Vaile v. Porsboll

• Court: California Court of Appeals
• Writing for the Court: RUVOLO, P. J.
• Decision Date: 22 May 2015
• Docket Number: A140465
• Citation: Vaile v. Porsboll, A140465 (Cal. App. May 22, 2015)
• Parties: ROBERT SCOTLUND VAILE, Plaintiff and Respondent, v. CISILIE A. PORSBOLL, Defendant and Appellant.

ROBERT SCOTLUND VAILE, Plaintiff and Respondent, v. CISILIE A. PORSBOLL, Defendant and Appellant.

A140465

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

May 22, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. SFL-49802)

I.INTRODUCTION

This case arises out of a long-running child support dispute that has spawned litigation in California, Nevada, Norway, England, Texas, Virginia, Michigan and Kansas, in federal and state courts, including the Nevada Supreme Court, with attempts to involve the California Supreme Court and the United States Supreme Court. Unsurprisingly, the multiple jurisdictions have produced an array of conflicting support orders, with California and Kansas holding that a 2003 child support document from Norway governs the father's financial obligations, while Nevada continues to proclaim its 1998 support order controlling. The underlying dispute concerns the proper application of the Uniform Interstate Family Support Act (UIFSA), adopted in California as Family Code section 4900¹ et seq. (§ 4911.) But we resolve the appeal on the basis that the California court did not have, and could not, acquire personal jurisdiction overNorwegian resident Cisilie Porsboll when it decided in November 2012 that the Norway order was controlling. Therefore, we reverse the Sonoma County Superior Court's order refusing to set aside the controlling order determination and remand with an instruction to dismiss the case.

II.FACTUAL AND PROCEDURAL BACKGROUND

In 1989, Robert Scotlund Vaile, a United States citizen, met Porsboll in her native Norway when both were 20 years old. They returned to the United States together and were married in Utah in 1990. They settled in Ohio, where their two daughters were born in 1991 and 1995. The children have dual United States and Norwegian citizenship.

After Vaile finished graduate school in 1996, the family moved to Virginia, where Vaile was employed as an engineer. Vaile's employer transferred him to London in August 1997, and the family was living in London when the marriage broke down. The couple agreed to divorce in the spring of 1998.

In June 1998, fearing Vaile would try to take the children to the United States, Porsboll filed an action in a London court to prohibit removal of the children. On the day before the scheduled hearing, Vaile presented Porsboll with a 23-page separation agreement that covered, among other things, child custody, support and visitation, and also stipulated to their getting a divorce in Nevada, where Vaile's mother and stepfather were then living. Porsboll signed the agreement. The court in England entered an order granting Porsboll physical custody of both children and permission to remove them from the country. Vaile returned to the United States, and Porsboll took the children to Norway.

On July 14, 1998, five days after returning to the United States, Vaile signed a verified complaint asserting that he was "a resident of Nevada and that he had been physically present in Nevada for more than six weeks prior to the filing of the complaint." None of this was true. Eight days after signing the complaint, Vaile left Nevada, vacationed briefly in California, and then returned to his job in London. The complaint for divorce was filed in Las Vegas on August 7, 1998, with the parties'separation agreement attached. A pro se answer signed by Porsboll was filed the same day. Three days later a divorce decree was entered by the Nevada family court without a hearing.² Porsboll was given initial custody of the children and child support was ordered in accordance with a formula contained in the separation agreement.³ The agreement acknowledged that Porsboll would initially live in Norway with the children until at least July 1, 1999, and after that would live with the girls in the United States within 20 miles of Vaile's residence, which could be anywhere within the metropolitan area of seven named cities.

In November 1999, Porsboll informed Vaile that she planned to remarry. Vaile told her he was moving from London back to the United States and demanded that she and the children also relocate. Porsboll refused and initiated legal steps to be allowed to remain in Norway with the children.

Vaile then filed a motion in the Nevada family court seeking physical custody of the children. Before the court in Norway ruled, the Nevada court awarded custody to Vaile, while holding Porsboll in contempt of court for refusing to return with the children to the United States. The Nevada court's ruling was based on an in-court statement by Vaile that the children had lived "here" "all their lives." Vaile's lawyer also falsely told the Nevada family court the children "lived in Las Vegas prior to leaving."

