Pahnke v. Pahnke. Opening Brief of Jonathan Pahnke. 2013 Vermont Supreme Court

II. ARGUMENT

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?

 a. Plaintiffs were unable on remand to evince any evidence that defendant had “constructive or actual notice” of the 2008 support modification as directed in this court's Dec. 8, 2010 order. This cause should therefore be dismissed pursuant to the “law of the case” doctrine.

 

            Initially, Appellant contends that in light of this court's reversal and remand for the limited purpose of determining if plaintiffs could show “evidence” of “constructive or actual” notice upon defendant of the 2008 filed modification or Feb. 23, 2009 modification proceedings, (see Dec. 8, 2010 order, PC at 31-32), and the failure of plaintiffs to do so on remand, it is entirely inappropriate under the “law of the case” doctrine of Morrisseau v. Fayette 164 Vt. 358, 670 A.2d 820 (1995) for the trial or Superior Courts below to rely on either motions filed relating to Appellant's Aug. 13, 2009 Emergency Motion and 2010 appeal[1]OR motions filed relating to his 2011 Magistrate's Appeal to determine "waiver" of Appellant's personal jurisdiction issues under the “law of the case,” (see Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:01, 1:10:40, 1:25:20, 2:19:56, 2:20:20, Appellant's Amended Magistrates Appeal Memorandum, pp. 8-13, in record, cf. Aug. 1, 2012 order, PC 7-8, May 10, 2012 order, PC 17, last ¶), when the underlying service of process for the support modification proceedings in 2009 had already been reversed by this honorable court, (see Dec. 8, 2010 order, PC 30-32, cf. Morrisseau v. Fayette, supra).

            However, instead of taking the logical next step of dismissing the modification action, as would seemingly be required under this court's Dec. 8, 2010 remand directive upon failure of plaintiffs on remand to show proper notice on defendant, the Magistrate court below, and by extension Superior Court in affirming the trial court's ruling, blatantly disregarded the plain implication of the court's Dec. 8, 2010 order and in “Twilight Zone” fashion ruled that as long as it can be shown as long as three years later that this party eventually became “aware” of the litigation— as evidenced by his “voluntary” participation in the ensuing legal battles— had “minimum contacts” with Vermont, and was “served” notice of the action in some manner subsequently, (regardless of whether such “service” actually complied with any law or Court Rule governing service as shall shortly be shown), the provisions of VRCP 3 and 4 need not strictly apply in order to effect jurisdiction over the 2008 modification and defendant personally, (see May 10, 2012 order, PC 16 ¶¶ 3-5).

            As shown herein, this party cannot believe this is a correct application of law for a host of reasons, not the least of which is this court's holdings in the cases of Morrisseau v. Fayette, 155 Vt. 371, 584 A.2d 1119, (1990), Fercenia v. Guiduli, 2003 VT 50 ¶8, 175 VT 541, 830 A.2d 55 (mem) (2003), Beebe v. Eisemann, M.D., et al. 2012 VT 40 (Vermont Supreme Court, 2012, docket 2011-365),  as well as settled service and notice jurisprudence of this court, (see Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, {1987}, Bessette v. Dept of Corrections, 2005 Vt. Super, Lexis 137, 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); Howe v. Lisbon Savings Bank and Trust Co., 111 VT 201, 207; 14 A.2 3, 6 (1940), Aiken v. Malloy, 132 VT 200, 208-209, 315 A.2d 488, (1974) (public policy requires courts uphold preference for 'best possible service,' cf. Society for Propagating the Gospel v Ballard, 4 VT 119 (1832), and Driver v Driver, 515 A.2d 1058, (1986), "personal jurisdiction must be somehow acquired, it cannot be merely ordered”)

            Indeed, such a holding seems at odds with sound public policy as it would encourage Plaintiffs to file actions which they know or should reasonably know lack jurisdiction, even as it simultaneously discourages Defendants from litigating to clear from the dockets of the courts of this state orders and judgments otherwise void. [2]

            Moreover, on the merits— and apart from the time-bending analysis of the Magistrate finding waiver in June of 2011 contrary to this court's 2010 order and the Vermont Rules of Civil Procedure as shown subsequently herein— in spite of three evidentiary hearings over the space of three years in proceedings below plaintiffs were unable on remand to evince one shred of evidence that defendant had “constructive or actual notice” of the 2008 support modification as directed by this court's Dec. 8, 2010 order.

