IN THE STATE OF VERMONT
SUPREME COURT
* Vermont
Supreme Court docket
Jonathan A. Pahnke,
* Nos.
2013-007, 2012-387
Appellant
* and
2012-416
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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MOTION FOR REHEARING
-----------------------------------------------------------------------------------------------------------------
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
Jan 21, 2014
Paula Pahnke
48
Lexington Rd.
Colchester, Vt. 05446
I. MOTION
FOR REHEARING
- Initial Statement:
At first blush, it is hard to know where to start as there are so many factually and legally erroneous conclusions in this court’s Jan. 10, 2014 order that it is hard to believe this party has spent five years of his life repeatedly and exhaustively documenting and presenting these issues in the Vermont courts only to have it appear this court could have resolved such matters in 2010 on essentially the same basis as it does now, (as the legal issues have changed little and in fact, are the same ones which this party sought clarification from this court on shortly after its Dec. 2010 decision but was denied!)
Frankly, when taking into account that the very arguments of defendants’ that the court now rejects are the exact same ones that this court approved of in 2010, (even while the Plaintiffs have failed to show any notice of the 2008 modification in accordance with the Rules on remand as this court ordered in 2010— indeed, they openly concede they don’t believe service under the Rules of Civil/Family Procedure is even necessary as long as minimum contacts can be shown[1]— and that appellant father’s well supported arguments from this court’s own precedents on the most basic issues of service and notice have for the most part been simply ignored, father wonders if his even filing this request for reconsideration/rehearing is even worth the hours and personal sacrifice it takes to make this last ditch effort at justice!
Nevertheless, because this party is an eternal optimist who desperately wants to believe in some rational explanation for the court’s action, (other than obvious political ones), and believes in the old adage that justice, though often slow and circuitous in its journey, ultimately yields a fine result, he is compelled to file what is most likely a doomed motion for rehearing in the hopes that a more thoughtful examination of the record and arguments he has already raised— but which the Court has obviously overlooked— might yield, if not a different outcome, at least a more consistent and thoroughly-reasoned decision. [2] Appellant therefore now comes forth under Rule 40 of the Vermont Rules of Appellate Procedure bringing to the Court’s attention the key facts and legal arguments in his briefs which the court has overlooked or misapprehended, and urges the court to rehear this matter and/or amend its order accordingly.
II.
ARGUMENT
A. In affirming the holding of the courts below
that Appellant has “waived” his insufficiency/ lack of service claims, this
court has overlooked both the proper timeline of filings and events in this
case as well as effect of this Court’s Oct. 11, 2011 and Superior Court’s July
26, 2011 dismissals to the question of the preservation of the
insufficiency/lack of service issue in this matter, misapprehended that
Appellees’ themselves “waived” this argument by failing to raise it in their
Feb. 9, 2011 filing opposing Appellant’s Motion to Dismiss, and failed to apply
its own “law of the case” jurisprudence flowing from this court’s Dec 8, 2010
order (see Morrisseau v. Estate of Fayette, 164 Vt.
358, 670 A.2d 820 (1995) (law of the case doctrine “ 'posits that when a court
decides upon a rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.' ” (id. at 164 Vt. 364, 670
A.2d, 824) cf. Christianson v. Colt Industries Operating Corp., 486 U.S. 800,
816, 108 S.Ct. 2166, 100 L.Ed.2d 811 {1988})).
This court thus should rehear and/or amend its Jan. 10, 2014 order denying
relief on this issue.
1. The
Court’s waiver holdings re Appellant’s
lack of service/insufficiency of service claims
This court in its Jan. 10, 2014 order
upheld the holding of the courts below that father had “waived” his objection
to the lack/insufficiency of service in this matter, see order, par. 23).
However, in doing so this court overlooks
Appellant’s argument that Plaintiffs— who undoubtedly swayed the trial court
with their last minute “waiver” claims, if not wrote the court belows’ rulings
on the same— have themselves waived
consideration of their “waiver” argument by failing to raise it prior to their
June 15, 2011 “Response Memorandum” to Appellant’s then-pending Magistrate’s
Appeal of the denial of his Motion to Dismiss for lack of sufficient
service/personal jurisdiction, (see Appellant’s Brief, ps. 13-15,
Appellant’s Reply Brief ps. 6-7).
This is clear from the court’s own conclusions in this appeal apparently
finding relevant to its holding of “waiver”— as did the trial court—
Appellant’s motions and filings going back to the beginning of Appellant’s 2009
filing for Emergency Relief and to the 2010 appeal, (see Jan. 10, 2014 order,
paragraphs 20-24, fn 6); Surely if Appellant’s failure to properly “reserve”
this issue was so apparent stemming from the very beginning of this party’s
2009 attempts at relief, (id., par. 20), Appellees had no reasonable excuse for
failing to equally raise their “waiver” argument in their Feb. 9, 2011 “first
responsive pleading” to Appellant’s Motion to dismiss, (see V.R.C.P. 12(h)(1),
V.R.C.P. 78(b) ).
a. The
Court’s key factual conclusions undergirding its Jan 10, 2014 order overlook
key arguments in Appellant’s brief on the points at issue and are unsupported
by a fair review of the whole chronology and record in this case.
The Court also rules in its Jan.
10, 2014 order that, “Only after the
remand from this Court in December 2010 did father begin to qualify his
participation as a “special appearance” and assert lack of service of the 2000
amended custody order and the 2008 motion to modify and hearing notice as
defects in the legal process. Even then, however, he did not object to
OCS’s service of the motion to modify in 2011 by regular mail.”
However, the court overlooks
that the timeline and entire record clearly show that, however concisely,
appellant father did indeed timely raise
his lack of/ insufficiency of service arguments in his Aug. 2009 Emergency
Motion, to wit, “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.” (see
Aug. 13, 2009 Motion at p.2 ¶3), but father also raised his
service related jurisdictional arguments before this court in his 2010
appeal and in his Jan. 31, 2011
“Special appearance/Motion to Dismiss,” (id. ps 3-4, albeit in the context
of the Aug. 15, 2000 order initially establishing “jurisdiction” over this case
in Vermont).
Taking into account father’s pro se
status and that as a simple matter of law and chronology the alleged “ordinary
mail” service of Appellees on appellant father of the 2008 modification process
hadn’t even taken place yet at the time
of father’s Jan. 31, 2011 Motion, as well as the fact that the Vermont
magistrate and family courts— prior to the 2010 appeal to this court— had failed to even give father an evidentiary
hearing on his claims, (thus making impossible his elaborating before the
court on the exact nature and extent of his lack of service/“insufficiency of
service” claims, at least before the 2010 appeal and the June 15, 2011
“service” of Appellees by “ordinary mail”), Appellant submits that his raising
the issue in the time and manner he did was timely and satisfied V.R.C.P.
12(b)(1) and V.R.C.P. 12(h)(1).
This court also states that “Father, however, failed to challenge
the sufficiency of the 2011 service in any of the motions that he filed prior
to the November 14, 2011 modification hearing.” (Jan. 23, 2009 order).
However, this statement of “fact” completely overlooks the unrebutted arguments of Appellant in his brief, (id at par. ), that with the exception of Appellant’s Oct. 31, 2011 and Nov. 7, 2011 additional motions for relief from judgment of orders of the trial court not related to his appeal of the modification proceedings— which clearly raise the service issues— virtually all of the motions referred to in fn 6 of this court’s Jan. 10, 2014 ruling must necessarily, as a matter of chronology, refer to the then-pending and subsequently dismissed Magistrate’s appeal!
However, this statement of “fact” completely overlooks the unrebutted arguments of Appellant in his brief, (id at par. ), that with the exception of Appellant’s Oct. 31, 2011 and Nov. 7, 2011 additional motions for relief from judgment of orders of the trial court not related to his appeal of the modification proceedings— which clearly raise the service issues— virtually all of the motions referred to in fn 6 of this court’s Jan. 10, 2014 ruling must necessarily, as a matter of chronology, refer to the then-pending and subsequently dismissed Magistrate’s appeal!
As such they should not be used to
show “waiver” of an issue that this pro se father had originally raised in his
2009 Motion for relief and continued to litigate, in one fashion or other, up
until this court’s recent order! Indeed,
Appellant had already raised this issues, however concisely, in his Aug. 2009
Motion, and continued to litigate them in every motion he filed; Nor can it be disputed that the trial court took notice of
these claims at the very same Nov. 14, 2011 hearing in which the trial court
claims they were “waived,” (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).
