IN THE STATE OF VERMONT
SUPREME COURT
* Vermont Supreme Court
Jonathan A. Pahnke,
* Docket
No. 2012-387
Appellant
*
vs.
*
* Re: Appeal from
Vermont Superior Ct.
Paula J. Pahnke and Vermont
OCS
* Chittenden
Unit, Family Division
Appellees
*
File no. 622-8-00 Cndm
*
-------------------------------------------------------
Jonathan Pahnke, Pro Per
130 Meeks Ave.
Findlay, OH. 45840 Ph.
419-371-8324
-------------------------------------------------------
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REVISED MOTION/MEMORANDUM FOR REHEARING
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PARTIES & COUNSEL
For Appellant:
For Appellees:
Jonathan A. Pahnke, pro per Vermont Office of Child Support
130 Meeks Ave.
Att. Sarah
Hazelton, esq.
Findlay, OH. 45840
32 Cherry St.
Suite 310
Ph: 419-371-8324
Burlington, Vt. 05401
Feb. 15, 2014
Paula Pahnke
48
Lexington Rd.
Colchester, Vt. 05446
I. ARGUMENT IN SUPPORT
OF REHEARING
A. Law of the Case
i. The court has overlooked Appellant’s “law of the case” arguments vis a
vis the necessary effect of Appellees’ failure on remand to comply with this
court’s Dec. 8, 2010 order and the inherent unfairness of allowing Appellees a
“second bite at the apple” to show they properly “served” Appellant after
failing to raise the “waiver” issue in either the 2010 appeal or their
“first
responsive pleading” on remand.
This court ruled in its 2010 order, “While OCS contends that father must have had some
indicia that proceedings where pending, OCS offers no evidence that father had actual or constructive notice of the
hearing. Therefore, we reverse the denial, vacate the default child support
order and remand for a consideration of the issue on the merits.” Dec. 8, 2010
order, pp. 2-3.
To therefore subsequently uphold the trial court’s allowing the same
2008-filed modification that was reversed and vacated in 2010 by this Court to
be “renewed” or to in any way go forward
absent first a showing on remand of proper service and notice of the 2009
modification proceedings or a filing of a new modification
action which this court notes was not
done in this case, see Jan. 10, 2014 order, ¶ 38, is
not only a curious repudiation and contradiction of this Court’s 2010
ruling— because presumably this court
would have noticed the pointlessness of reversing in 2010 if Appellant had
indeed already “waived” this issue, see Dec. 8, 2010 order of reversal and
vacation, rec., compare Appellant’s brief, pp. 12-13, footnotes 13 &
17— but
a clear violation of this court’s “law of the case” doctrine under Morrisseau
v. Estate of Fayette, 164 Vt. 358, 670 A.2d 820 (1995), Callahan v. Callahan, No. 2009-127, slip op. at
1 (Vt. Aug. 6, 2009, unpublished mem. (courts are “preclud[ed] from reexamining issues previously decided
in the same case by the same court or a higher appellate court,”
italics added).
Indeed, according to the clear
language of this court’s Dec. 8, 2010 order, this court did not reverse and remand in 2010 for the purpose of enabling plaintiffs to cure
their fatal lack of service— up to three years after the fact and contrary
to Vermont Rules of Civil and Family procedure!— but rather to allow plaintiffs
an opportunity to show they had
already
served defendant in the first
instance sufficient to commence a
case under settled Vermont precedents! (See Brady
v. Brauer, 148 Vt. 40, 529 A.2d 159, {1987},
Weisburgh v. McClure Newspapers, Inc. 136 Vt. 594, 396 A.2d
1388, {1979}, Beebe
v. Eisemann, M.D., et al. 2012 VT 40 (Vermont Supreme Court, 2012, docket
2011-365), Bessette v. Dept of Corrections, 2005 Vt. Super, Lexis 137, Vt Dept
of Taxes v. Marshall, No. S0819-04 CnC, Society for
Propagating the Gospel v Ballard, 4 VT 119 (1832), cf. Primus v. Conservation
Commission of the Town of Southington 2007 Conn. App. Lexis 2004, 101 Conn App.
238, 920 A.2d 1031 (2007).
Therefore, since Appellees on remand failed— in spite of three evidentiary hearings
below— to evince one shred of evidence
that they had properly “commenced” this action in accord with the Vermont Rules
of Civil Procedure— or even the subsequent June 15, 2011 ordinary mail
“service” in spite of plaintiffs being
fully advised of defendant’s address in the three years subsequent to the 2010
remand!— this matter must
be dismissed in accord with
this Court’s Dec. 8, 2010 order or do violent harm to the “law of the case”
doctrine under settled Vt precedents. [1]
ii. This
court’s Jan. 10, 2014 order overlooks that there is no authority in Vermont law
to simply “renew” a vacated modification action absent filing of a second
modification and that adoption of the lower courts’ time bending ‘service of
process’ analysis is fundamentally unfair
as it gave plaintiff’s a “second gratuitous chance” to demonstrate service in
this case in spite of their own waiver of this issue contrary to Putney School, Inc. v. Schaaf, 157 Vt. 396,
407 (1991).