            Accordingly, under settled Vermont law, Plaintiff's 2008 modification action should be forthwith dismissed, (Morrisseau, supra, Fercenia, supra, Beebe v. Eisemann, supra, Driver v. Driver, supra, Smith v. Brattleboro, supra, Brady v Brauer, supra).

Q 2. Did the failure of Plaintiff/Appellees below to properly serve Defendant/Appellant with the modification process in this case in accord with the requirements of any applicable rule of the V.R.F.P. or V.R.C.P. at any time from the inception of this case in 2000 to now act to deprive the trial court below of personal, physical jurisdiction over Defendant father under settled Vermont caselaw?

 

a. The Magistrate's ruling re the “service” here found as sufficient by the courts below was effected contrary to settled law and multiple requirements of the Vermont Rules of Civil Procedure. It was thus fatally defective to effect jurisdiction over defendant and should be rejected by this honorable Court.

 

 i. The responsibility for service lies with Plaintiffs under settled Vermont law. Moreover, said service is jurisdictional. Its failure here thus requires the modification be dismissed.

 

            Under settled Vermont law, proper service is not only the responsibility of Plaintiffs, (see Weisburgh v. McClure Newspapers, Inc., 136 Vt. 594,  396 A.2d 1388, (1979) “V.R.C.P. 4 places the responsibility for seeing to service squarely upon the plaintiff." Weisburgh, supra, 136 Vt. at 597, accord Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, {1987}), but it is also "jurisdictional," i.e., such failure of service results in a failure of the court's jurisdiction,[3]which, even had Defendant/Appellant not objected on this basis in his Aug. 2009 Emergency Motion— which as shown above he did— arguably cannot be "waived" absent a knowing and intentional relinquishment in any case:

Service of process has the twin functions of not only notifying the defendant of the complaint and its terms, but also to physically gain jurisdiction over the Defendant. (citations omitted).  By failing to serve defendant, the Plaintiffs not only failed to serve notice; they failed to effect jurisdiction.   

 

LePage v. Bay Creek Partnership, Chittenden Superior Court, No. S1021-03, (2003), bold and italics added for emphasis. 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.

 

            Nevertheless, the trial court— as well as now the Superior court— has utterly failed to acknowledge the effect Plaintiffs' failure to procure proper service must necessarily have on this case under settled Vermont law and hardly addressed the relevant state and federal law[4]in spite of Appellant and Appellees devoting significant portions of their prior Memorandums of Law to this very issue, (see Appellant's Amended Memorandum of Law, pp. 13-17, 28-30, and 51-58, record), contrary to its duty to review issues of law “de novo” as an appellate court, (see Canton v. Young, supra, and State v. Pollander, supra), and properly apply the law to the facts of the case under Begins v. Begins, 168 Vt. 298, 721 A.2d  469 (1998) (cf. Spaulding v. Butler, supra).[5]

            Therefore, having never effected “physical jurisdiction” over defendant, this honorable court must reverse as a matter of law, (see Bessette, supra, Vt. Dept of Taxes, supra, Primus, supra, 4.A. C.Wright & A. Miller, Federal Procedure & Practice 511, supra, Brady, supra, Weisburgh, supra, Aiken, supra, Beebe, supra, LePage, supra, Driver v. Driver, supra, Pasquale v. Genovese, supra, In re Estate of Duval, supra, Howe v. Lisbon Savings, supra, Smith v. Brattleboro, supra, Emmons, supra, Avery, supra).

 

ii. The service by “ordinary mail” here found as adequate by the trial court and affirmed by the Superior Court on appeal was not in compliance with Rule 5(a)'s own terms, which requires service under Rule 4's provisions for “new or additional claims.” The rulings below must therefore be reversed.