Indeed,
the trial court took judicial notice of Appellant’s service-related
jurisdictional arguments at the March 12, 2012 and Nov. 14, 2011 hearings! (“According to the records on file there is a certificate
of service, I believe signed by Ms. Haselton, indicating that under Rule 5 of
the V.R.C.P. she served you with notice, the motion, and the attached
affidavits in these proceedings; Are you saying that that is insufficient?” 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).
b. The Court’s Jan. 10, 2014 order
overlooks that father did, in fact, timely raise his lack of service/insufficiency
of service claims and that rather than waive his sufficiency of service claims,
Father’s claims were preserved by the July 26, 2011 order of the Superior
Court.
Further,
when taken in conjunction with the fact of the Superior Court’s July 26, 2011
order which says nothing about waiver
of these issues raised fully in that appeal and the waiver by plaintiffs’
themselves effected by their failure to raise the “waiver” argument in either the first appeal to this
honorable court, Appellees utter failure to respond to Defendant’s Aug. 2009
Motion or raising their “waiver” claim in their Feb. 9, 2011 response to Appellant’s Motion to Dismiss where
the argument is further fleshed out, it defies credulity that such a stance
should be taken to deny a ruling on the merits of this critical issue,
(especially in consideration of the deference required to be shown pro se
litigants, [3] Indeed, contrary to this court’s holdings of
“waiver” it seems clear that— however, concisely pro se father raised this issue initially— defendant did raise the “insufficiency of service” issue
with enough specificity that it should have apprised the trial court of the
nature of his service-related jurisdictional claims.[4]
Consequently, given that in the
circumstances of this case defendant's "service of process" and
personal jurisdiction claims were closely related, (May 10, 2012 order,
PC 17 ¶2), and defendant's insufficiency claim was apparent to the court in the
hearings before it,[5](see
dvd transcript of March 12, 2012 hearing at 3:08:36), as well as that the Rules
of Civil Procedure are to be construed “liberally,” (see Price v. Leland,
149 Vt. 518, 546 A.2d 793, 795 (1988), (“when construing and administering
rules of civil procedure, we must do so liberally, in a way that
" 'secure[s] the just, speedy, and inexpensive determination of every
action,' " id. at 520, quoting V.R.C.P. 1, italics added for
emphasis), it defies credulity that defendant could be said to have “waived”
his insufficiency of service/jurisdictional claims in any manner whatsoever.
Further, key to the court’s Jan. 10, 2014 holdings on
“waiver” seems to be various conclusions by the court, including an assertion,
unsupported by other than mother’s bald assertions and a history of never
received mail from the court— which defendant counters is explained by plaintiff’s
lack of diligence and compliance with the Rules of Civil procedure as noted by
the original Feb. 23, 2009 order of the Magistrate, father’s ADD, and father’s
noted frequent moving for economic and personal reasons— that, 1) father has
attempted to “elude” service (Jan. 10, 2014 order, par. 20), and the affirmance
of the trial court’s holding that, 2) due to continual litigation of this
matter since 2009 father “obviously
knew about the pending motion to modify, since in 2009 he filed his own
emergency motion to set aside the order establishing child support in the
mother’s favor,” (id par. 24).
However, from a constitutional perspective it is
irrelevant whether Appellant found out through other means after the improper 2009 service and filing of
the 2008 modification that his ex wife considered the cars, home, and years of
support by Pahnke family money pursuant to their off record agreement as
insufficient and wanted “court ordered” support, as this court had already thrown out the 2009 “tack”
service and Vermont law clearly requires
some form of service pursuant to the Rules of Civil Procedure in order to
effect “physical, in personum jurisdiction over Father, (elsewise what was
the basis of this court’s 2010 reversal? See V.R.C.P. 4, V.R.F.P. 4, Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, {1987}, Bessette v. Dept of Corrections, 2005 Vt. Super, Lexis
137, Vt Dept of Taxes v. Marshall, No. S0819-04 CnC, Primus v.
Conservation Commission of the Town of Southington 2007 Conn. App. Lexis 2004,
101 Conn App. 238, 920 A.2d 1031 (2007), Beebe v. Eisemann, M.D., et al. 2012
VT 40 (Vermont Supreme Court, 2012, docket 2011-365), Howe v. Lisbon
Savings Bank and Trust Co., 111 VT 201, 207; 14 A.2 3, 6 (1940), Society for
Propagating the Gospel v Ballard, 4 VT 119 (1832), 4.A. C.Wright & A.
Miller, Federal Procedure & Practice 511 §1094, (2002). Cf. In re:
Estate of Francis Duval, 133 VT 197 332 A.2d 802, (1975), (constructive service
by publication on out of town party not notice reasonably calculated to apprise
party of action under Mullane et al.); Smith v. Brattleboro Retreat Inc., 147
VT 303, 515 A.2d 1056 (1986), (lack of service by registered mail left the
court without jurisdiction to hear the case); Emmons v. Emmons, 124 VT. 107,
197 A.2d 812 (1964) (absent voluntary submission only personal service in state
can confer jurisdiction, partially overruled in Von Ohlsen v. Von Ohlsen,137 VT
377, 406 A.2d 393 (1979)Morrisseau v. Fayette, 155 Vt. 371, 584 A.2d 1119,
(1990), (Proper service jurisdictional, absence of which requires dismissal);
Fercenia v. Guiduli, 2003 VT 50 ¶8, 175 VT 541, 830 A.2d 55 (mem) (2003),
(Failure of plaintiffs to comply with the time for service provisions or
“waiver” requirements of V.R.C.P. 3 and V.R.C.P. 4(l) properly resulted in
dismissal of case), Aiken v. Malloy, 132 VT 200, 208-209, 315 A.2d 488, (1974)
(public policy requires courts uphold preference for 'best possible service,',
and Driver v Driver, 515 A.2d 1058, (1986), ("personal jurisdiction must
be somehow acquired, it cannot be merely ordered”),
Additionally, while perhaps this pro se party doesn’t
understand the effect of the 2010 order, but unless “vacate and reverse” mean
something different than ordinary language suggests, the 2008 process and
modification were, at that point, a legal “nullity” having been found by this
court to have lacked proper service/notice; thus the raising of the issue of
insufficiency of service/lack of service promptly on remand would seem then to
be timely. Indeed, if raising this claim in Appellant’s Aug. 13, 2009 Motion,
and again promptly in his “Special Appearance/Motion to Dismiss…” upon
“vacation and reversal” of the 2008 modification process under the Dec. 8, 2010
order wasn’t considered “timely” under Rule 12(b)(1), then when exactly should
Appellant have raised his insufficiency of service claims?? Tellingly, neither
this court in 2010, nor Appellees in response upon father’s raising of this
issue on remand, objected at the time; Indeed, as pointed out by Appellant in
his reply brief to this court, Appellees
themselves waived their right to object on this basis by failing to file any
reply at all to Appellant
father’s Aug. 13, 2009 Motion OR his
Jan. 31, 2011 Motion to Dismiss, (Appellant’s brief, ps. 14-15, record). More to the point, if Appellant had already
“waived” consideration of the lack of service/insufficiency of service claim in
filing motions relating to the 2010 appeal to this court, as the Magistrate
found, (see May 10, 2012 order, PC 17), what, exactly, was the point of the
Court’s Dec. 8, 2010 reversal?
Moreover, as noted elsewhere and in
Appellant’s Brief, (id ps. ), and
accepting for now the legality of Appellees on remand simply “renewing” the
2008 modification already struck down by this court in 2010, (rather than the
trial court dismissing the 2008 modification when plaintiffs/appellees couldn’t
show any “evidence” on remand of proper service on father in line with this
court’s remand directive in its 2010 order), Vermont law is clear on the
“jurisdictional” nature of proper service and the effect of non-compliance with
the service requirements of the rules, (as exhaustively shown above).
c. The Court’s Jan. 10, 2014 order has
completely ignored Appellant’s comprehensive arguments regarding the core issue
of the effect of non-compliance with V.R.C.P. 3 and V.R.C.P. 5(a) in this case
and overlooked the effect of Plaintiffs’ failure to file and properly serve a
second modification action upon their failure to show proper service of the
2008 modification in accord with this Court’s Dec. 8, 2010 remand directive or timely comply with the trial court’s
March 10, 2011 order that they “properly” serve defendant father.
In this regard, this party
finds this court’s utter ignoring of Appellant’s arguments regarding service
within 60 days per Rule 3 of the Vermont Rules of Civil procedure, as well those
regarding the necessity of service itself, to be perplexing in light of the
long line of precedents affirming that, absence proper service of a complaint, a case is never even commenced and must be
dismissed, (see Beebe, supra, Fercenia, supra, Driver, supra, Aiken,
supra).
