U.S. v. Bigford

• Decision Date: 13 April 2004
• Docket Number: No. 01-7132.,01-7132.
• Citation: 365 F.3d 859
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rickie Earl BIGFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.3d 859

UNITED STATES of America, Plaintiff-Appellee, v. Rickie Earl BIGFORD, Defendant-Appellant.

No. 01-7132.

United States Court of Appeals, Tenth Circuit.

April 13, 2004.

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Barry L. Derryberry, Research and Writing Specialist (Paul D. Brunton, Federal Public Defender for the Eastern District of Oklahoma, and Michael A. Abel, Assistant Federal Public Defender, with him on the briefs), Tulsa, OK, for Defendant-Appellant.

Jeffrey A. Gallant, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with him on the brief), Muskogee, OK, for Plaintiff-Appellee.

Before SEYMOUR, EBEL and HENRY, Circuit Judges.

EBEL, Circuit Judge.

Defendant was charged with violating the Deadbeat Parents Punishment Act ("DPPA"), 18 U.S.C. § 228, for willfully failing to pay a support obligation with respect to a child residing in another state. Defendant filed in the district court a motion to dismiss the indictment, claiming that the Oklahoma default judgment ordering him to pay child support was rendered without personal jurisdiction. The district court concluded that the DPPA does not permit a defendant to raise the invalidity of the child support order as a defense and therefore denied Defendant's motion to dismiss. Defendant entered a guilty plea conditional on his appeal of the district court's denial of his motion to dismiss. We hold that in a DPPA prosecution predicated on a default child support judgment, the defendant may challenge that judgment on the basis that personal jurisdiction was lacking. We reverse and remand to the district court for consideration of Defendant's motion challenging the jurisdictional validity of the support order issued against him.

I. FACTS

In 1983, Rickie Earl Bigford ("Defendant") and his then wife Beverly (now Beverly Brown) separated. Ms. Brown took their minor son from their home in Burkburnett, Texas, to her hometown of Tishomingo, Oklahoma. After establishing residency, Ms. Brown sought a divorce from Defendant in Johnston County, Oklahoma. Ms. Brown's divorce lawyer represented in the affidavit for publication service before the state court "that the affiant does not know the address of the Defendant, and that the same can not with due diligence be ascertained." Ms. Brown's lawyer then perfected service on Defendant in the state court proceeding through publication in Ms. Brown's local Oklahoma newspaper, the Johnston County Capital-Democrat. Defendant never appeared in the action, and in October 1984 a default judgment was entered in Johnston County decreeing the divorce and requiring Defendant to pay $150 per month in child support. Although Oklahoma law permitted Defendant to challenge a default judgment predicated upon service by publication within three years, Okla. Stat. § 2004(C)(3)(f), Defendant did not take any action regarding the judgment, either in the three year period or thereafter.

In 2001, Defendant was charged in the Eastern District of Oklahoma with violation of the Deadbeat Parents Punishment Act for "willfully and unlawfully fail[ing] to pay a support obligation." Defendant moved to dismiss the indictment on the ground that the underlying child support order was invalid for want of personal jurisdiction. The district court held an evidentiary hearing to ascertain whether Defendant would be permitted to challenge in this prosecution the child support order on the ground of lack of personal jurisdiction and, if so, whether jurisdiction was proper in Defendant's divorce and child support proceeding. Despite the statements in the affidavit for service by publication, Ms. Brown testified at the DPPA evidentiary hearing that she was "pretty sure" where Defendant was living and could be found at the time of the divorce and child support proceeding. She also testified that the judge who granted the divorce and awarded child support did so without asking whether Defendant had been notified of the proceedings.

In considering Defendant's motion, the district court first concluded that the DPPA itself does not permit an attack on the validity of the underlying child support order. The court then considered United States v. Mendoza-Lopez, in which the Supreme Court provided aliens charged with illegal entry a limited opportunity to attack their previous deportation proceedings when defects in those proceedings deprived the aliens of an opportunity for judicial review. 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). The district court concluded, however, that because Oklahoma law permitted Defendant to challenge the default judgment for three years after its entry, Defendant had an opportunity for judicial review of the underlying default support order and was therefore barred from invoking Mendoza-Lopez.