 

            While the trial court did find that plaintiffs had served defendant by “ordinary mail” pursuant to Rule 5(a) of the Vermont Rules of Civil Procedure, as noted above, even such “ordinary mail” service was not accomplished in line with Rule 5's own provisions, which state:

Except as otherwise provided in these rules, every paper relating to discovery required to be served upon a party unless a Superior Judge otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties.  No service need be made on parties in default for failure to appear except as provided in Rule 62(b) and except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

 

V.R.C.P. 5(a), (italics added for emphasis).

            This is a critically pertinent issue, as defendant submits that in the absence of any prior lawful service of process of the underlying matter in accord with the Vermont Rules of Civil Procedure clear on the face of the record from this case's very inception in Vermont, (see Aug. 1, 2012 order, PC 8 ¶2), plaintiffs' ten-year belated 2008 support modification action constitutes a new or "additional claim" against him under V.R.C.P. 5(a) so as to require adherence to V.R.C.P. 4's more rigorous service requirements, (while the Superior court never reached the merits of this issue or the sufficiency of service generally due to its erroneous “law of the case” ruling and subsequent adoption of the “waiver” ruling of the trial court, (See Aug. 1, 2012 order, PC 8 ¶5), Appellant submits prior rulings of this court are apropos.

            In In re: C.P., Juvenile, Vermont Supreme Court Nos. 2012–057, 2012–191, (decided December 7, 2012), this court examined whether the trial court's defective jurisdiction over a previous CHINS determination could be collaterally attacked in a subsequent appeal of a TPR proceeding under the UCCJA. The court found the dispositive factor to be whether “the termination proceeding initiated a new stage of the proceeding,” (id., ¶23), and concluded,

In view of our finality conclusion with respect to a CHINS merits adjudication, disposition is necessarily a separate proceeding, irrespective of whether termination is sought at that time. It is separately defined by statute and requires separate procedures.

In re C.P., at ¶24 Vermont Supreme Court Nos. 2012–057, 2012–191 (1999).

            Thus, in light of the Aug. 1, 2012 rulings of the Superior court which emphasized the differences between a custody and support action under Vermont law, e.g., “the Aug. 15, 2000 Order was not not a child support order; it was a custody order,” Aug. 1, 2012 order, PC 9, Part III, cf. id., PC 7-8— holdings subsequently adopted in their entirety by the Sept. 14, 2012 order— it seems obvious the 2008 modification must necessarily be considered a “new or additional claim” under VRCP Rule 5(a).

             Indeed, like the CHINS proceeding at issue in C.P., supra, custody actions are “separately defined by statute” from support modification proceedings, and require “separate procedures”  under Vermont law, (see Vt. UIFSA at 15B VSA §§ 101-904, compare to 15 VSA §1033 et seq.).

            It thus seems clear as a matter of law that plaintiffs here were required to serve defendant  pursuant to Rule 4's service and notice provisions, and that the trial court's allowing plaintiff's to serve defendant by “ordinary mail” pursuant to VRCP 5(a) was therefore clearly erroneous. Accordingly, this court must reverse, (Aiken, supra, R.W., supra, Beebe, supra, Brady, supra, Maurer, supra).

 

iii. Plaintiffs here failed to timely serve defendant within 60 days of the trial court's March 10, 2011 order as clearly required by V.R.C.P. 3. Accordingly, no valid action has ever been commenced, and the modification below must be dismissed as a matter of law.

 

            In Morrisseau v. Estate of Fayette, 155 Vt. 371, 584 A.2d 1119, (1990), this Supreme Court upheld the dismissal of a suit by the trial court because it was "undisputed that the complaint was not served to defendants within the thirty days then required by the rule" and because it was "also undisputed that plaintiff did not request an extension of time under V.R.C.P. 6(b)," Morrisseau v. Estate of Fayette, id., at 372, 584 A.2d at 1119-20, cf. Beebe v. Eisemann, supra, Bessette v. Dept. of Corrections, 2007 VT 42, 182 VT 1, 928 A.2d 514 (2007), (an "action is valid as long as service occurs in a timely fashion," id. ¶11, citing Weisburgh v. McClure Newspapers Inc, 136 Vt. 594, 595; 396 A.2d 1388, 1389 (1979) (construing 12 V.S.A. Sec 466).