Indeed, under
V.R.C.P. 5(a) and above-cited settled caselaw, Appellant submits that plaintiffs were required to either show on
remand they had properly served Defendant or file a new modification motion to
be served on defendant pursuant to the Rules of civil procedure found in
V.R.C.P. 4 and/or V.R.F.P.
4(b)(2)(B)(iii)-(v) (which
plaintiff’s, in spite of knowing defendant’s address for at least the prior
three years, utterly failed to do).
Further, contrary to this court’s dicta regarding an
ostensibly “renewed” or “second modification process,” (Jan. 10 order, par.
25), the only modification action
filed by Plaintiffs is the Sept 2008 modification “tack served” Jan. 23, 2009—
which as saliently noted above already had
been struck down by this honorable court— and the second point, with all
due respect, is putting the cart before the horse, as the whole reason for the Rules of Civil Procedure’s existence is not just a pragmatic one to afford actual
notice, but under settled,
substantive law of the State of Vermont proper service is also required to effect “physical, personal
jurisdiction” in the first instance, (see Brady,
supra, Beebe, supra, Fercenia, supra, Emmons, supra, Duval, supra, Bessette,
supra, Brattleboro Retreat, supra, Driver v. Driver, supra). In either
case, careful and even application of
the Rules must be adhered to in order
to insure protection against creeping evisceration of the important
constitutional interests at stake. (And
such interests are no less worthy of protection when the issue is the “hot
potato” issue of child support and alleged “dead beat” dads than when the State
wishes to take the liberty of a citizen for an alleged crime committed by a
defendant).
More pertinently, as above noted, this court clearly has
overlooked Appellant’s critical on-point arguments that, 1) Under settled
Vermont law proper service of process
under the Rules of Civil Procedure is a prerequisite for personal jurisdiction under Vermont Rules of Civil and Family
procedure, (see Appellant’s Brief, ps. 3-6), and arguably can’t be waived other than as the rules allow , (Appellant’s Brief,
12-13), 2) Absent proper service of the
modification at any time throughout
the pendency of this case, under V.R.C.P. 5(a) and settled Vermont caselaw the 2008
modification action— clearly a “new or additional claim” touching the constitutional property rights of defendant distinct
from the claims plaintiff raised in prior proceedings, including the 2006 RFA
hearing— has never even commenced
sufficient to personally and physically “bind” defendant, (see Appellant’s
Brief, ps. 5-9), and, 3) It is irrelevant
that plaintiffs showed service “after the fact” in 2011, as once this court
reversed the 2009 “tack service” via its Dec. 2010 order— a ruling which
incidentally emphasized the necessity of proper service to properly commence
the modification action— absent plaintiffs showing “evidence” of “actual or
constructive” notice of the original and
sole modification “tack served” in 2009, (the question at issue in the 2010
remand, see Dec. 8, 2010 order of the Court, p. 3, Appellant’s Brief, ps. 1-3), the only
proper course by the trial court was dismissal
of the 2008 modification (which, again, under the “law of the case” and
clear terms of this court’s Dec. 2010 order, was vacated and nullified by this
court’s 2010 order).
d. The
court has overlooked that the prior July 26, 2011 and Oct. 11, 2011 dismissals
cannot act to bar resolution of Father’s service-related jurisdictional claims
because neither order addressed the merits of father’s claims and Appellant had
timely raised them before the Family Court judge.
Further, this court has glossed over the critical fact that
neither the Superior
Court nor this court in 2011 addressed father’s claims on the merits, (as is required generally in order to preclude raising of issue, see In re St. Mary's Church Cell Tower, 180 Vt. 638, 910 A.2d 925 (2006), Agway Inc. v. Keith Gray, 167 Vt. 313, 706 A.2d 440 {1997}, Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469; 661 A.2d 89 {1995). Thus, this court’s Jan. 10, 2014 order seems to run afoul of this Court’s precedents in the related “Res Judicata” context that an issue is not precluded from being litigated unless there has been a “full and fair” opportunity for it to be “resolved on the merits,” (see Appellant’s Reply Brief, p. 6, Agway Inc. v. Keith Gray, 167 Vt. 313, 706 A.2d 440 {1997}, citing Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469; 661 A.2d 89 {1995}), see also Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040; Dougherty v. Surgen, 147 Vt. 365, 366, 518 A.2d 364, 365 {1986} (policy of Vermont favors resolution of suits “on the merits” over dismissals on technicalities).
Court nor this court in 2011 addressed father’s claims on the merits, (as is required generally in order to preclude raising of issue, see In re St. Mary's Church Cell Tower, 180 Vt. 638, 910 A.2d 925 (2006), Agway Inc. v. Keith Gray, 167 Vt. 313, 706 A.2d 440 {1997}, Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469; 661 A.2d 89 {1995). Thus, this court’s Jan. 10, 2014 order seems to run afoul of this Court’s precedents in the related “Res Judicata” context that an issue is not precluded from being litigated unless there has been a “full and fair” opportunity for it to be “resolved on the merits,” (see Appellant’s Reply Brief, p. 6, Agway Inc. v. Keith Gray, 167 Vt. 313, 706 A.2d 440 {1997}, citing Cold Springs Farm Dev., Inc. v. Ball, 163 Vt. 466, 469; 661 A.2d 89 {1995}), see also Nichols v. Hofmann, 2010 VT 36, ¶ 4, 188 Vt. 1, 998 A.2d 1040; Dougherty v. Surgen, 147 Vt. 365, 366, 518 A.2d 364, 365 {1986} (policy of Vermont favors resolution of suits “on the merits” over dismissals on technicalities).
This court also overlooks in recounting of the “facts” and
timeline of events that pro se Appellant didn’t just appeal the “new” child
support order to the Superior Court, (see Jan. 14, order, par. ), but in fact he timely appealed— and both parties fully briefed— the Magistrate’s denial of his 2011
“Special Appearance/Motion to Dismiss” to the Superior/Family Court judge, before
the Superior court dismissed said appeal for “interlocutory” reasons, (cf.
docket entries for March 10, 2011, April 11, 2011, May 20, 2011, May 26, 2011,
and June 15, 2011, and docket entries dated 7/26/11 and 7/27/11 dismissing the
appeal, in record, as well as Appellant’s arguments regarding re-raising
the-non prejudicial effect of the July 26, 2011 dismissal to his
service-related claims due to no Vermont court actually ruling on the merits of them, an issue addressed in more detail in Appellant’s Reply Brief
at ps. 3-6 and elsewhere herein).
Indeed, due to Appellant’s Memorandums /brief(s) in the
2011 appeal of the Magistrate’s March 10, 2011 order clearly raising the issue of insufficiency/lack of service and the absence
of jurisdiction which flowed therefrom, (although not specifically
regarding the June 15, 2011 “ordinary mail” service because at the time of
defendant’s filing of his initial memorandum of law in the 2011 Magistrate’s
appeal Appellees had still not “served” on defendant via “ordinary mail” the
2008 modification, Appellant clearly
couldn’t have “waived” his right to redress on these issues, (Agway, supra, Cold Springs, supra).
To the contrary, since the trial court was abundantly aware of this
pro se parties attempts to raise this issue, (“According
to the records on file there is a certificate of service, I believe signed by
Ms. Haselton, indicating that under Rule 5 of the V.R.C.P. she served you with
notice, the motion, and the attached affidavits in these proceedings; Are you
saying that that is insufficient?” 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), and had expressly noted the close relation and similarity of previous claims of
Appellant’s, (See May 10, 2012 order of Magistrate, PC 17), father
submits that this hyper-technical finding of “waiver” of his sufficiency of
service argument as it relates to the 2011 “ordinary mail” service— while the
Magistrate’s appeal in which said service was clearly at issue and was still
pending!— is against both the weight of the record evidence as well as unfairly
fails to afford father the deference as a
pro se litigant which at least one member of this court has noted is critical to justice being done,
(“the court has an obligation to insure that pro se litigants are not ‘taken
advantage of by strict application of rules of procedure’ lest the court violate
its sacred ‘promise to protect the rights of pro se litigants,’” see Town of Washington v Emmons, 2007 Vt. 22,
par. 7, citing In re Estate of Knott, 149 Vt. 245 at 247, (1988) (Dooley,
justice, dissenting), Appellant’s brief ps. 16-17, record). [6]
e.