As above noted, this court correctly determined that “OCS filed only one motion to modify with the family court—the
motion filed on September 16, 2008. There was no second motion which would give
rise to a second filing date.” (see Jan. 10, 2014 order, ¶ 38).
However, the court clearly overlooks the fact that there
is no authority in Vermont law for merely
“renewing” prior modification process already struck down— at least none
this party can find— absent filing of a new
modification and/or compliance with some relevant
Rule of Procedure regarding service. Moreover, the Court couldn’t rely on “ancillary jurisdiction.” [2]
Further, the Court simultaneously accepts the trial
court’s “time bending” analysis switching the relevant time frame for the
service of process inquiry directed by this court’s Dec. 8, 2010 order from one
preceding the Feb. 2009 modification hearing to the time period directly
preceding the Nov. 14, 2011 hearing— a hearing which, if the trial court had
enforced this court’s 2010 order, would never have taken place, at least
without the filing and proper serving of a filed second modification—
and ignores that Appellees’ failure to raise their “waiver” argument in
either the 2010 appeal or their
“first responsive pleading” on remand in their Feb. 9, 2011 response to
defendant’s Motion to Dismiss should properly preclude them from
prevailing on this claim now pursuant to both V.R.C.P. 12(h)(1) and prior
precedents of the Court.
Saliently, in Putney School, Inc. v. Schaaf, 157 Vt. 396, 407
(1991), this court ruled,
As a result of the court's Aug.
12th order, Putney reasonably relied on CNA to cover its liability... subject
only to an appeal of the issues litigated... Prejudice to Putney is obvious;
after Putney settled a lawsuit subject to the trial court's judgment... the
court allowed CNA to spring a new ground to avoid the risk and thereby changed
the calculus Putney used in settling the Schaaf claim. On the other hand,
CNA, which had a full and fair opportunity to litigate the issue of coverage,
sought a gratuitous second chance in violation of principles of finality and
judicial economy... the court abused its discretion by granting its
request.
Putney School, Inc. v. Schaaf, 157
Vt. 396, 407 (1991)
Indeed, to allow plaintiffs
to now prevail on their “waiver” claim re Appellant’s Insufficiency of
service/lack of service arguments which they themselves had already waived
by failing to raise this defense in their “first responsive pleading” of
Feb. 9, 2011 in the trial court in response to Appellant’s Motion to Dismiss,
(see Appellant’s Reply Brief, ps. 14-15, compare Jan. 10, 2014 order, V.R.C.P.
12(h)(1) ), not only undermines the clear principles of fairness
and finality addressed by this Court in Putney, supra, but is a gross distortion of justice, as it has
allowed plaintiffs to “spring a new ground” and have a “second gratuitous
chance” to prevail on the issue of “waiver” contrary to the principles
announced in Putney, supra.
Further, the fundamental unfairness of this
court’s Jan. 10, 2014 ruling on such matters is even more stark when taken
in light of this court’s denial of this party’s unsuccessful attempts in this
Court at clarifying the purpose for the
2010 remand in his “Motion to Amend/ Clarify this Court's Dec. 8, 2010
Order” and Appellant’s “MOTION FOR EN BANC RECONSIDERATION OF MOTION TO
AMEND/RECONSIDER DECEMBER 8. 2010 ORDER” (see in record).
B. Waiver of Appellant’s Insufficiency of
Service/Lack of Service jurisdictional claims.
i. The
court's Jan. 10, 2014 ruling that defendant didn't “reserve” his insufficiency
of service/lack of jurisdiction arguments misapplies its own precedents, is
self contradictory and overlooks that although at times concisely and wrongly
captioned, pro se father did, in fact, raise his insufficiency of service
jurisdictional claims repeatedly both before and after the contested June 15,
2011 “service” in this matter.
This court’s Jan. 10, 2014
order held that Father “waived” his insufficiency of service/lack of service
claims by “fail[ing] to challenge the sufficiency of the 2011 service in any of
the motions that he filed prior to the November 14, 2011
modification hearing,”[6] (Jan. 10, 2014 order ¶ 23), and that, “As the magistrate noted,
father’s initial filings did not reserve the defense of lack of service.” (Id.