            The subsequent Bessette ruling of the court further specifically stated, "Neither Plaintiff's diligence, nor the appropriateness of the Rule 6(b) extension, is at issue here," (notably not the case here where Plaintiffs' waited almost three years to properly serve Defendant the present modification at issue here— over a decade if one counts from the Aug. 15, 2000 conception of this matter in Vermont!— and Appellant is clearly and directly challenging the arbitrary and seemingly unlimited power exercised by the court below to sua sponte "enlarge" the time for service indefinitely by judicial fiat without regard to proper compliance with any appropriate Rule of Civil Procedure, see argument subsequently herein and Putney School, Inc. v. Schaaf, 157 Vt. 396, 407 (1991), "plenary power is not arbitrary power," id., Part II. ¶4, cf. Fortier v. Byrnes, 165 Vt. 189, 678 A.2d 890, (1996), Miller v. Miller, 84 Vt. 464, 965 A.2d 524, (2008).

            Therefore, as plaintiffs here never procured, (or even sought!) from the trial court an extension of time under V.R.C.P. 3 in which to serve defendant the June 15, 2011 ordinary mail “service” as contemplated by the Magistrate's March 10, 2011 order, it seems clear that such “service,” coming more than three months after the Magistrate ordered the same in her March 10, 2011 order, (see March 10, 2011 order, p.5, in record, cf. May 10, 2012 order, p. 5, par.2), was on the face of the record insufficient as a matter of law to commence the modification, even in 2011, (see Bessette, an "action is valid as long as service occurs in a timely fashion"). Accordingly, this court must reverse, (Bessette, supra, cf. Fercenia v. Guiduli, surpa, Morrisseau, supra.

iv. Plaintiff's failed to show “due diligence” that they attempted to personally serve defendant with the support modification prior to serving him by “ordinary mail" or file the required affidavit as required by Vermont law prior to their proceeding to serve defendant pursuant to VRCP 5(a).             

            Settled precedents of this honorable Court are clear that before a plaintiff can serve a defendant by “publication” or postal service, they must first do their “due diligence” to attempt personal service, (see Aiken v. Malloy, 132 VT 200, 208-209, 315 A.2d 488, (1974) (public policy requires courts uphold preference for 'best possible service,' cf. Society for Propagating the Gospel v Ballard, 4 VT 119 (1832), Driver v Driver, 515 A.2d 1058, (1986), "personal jurisdiction must be somehow acquired, it cannot be merely ordered”).

             In In re R.W., 2011 VT 124, (2011), this honorable Supreme Court, in reversing the trial court's termination of a father's rights for lack of notice on father, stated,

Because further hearings will be required to resolve the issue of father's parental rights, we need not consider whether DCF conducted due diligence prior to serving father by publication with notice of the first termination hearing. The putative father's attempt to participate at the last hearing suggests that he is available and that his whereabouts are reasonably discoverable. Thus, on remand, DCF must exercise due diligence anew in attempting actual notice to father before resorting to service by publication. V.R.C.P. 4(g)(1); see Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950) (explaining that service by publication is not preferred but may be used if defendant's whereabouts cannot be ascertained with due diligence). This includes seeking the assistance of mother and other known relatives who may have contact information for father. See In re D.F., 2007 SD 14, ¶¶ 9–10, 727 N.W.2d 481 (explaining that due diligence depends on circumstances of a particular case but should include inquiry of relatives). 

In re R.W., 2011 VT 124, (2011) Vermont Supreme Court No. 2011–006, (issued November 18, 2011), ¶50, italics added for emphasis.  

     Appellant submits that such principles are the backbone of V.R.C.P. Rule 4 which reads in part:

Where service cannot with due diligence be made personally within or outside the state, service of the summons and complaint may be made by mail upon a person described in subdivision (e) in the following cases:
Rule 4(f)(1) Service by Mail. (B) Such service shall be by delivery to the defendant outside the state by registered or certified mail, with restricted delivery and return receipt requested. Service by registered or certified mail under this paragraph shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused, provided that the plaintiff shall file with the court an affidavit setting forth the efforts made to obtain personal service and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail. 

                    V.R.C.P. Rule 4(e) and 4(f)(1)(B), italics and bold added, cf. V.R.F.P. 4(b)(2)(B).