Defendant then entered a guilty plea conditional on the outcome of this appeal. He appeals on the ground that he should have been permitted to challenge the Oklahoma default judgment on the basis of personal jurisdiction, both under the United States Constitution and under Oklahoma state law. We hold that Defendant is entitled to assert this jurisdictional defense in the DPPA prosecution action against him.

II. DISCUSSION

A. The Deadbeat Parents Punishment Act

The Deadbeat Parents Punishment Act of 1998 ("DPPA")¹ criminalizes the willful failure to pay a support obligation with respect to a child who resides in another state. 18 U.S.C. § 228(a). The Act was proposed in an effort to reduce the $5 billion annual deficit in child support obligations by attaching criminal penalties to nonpayment. See H.R.Rep. No. 102-771, at 5-6 (1992) (discussing H.R. 1241, the bill that would become the CSRA). Specifically, under the DPPA:

Any person who (1) willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 1 year, or is greater than $5,000 ... [or] (3) ... has remained unpaid for a period longer than 2 years, or is greater than $10,000; shall be punished as provided in subsection (c).

18 U.S.C. § 228(a). Subsections (c) and (d) provide for punishment of imprisonment up to 2 years and restitution in an amount equal to the total unpaid support obligation, depending on the nature of the violation. Id. § 228(c), (d). The DPPA defines a "support obligation" as:

[A]ny amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.

Id. § 228(f)(3).

Decisions from other circuits have unanimously held that the DPPA (and the CSRA) does not permit an attack on the substantive lawfulness of the underlying state support obligation or permit a federal court to revise the order in any way. See United States v. Molak, 276 F.3d 45, 50-51 (1st Cir.2002); United States v. Faasse, 265 F.3d 475, 488 n. 11 (6th Cir.2001); United States v. Kramer, 225 F.3d 847, 851 (7th Cir.2000); United States v. Craig, 181 F.3d 1124, 1128 (9th Cir.1999); United States v. Brand, 163 F.3d 1268, 1275-76 (11th Cir.1998); United States v. Black, 125 F.3d 454, 463 (7th Cir.1997); United States v. Bailey, 115 F.3d 1222, 1232 (5th Cir.1997); United States v. Bongiorno, 106 F.3d 1027, 1033-34 (1st Cir.1997); United States v. Johnson, 114 F.3d 476, 481 (4th Cir.1997); United States v. Sage, 92 F.3d 101, 107 (2d Cir.1996).

However, only one of these courts has specifically considered whether the DPPA permits inquiry into the jurisdictional validity of the underlying support obligation. In United States v. Kramer, the Seventh Circuit held that the DPPA permits a defendant in a DPPA prosecution to challenge the personal jurisdiction of the state court that issued the underlying child support order. 225 F.3d at 857. The court in Kramer based its holding on the general rule that default judgments that are void for want of jurisdiction can be attacked on that basis and that nothing in the DPPA or its legislative history negated that general rule. See id. at 851-57 (citing Burnham v. Super. Ct. of Cal., 495 U.S. 604, 609-11, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990)). It discussed extensively the federal legislative scheme of which the DPPA is a part, concluding that the jurisdictional requirement included in related statutes supported a conclusion that Congress intended to permit limited jurisdictional attacks of underlying default support orders in DPPA prosecutions. See id. at 853-57. We agree with the Seventh Circuit's decision in Kramer.

B. General Rule: Default Judgments Rendered Without Jurisdiction Are Subject to Collateral Attack

Like the court in Kramer, our inquiry into the permissibility of challenges to the underlying support order on the basis of lack of personal jurisdiction begins with the longstanding proposition that judgments rendered by a court lacking jurisdiction are void. Burnham v.Super. Ct. of Cal., 495 U.S. 604, 608, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990); see also Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir.1986). "Traditionally [this] proposition was embodied in the phrase coram non judice, `before a person not a judge' — meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment." Burnham, 495 U.S. at 608, 110 S.Ct. 2105 (emphasis in original).

A judgment may therefore be attacked in a collateral proceeding in another jurisdiction on the basis that it was rendered without jurisdiction.² Durfee v. Duke, 375 U.S. 106, 110, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Pennoyer v. Neff, 95 U.S. 714, 730-33, 24 L.Ed. 565 (1877), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); Thompson v. Whitman, 18 Wall. 457, 85 U.S. 457, 469, 21 L.Ed....