¶ 20). It further held that Appellant
father “did not object to service of the renewed
motion to modify filed in 2011 and the second hearing until after the 2011-2012
child support modification hearings,” (see
Jan. 10, 2014 order, ¶ 25), and— as
the Courts below[3]—
and that Appellant has "waived" his personal jurisdiction claims by
allegedly "not raising them" in his Aug. 13, 2009 Motion for
Emergency Relief, his Nov. 2, 2009 Motion to Reconsider that denial, and his
prior appeal to the Supreme Court, (Jan. 10 order, ¶¶
20-21, ¶ 24).[4] However, these conclusions are erroneous
as a matter of law and fact, as shown at length in this party’s opening
Brief, (see Appellant’s brief, pp. 12, 5-6 and 9-13).
With reference to Appellant’s filings in
2009 and 2010 re the prior appeal to this Honorable Court, the Court’s rulings
thereon raise a particularly thorny catch 22; To wit, if the earlier filings
prior to and including the 2010 appeal, are, in fact, relevant to the question
of Appellant’s alleged “waiver” of his insufficiency of service claims re the
June 15, 2011 “service,” than why isn’t the content of Appellant’s Aug. 13,
2009 “Emergency” Rule 60(b) Motion for relief from the Feb 23, 2009 order not
also relevant? To that end this court
clearly overlooks that pro se father, did, in fact, raise his
insufficiency/lack of service jurisdictional claims, albeit concisely, in this
party’s very first Aug. 13, 2009 filing:
Therefore,
there being no legal service and/or jurisdiction on respondent
re: this significant modification of his obligations in the above-styled
action, the magistrate's default judgment... and all other current
enforcements, administrative actions, and other consequences flowing from this
lack of legal service should be vacated.
Appellant’s
Opening Brief, ps. 12-13, citing Defendant's Aug. 13, 2009 "Emergency
Motion/Appeal to Set Aside..." p.2 ¶3, in record, italics and bold added
for clarity and emphasis.
On the other hand, if the filings preceding this court’s Dec. 8, 2010
order of reversal and remand are not relevant,
and the 2010 order truly “vacated” the Jan. 12, 2009 “tack” service of process,
this Court has utterly failed to explain why Plaintiffs can still rely on said
“process” while simultaneously disregarding the import of the 2010 ruling by—
in the words of this court’s Jan. 10, 2014 order— simply informally “renewing”
their 2008 modification action (Jan. 10, 2014 order, ¶¶ 24, 25, 38), and that
without even showing proper service
of process under the Rules of Civil Procedure either before or after the
Court’s Dec. 2010 ruling! [5]
While in support of its “waiver” ruling this Court cites Myers v. Brown, 465 A.2d
254 (1983), Attig v. Attig, 2004 VT 80, ¶ 18, 177 Vt. 544,
862 A.2d 243 (holding
that father waived a claim of insufficiency of service of process where he
failed to raise the issue in motions or pleadings in family court), and Rollo v.
Cameron, 2013 VT 74, ¶ 10 (stating that defendant in relief-from-abuse case must raise
issue of insufficiency of service by motion), when scrutinized all three are easily
distinguishable from the facts in this case.
In both Rollo, supra, and Myers,
supra, the defendant had actual
knowledge of the suits pending against them yet willfully allowed
default judgments to be entered against them, (see Meyers, supra, at ¶1,
Rollo, supra, at ¶ 12), unlike here where Appellant's cause is before
the Court on direct appeal of contested proceedings below, (and
Appellant has continuously and diligently
litigated this case and the issue of insufficiency of service ever since his Aug. 2009 “Emergency Motion”[6] ).
Moreover, a key factor in the Myers
decision was the unique relationships of
the principal parties involved and notice given to various corporate
defendants, (including service on the company’s lawyer who was also an officer
of the company! see Myers, supra, at ¶ 2).
In Rollo,
supra, this court ruled, “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.” Id. ¶ 11 (italics and bold added).
However, this court clearly overlooks that in the
facts of this case Appellant did, in fact, timely raise such claims in his Jan.
31, 2011 Motion to Dismiss as well as orally at the March 12, 2012 and Nov. 14,
2011 hearings, unlike the litigants in
Myers, Rollo, and Attig! At the very least it is clear the trial
court was fully apprised of this issue, see dvd
transcript of March 12, 2012 hearing at 3:07:28, “[U]nder Rule 5 of the V.R.C.P. [Ms.
Haselton] served you with notice, the motion, and the attached affidavits in
these proceedings; Are you saying that that is insufficient?”[7]
Indeed, in this regard, this Court’s holdings that Appellant father “did not object to service of the renewed motion to
modify filed in 2011 and the second hearing until after the 2011-2012 child
support modification hearings,” (see
Jan. 10, 2014 order, ¶ 25), are clearly erroneous on the face of the record.
[8]
Further, an additional factor in the Rollo
decision not present in the modification here was the fact that the process in Rollo was personally served on defendant but “defendant refused to sign the acceptance of
service,” Rollo, supra, ¶2.