       As stated by the Rule, service by certified or registered mail is only allowed after due diligence to procure personal service is attempted by plaintiffs, and must be accompanied by an affidavit “setting forth the efforts made to obtain personal service, and either the return receipt or, if acceptance was refused, an affidavit that upon notice of such refusal a copy of the summons and complaint was sent to the defendant by ordinary first class mail,” id. 4(f)(1)(B) cf. V.R.F.P. 4(j)(2)(B).

            Here however, plaintiff's made no such “due diligence” to personally serve defendant or to file an affidavit accompanying the “return of service” ultimately filed by plaintiff's regarding their June 15, 2011 “service” affirming that they did so before attempting service by ordinary mail, (to say nothing of certified or registered!). In fact, Appellees don't dispute they have never attempted personal service in this matter at any time going back to this case's inception in 2000![6]

            While plaintiff's were ostensibly proceeding pursuant to the March 10, 2011 order of the Magistrate ruling 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), nothing in the Rules of Civil Procedure authorize the trial court to “sua sponte” just “order” or declare service to be accomplished absent strict adherence to some Rule of Civil Procedure, (see Driver v. Driver, supra, citing Avery v. Bender, 126 Vt. 342, 345; 230 A.2d 786, 788 (1967) (court cannot merely “order” service). Indeed, doing so starkly contradicts this court's holding in In re R.W., supra, that plaintiffs must show “due diligence” that they attempted to serve Defendant personally prior to pursuing other modes of service, (In re R.W., supra).

            Nevertheless, the trial court in this case proceeded to find that service by “ordinary mail” under Rule 5(a) here was sufficient to bind defendant in this matter in spite of a host of contrary authority and plaintiff's utter failure to offer any authority in support thereof, (see Brady, supra, Weisburgh, supra, cf. Pasquale v. Genovese, 392 A.2d 395, (1978), ("jurisdiction in the abstract not sufficient without service of process"). Indeed, in spite of this party's efforts searching online he can find none.

            Rather, the weight of authority is starkly against plaintiffs and the court's rulings below, See Aiken v. Malloy, supra, Morrisseau v. Fayette, 155 Vt. 371, 584 A.2d 1119, (1990), Fercenia v. Guiduli, 2003 VT 50 ¶8, 175 VT 541, 830 A.2d 55 (mem) (2003), 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),  Beebe v. Eisemann, M.D., et al. 2012 VT 40 (Vermont Supreme Court, 2012, docket 2011-365), 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); Cf. Howe v. Lisbon Savings Bank and Trust Co., 111 VT 201, 207; 14 A.2 3, 6 (1940) ("for a court to try a matter, it must have jurisdiction over subject matter, of the process, and of the person")

            Given, then, plaintiffs failure on remand to properly serve defendant or demonstrate proper notice of the support modification and the inability of the Magistrate to lawfully just “order” jurisdiction under Avery v. Bender, supra, or sua sponte “declare” that plaintiffs could— contrary to the plain requirements of the Vermont Rules of Civil Procedure and as long as three years after the fact— simply skip due diligence and serve defendant via “regular mail,” (and in blatant disregard for this court's Dec. 8, 2010 order of remand), it seems clear on the face of the record that no proper service of process sufficient to uphold a finding of personal jurisdiction in this case has ever been effected, (Beebe, supra, Weisburgh, supra, cf. Gates v. Gates, supra).

            Moreover, in light of the Magistrate's initial March 10. 2011 ruling ordering that “OCS must first properly serve Mr. Pahnke with its motion to modify” PC 26-27, the trial court's subsequently allowing service pursuant by “ordinary mail” pursuant to Rule 5(a)'s provisions[7] clearly violated the trial court's duty for the evidence to support its findings and/or its findings to support its conclusions regarding service and the alleged “waiver” thereof contrary to Maurer v. Maurer, supra and Spaulding v. Butler, supra.

            Therefore, as plain error on the face of the record, the trial court's rulings in this regard, and the Superior Court's affirmal of them, should be rejected by this honorable court. [8]

v. The magistrate misconstrued the law and nature of defendant's motions for relief to find “waiver.”