Moreover, this pro se litigant clearly
relied on the July 26, 2011 order of the Superior Court, which says nothing
about “waiver,” but quite the contrary, assures defendant father that he can
raise all his “personal jurisdiction” issues “when and if he appeals a final
child support order” for preservation of his service-related jurisdictional
claims, (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). Consequently, to then turn around and hold
father to a strict application of Rule 12(h)(1) of the Vermont Rules of Civil
Procedure and allow plaintiffs to belatedly raise their “waiver” argument after
Appellant had “placed all his cards on the table” in the 2011 (and subsequently
dismissed) Magistrate’s appeal clearly
violates the principles of finality spoken of in Putney School v. Schaaf, 157 Vt. 396 at 407, (1991), and is fundamentally
unfair, as it gave Appellees a “second gratuitous chance” to cure their
fatal defect of lack of service, (see Appellant’s opening brief, ps.
13-17).
While this court asserts
that “father’s initial filings did not
reserve the defense of lack of service” (id., par. 20), that
father “failed to challenge the sufficiency
of the 2011 service in any of the motions that he filed prior to the November
14, 2011 modification hearing,” id., par. 23), and that 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,” (Jan. 10, 2014 order, par. 23),
the record clearly
shows not only did father raise his insufficiency of service arguments beginning
with his Aug. 13, 2009 “Emergency” Rule 60(b) Motion for Relief from Judgment,
(see Aug. 13, 2009 Motion at p.2 ¶3), but father has raised his “insufficiency of service” claims at almost every
turn and in every filing and brief in this case since, (including in his
Jan. 31, 2011 “Special Appearance/Motion to Dismiss…” see in record, cf. ).
Moreover, Appellant father clearly
raised such matters in the 2010 appeal to this court, as pointed out in
Appellants’s opening brief in the instant appeal at p. 12 and fn 15, to wit,"In spite of Appellees conceding that Appellant could
not have received service in this case, Appellees go on, (particularly on the
question of jurisdiction, dealt with substantively in Part III of this reply
brief), to copiously quote Appellant's Brief, Docketing Statement, and Printed
case in a seeming end run around the critical,
indisputable fact of the role the utter lack of service in this case plays vis
a vis jurisdiction with irrelevant claims in an attempt to distract the
court from the issues at hand" (Appellant's reply brief in 2010 Appeal to
Vermont Supreme Court, p. 1 ¶2, italics and bold added for emphasis, see also id., p. 2 ¶3, pp. 5-8, Appellant's 2010 opening
Brief in Vermont Supreme Court, p. 11, fn 16, Appellant's Reply Brief in the
previous and subsequently-dismissed 2011 Magistrate's Appeal, p. 5 ¶3, p. 11,
fn 8, as well as defendant's Special Appearance/Motion to dismiss and Oct. 31,
2011 and Nov. 7, 2011 Rule 60(b) Motions for Relief from Judgment, rec).
Thereafter, upon father’s appeal to this court of the
Superior court’s July 26, 2011 dismissal of
Appellant’s pending appeal on “interlocutory” grounds, this honorable court dismissed on the
“jurisdictional” grounds of untimely notice of appeal, thus also failing to address the merits of
Appellant’s insufficiency of service claims, (indeed, the issue in the then pending appeal to this court
was whether the Superior court had properly dismissed the appeal for being “interlocutory,” so this
court’s disposition of dismissal couldn’t have addressed the merits of father’s jurisdictional claims
regarding lack/insufficiency of service).
Appellant’s pending appeal on “interlocutory” grounds, this honorable court dismissed on the
“jurisdictional” grounds of untimely notice of appeal, thus also failing to address the merits of
Appellant’s insufficiency of service claims, (indeed, the issue in the then pending appeal to this court
was whether the Superior court had properly dismissed the appeal for being “interlocutory,” so this
court’s disposition of dismissal couldn’t have addressed the merits of father’s jurisdictional claims
regarding lack/insufficiency of service).
Thus, while this court properly notes the dismissals by the Superior/Family court judge and this
court in 2011, this court’s Jan. 10, 2014 order entirely overlooks and fails to address the core, salient
arguments of Appellant regarding the effect of these dismissals to the instant appeal when neither of
the prior dismissals resolved Appellant’s then-timely-raised lack of service/insufficiency of service
issues on the merits, (see In re St. Mary's Church Cell Tower, supra, Agway Inc. v. Keith Gray,
supra, Cold Springs Farm Dev., Inc. v. Bal, supra).
Finally, there is a more fundamental reason why this court should not allow the finding of waiver to
stand post the July 26, 2011 dismissal.
f. This court’s order overlooks the fundamental unfairness of allowing Plaintiff’s a “second bite at the apple” in demonstrating “waiver” of Appellant’s insufficiency of service claims after the July 26, 2011 dismissal by the Superior Court judge when Appellant had been forced to fully brief the relevant issues and Appellees had failed to timely raise this defense in their Feb. 9, 2011 Memo in opposition to defendant’s Motion to Dismiss. Indeed, to do so violates due process and this court’s ruling in Putney v, Schaaf, (duly raised in Appellant’s reply brief but not even mentioned in the Court’s Jan. 10, 2014 ruling).
Leaving aside the
fact that Appellant’s motions in the prior appeals cannot reasonably be used to
indicate “waiver,”— as pointed out in Appellant’s brief, (ps. 1-2, 10), and the above mentioned
chronology of this case— the trial court’s “sua sponte” raising the issue of “waiver” after the parties
had briefed the 2011 Magistrate’s appeal and Appellant had fully argued his “insufficiency of
service” claims allowed Appellees, (who to that point hadn’t pressed their “waiver” argument), to
“spring a new ground” on which to defend, contrary to the principles of fairness and finality noted in
Putney School v. Schaaf, supra, (cf Appellant’s Brief, p. 11).
indicate “waiver,”— as pointed out in Appellant’s brief, (ps. 1-2, 10), and the above mentioned
chronology of this case— the trial court’s “sua sponte” raising the issue of “waiver” after the parties
had briefed the 2011 Magistrate’s appeal and Appellant had fully argued his “insufficiency of
service” claims allowed Appellees, (who to that point hadn’t pressed their “waiver” argument), to
“spring a new ground” on which to defend, contrary to the principles of fairness and finality noted in
Putney School v. Schaaf, supra, (cf Appellant’s Brief, p. 11).
Along those lines, while not a constitutional scholar, Appellant believes this could very well
constitute a violation of the both the Federal and State of Vermont’s constitutional guarantee of “due
process” in the appeals process, as if this court’s rulings re “waiver” are correct it prohibited
Appellant from having his meritorious and duly raised claims resolved by the courts while it
simultaneously (and unfairly!) gave Appellees a “gratuitous second chance” to raise this argument
before the trial court contrary to long-settled Vermont precedents, see Putney School v. Schaaf,
supra, V.R.C.P. 12(b)(1), V.R.C.P. 12(h)(1) and V.R.C.P. 78(b)(1), Follo v. Florindo, 2009 VT 11, ¶14, 185 Vt. 390, 970 A.2d 1230 {2007}, Deyo v. Kinley, 152 Vt. 196, 200, 565 A.2d 1286, 1289 {1989} (issues not timely raised below are prohibited from being raised on appeal), cf. Putney, supra. Thus this court should rehear and/or reconsider this matter and amend its judgment accordingly. [7]
- Service issues and arguments overlooked by the Court
As shown in Appellant’s Reply Brief in response to
Appellees “Res Judicata” argument, Appellant
contends that as a matter of settled Vermont and federal law he must prevail as both “minimum
contacts” and proper service are required to effect “personal, physical, jurisdiction” over a 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, 15B V.S.A. §611(a)(B)(2), 15B VSA §611(a)(C)(2), 15B VSA §611(a)(1)(B), 15B VSA §613
(a), 15B VSA §603(b) and (c), 28 USC § 1738B [d], OCS/Pappas v. O’Brien 2013 VT 11 (2010-398,
filed March 1, 2013), cf. Bessette v. Dept of Corrections, 2005 Vt. Super, Lexis 137, Vt Dept of Taxes
v. Marshall, No. S0819-04 CnC, Primus v. Conservation Commission of the Town of Southington
2007 Conn. App. Lexis 2004, 101 Conn App. 238, 920 A.2d 1031 (2007) 4.A. C.Wright & A. Miller,
Federal Procedure & Practice 511 §1094, (2002), Brady, supra, Weisburgh, supra, (accord
Appellant’s Reply Brief, p. 9, Appellant’s Brief, 7-9).
contends that as a matter of settled Vermont and federal law he must prevail as both “minimum
contacts” and proper service are required to effect “personal, physical, jurisdiction” over a 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, 15B V.S.A. §611(a)(B)(2), 15B VSA §611(a)(C)(2), 15B VSA §611(a)(1)(B), 15B VSA §613
(a), 15B VSA §603(b) and (c), 28 USC § 1738B [d], OCS/Pappas v. O’Brien 2013 VT 11 (2010-398,
filed March 1, 2013), cf. Bessette v. Dept of Corrections, 2005 Vt. Super, Lexis 137, Vt Dept of Taxes
v. Marshall, No. S0819-04 CnC, Primus v. Conservation Commission of the Town of Southington
2007 Conn. App. Lexis 2004, 101 Conn App. 238, 920 A.2d 1031 (2007) 4.A. C.Wright & A. Miller,
Federal Procedure & Practice 511 §1094, (2002), Brady, supra, Weisburgh, supra, (accord
Appellant’s Reply Brief, p. 9, Appellant’s Brief, 7-9).