Even more saliently,
this court cited the unique role
of the Court, as opposed to a plaintiff, in initiating and completing service of ex
parte orders, “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).” (Rollo, supra, at ¶ 7, italics added for
emphasis [9]).
Moreover, as pointed out in Appellant’s Brief, (see Question 2, “vi”
p. 12, ¶ 2), absent compliance with Vermont Rule of Civil Procedure 4(l)
regarding waiver of service to commence a case in Vermont, there is no
authority for a Vermont state court to simply “declare” service and
effect jurisdiction absent compliance with the Rules of Civil
Procedure, no matter how well-
intentioned Appellees or the trial court. Rather, as this court has
stated, “Plenary power is not arbitrary power,"
id., Part II. ¶4, citing Fortier v. Byrnes, 165 Vt. 189, 678 A.2d
890, (1996), Miller v. Miller, 84 Vt. 464, 965 A.2d 524, (2008). [10]
Myers and Rollo therefore clearly do not support the Jan. 10,
2014 order of the Court.
In Attig
v. Attig, supra, the court there dealt with an Illinois case which father
himself initiated and attempted to register in Vermont, (id. ¶3,
4), who then set out to engage in a
pattern of service avoidance and dilatory and meritless multi-state motions,
repeatedly filed at the last minute and then
withdrawn, including a dilatory and frivolous
effort to transfer the case to federal
court, to wit, “Over the last five years, in mostly
frivolous litigation spanning at least two states and now the federal courts,
father has repeatedly attempted to manipulate the legal system… His notice of
removal, handed to the judge just minutes prior to the hearing, was improper,
incomplete, untimely and completely without merit, and was but another brazen
attempt at delay and abuse of the legal system.” Id. ¶ 21.
In contrast here, while the court states in its
Jan. 10, 2014 order that, “father moves frequently,” id. ¶ 19, and makes
allusions to defendant’s “eluding” of service (id. ¶ 20)— based solely on
returned mail and a non-sworn and ex parte statement from Appellant’s ex wife
on a generic court form— father here did not initiate the litigation in
Vermont, nor is there any
conclusive record evidence that defendant here, while persistent in his
legal appeals since 2009, has “frivolously and dilatorily” manipulated the
legal system or intentionally avoided service. [11]
Indeed, this court in its Jan 10, 2014 order makes no assertion
that defendant has failed to diligently prosecute this matter or has filed
frivolous appeals, (this court surely didn’t feel this way in 2010). Nor did
the Court in its Jan. 10, 2014 order grant relief to plaintiffs on the issue of
“Res Judicata” raised in their brief.
Further, unlike the lack of diligence of the plaintiffs in the present action to comply with the
Vermont Rules of Civil Procedure, (Jan. 10, 2014 order, fn 2), the plaintiffs in Attig had already
complied with the Rules of Civil Procedure for initial service of process, (id.,
¶7), and service of the subsequent contempt
motion in Attig, supra, was attempted
in strict conformance to Rule 4 of the
Vermont Rules of Civil Procedure, but was refused by defendant father on the
face of the record, to wit, “As the record shows,
in the spring of 2002 the court attempted service of the show cause order and
the motions for contempt by registered mail, return receipt, delivery
restricted to addressee. See V.R.F.P. 16(b)(2) (requiring service of contempt
motions to follow V.R.F.P. 4(j)(2). Although father's address was correct —
indeed it has remained unchanged since he moved back to Pennsylvania — he refused to accept delivery.” Attig,
supra, ¶ 16, cf. Rollo, supra, at ¶ 2).
Indeed, the Court explicitly found in Attig that plaintiffs and/or the Court
had attempted service on father repeatedly both
by certified mail, (id., ¶15), and personal
service, ¶ 16), and concluded, “Given that father received copies of the contempt
motions and supporting affidavits at least three times, twice in 2001 and once
in early 2002, we have no doubt that he had actual notice of the charges
against him and the specific facts and allegations on which the charges were
based.” Id., ¶18).
Here, however, not only did Appellant father
not “refuse delivery” of any personal or “registered mail” service required as
required by Aiken v. Malloy, supra, in re
R.W., supra, et al. (cf. V.R.C.P. 4), but plaintiffs here
completely disregarded the trial court's March 10, 2011 order that, “pursuant to the Vermont Supreme Court's order on remand OCS must first
properly serve Mr. Pahnke with its motion to modify the Michigan
child support order, originally filed in Sept. of 2008.” (March 10, 2011 order,
PC 26-27, italics and bold added).
Indeed, the record here is clear that plaintiffs subsequently failed to attempt personal or registered mail service of even the June
15, 2011 “renewed” motion to modify in adherence to any established rule of civil procedure notwithstanding
their knowledge of defendant's address for at least the last 3 years! (Jan.
