Rollo v. Cameron

Citation82 A.3d 1184,194 Vt. 499,2013 VT 74
Decision Date13 September 2013
Docket NumberNo. 12–166.,12–166.
CourtVermont Supreme Court
PartiesRhonda Cameron ROLLO v. David W. CAMERON.

OPINION TEXT STARTS HERE

Rhonda Cameron Rollo, Pro Se, St. Albans, PlaintiffAppellee.

David W. Cameron, Pro Se, Newport, DefendantAppellant.

Present: REIBER, C.J., DOOLEY, SKOGLUND, BURGESS and ROBINSON, JJ.

SKOGLUND, J.

¶ 1. Defendant appeals pro se from a final relief-from-abuse order issued by the family division of the superior court. He raises numerous claims, including allegations that he was not properly served with the temporary order or the final order. We affirm.

¶ 2. The record discloses that plaintiff filed a complaint on April 23, 2012, seeking to extend an existing relief-from-abuse order against defendant issued a year earlier based on threats that defendant would kill plaintiff when released from prison. Plaintiff failed to appear at the final hearing however, and the order expired on April 26, 2012. Plaintiff then filed a new complaint on May 1, 2012, alleging that she had been unable to appear because of a death in the family, that defendant would soon be eligible for release from prison, and that he had threatened to harm her as soon as he was released. The court issued a temporary order that included notification of a final hearing to be held on May 7, 2012 at the family division of the superior court in St. Albans, Vermont at 8:30 a.m. The temporary order, along with the complaint and supporting affidavit, was sent to defendant at the Lee Adjustment Center in Beattyville, Kentucky. The record contains a return of service by a prison official from the Center, dated May 2, 2012, indicating that he personally served the order on defendant and that defendant refused to sign the acceptance of service.

¶ 3. Plaintiff was present at the hearing on May 7, 2012. Defendant, however, failed to appear in person or by telephone. The court issued a final order, effective until May 7, 2015, that imposed restrictions on defendant that were contained in the temporary order and that precluded defendant from contacting or threatening plaintiff. Defendant was personally served with the final order, again at the Lee Adjustment Center in Kentucky, and the record contains a return of service, dated May 8, 2012, indicating that a prison official from the Center hand delivered the final order to defendant, and that defendant refused to sign the acceptance of service.

¶ 4. On appeal, defendant contends that he did not receive notice of the final hearing. As noted, however, the record contains a return of service indicating that the complaint and the court's temporary order containing notice of the hearing, scheduled for May 7, 2012, were personally served on defendant on May 2, 2012. He had actual notice. Accordingly, we find no merit to the claim.

¶ 5. Defendant also argues that he was not properly served because service was made by a prison official rather than a law enforcement officer. He challenges service under both Vermont Rule of Civil Procedure 4(c) and the statute governing service of [a] complaint or ex parte temporary order or final order” issued under Title 15, chapter 21, Abuse Prevention, § 1105(a).

¶ 6. By statute, relief-from-abuse proceedings are governed by the Vermont Rules for Family Proceedings. 15 V.S.A. § 1106(a); see V.R.F.P. 9. In turn, the family rules specify that these proceedings are governed by the Vermont Rules of Civil Procedure unless there is a conflict with a specific family rule or a statute. V.R.F.P. 9(a)(1). Generally, service of a complaint is governed by Civil Rule 4, which provides, in part, that service “shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable.” V.R.C.P. 4(c). Service of a court order is governed by Civil Rule 5(b), which provides that service may be made upon an attorney or party “by delivering a copy to the attorney or party.” See also 4B C. Wright & A. Miller, Federal Practice and Procedure § 1143 (3d ed.2002).

¶ 7. When an emergency relief order is sought in family court, the court can issue a temporary order when certain findings are made. See V.R.F.P. 9(a). Then, service of the court order is made “in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer.” 15 V.S.A. § 1105(a). The service of the court order includes the complaint so as to provide notice to the defendant as to the allegations asserted that gave rise to the temporary relief from abuse order of the court. See id. The question is whether Civil Rule 4 controls in the special circumstances presented by the service of the temporary order given that the statute requires that the original complaint is part of the collective documents served upon defendant.

¶ 8. Confusion is created by the inclusion of the “complaint” within 15 V.S.A. § 1105, the statute governing service of an ex parte temporary order or final order. Section 1105(a) provides that service of a complaint or ex parte temporary order or final order shall be in accordance with the rules of civil procedure, and may be served by any law enforcement officer.” (Emphasis added.) It does not require service by a law enforcement officer.

¶ 9. Defendant maintains that service was not effectuated in accordance with Civil Rule 4. His primary complaint focuses on a lack of evidence that the prison official was a person listed authorized to serve a complaint under Civil Rule 4. See V.R.C.P. 4(c) (“Service ... shall be made by a sheriff or deputy sheriff, by a constable or other person authorized by law, or by some indifferent person specially appointed for that purpose by any superior judge, or a judge of the court to which it is returnable ....”). Defendant posits that no order appointed the prison official at the Lee Adjustment Center to effectuate service on him. Nothing in the record answers the question of whether the prison official who served the complaint in this matter is the equivalent of a sheriff or constable for purposes of service, or whether prison officials are otherwise “authorized by law” to effect service. It is also unknown whether the superior court has authorized prison officials to effect service in cases of this nature.