Since, however, the issues of lack of proper service and
the lack of personal jurisdiction that
necessarily flows from the lack of
proper service in this matter have never been
resolved on the
merits due to the courts’ below— and now this Court’s— adoption
of the “waiver” argument (as
shown above and in Appellant’s Reply Brief at
length, see id ps. 7-10, record), resolution
of these
issues of Appellants’ now is proper, nay, essential to justice being served, (see St. Mary’s Church
cell tower, supra, Agway,
supra, Cold Springs, supra). At
the very least, Defendant father’s well
supported and presented arguments
deserve more than a mere summary affirmance of the trial
court’s rulings, (or
lack thereof) with “no comment” from this Court as to the merits of these core
issues.
On the merits of the issue of lack of/insufficiency of service
in this case, and the many ways in
which Plaintiffs’ service in this case did
not meet the requirements of the law under the Vermont
Rules of Civil Procedure
in this matter, (thus requiring dismissal due to the consequent failure to
effect personal jurisdiction over defendant, this party requests additional
briefing and/or directs the
court to his opening brief where he examines in
detail the problems with Plaintiffs’ service in this
matter, (see Appellant’s brief,
ps. 7-13).
- Law of the Case
a.The factual “details” in the court’s timeline and
analysis of the alleged “waiver” of father’s right to raise his lack
of/insufficiency of service argument is fatally flawed and against not just the
law but the clear record and prior 2010 order in this matter!
While in a different context, the seeming extremes of a slavish devotion to the procedural rules in
civil cases under due process may in some regards be compared to the obsession among the Founders
to mandating the requirement that a jury of 12 of one’s peers must agree on a citizen’s guilt before he
may properly be punished for a crime alleged by the State.
In either case, careful and even application of the Rules must be adhered to in order to insure
protection of liberty and the rights of a democratic society, (the saying “It is better that one guilty go
free than one innocent be wrongfully imprisoned” comes to mind).
And while the modern interests of insuring absent parents (usually fathers, sadly) contribute
financially to their children’s needs when a marriage fails is important, the societal and constitutional
interests noted above are no less worthy of protection when the issue is the “hot potato” issue of child
support and alleged “dead beat” dads than when the State wishes to take the liberty of a citizen for an
alleged crime committed by a defendant.
Essentially, and in purely philosophical terms, we as a society have adjudged that the downside to
the risk of a plaintiff not being able to locate a defendant who they wish, for whatever reason, to sue,
is less than the downside of a defendant being sued in absentia without clear and proper notice of the
complaint against them sufficient to allow them to appear and defend. Indeed, this court’s holding
seems oblivious to the fact that the rules are designed for society’s benefit to best insure that the right
to notice is protected in a broad swath of cases lest the important interests protected are gradually
eroded to the detriment of society as a whole.
Of course, details of particular cases matter too.
Appellant submits such principles are no more important than in the case at bar, which, as the trial
court below noted in its May 10, 2012 order, is “procedurally complicated,” and there is a “back
story” which this austere body seems uninterested in— i.e., WHY and how the physical custody of
the minor children changed and the “off record” agreement of the parties and houses, cars, and years
of support provided from Pahnke family funds and “estates” (in the words of defendant’s ex-wife)
which has been documented in the record by this party as best as possible having discovery denied
him came to be— While perhaps understandable in light of the limited ability of courts to dispense
justice in matters oftentimes beyond its scope of knowledge, unfortunately such details which should
matter, lest rulings of courts become less about the “rule of law” than judgments based on a certain
“moral perspective” which the courts usually and regularly eschew in cases from domestic/divorce
law to gay rights.
Coming then to some of the “details” that might matter to this court, as pointed out above, as a
factual matter, this court is plainly incorrect in several of its factual and legal premises in this matter
having overlooked Appellant’s replies to them in his briefs.
Accordingly, while the court concludes that “Only after the remand from this Court in December
2010 did father begin to qualify his participation as a “special appearance” and assert lack of service
of the 2000 amended custody order and the 2008 motion to modify and hearing notice as defects in
the legal process,” (id. Par. 21), this is irrelevant if this court’s Dec. 8, 2010 order truly “vacated” the
prior service and service under the Rules of Civil Procedure is indeed “jurisdictional” as a wide
swatch of cases from this court indicate, (see Beebe, supra, Morrisseau, supra, Bessette, supra,
Fercenia, supra, Driver, supra, Aiken, supra, Brattelboro Retreat, supra, Ballard, supra).
d. Likewise, this court’s conclusions that Father, however, failed 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] (id ¶ 23), and that, “As the magistrate noted, father’s initial filings did not reserve the defense of
lack of service,” are unsupported by the record, as shown above and at length in this party’s opening
Brief, (see Appellant’s brief, ps. 12, 5-6 and 9-13).
And though this court has found, “father continued to argue that he was never properly served at
the inception of this case in 2000, [but] he did not object to OCS’s service of the motion to modify by
regular mail. Father therefore waived this defense,” (Jan. 10 order, par. ), as noted above,
Appellant’s insufficiency of service claims at the time of the “ordinary mail” service which this court
claims father “waived”— which in any case this party has shown at length in his previous briefs and
above was contrary to law— were already pending in the 2011 Magistrate’s Appeal to Superior
Court, and every motion the trial court has suggested should have raised father’s service- related
jurisdictional challenge was related to either this, or the previous 2010 appeal to this court. As such it
is unreasonable to expect father to have either “seen the future” or objected again! Then too, as
above noted, the court was well advised of these claims at the Nov. 14, 2011 hearing and again at the
March 12, 2012 hearings, (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), and, as a result, any “waiver” of
father’s was unknowing contrary to Vermont law, (see See Chimney Hill Owners' Ass'n v. Antignani,
136 Vt. 446, 453; 392 A.2d 423, 427 (1978) (waiver “involves both knowledge and intent.” Cf.
Liberty Mutual Ins. Co. v. Cleveland, 127 Vt. 99, 103, 241 A.2d 60, 63 {1968}).
For starters, as above-noted, this court’s Jan. 10, 2014
ruling that,“As the magistrate noted, father’s
initial filings did not reserve
the defense of lack of service,” clearly contradicts the record in this
case.
As pointed out in Appellant’s Brief, (id. p. 12), while
not raised as comprehensively as Appellant
might have liked, father clearly raises the lack of
service/insufficiency of service defense
sufficiently to apprise the court
of his insufficiency claims in his very first Aug. 13, 2009
“Emergency Filing”
in this matter, to wit:
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/Defendant's Aug.
13, 2009 "Emergency Motion/Appeal to Set Aside..." p.2 ¶3, in record,
see also Appellant’s opening brief, ps. 12-13.
More
saliently here, this court’s Jan. 10, 2014 ruling seems to ignore its earlier
2010 decision, (which stressed the necessity of compliance with the Rules of
Civil Procedure to commence a case, see Dec. 8, 2010 order, in record), while
ignoring the fundamental disconnect with its earlier 2010 ruling that the Jan.
10, 2014 ruling poses.
Indeed, the court does this however while
(apparently) completely ignoring or overlooking
the critical issue raised by Question 1 of Appellant’s appeal, to wit:
Q 1.
Did the Magistrate and/or Superior Court below err in that they violated the
"law of the case" in proceeding to find personal jurisdiction over
defendant notwithstanding the utter failure of plaintiffs to show any
evidence on remand that Defendant father had "actual or constructive
notice" of the 2008 modification action in accord with this honorable
court's remand for that very purpose as directed by this court's Dec. 8,
2010 order?