10, 2014 order, fn 2, compare Rollo, supra, at ¶¶ 2-3, In re R.W., 2011 VT 124, (2011)
¶50, (“due diligence” at procuring personal service must be
attempted prior to resorting to ordinary mail or constructive service), cf. 15 V.S.A. § 1105 [12]).
It would be an entirely different story in the instant case if plaintiffs had made
any attempt to comply with either this court’s Dec. 8, 2010
order or filed a new modification action and served it under settled
caselaw and/or the Rules of Family/ Civil Procedure 4, (see V.R.F.P. 4(j)(2)(B)
and V.R.F.P. 4(b)(2)(B) ).
However, not only did Plaintiffs fail to do so here, (Jan. 10, 2014 order, fn 2), they failed to show even due diligence to timely
serve defendant their “renewed” modification and file their “proof of service”
within 60 days of the trial court’s March 10, 2011 order as clearly
required by Vermont law! (See V.R.C.P. 3, Beebe, supra, Fercenia, supra, Appellant's Brief, p. 6). [13]
Finally, the Attig court found, “father failed to raise a
defense of insufficiency of process or insufficiency of service of process in
subsequent pleadings or motions to the court.” Id. ¶ 18, in stark contrast
to defendant father in this case who has diligently litigated the lack of
jurisdiction flowing from the insufficiency of service here in almost every
motion he has filed since his Aug. 13, 2009 Motion and continuing to his Jan
2011 “Special Appearance” Motion to Dismiss and subsequent Oct. 31, 2011 and
Nov. 7, 2011 Motions for Relief from Judgment![14]
Therefore, since it
is indisputable on the face of the record that defendant timely filed his
“Special Appearance/Motion to Dismiss” subsequent to this court’s 2010 remand,
(Jan. 10 Order, ¶ 21), and the Magistrate had expressly noted Appellant’s
insufficiency of service claims regarding the June 15, 2011 “service,” (March
12, 2012 dvd tr. at 3:07:28), to find that this pro se litigant subsequently
“waived” this claim is contrary to the record as a whole. [15]
Even
more troubling, it reverses the burden of proper service from plaintiffs
to defendant in this case. It should thus be rejected by this court
because it contradicts settled caselaw on this matter as amply pointed out by
the dissent of Justice Dooley in Rollo, supra, cf. fn 9 herein, Weisburgh v.
McClure Newspapers, supra, Brady v. Brauer, supra.
MEMORANDUM
TRUNCATED. SEE REST @ JONATHANPAHNKE.BLOGSPOT.COM.
ii. In light of the record
evidence that plaintiffs have routinely disregarded proper service in this
matter going back to Aug. of 2000 and have never attempted “due
diligence” comporting with Vermont's
policy of “best possible service” or
properly complied with any Vermont Rule of Civil Procedure regarding
service of process in this case, this full court's Jan. 10, 2014 decision
sets a dangerous precedent reversing the burden of securing proper service from
plaintiffs to defendants in order to properly commence a case in Vermont contrary
to settled precedents, (see Beebe, supra, Fercenia, supra, Brady v.
Brauer, supra).
While the Court couches its Jan. 10, 2014 ruling in terms of
“waiver,” (dealt with elsewhere),
the fact remains that plaintiffs here failed to exercise “due diligence” to
comply with Vermont's settled policy of requiring personal and/or “best
possible service” before it could resort to service by “ordinary mail” which
this court has upheld as sufficient here (see Aiken v. Malloy, supra, In re
R.W., supra, cf. Jan. 10, 2014 order, fn 2).
As the courts below found, whose findings are
entitled to deference by this Court, “The record in this case contains no
indication that Father was provided... notice [as required by 15 VSA Sec.
1033&1034(b)]” (id.), “Indeed, it appears Mother failed to meet the
deadline and that she filed proof that Father received the modified order, not
notice of the hearing,” (Aug 1, 2012 order of Superior Court judge
Raineville, p.5 ¶ 2, italics and bold added).
See also Feb 23, 2009 order of Magistrate, “There has been no attempt at
service in this jurisdiction before Sept. 2008,” pp. 5A-5B, rec., “There is no evidence in the record that OCS ever
served father with the motion and notice of the hearing by certified mail or
any of the other methods permitted by Vermont Rule for Family Proceedings 4,” (Jan. 10, 2014 order of Vermont Supreme Court, fn
2).
Accordingly, this full
court's Jan. 10, 2014 decision sets a dangerous precedent vis a vis an
apparent reversing of the obligation of plaintiffs to secure proper and valid
service under the Rules of Civil Procedure before jurisdiction attaches
and a case is properly commenced under settled Vermont caselaw (see Beebe,
supra, Fercenia, supra, Brady v. Brauer, supra).