In its May 10, 2012 order, the Magistrate court below ruled that "It is unquestioned that Mr. Pahnke has never been served with the Motion to Modify Child Support by certified mail or personal service," (see May 10, 2012 order of Magistrate, PC 16 ¶3), and, "The court first notes that OCS failed to serve Mr. Pahnke in the proper manner, that is, pursuant to V.R.F.P. 4(b)(2)(B)..." id. but went on to ultimately find that plaintiffs had properly "served" defendant in June of 2011 by “regular mail” pursuant to V.R.C.P. 5 and that defendant father had "waived" his insufficiency of service/personal jurisdiction claims by allegedly "not raising them" in three motions relating to the previous— and subsequently dismissed— Magistrate's Appeal, (see Sept. 14, 2012 order of Superior Court, PC 2¶3, May 10, 2012 order of the Magistrate court, PC 17¶2, in record), and three motions relating to his first appeal to this Honorable Supreme Court in 2010, (i.e., defendant father's original Aug. 13, 2009 Motion for Emergency Relief (Rule 60(b) motion), his Nov. 2, 2009 Motion to Reconsider denial of his motion, and his subsequent 2010 appeal to this Supreme Court, (see Aug. 1, 2012 ruling of Superior Court Family Div. Judge, PC 8, last ¶). [9]      

            At the core of the Magistrate's May 10, 2012 holding is the court's citation of V.R.C.P. 12(h)(1), which states that "A defense of lack of jurisdiction over the person... is waived... if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof," (see May 10, 2012 order, record, PC 17-18). Reasoning that defendant's “first responsive pleading” was his Aug. 2009 Emergency Motion for Relief from Judgment, the court concluded, “Having failed to challenge the court's jurisdiction in his Rule 60(b) motion for emergency relief, Mr. Pahnke cannot now challenge the Family Division's personal jurisdiction.” (id. PC 18¶3 ). 

            As noted above, these rulings were affirmed in toto by the Superior Court in its Aug. 1, 2012 order denying defendant's Nov. 7, 2011 Rule 60(b)(4) Motion for Relief from the Aug. 15, 2000 order of the Family court assuming jurisdiction of this case from Michigan and modifying custody, (see Aug. 1, 2012 order, PC 8), and were in turn adopted by the Hon. Linda Levitt of the Superior Court Family Division in denying Appellant's Magistrate's Appeal, (see Sept. 14, 2012 ruling on the Magistrate's Appeal, PC 2 ¶2).

            However, in addition to the fact that defendant's Aug. 13, 2009 Emergency Motion was not a “responsive pleading” but was, in fact a Rule 60(b) Motion as this court (and the trial court!) has previously recognized, (see PC 17 last par and Dec. 8, 2010 order of Vermont Supreme Court, PC 30, respectively),[10]such rulings of the Magistrate are plainly erroneous on the face of the record as they unfairly “shift” the calculus of the parties by changing the time frame for the sufficiency of service inquiry ordered by this court in its Dec. 8, 2010 order.

            Indeed, as a matter of record, none of the motions of defendant's referenced by the Magistrate had anything to do with the modification “served” on June 15, 2011, nor could they, as they all had to do with the then-pending (and subsequently dismissed) Magistrate's Appeal lodged previously![11] Along those lines Appellant submits the trial court improperly subjected relief under Rule 60(b) to the provisions of V.R.C.P. 12(h)(1) (and see fn 10 herein).

            Accordingly, and for all of the above, Appellant submits that the Magistrate's (and Superior Court's) holdings that he “waived” his right to raise his insufficiency-of-service/personal jurisdiction claims are factually and legally erroneous on the face of the record and thus an abuse of discretion as the courts findings below clearly don't support its conclusions and are contradicted by the evidence contrary to Maurer v. Maurer, supra, Spaulding v. Butler, supra, cf. Brown v. Whitcomb, 150 Vt. 106, 109; 550 A.2d 1 at p. 3 (1988).^[12]

vi. Due to the “jurisdictional” nature of proper service of process under settled Vermont law,  insufficient service of process depriving the court of jurisdiction cannot be “waived” absent a knowing, intentional relinquishment” and/or strict compliance with the provisions of V.R.C.P. 4(l). Moreover, the record is clear that defendant did, in fact, raise his service claims in his very first Aug. 13, 2009 Motion.

