Powers v. Office of Child Support

• Decision Date: 05 April 2002
• Docket Number: No. 00-335.,00-335.
• Citation: 795 A.2d 1259
• Parties: Katherine POWERS v. OFFICE OF CHILD SUPPORT.
• Court: Vermont Supreme Court

795 A.2d 1259

Katherine POWERS v. OFFICE OF CHILD SUPPORT.

No. 00-335.

Supreme Court of Vermont.

April 5, 2002.

Charlotte Dennett, Burlington, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, Montpelier, and Donelle Smith Staley, Assistant Attorney General, Waterbury, for Defendants-Appellees.

Present: AMESTOY, C.J., MORSE, JOHNSON and SKOGLUND, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

SKOGLUND, J.

Plaintiff Katherine Powers appeals from a superior court judgment dismissing her claims against defendants State of Vermont, Office of Child Support ("OCS"), and eleven of its current and former employees for failure to state a claim upon which relief can be granted under V.R.C.P. 12(b)(6).¹ Specifically, Powers claims that the Vermont OCS failed to adequately represent her in seeking enforcement of child support orders against her ex-husband. She argues that the court erred in determining that her claims against the State and OCS were barred by the doctrine of sovereign immunity and that her claims against the individual defendants were barred by 12 V.S.A. § 5602(a). She claims, too, that the court erred in failing to consider her breach of contract claim. We affirm.

When reviewing a motion to dismiss we accept as true all well-pleaded factual allegations in the complaint. Richards v. Town of Norwich, 169 Vt. 44, 48-49, 726 A.2d 81, 85 (1999). The complex factual background of this case spans nearly twenty years. The following facts as alleged by Powers are taken as true.² Powers, a Vermont resident, filed for a divorce from her husband, James Horner, in 1978. In the final divorce decree, she retained custody of their two children, Lauren, born in 1968, and David, born in 1973. Horner moved to New York after the divorce. The New York court ordered Horner to pay $250 a month in child support. Powers filed a URESA³ petition with the State of New York in 1978 to enforce the payment of child support.

Powers received public assistance from the State of Vermont from 1978 through 1981. Pursuant to the conditions of eligibility for this program, Powers assigned her right to receive child support payments to the Department of Social Welfare ("DSW"). OCS sporadically pursued Horner for payment on arrearages that accrued during the assignment of rights, monies that would then go to reimburse the state, but otherwise virtually ignored the Vermont family court order.

From 1978 through 1991, Powers repeatedly requested assistance from OCS in enforcing the child support orders. She claims that OCS failed to inform her of hearings that took place in the New York family court and of the fact that arrearages were twice reduced by IRS tax offset payments, once in 1988, and once in 1990. In October 1989, OCS sent Powers a check for $50, the first child support payment she had received since the divorce in 1978. She received $50 monthly payments from January 1990 through August 1990. In 1991, Powers learned that OCS had been withholding $3,125 owed to her. She was finally paid that money in September 1991. In 1992, OCS began to seek enforcement of the 1979 Vermont family court order by filing a petition for enforcement in the New York court. However, OCS did not follow up on that petition until mid-November when it learned from the New York court that the petition had been misplaced. Powers was not informed that the petition had been misplaced.

In response to Powers' requests for assistance, OCS sent her a package to formally apply for services in 1992. She applied for tracking services, assets location services, enforcement services, and trial services. Following a meeting with OCS employees Van Schaick and Calkins in November 1992, Powers expected OCS would act on her case. She did not agree to get her own lawyer. She claims that an explanation provided by Van Schaick was "misleading" concerning the URESA petition. Her complaint also alleges that, in 1993, OCS put the wrong social security number on their enforcement forms, thereby impeding enforcement remedies.

In 1993, OCS filed a foreign support order with the State of New York. Following hearings held in New York for the purpose of enforcing child support arrears, Horner was ordered to pay $10,000 up front and $500 per month towards arrearages, which at that time totaled over $120,000. According to her complaint, Powers was not informed of this decision and she was denied access to the transcripts and pleadings connected with this enforcement action. Furthermore, in 1994, she was denied a referral to the United States Attorney's Office for criminal prosecution of Horner, a referral which is usually given when OCS's enforcement efforts have failed.