This court should thus grant the Motion for Rehearing (and
coterminous Motion for Extension of Time and to Enlarge word count), and amend
its judgment accordingly.
iii. This court's waiver holding in
its Jan. 10, 2014 order ignores Appellant's argument that to require that he
raise his “insufficiency of service” arguments in a particular form when the
Superior Court in its July 26, 2011 order had already expressly ruled that he
could raise any “personal jurisdiction” issues in a “final appeal” and the
trial court already had duly noted father's closely-related
insufficiency-of-service claims in hearings before it violates the lenience
required to be shown to pro se parties and militates against an “intentional
and knowing” waiver here.
Initially, Appellant notes it is a matter
of settled Vermont law that a “waiver” must be both “intentional” and
“knowing,” (see Hixson v. Plump 167 Vt. 202, 704 A.2d 1159 (1997), Chimney Hill Owners' Ass'n v. Antignani, 136
Vt. 446, 453; 392 A.2d 423, 427 (1978) (waiver “involves both knowledge and
intent.”).
Beyond that, this court's waiver holding
in its Jan. 10, 2014 order has completely
ignored Appellant’s argument that
to require him to challenge insufficiency of service in a particular form when the
trial court already had duly noted it in hearings before it, see Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:38, 1:10:40,
2:19:56, 2:20:06, 2:20:20, cf. March 12, 2012 hearing, see dvd
transcript at 3:07:28), and had expressly noted the close
relation and similarity of previous claims of Appellant’s, (See May 10,
2012 order of Magistrate, PC 17), is indeed to place “form over
substance” in a way that violates the
latitude required to be shown pro-se litigants, (see Appellant’s Brief, ps.
16-17, Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138
(1983), Bingham v. Tenney, 154 Vt. 96, 101-02, 573 A.2d 1185,
1187-88 (1990).[16]
In this regard it is
salient to note that the Superior Court did not initially find any “waiver” of this
issue on
behalf of Appellant in this matter in
its July 26, 2011 order
dismissing the prior Magistrate's appeal for being “interlocutory,” (even
though said order was entered after the
contested June 15, 2011 “service” and the issue of “waiver” had been fully
briefed by both Appellant and Appellees in their June 15, 2011 Response brief
and was then pending before the Court).
Rather, the Court ruled, “defendant can raise his personal
jurisdiction issues if and when he appeals any final order of the
Magistrate...” (see July 26, 2011 order, in record).
Accordingly, since Appellant fully believed that his
service-related jurisdictional claims were preserved by his Jan. 2011 “Special
Appearance” Motion and the Superior Court’s July 26, 2011 order— a belief not
challenged by the trial court in spite of its knowledge and obvious clarity it
had on the issue— how could Appellant
have then “intentionally and knowingly” waived them?[17]
While the court relies on Appellant’s filing of various motions
subsequent to the June 15, 2011 “service” to conclude he “knowingly and
intentionally” waived his objection to sufficiency of service, as pointed out
in his brief(s) all the Motions Appellant
filed subsequent to such “service” were aimed at the then-pending Magistrate’s
pending appeal, (to which plaintiffs would have undoubtedly cried “Res
Judicata” if Appellant had separately re-raised anew his “objection” to issue
of sufficiency of service which at that time was pending in the 2011
Magistrate’s appeal to the Superior Court!) [18]
Even if it is true that Appellant didn’t expressly re-raise this
claim in the particular context of the June 15, 2011 service by “ordinary
mail,” justice dictates that the
substance of pro se father’s claims, which were raised diligently at every turn
to the best of his ability and were clear to the trial court in hearings before
it— see the Nov. 14, 2011 hearing and again at the March 12, 2012 hearings, see
dvd transcript of March 12, 2012 hearing at 3:07:28,
cf. Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:38, 1:10:40, 2:19:56, 2:20:06,
2:20:20— could not have been “knowingly and intentionally waived” by pro
se Appellant and should thus be addressed by this court, (see Hixson v. Plump, supra, Chimney Hill Owners' Ass'n v. Antignani, supra).
Indeed, this court’s Jan 10 ruling
overlooks that the trial court’s “waiver” holding is “hyper technical” and against the weight of the evidence without
regard for the substance as
opposed to the form of Appellant’s claims, and thus is particularly harsh to Appellant in light of his pro se
status. Accordingly, it should be “reheard” and reversed, (see Beyel v. Dugan,
supra, Binghan v. Tenney, supra). [19]
iv. This court's Jan. 10,
2014 “waiver” holding overlooks federal precedent that a defendant is not
obligated to repeatedly and continually raise their “special appearance”
challenge to personal jurisdiction in order to “reserve” the issue.