As a result the Court completely ignores or overlooks Appellant’s extremely salient “law
of the
case” arguments raised in his very first question and argued in ps. 1-3 of his opening brief dealing
with the effect the Dec. 2010 ruling must necessarily have on this case upon failure of plaintiff’s on
remand to show any proper service on father of the 2008 modification process— the stated purpose
for the 2010 remand— as pointed out in virtually every one of Appellant’s briefs and Motions from
his Aug. 13, 2009 “Emergency Motion” to his timely raised Motion to Dismiss on remand (and
without responding to virtually any of Appellant’s arguments in his Briefs!)
In short, as noted elsewhere, the Court in its Jan. 10, 2014 order appears to have bought hook, line and sinker the trial court’s time-shifting analysis that contradicts the principles in Putney, supra, while ignoring entirely Appellant father’s well supported rebuttals of its conclusions in his briefs where he has exhaustively addressed every single one of the lower courts’ “conclusions” with significant authority.
While Appellant cannot account for this sudden and mysterious lack of foresight and thoroughness on the part of this erstwhile body, Appellant therefore will not here repeat every one of his arguments, (as he is confident the court, or its clerks, can read his Briefs, referenced here as appropriate).
case” arguments raised in his very first question and argued in ps. 1-3 of his opening brief dealing
with the effect the Dec. 2010 ruling must necessarily have on this case upon failure of plaintiff’s on
remand to show any proper service on father of the 2008 modification process— the stated purpose
for the 2010 remand— as pointed out in virtually every one of Appellant’s briefs and Motions from
his Aug. 13, 2009 “Emergency Motion” to his timely raised Motion to Dismiss on remand (and
without responding to virtually any of Appellant’s arguments in his Briefs!)
In short, as noted elsewhere, the Court in its Jan. 10, 2014 order appears to have bought hook, line and sinker the trial court’s time-shifting analysis that contradicts the principles in Putney, supra, while ignoring entirely Appellant father’s well supported rebuttals of its conclusions in his briefs where he has exhaustively addressed every single one of the lower courts’ “conclusions” with significant authority.
While Appellant cannot account for this sudden and mysterious lack of foresight and thoroughness on the part of this erstwhile body, Appellant therefore will not here repeat every one of his arguments, (as he is confident the court, or its clerks, can read his Briefs, referenced here as appropriate).
However, because this party can’t help but think the court’s judgment is at least partly influenced by the modern day obsession with “making father’s pay” for their children, (a philosophy which this party agrees with in principle, if it presents a poor one to base legal decisions on to the derogation of much more fundamental principles).
With that end in mind, Appellant thought it behooves him to examine the philosophical basis for the Rules of Civil Procedure re proper service on individuals in order for personal jurisdiction to properly attach.
b. The principle that defendants must be properly served
in order for personal jurisdiction to attach
over a defendant and a case to properly be commenced, while grounded in constitutional law, (see
U.S. v. Kramer, supra, U.S. v. Bigford, supra, Amend XIX of the U.S. Constitution), stems from the
fundamental unfairness of hauling someone into court who has no idea that of the grounds for such
an action or that even such an action might be commenced in their absence; As a result, our
founders, and American jurisprudence generally, share an inordinate concern that the rules governing
the process of notification be zealously guarded against creeping evisceration of the important
constitutional interests at stake.
over a defendant and a case to properly be commenced, while grounded in constitutional law, (see
U.S. v. Kramer, supra, U.S. v. Bigford, supra, Amend XIX of the U.S. Constitution), stems from the
fundamental unfairness of hauling someone into court who has no idea that of the grounds for such
an action or that even such an action might be commenced in their absence; As a result, our
founders, and American jurisprudence generally, share an inordinate concern that the rules governing
the process of notification be zealously guarded against creeping evisceration of the important
constitutional interests at stake.
While in a different context, the seeming extremes of a slavish devotion to the procedural rules in
civil cases under due process may in some regards be compared to the obsession among the Founders
to mandating the requirement that a jury of 12 of one’s peers must agree on a citizen’s guilt before he
may properly be punished for a crime alleged by the State.
In either case, careful and even application of the Rules must be adhered to in order to insure
protection of liberty and the rights of a democratic society, (the saying “It is better that one guilty go
free than one innocent be wrongfully imprisoned” comes to mind).
And while the modern interests of insuring absent parents (usually fathers, sadly) contribute
financially to their children’s needs when a marriage fails is important, the societal and constitutional
interests noted above are no less worthy of protection when the issue is the “hot potato” issue of child
support and alleged “dead beat” dads than when the State wishes to take the liberty of a citizen for an
alleged crime committed by a defendant.
Essentially, and in purely philosophical terms, we as a society have adjudged that the downside to
the risk of a plaintiff not being able to locate a defendant who they wish, for whatever reason, to sue,
is less than the downside of a defendant being sued in absentia without clear and proper notice of the
complaint against them sufficient to allow them to appear and defend. Indeed, this court’s holding
seems oblivious to the fact that the rules are designed for society’s benefit to best insure that the right
to notice is protected in a broad swath of cases lest the important interests protected are gradually
eroded to the detriment of society as a whole.
Of course, details of particular cases matter too.
Appellant submits such principles are no more important than in the case at bar, which, as the trial
court below noted in its May 10, 2012 order, is “procedurally complicated,” and there is a “back
story” which this austere body seems uninterested in— i.e., WHY and how the physical custody of
the minor children changed and the “off record” agreement of the parties and houses, cars, and years
of support provided from Pahnke family funds and “estates” (in the words of defendant’s ex-wife)
which has been documented in the record by this party as best as possible having discovery denied
him came to be— While perhaps understandable in light of the limited ability of courts to dispense
justice in matters oftentimes beyond its scope of knowledge, unfortunately such details which should
matter, lest rulings of courts become less about the “rule of law” than judgments based on a certain
“moral perspective” which the courts usually and regularly eschew in cases from domestic/divorce
law to gay rights.
Coming then to some of the “details” that might matter to this court, as pointed out above, as a
factual matter, this court is plainly incorrect in several of its factual and legal premises in this matter
having overlooked Appellant’s replies to them in his briefs.
c. While in its Jan. 10, 2014 ruling the Court concludes,
based primarily upon continued litigation
with Appellees and father’s voluntarily providing the court with his address the last five years that
father has “voluntarily” submitted to the jurisdiction of the court, (notwithstanding the contradiction
this poses to the Court’s assertion in par. 20 of its recent order that father has “eluded” service), and
that, “As the magistrate noted, father’s initial filings did not reserve the defense of lack of service,
(Jan. 10, 2014 order, par. 20), the factual details of this case’s timeline say otherwise.
with Appellees and father’s voluntarily providing the court with his address the last five years that
father has “voluntarily” submitted to the jurisdiction of the court, (notwithstanding the contradiction
this poses to the Court’s assertion in par. 20 of its recent order that father has “eluded” service), and
that, “As the magistrate noted, father’s initial filings did not reserve the defense of lack of service,
(Jan. 10, 2014 order, par. 20), the factual details of this case’s timeline say otherwise.
Accordingly, while the court concludes that “Only after the remand from this Court in December
2010 did father begin to qualify his participation as a “special appearance” and assert lack of service
of the 2000 amended custody order and the 2008 motion to modify and hearing notice as defects in
the legal process,” (id. Par. 21), this is irrelevant if this court’s Dec. 8, 2010 order truly “vacated” the
prior service and service under the Rules of Civil Procedure is indeed “jurisdictional” as a wide
swatch of cases from this court indicate, (see Beebe, supra, Morrisseau, supra, Bessette, supra,
Fercenia, supra, Driver, supra, Aiken, supra, Brattelboro Retreat, supra, Ballard, supra).
d. Likewise, this court’s conclusions that Father, however, failed 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] (id ¶ 23), and that, “As the magistrate noted, father’s initial filings did not reserve the defense of
lack of service,” are unsupported by the record, as shown above and at length in this party’s opening
Brief, (see Appellant’s brief, ps. 12, 5-6 and 9-13).