In May 2000, Vaile took the Nevada custody order to Norway to reclaim the children. He did not file the order with any government body in Norway to have it enforced, however. Rather, he left the order with a desk clerk at a hotel where the children were staying with their mother and kidnapped them from the hotel. Vaile gotthem out of the country despite Porsboll's efforts to stop him via the Norwegian police and courts. Vaile took the children back to the United States, where they settled on a farm in West Texas. After the kidnapping, Vaile paid no further child support to Porsboll until his salary was attached in July 2006.

It took Porsboll two years to regain custody of the children through the courts in Nevada and Texas. In September 2000, she filed in the Nevada family court motions seeking return of the children, and to set aside the "fraudulently obtained divorce." The Nevada family court acknowledged that its earlier custody order favoring Vaile had been based on misrepresentations but, exercising emergency custody jurisdiction, it left custody temporarily with Vaile.

Porsboll filed a petition for a writ of mandamus in the Nevada Supreme Court, challenging Nevada's subject matter and personal jurisdiction. (Vaile v. Eighth Judicial Dist. Court (2002) 118 Nev. 262, 265-266.) In April 2002, the Nevada Supreme Court held the family court lacked both personal and subject matter jurisdiction because Vaile's residency requirement had not been met. (Id. at p. 268.) The Nevada Supreme Court concluded that Vaile "had never lived in Nevada, and had not even been physically present in Nevada for the requisite six-week period," and his contrary statements in his verified complaint for divorce were "false." (Id. at pp. 268, 270.)

The court noted the children had never been to Nevada and held the child custody and visitation orders were made without jurisdiction and were void. (Vaile v. Eighth Judicial District Court, supra, 118 Nev. at p. 275.) However, because there was a "colorable case for jurisdiction," the court held the remainder of the divorce decree was voidable, but not void. (Id. at p. 272.) It implicitly found Vaile had voluntarily submitted to Nevada's jurisdiction by filing the complaint for divorce, and explicitly found Porsboll was estopped to deny Nevada's jurisdiction because her answer also falsely affirmed Vaile's residence in Nevada. (Id. at pp. 273-274.)

The court further concluded, or at least implied, that because the family court had "colorable personal jurisdiction over the parties and the subject matter of their marital status," both the divorce itself and the child support provision remained enforceable.(Vaile v. Eighth Judicial Dist. Court, supra, 118 Nev. at p. 275.) It remanded the case to the family court with instruction to order the children returned to Norway. (Id. at p. 277.) The two children are now 20 and 24 years old, and custody is no longer in controversy, although the parties continue to litigate the issue of arrearages in past-due child support.⁴

After Porsboll and the children returned to Norway, a child support calculation was rendered by a Norwegian agency called Folketrygdkontoret for utenlandssaker, or "National Office for Social Insurance Affairs." That agency issued a document entitled "Child Support Order" dated March 17, 2003.⁵ The document states that a copy was sent to both parties.⁶

Porsboll insists she did not seek a child support order in Norway. Rather, "the child support order issued in Norway was an administrative action taken by the child support agency pursuant to that country's 'welfare' laws to give the agency an entry on which to base requests to recoup money it was providing for the support of the children due to Mr. Vaile['s] refusing to support his children." Yet, the Norwegian order itself states that Porsboll "applied" on May 20, 2002, "for stipulation of child support." No statement under oath by any participant in the Norway proceedings explains how theNorwegian order came into existence, and no expert testimony was introduced regarding the nature, origin or purpose of the Norwegian document or the procedures employed in Norway for issuing child support orders consistent with UIFSA.⁷

The child support amount was twice modified by the Norwegian National Office for Social Insurance Abroad. That agency's documents recite, "The question of child support can be handled by the national insurance Service or a Norwegian court of law b) [sic] if one of the parties or the child resides in Norway." There is no evidence that Vaile ever made support payments under the Norwegian orders.

In November 2007, Porsboll asked the Nevada family court to set a fixed amount of monthly child support based on Nevada statute, rather than on the formula in the 1998 separation agreement, and also to render into a judgment the arrearage owed for child support. The Nevada family court...