order, filed on February 8, 2005, and a related motion for a show cause summons, filed on February 9, 2005.

On January 25, 2006 the J&DR court dismissed the case for lack of jurisdiction, noting that "the Court cannot ascertain that due process was afforded [Phifer] and that the Washington Orders are valid and not void or voidable."DCSE appealed the decision to the Circuit Court of Fairfax County on the same day the case was dismissed in the J&DR court.Subsequently, on May 25, 2007, DCSE filed a motion seeking attorney's fees and other costs.

After hearing the evidence, the circuit court issued a letter opinion on February 11, 2008, granting DCSE's motion to register the default judgment against Phifer.The trial court determined that, even though WDCS and the KCPA knew that the notices sent to the New York address were returned undeliverable, Phifer's due process rights were not violated because Phifer provided the New York address.

On April 7, 2008, the court entered an order memorializing the findings and ruling it set forth in the February 11, 2008 letter opinion.However, the order stated "this case is continued for the purpose of hearing DCSE's motion for a rule to show cause for failure to pay child support as well as DCSE's motion for attorney's fees and other costs."Phifer appeals.

ANALYSIS

Appealable Order

As an initial matter, we must determine whether this Court has jurisdiction over this appeal."The Court of Appeals has appellate jurisdiction over final decrees of a circuit court in domestic relations matters arising under Titles 16.1 or 20, and any interlocutory decree or order. . . adjudicating the principles of a cause."Erikson v. Erikson, 19 Va. App. 389, 390, 451 S.E.2d 711, 712(1994)(internal quotation marks omitted);see alsoCode§ 17.1-405(3)(f) and -405(4).

"A final order or decree is one `which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done by the court.'"Alexander v. Flowers, 51 Va. App. 404, 411, 658 S.E.2d 355, 358(2008)(quotingErikson, 19 Va. App. at 390, 451 S.E.2d at 712)."[A]n order that `retains jurisdiction to reconsider the judgment or to address other matters still pending' is not a final order."Id.(quotingSuper Fresh Food Mkts of Va., Inc. v. Ruffin, 263 Va. 555, 561, 561 S.E.2d 734, 737(2002)).

In the present case, the April 7, 2008 order clearly states "this case is continued for the purpose of hearing . . . DCSE's motion for attorney's fees and other costs."Thus, the trial court specifically retained jurisdiction to address the matter of attorney's fees.SeeMina v. Mina, 45 Va. App. 215, 217, 609 S.E.2d 622, 624(2005)(holding that an order adjudicating the merits of the claim but reserving ruling on one party's request for attorney's fees was not a final order for purposes of appeal).As such, the order cannot be considered a final order which disposes of the whole subject and leaves nothing to be done by the court.Thus, unless the April 7, 2008 order is an interlocutory order that "adjudicates the principles of a cause,"this Court does not have jurisdiction to consider Phifer's appeal.

An interlocutory order adjudicates the principles of a cause, when

the rules or methods by which the rights of the parties are to be finally worked out have been so far determined that it is only necessary to apply these rules or methods to the facts of the case in order to ascertain the relative rights of the parties with regard to the subject matter of the suit.

Lancaster v. Lancaster, 86 Va....