Finally, while this court seemingly acknowledges that Appellant
promptly raised this issue on remand, (see Jan. 10, 2014 order, ¶ 21), this
court apparently (and contradictorily!) affirms the trial court’s holding
requiring Appellant to repeatedly and continually “remind” the Court of his
“Special Appearance” objection to personal jurisdiction, (see Jan. 10, 2014
order, ¶ 21 ), and has thus failed to “reserve” it, (id. ¶ 20).
In doing so however this court
apparently overlooks Appellant’s salient argument that under Hospital
Corp of American v. District Ct., 112 Nev. 1159, 924 P.2d 725 (1996) and Gasset
v. Snappy Car Rental, 111 NV 1416, 906 P.2d 258 (1995), once raised in his “Special Appearance” Motion to
Dismiss of Jan. 31, 2011 Appellant was not required to continually
assert his “special appearance” status in order to “reserve” it (see
Appellant’s Brief ps. 18-19), or that, to require him to specifically raise his
insufficiency of service/lack of jurisdiction claims in a particularly-styled Rule 12(h)(1) Motion misinterprets both
the law and factual chronology of this case as well as improperly undermines
the leniency required to be shown pro se litigants under settled precedents of
this court, (see Beyel, supra, Bingham,
supra), as well as Rule 60(b)’s “grand purposes” (see Appellant’s Brief, p.
11, fn 10, cf. In re: B.C. 169 Vt.
1, supra, In re Chester
P. and Bertha G. Denio, supra, V.R.C.P. 60(b)(4)(6).]
This court should therefore grant rehearing and amend its Jan. 10,
2014 judgment accordingly.
C. PERSONAL JURISDICTION.
i. ‘MINIMUM CONTACTS.’
This court ruled in its Jan. 10, 2014 order that the Vermont courts had
“personal jurisdiction” over defendant father based upon various “minimum
contacts” with the State— chief among them his temporary residence in the State
in “2007/2008” and involvement with both a prior divorce action and his
mother’s guardianship action in 2008. [20]
However, as pointed out above, the Court clearly overlooks
Appellant’s argument that under settled Vermont and federal law both minimum contacts and proper service are required for the Vermont courts to “have jurisdiction over the
defendant,” (see Northern Aircraft, Inc.,
154 Vt. at 40, 572 A.2d at 1385 (both personal AND subject jurisdiction are required in order
for a court to lawfully exercise authority over a person), accord U.S. v. Kramer 225 F.3d 847 (7th Cir. 2000), United States v. Bigford, 365 F.3d 859 (10th Cir. 2004), ¶¶21-22, ¶42, fn 2.
Moreover, Appellant submits in light of the attenuated time span over which this
court found the requisite “minimum
contacts” of defendant father with the State to exercise “personal
jurisdiction” over him, that all such contacts are insufficiently
“continuous and systematic” even assuming that proper service of process
pursuant to the Vermont Rules of Civil Procedure is not required to establish “personal jurisdiction” over Appellant (see Goodyear
Dunlop Tires Operations, S. A. v. Brown, 564
U.S. ___ (2011), J.
McIntyre Machinery v. Nicastro, 564 U.S. ___ (2011) ).
Additionally, the Court clearly overlooks or misapprehends that, i.) Under Vermont law "Residency for purposes of divorce jurisdiction
is more than mere presence within the State... [it] is encompassed within the
legal definition of domicile," see Conley v. Crisafulli, 2010 Vt. 38,
(May 2010), citing Duval v. Duval, 149 vt. 506 at 510, and that, ii.) All of Appellant’s alleged “minimum
contacts” cited by the Court were for the benefit of his mother and/or ex wife
or children and not himself contrary to Kulko v. California et
al’s holdings. [21]
While this Court cites the 1998 filing for
divorce by Appellant from his second wife in Franklin Family Court, Appellant
is unaware of any authority— and the Court cites none— showing that
submission to the Franklin Family court in 1998 can simultaneously suffice for
“voluntary submission” sufficient to effect personal jurisdiction in the
altogether separate matter of the 2008 modification in the Chittenden Family
Court; Saliently, the Court overlooks that jurisdiction over both
Appellant’s second divorce, as well as a prior attempt by plaintiff Paula
Pahnke to effect jurisdiction in Vermont over the MI decree in 1999, was
previously rejected by the Vermont Courts, (see April 1, 1999
Order of Franklin Family Court, in record, and order of the Chittenden Family
Court dated in docket cndm).
Indeed, Appellant submits that the fact Father then severed his ties
and moved from Vermont— with almost a decade passing before returning in 2008
to care for his mother and his involvement as an “interested party” in her
guardianship proceedings— is far
more salient to the question of “personal jurisdiction” than the fact
that father attempted to file for divorce against his second wife in Vermont
over a decade ago!