 

            This court ruled in Hixson v. Plump 167 Vt. 202, 704 A.2d 1159 (1997) that a “waiver” is the “intentional relinquishment or abandonment of a known right and may be evidenced by express words or conduct."  Chimney Hills Owners' Ass'n v. Antignani, 136 Vt. 446, 453, 392 A.2d 423, 427 (1978) and involves both “knowledge and intent."  Liberty Mutual Ins. Co. v. Cleveland, 127 Vt. 99, 103, 241 A.2d 60, 63 (1968).

            Accordingly, at the outset defendant would suggest that because “service of process” is jurisdictional, and at best the “waiver” alleged by plaintiffs and the courts below was unknowing and unintended, (see Liberty Mutual, supra), such “waiver” can not be effective in the circumstances here as a matter of law, (at least not absent strict compliance with Rule 4(l)'s requirements governing the same).

            Indeed, under the circumstances here defendant cannot possibly see how he could have “knowingly” waived his “sufficiency of service” jurisdictional claims when he has continually litigated them beginning from the time of his Emergency Motion of Aug. 13, 2009—on which this court has already ruled in his favor—[13] and continuing through his 2011-filed Rule 60(b) Motions!^[14]

            In point of fact, contrary to the Magistrate's findings the record is clear that Appellant did, in fact, raise his insufficiency-of-service-related jurisdictional claims in his very first Aug. 13, 2009 Emergency Rule 60 Motion for Relief from the Feb. 23, 2009 order(s)!

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, as cited at p. 29 fn 19 of his Magistrate's Appeal Memorandum, as amended,[15]  (italics and bold added for clarity and emphasis).

 

            Keeping in mind the latitude that should be shown pro-se litigant's under this court's settled precedents,[16]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.^[17]

            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).

            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,^[18](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.

vii. Plaintiffs are themselves precluded from prevailing on their “waiver” argument by virtue of their own failure to timely raise it in their “first responsive pleading” under VRCP 12(h)(1). Moreover, in light of plaintiffs' consequent waiver of this issue and dismissal on other grounds of defendant's 2011 Magistrate's appeal after defendant had fully briefed plaintiffs' preclusion on this issue, the trial court's sua sponte “resurrecting” plaintiffs' “waiver” argument on remand proceedings unfairly prejudiced Defendant contrary to the principles enunciated in Putney School v. Schaaf, supra.

 

            It is indisputable on the face of the record that Plaintiff's in this matter failed to raise this “waiver” claim below until the 2011 Magistrate's Appeal, contrary to V.R.C.P. 12(h)(1) and V.R.C.P. 78(b).

            Indeed, they did not raise it in any response to Appellant's original Aug. 13, 2009 Emergency Motion, nor cross-appeal on this basis in 2010.

            Neither did they raise it in response to this party's “Special Appearance/Motion to Vacate and Dismiss” in the trial court after the Dec. 8, 2010 remand by this honorable court, or see fit to mention this “defense” in their Feb. 9, 2011 Memorandum of Law before the trial court in response to defendant's Jan. 31, 2011 Motion to Dismiss.

            In fact, it was not until plaintiffs' June 15, 2011 Memorandum of Law on defendant's “interlocutory” (and subsequently dismissed) Magistrate's Appeal that plaintiffs, (or the trial court for that matter), even whispered a hint of objection to defendant's raising the insufficiency of service issue on “waiver” (or any other!) grounds![19]

            Appellant therefore contends that Plaintiffs themselves have waived their right to prevail on the “waiver” issue because they themselves failed to raise it in their “first responsive pleading” contrary to V.R.C.P. 12(h)(1).

            Moreover, Appellant asserts that to rule as the Magistrate did in this case impermissibly revived plaintiffs' defective modification action and gave them a “gratuitous second chance” to “fix” their fatal defect of lack of proper service contrary to the Vt Rules of Civil Procedure and this honorable court's ruling in Putney School v. Schaaf, supra, in which this court held:

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) , at Part II. ¶5, italics added. 