And though this court has found, “father continued to argue that he was never properly served at
the inception of this case in 2000, [but] he did not object to OCS’s service of the motion to modify by
regular mail. Father therefore waived this defense,” (Jan. 10 order, par. ), as noted above,
Appellant’s insufficiency of service claims at the time of the “ordinary mail” service which this court
claims father “waived”— which in any case this party has shown at length in his previous briefs and
above was contrary to law— were already pending in the 2011 Magistrate’s Appeal to Superior
Court, and every motion the trial court has suggested should have raised father’s service- related
jurisdictional challenge was related to either this, or the previous 2010 appeal to this court. As such it
is unreasonable to expect father to have either “seen the future” or objected again! Then too, as
above noted, the court was well advised of these claims at the Nov. 14, 2011 hearing and again at the
March 12, 2012 hearings, (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), and, as a result, any “waiver” of
father’s was unknowing contrary to Vermont law, (see See Chimney Hill Owners' Ass'n v. Antignani,
136 Vt. 446, 453; 392 A.2d 423, 427 (1978) (waiver “involves both knowledge and intent.” Cf.
Liberty Mutual Ins. Co. v. Cleveland, 127 Vt. 99, 103, 241 A.2d 60, 63 {1968}).
e. Finally, and leaving
aside Appellant’s argument already made above that under V.R.C.P. 5(a) and settled
Vermont service and notice jurisprudence, “new or additional claims” are required to be served under 4(b)(2)(B)’s
more rigorous service requirements and that
neither the
Superior Court’s July 26, 2011 order of dismissal nor this court’s subsequent
Oct. 11, 2011 order of dismissal state father “waived” his right to redress of
his service-related issues, nor did the Vermont courts resolve these critical
issues which had been been timely raised and continually before the Vermont
courts since at least 2009 on the merits, (in spite of the father’s appeal being then-properly before the
Superior and this Honorable Court in both 2010 and 2011!) Rather, this court in
2010 ruled in father’s favor and only dismissed his 2011 appeal due to an
untimely notice of appeal, (see Oct. 11, 2011 entry order), and the Superior
Court by its July 2011 order dismissed due to an ostensibly impermissable
“interlocutory” filing, (see July 26, 2011 order of the Superior Court, record) . [8] Thus, the “law of the case,” (see Morrisseau,
supra), still required Appellees to show proper service of the 2008
modification in 2009 prior to the trial
court allowing this matter to proceed, (under V.R.C.P. 5(a) and precedents, as
above recounted).
f. Further, the Superior
Court in its July 26, 2011 order expressly found that Appellant could re-raise
his “personal jurisdiction” issues without
qualification if and when he appealed any “final order” of modification entered
by the Magistrate, (ostensibly including appellant’s
insufficiency-of-service-related “personal jurisdiction” claims which father
had diligently raised up to that point; indeed, the fact that he had done so is
reflected in both the failure of this court to dismiss the first 2010 appeal on
the basis of “waiver” as well as the language of the Superior Court’s July 26,
2011 order itself). While this court’s
Jan 10, 2014 order affirming the trial court’s finding of “waiver” less than
clearly indicates the law and facts upon which it concludes acts of father
following the July 2011 and Oct. 2011 orders of dismissal show an “intentional”
and subsequent waiver of the service related jurisdictional issue(s), the court
appears to base its conclusion of “waiver” on the fact of father’s continuing to
litigate relevant issues in the Vermont Courts and his telephonic “appearance”
related to resolution of the modification proceedings and his various Rule
60(b) motions for relief, (see Jan. 14, 2014 order, paragraphs 12, 18, record).
However, this court has
clearly misapprehended or overlooked that however the Vermont courts ruled on
his subsequent Rule 60(b) Motions they could not (lawfully) under precedents
cited herein and in p. 16 of father’s opening brief, abrogate his previously
and timely-raised arguments regarding the sufficiency of service of the
modification which Vermont courts had chosen not yet to resolve, or reasonably require
pro se father to have to continually utter the magic phrase “special
appearance” or file a particularly-styled motion to “quash” service or object
to the insufficiency of service as the trial court held when father had already
made clear his objections to the insufficient service. (Indeed, to do so would seemingly violate the latitude required to
be given pro se litigants under settled Vermont precedents, as pointed out by Appellant in his opening Brief, see Beyel v. Degan, 142 Vt.
617, 619, 458 A.2d 1137, 1138 (1983), cited in Appellant’s Brief at ps. 11, 15,
Bingham v. Tenney, 154 Vt. 96, 101-02, 573 A.2d 1185, 1187-88 (1990)cited in Appellant’s opening
brief at ps. 11, 15, and Vahlteich v. Knott, 139
Vt. 588, 590-91, 433 A.2d 287, 288-89 (1981) cited in Appellant’s opening brief at ps. 11,
15).
Federal authority on this point is
apropos. In Hospital Corp of American v.
District Ct., 112 Nev. 1159, 924 P.2d 725 (1996), the federal court ruled,
So long as the personal
jurisdiction issue is properly presented to the District Court, [initially], a
Defendant does not waive the rights to challenge jurisdiction by making an
appearance at trial and arguing the case on the merits.
Hospital Corp v. District Ct., supra, at 1161, n. 2, 924
P.2d at 726, n. 2 (1996).
In this light it would appear that the
holding of Hospital Corp of America
is distinctly contrary to the holding of the trial court, now upheld by this
Court, that pro-se appellant must formulaically and ritualistically
reiterate—and in a separate Rule 12(h) motion at that— his “special appearance”
challenge to the jurisdiction of the court based on insufficiency/ lack of
service (and apparently continue to raise it again and again in order to
preserve it, cf. Rule 12(b) of the Federal Rules of Civil Procedure stating
that not only may a defense of lack of jurisdiction or insufficient service be
made by motion or responsive pleading, but "no defense is
waived by being joined with any other defenses or objections in a responsive
pleading or motion," see Gasset v. Snappy Car Rental, 111 NV 1416, 906
P.2d 258 (1995) Cf. IN re B.C., supra).
This,
Appellant submits, is preposterous and cannot be correct, but is what the
ruling of this court implies.
To the contrary,
however, since it is indisputable in the present case on the face of the
record that defendant timely filed his “Special Appearance/Motion to Dismiss”
on remand, which he continued to rely on in proceedings before the Magistrate,
(see American Hospital Corp, dvd transcript of Nov. 14, 2011 hearing at
1:04:22, 1:06:38) even to the point of orally “renewing” his “Special
Appearance” in challenging the court's jurisdiction on remand from the
dismissed 2011 Magistrates Appeal (id. at 1:04:22) and in fact challenged the
court's void orders in his Rule 60(b) Motions with no objection or correction
by the court or parties, (id.), defendant submits he clearly satisfies the rule in Hospital
Corp., supra and is entitled to relief.
4. To uphold the lower courts’ rulings
that Appellant was required to file his insufficiency of service claims
separately in a Rule 12(h) filing or “motion to quash” is contrary to federal
law and undermines Rule 60(b) and the important rights and grand purposes for
which it was designed.
Finally, this court appears to agree with the
trial court that Appellant, instead of relying on his insufficiency of service
arguments already made in his Rule 60(b) Motions and pending in the 2011
Magistrate’s appeal, (and the July 26, 2011 order of the Superior Court) father
was required to separately raise his claims in a Rule 12 (h)(1) motion.
However, not only does this contradict the leniency
to be given to pro se litigants, as above shown, but this improperly subjects Rule 60(b) to Rule 12(h)(1) and seriously
undermines the important purposes for which 60(b) was designed, as shown in
Appellant’s Brief, (id., p. 11 and fn 10). This court
accordingly should grant rehearing to address this critical issue and amend its
Jan. 10, 2014 order accordingly.
Moreover, while not exactly apropos here,
the doctrine of Res Judicata has arisen in order to bring to rest issues which
have already been resolved; In that context, this court has unambiguously addressed what constitutes a valid
application of “res judicata,” otherwise known as “claim preclusion,” ruling:
To
preclude a claim from being litigated, [Appellees] must show that (1) A
previous final judgment on the merits exists, (2)
the case was between the same parties or parties in privy, and (3) the claim
has been or could have been fully litigated in the prior proceedings.
In
re St. Mary's Church Cell Tower, 180 Vt. 638, 910 A.2d 925 (2006)
Key
to the question of whether res judicata bars litigation of a claim is whether
or not any prior order on the matter was a final, and hence “appealable” order,
which this court has defined as “whether it makes a final disposition of the
subject matter before the court.” (See Morrisette v. Morrissette, 143 Vt.
52, 463 A.2d 1384 {1983}). [9]
In this case it is abundantly clear
under the Superior Court’s July 26, 2011 order and this court’s Oct. 11, 2011
order, that, in spite of the trial court stating at the last evidentiary
hearing in this matter, “I will have to rule as to whether or not that was
sufficient, or not sufficient, in terms of having you still served.” March 12, 2012 hearing, dvd tr at 3:08:36), this did not happen due to the trial court’s
subsequent ruling on “waiver” and the Superior court’s subsequent July 26, 2011
dismissal of the Magistrate’s appeal and its Aug. 1, 2012 misapplication of the
“Law of the Case” doctrine, (erroneously believing the magistrate’s prior
address of the issue forbade it from reviewing the issue as an appellate court,
see Appellant’s brief, p. 18, 5-6).