On December 12, 1995, Powers was sent a copy of a November 30, 1995 order from the New York judge holding that Horner would not be incarcerated for his years of willful nonpayment. She was not informed of her right to appeal or be heard. By the time she learned that OCS would not appeal the decision, the appeal period had passed.

OCS consistently misstated the amount of arrears owed to Powers, in part because the computer system could not handle amounts over $100,000. In addition, from 1994 to 1997, OCS, through defendants Relyea, Barrett and Patton, repeatedly refused Powers access to her records.

Powers hired her own attorney in 1997.

I. Procedural History

Powers initially filed her action in the Chittenden Superior Court, claiming that OCS and the individual defendants violated her rights under federal and state law. Defendants removed the case to the Federal District Court for the District of Vermont based on Powers' claim that the defendants' acts and omissions violated her rights under federal law in violation of 42 U.S.C. § 1983. In federal court defendants moved to dismiss all claims, alleging that there was no private right of action under Title IV-D, and that the State was shielded from suit by the Eleventh Amendment. The District Court, Neidermeier, J., dismissed Powers' federal claims, holding that the defendants were shielded from suit by the doctrine of qualified immunity because the right alleged by Powers, stemming from an individual cause of action for noncompliance with Title IV-D regulations, was not clearly established at the time the alleged violations took place. The District Court returned Powers' state law claims of breach of duty of effective representation, breach of contract, tortious interference with Powers' efforts to mitigate damages, and fraud to the superior court. Defendants then filed in the superior court a motion to dismiss for failure to state a claim, arguing that the action against the State was barred by the doctrine of sovereign immunity, and the action against the employees was barred by 12 V.S.A. § 5602(a) because Powers failed to state a claim for gross negligence or willful misconduct. In the alternative, defendants argued that the named employees were entitled to qualified immunity. The superior court, relying on Noble v. Office of Child Support, 168 Vt. 349, 721 A.2d 121 (1998), held that the duties of the OCS are discretionary and without a private analog in statutory or common law and thus dismissed the remaining claims. This appeal followed.

II. Statutory Background

In 1974, Congress added Title IV, Part D to the Social Security Act (the "Act"). See 42 U.S.C. §§ 651-669. The IV-D amendment established a Child Support Enforcement Program for, among other things, "the purpose of enforcing the support obligations owed by noncustodial parents to their children." 42 U.S.C. § 651. The child support enforcement services contemplated by the program include creating a system for establishing paternity, locating absent parents, and helping families obtain support orders. The Act requires that each state develop and implement a plan, subject to federal approval, for delivery of child support program services in order to qualify for federal funds in providing those services. 42 U.S.C. § 654. OCS is the designated IV-D agency for the purpose of Title IV-D. See 33 V.S.A. § 4101. A state must provide these services free of charge to AFDC (Aid to Families with Dependent Children) recipients and, when requested, for a nominal fee to children and custodial parents who are not receiving AFDC payments. 42 U.S.C. §§ 651, 654(4); see Blessing v. Freestone, 520 U.S. 329, 334, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Carelli v. Howser, 923 F.2d 1208, 1210 (6th Cir.1991) ("States are required to provide child support enforcement services to families that receive AFDC benefits as well as families that do not.") (internal quotation marks and citation omitted).

In enacting Title IV-D Congress recognized that states have a pecuniary interest in child-support enforcement whether or not the custodial parent is an ANFC recipient. One stated purpose of Title IV-D was to help families avoid becoming dependent on the state through lack of support from an absent parent. See S.Rep. No. 93-1356, at 13-14, 25 (1974), reprinted in 1974 U.S.C.C.A. N. 8133, 8145-46, 8158. By extending child support enforcement services to those families not receiving public assistance, Congress intended to assure that families have access to child support services before they are forced to apply for welfare. S.Rep. No. 96-336, at 77-78 (1980), reprinted in 1980 U.S.C.C.A.N. 1448, 1526-27.

III. Discussion

Powers contends that her complaint pleaded the elements required to sustain a claim of negligence against the State and the individual defendants and, thus, the court erred in dismissing her case under Rule 12(b)(6). A motion to dismiss for failure to state a claim upon which relief can be granted should not be granted unless it is beyond doubt that there exist no facts or circumstances that would entitle Powers to relief. See Richards, 169 Vt. at 48, 726 A.2d at 85; Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675, 677 (1997). The purpose of a motion to dismiss is to test the law of the claim,...