Moreover, while the Court cites the 2006
RFA hearing as a “contact” of defendant's with Vermont, given the unrelatedness
of the 2006 hearing with the modification two years later and that process for
the 2006 RFA proceeding had been initiated by plaintiff mother for her benefit, and had, in fact, been personally served on defendant while visiting his
mother in the State, Appellant submits it is thus ineffective to confer
personal jurisdiction over the 2008 modification.
Accordingly, Appellant submits none of the “minimum contacts” proffered
as sufficient to constitute “personal jurisdiction under the trial Court’s
March 10, 2011 order” and affirmed by this Court— including the 2006 RFA
hearing, Appellant’s temporary presence in Vermont and involvement as an
“interested party” in his mother’s 2008 guardianship proceedings in Chittenden
Probate Court— are constitutionally sufficient to evince “purposeful availment”
of the State’s laws for Appellant’s own
personal benefit, as required by Kulko v
California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).
ii. In
finding the 2006 RFA proceeding relevant to its “personal jurisdiction”
analysis, this court overlooks the fact that absent proper service in the
underlying matter at any time in the history of this
case, under V.R.C.P. 5(a) and settled caselaw the 2008 modification constituted
a “separate action” dealing with “new or additional” claims which was required to be served pursuant to Rule 4’s
more rigorous service requirements.
Although this court cites the 2006 RFA
proceedings to buttress its finding of sufficient “minimum contacts” with
Vermont to uphold a finding of personal jurisdiction over Defendant, the Court utterly ignores Appellant’s arguments in
pages 10-12 of his Reply Brief that under Iannarone
v. Limoggio, 2011 Vt. 9I at ¶ l8 (2011), and In re C.P., Vermont Supreme Court Nos. 2012-057, 2012-l9I at ¶ 24
{1999) the modification was a “separate action” raising “new or additional
claims,” thus requiring service under V.R.F.P. and/or V.R.C.P. 4’s more
rigorous service requirements, (see V.R.C.P. 5(a), 12 VS.A. Sec 466, V.R.F.P.
4, V.R.C.P. 4, cf. docket entries for 11/16/06 noting RFA "case
closed").
Moreover, Appellant contends as a matter of
law that the 2006 RFA proceedings is inapropos to a finding of personal
jurisdiction over the 2008 modification, as the RFA hearing didn’t impact on
Defendant father’s constitutionally-protected property rights as the
modification does (see Aug 1, 2012 order of Superior Court judge Raineville
indicating a higher level of constitutional protection for “In personum” orders
as for “In rem” or “quasi in rem” status determinations, p. 4, ¶ 4).
Finally, and most pertinently, the 2006 RFA
action was personally served on Defendant
Father while visiting his mother in Vermont in 2006, noticeably not the case with the 2008
modification. Thus, if anything, it
only strengthens Appellant’s argument about the importance of proper service in
the 2008 modification and the impropriety of using the 2006 modification to
buttress a finding of personal jurisdiction as it is clearly distinguished,
both constitutionally and in its factual circumstances, from the subsequent
2008 modification. [22]
D. RETROACTIVITY
OF MODIFICATION
This Court in its Jan. 10 order overlooks Defendant’s
argument that in light of this court’s prior vacation of the 2008 service of
process by its Dec. 8, 2010 order and plaintiffs’ willful failure to procure any service on defendant of the
modification until June 15, 2011, as a matter of fundamental fairness
retroactivity should be limited to that date rather than the Sept. 2008 date of
the process already struck down by this Court’s Dec. 2010 order.
As pointed out by Defendant in his opening Brief, to allow his support obligations to accrue from the date of filing
in Sept. 2008 rather than from the time of ordinary mail "service" in
June of 2011 seems in itself a violation of due process and "Ex
Post Facto" considerations and/or would seemingly be barred by the
doctrines of latches and/or collateral estoppel, (see Appellant's Brief,
p. 26, fn 20).
Indeed, it allows
defendant to be "bound" to an obligation for which he legally hadn't
yet received service of process and has resulted in an excessively large
arrearage owed Plaintiff from Defendant which he can't possibly pay, seemingly
contrary to Vermont law under Grimes v. Grimes, 159 Vt. 399, 406, 621
A.2d. 211, 214 (1992) ) (see Appellant’s Opening Brief, p. 26).
Accordingly, this Court
should rehear this matter and/or amend its Jan. 10, 2014 order to make any
future child support order only retroactive to the date of notice, June 15,
2011.
II. CONCLUSION
Therefore, for the above and
foregoing reasons, Appellant
respectfully requests this Honorable Court rehear this matter and/or amend its
Jan. 10, 204 order accordingly.
Respectfully submitted this 19th day of Feb.,
2014.
_____________________________
Jonathan A. Pahnke, Appellant