Consequently,
through no fault of Appellant and in spite of squarely raising these issues
before the trial court, (see dvd transcript of Nov. 14, 2011 hearing at 1:04:22, 1:06:38, 1:10:40, 2:19:56, 2:20:06, 2:20:20),
these key issues were never addressed “on the merits.” It is thus incredibly unfair to uphold the lower courts
and neglect to grant relief, (or even rule on these issues!) now.
III.
CONCLUSION
Therefore,
for the above and foregoing reasons, Appellant respectfully urges this court to
rehear and/or reconsider its Jan. 10, 2014 order, and amend its judgment
accordingly.
Submitted this 23rd
day of Jan., 2014.
__________________________________
Jonathan A. Pahnke,
Appellant
[1] See p. 8 of Appellant’s opening brief p. 8 and fn 6, cf. id., 14, “Indeed, Plaintiff's have openly conceded they don't believe
service of process is even necessary to effect jurisdiction," see Appellees'
June 15, 2011 Mag. Appeal Response Memorandum, p. 14 ¶2, in record. Moreover, the Superior Court family judge
found that proper service has never been accomplished in this case since
it's 2000 inception in Vermont, (“The record in this case contains no
indication that Father was provided such notice, but rather suggests that he
was provided with the modified order approximately one month after its
issuance,” (Aug. 1, 2012 order, PC 8¶2, in record), “Indeed, it appears that
Mother failed to meet the deadline...” id. Of course, under this court’s settled precedents,
“this Court on
appeal, as well as the superior court in a post-conviction
relief proceeding, will defer to the [trial] court's findings of fact that have support in the
record,” IN_RE_ROBINSON.93-174; 161 Vt. 550;
641 A.2d 779, slip. Op, p. 5, and content itself to matters of law unless
forced to draw contrary factual conclusions clear on the face of the
record.
[2] Of course, under this court’s settled precedents, “this Court on appeal, as well as
the superior court in a post-conviction relief proceeding,
will defer to the
[trial] court's findings of fact that have support in the record,” IN_RE_ROBINSON.93-174; 161 Vt. 550; 641 A.2d 779,
slip. Op, p. 5, and content itself to matters of law unless forced to draw
contrary factual conclusions clear on the face of the record. However, among the many factual
determinations of the courts below which this court
for unclear reasons in fact does not give
deference to are that: Appellant was granted “discovery” by the trial court,
(Jan. 10, order, par. 24, compare Appellant’s motion for additional hearing,
for discovery, and to compel attendance of Paula Pahnke at the March 10, 2012
hearing and the subsequent ignoring of this request of Appellant’s by the trial
court), that the “proof of service” which the family court referenced in its
order to lawfully change custody in Aug. of 2000 was, in accordance with the
UCCJA in effect at the time, advance
notice of the change of custody hearing,
see the Aug. 1, 2012 order of the Superior Court at p. 6-7, (compare this
court’s characterization of the Aug. 15, 2000 order as requiring only after the fact service of the amended
Aug. 15, 2000 order changing custody on father, “The court issued the order on an
emergency basis and ordered mother to submit proof of service of the amended
order within three days,” Jan. 10. 2014 order, par. 4,), and this court’s own wholesale conclusion, entirely apart from any findings of the trial court, that father
has intentionally “eluded service” based on the mere sayso of mother on a “Sheriff’s
info form,” (Jan. 10, 2014 order, paragraphs 19, 20). On that score, while it is certainly clear
that father has moved four times in 13 years and that many pieces of mail have
not reached defendant, the court overlooks that the reasons for this may be solely due to the fact of this parties ADD
and moves in an effort to seek greater economic security or personal reasons
that have nothing to do with
plaintiff’s efforts, (or lack thereof), at service of legal matters which
father was not aware of. Indeed, as the
trial court initially noted in its Feb. 23, 2009 order, “there have been no
efforts to modify by plaintiff’s in this jurisdiction prior to 2008,” id. In
record, ps. 5A-5B. Further, there is at least equal evidence in the record that
such failure of service has been due to Plaintiffs lack of diligence, (e.g.,
what is the excuse for Plaintiff’s failure to attend the Oct 2000 motion to
modify in Vermont, to properly serve defendant when they knew where he lived in
Ohio or Indiana, (Appellees Brief, ps. 14, 21), or for failing to approach the
Michigan court to modify the divorce decree long before choosing Vermont as a
forum?)
[3]
See Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983), (court
will consider issues raised by pro-se litigant even though litigant failed to
properly or clearly brief issue), Bingham v. Tenney, 154 Vt. 96, 101-02, 573
A.2d 1185, 1187-88 (1990) (reversing denial of relief from summary judgment
when pro se party opposed summary judgment with contested facts but failed to
file an affidavit), and Vahlteich v. Knott, 139 Vt. 588, 590-91, 433 A.2d
287, 288-89 (1981) (reversing denial
[*8] of relief from judgment
against a pro se litigant who failed to answer a complaint because a
co-defendant's answer purported to speak for both defendants).
[4] A fact presumably salient in this
court's Dec. 8, 2010 reversal. Otherwise, why didn't this court (or parties)
notice such “waiver” then and merely dismiss Appellant's 2010 appeal on that
basis? In any event, by failing to timely respond and raise this objection
plaintiff's have themselves “waived” their right to do so in the proceedings
below, (see V.R.C.P. 12(b), 78(b) ).
[5] Cf. “According
to the records on file there is a certificate of service, I believe signed by
Ms. Haselton, indicating that under Rule 5 of the V.R.C.P. she served you with
notice, the motion, and the attached affidavits in these proceedings; Are you
saying that that is insufficient?”(dvd transcript of March 12, 2012 hearing at
3:07:28.
[6] And this is beyond the inappropriate and
time-bending analysis of the Magistrate incorrectly denominating Appellant’s
pre-2010 appeal motions as relevant to the alleged post-June 15-2011 “waiver”
and the admission of the Magistrate that the “service” of the 2008 Motion for modification
had confusingly been served along with Appellees “Response Memorandum” in the
then-pending Magistrate’s appeal, (“All of these [motions] were in response to
OCS’ June 15, 2011 Response Memorandum, which
was served on Mr. Pahnke along with OCS’ Motion to Modify.” Magistrate’s
May 10, 2012 order, PC 17, par. 2).
Indeed, as pointed out elsewhere at length, requiring Appellant to have
filed a separate Rule 12(h)(1) challenge to this on-the-record and clearly
insufficient service in the midst of an appeal in which these same issues were
(at that time) imminently expected to be resolved would have made utterly no
sense, (see Appellant’s Brief, ps.
) and improperly subjects Rule 60(b) critical and “grand” purposes to
the more mundane requirements of Rule 12(h)(1), the important purposes for
which Rule 60(b) were designed, (and issue which this court clearly overlooked,
as it failed to address it in its Jan. 10, 2014 order in spite of being duly
raised by Appellant, see Brief, ps.
). Which makes all the more this
court’s sudden preference for “form over substance” in the filings of pro se
litigants perplexing, (and see Appellant’s claim that, since virtually every motion cited by the trial and
Superior courts in finding “waiver” related to already-pending appeals, they
cannot be considered “responsive pleadings” under Rule 12(b)(1) or V.R.C.P.
12(h)(1), (Appellant’s brief, ps.
). Indeed, this court’s prior
precedents have not required such defenses to be raised in any particular form
as long as the requirements for relief under Rule 60(b) are met, (see In re
B.C., 169 Vt. 4, (1999).
[7] Or at the very least take additional briefs
from the parties and/or reopen this matter to take argument on the issues
raised herein which this court did not address in its Jan. 10, 2014 order.
[8]
This court has also ruled that
Appellant father has “waived” his right to challenge the Aug. 15, 2000 change
of custody order notwithstanding its ostensible voidness for lack of service
due to the passage of time; However, even if true, this is logically an
altogether separate matter, raised by a separate Rule 60(b) Motion, which
should have no bearing on the issue of whether or not father has diligently and
timely prosecuted his lack of service/insufficiency of service claims regarding
Plaintiffs’ motion for modification.
[9] Black's Law Dictionary defines
“interlocutory” as having to do with an order, judgment, or appeal that is
“interim or temporary; not constituting a final resolution of the whole
controversy.” Blacks Law Dictionary, 9th Ed., West Publishing.
Applied to this case, then, Appellant’s “insufficiency of service” issue as it
relates to personal jurisdiction has, in spite of diligently being placed
before the Vermont Courts, never been “finally” resolved on the merits.
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