¶ 10. Nonetheless, what is clear from the record, and what is uncontested by defendant, is that defendant was afforded actual notice of the temporary order and complaint. We have held that a party who has received actual notice of a suit against him must raise all the jurisdictional objections in a timely manner. One such defense that may be waived if not timely filed is insufficiency of service of process. See, e.g., Myers v. Brown, 143 Vt. 159, 167, 465 A.2d 254, 258 (1983). [I]nsufficiency of service of process” is specifically included among the defenses that may be waived if not timely raised under Civil Rule 12(h)(1).

¶ 11. To properly assert the defense of insufficient service of process, defendant needed to either file a motion to dismiss prior to the final relief-from-abuse hearing or raise the defense at the hearing itself. See Gaboriault v. Van Aelstyn, No. 2003–290, 2004 WL 5583286, at *2 (Vt. Jan. 7, 2004) (unpub.mem.), http:// www. vermont judiciary. org/ d- upeo/ upeo. aspx (holding that defendant waived his claim of improper service when he failed to raise such claim at hearing held less than twenty-four hours after he was served temporary relief-from-abuse order). Defendant failed to do either.

¶ 12. Accordingly, we have held that where, as here, a party was afforded actual notice of an action, and later suffers a default judgment, the failure to plead defective service results in a waiver of the issue on appeal. Myers, 143 Vt. at 166–67, 465 A.2d at 258; see also In re Burlington Elec. Dep't, 141 Vt. 540, 546, 450 A.2d 1131, 1134 (1982) (explaining that where process is not in substantial compliance with requirements, “the defect may be waived” (quotation omitted)). Thus, any error in this regard was waived.

¶ 13. While the dissent faults plaintiff with failing to comply with the rules, given the process set forth in the Rules for Family Proceedings and the statutes governing emergency relief, that assignment of blame cannot stand. It is the court that initiates service of the temporary restraining order on the defendant, not the plaintiff. Return of service of the temporary order is filed directly with the court, 15 V.S.A. § 1105(c) (“The person making service shall file a return of service with the court ....”), rather than being returned to the plaintiff's attorney for filing proof of service with the court. V.R.C.P. 4(i).

¶ 14. In light of defendant's default, the remaining claims attacking the merits of the order were not raised below, and were not preserved for review. LaMoria v. LaMoria, 171 Vt. 559, 560, 762 A.2d 1233, 1235 (2000) (mem.). We therefore discern no basis to disturb the judgment.

Affirmed.

DOOLEY, J., dissenting.

¶ 15. To initiate a lawsuit, a party, or the court on the party's behalf, must follow very specific requirements, and no relief is appropriate unless an action has been properly instituted. Plaintiff, or the court, did not comply with the rules here, and plaintiff therefore was not entitled to the relief granted to her by the trial court. I would reach the merits of defendant's insufficient-service-of-process defense, and either direct that service be quashed or that the case be dismissed. I therefore dissent.

¶ 16. To initiate a relief-from-abuse case, a plaintiff must file a complaint supported by an affidavit. 15 V.S.A. § 1103(a). By statute, such complaints, as well as ex parte temporary relief-from-abuse orders or final orders, must “be served in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer.” 1Id. § 1105(a).

¶ 17. By statute, relief-from-abuse...

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8 cases
  • Couture v. Trainer
    • United States
    • Vermont Supreme Court
    • August 25, 2017
    ...596 A.2d 1277, 1279 (1991). Similarly, petitions for relief from abuse are heard in judicial proceedings by courts. See, e.g., Rollo v. Cameron, 2013 VT 74, 194 Vt. 499, 82 A.3d 1184 ; Coates v. Coates, 171 Vt. 519, 769 A.2d 1 (2000) (mem.). As such, all the statements and recordings at iss......
  • Couture v. Trainer
    • United States
    • Vermont Supreme Court
    • August 25, 2017
    ...596 A.2d 1277, 1279 (1991). Similarly, petitions for relief from abuse are heard in judicial proceedings by courts. See, e.g., Rollo v. Cameron, 2013 VT 74, 194 Vt. 499, 82 A.3d 1184; Coates v. Coates, 171 Vt. 519, 769 A.2d 1 (2000). As such, all the statements and recordings at issue in th......
  • Messier v. Bushman, 17-345
    • United States
    • Vermont Supreme Court
    • August 24, 2018
    ...stages of the litigation or risk waiver. But Myers does not stand for the broad proposition Messier attributes to it. In Rollo v. Cameron, 2013 VT 74, ¶ 10, 194 Vt. 499, 82 A.3d 1184, we interpreted Myers to mean that where a party has actual notice of the suit and later suffers a default, ......
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    • Vermont Supreme Court
    • September 13, 2013
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