            Consequently, Appellant submits that in the same way as the trial court in Putney “violated principles of finality” and fairness by “chang[ing] the calculus” on which defendant Putney had relied in settling the claim there at issue, so did the trial court's refusing to enforce this court's settled Dec. 8, 2010 order result in prejudice to defendant father here— as if he had known his continued litigations regarding plaintiffs' lack of proper service and the prior void orders below would only enable plaintiffs to remedy their defect and would subsequently be considered by the trial court to constitute “waiver” of defendant's service-related claims by virtue of further “awareness” of the modification action through his involvement in the ensuing appeal and relief from judgment proceedings below— defendant might well have chosen not to file his interlocutory appeal of the March 10, 2011 order of the Magistrate (or any further Motions for Relief from Judgment) but instead bide his time to appeal his insufficiency of service claims until after entry of the “final order.” 

            Indeed, due to the trial court's time-bending ruling on “waiver” defendant is now subjected to the same sort of “changing calculus” as was disallowed in Putney for simply exercising his right to appeal in 2011 on matters that under this court's prior Dec. 8, 2010 order (as well as the July 26, 2011 order of the Superior Court, see in record), should have been settled long ago.                

            Accordingly, this court should reverse the rulings to the contrary of the court(s) below as they erroneously “revived” plaintiffs' long foreclosed “waiver” argument which otherwise was precluded them under settled law (see VRCP 12(h)(1), cf. VRCP 78(b), Putney, supra, at 407).

viii. The trial court's ruling that defendant waived his right to raise his insufficiency of service jurisdictional claims by failing to timely raise it in an “independent” Rule 60(b) motion is plainly erroneous on the face of the record and should thus be reversed by this court.

 

            As above noted the Superior court judge in its Aug. 1, 2012 and Sept. 14, 2012 orders affirmed in their entirety the key holdings of the Magistrate's May 10, 2012 order that defendant was required to timely and “squarely” raise his insufficiency of service jurisdictional claim in an “independent” Rule 60(b) Motion, i.e.,“Mr. Pahnke has also waived any objection he may have had to the court's personal jurisdiction by failing to include the objection in three motions— his August 13, 2009 Motion for Emergency Relief, (essentially a Rule 60(b) motion), his November 2, 2009 Motion to reconsider, and a filing [appeal] with the Vermont Supreme Court.” (May 10, 2012 order, PC 17, last par. cf. PC 16).

            In support of this ruling, the trial court cited Ladder Man, Inc. v. Mfr's Distrib. Servs., Inc., No. 99-4217, 2000, WL 1679439, at *2 (6th Cir. Oct. 31, 2000), Swaim v. Molton Co., 73 F.3d 711, 718 (7th Cir. 1996),  In re: Worldwide Web Sys., Inc., 328 F.3d 1291, 1300 (11th Cir. 2003), and State v. All Real Property, 2004 UT App 232 ¶14, 95 P.3d 1211 (Utah Ct. App. 2004), noting that, while such a rule of law has not been addressed by this court, in the federal courts such holdings “have been applied where a party makes a Rule 60b motion which omits a certain defense and then makes a later motion in the same court raising that defense,” May 10, 2012 order, PC 18).

            However, as noted above, the Magistrate herself elsewhere classifies defendant's Aug. 13, 2009 motion as “essentially a Rule 60(b) Motion,” (see May 10, 2012 order, PC 17, last par.), and notes this parties extensive and continual history of challenging the sufficiency of the service in the history of this case, (id. PC 16¶¶3, 4 cf. PC 17 ¶2). Further, as shown herein, Appellant did in fact raise his insufficiency of service/ jurisdictional claims in his Aug. 13, 2009 Emergency Motion, (record). Accordingly, the Magistrate court's findings fail to support its conclusions and are not supported by the evidence contrary to Maurer v. Maurer, supra, (trial court's findings must be supported by the evidence, and its conclusions must be supported by the findings or this court will reverse). They must therefore be reversed as a matter of law, (Maurer, supra, Begins v. Begins, supra, Spaulding, supra).

ix. The courts below's rulings that defendant should have filed a motion under V.R.C.P. 12(h)(1) particularly challenging the “sufficiency” of service or “motion to quash” in order to preserve his service/jurisdictional claims violates the mandate of the Rules of Civil Procedure to construe pleadings “liberally” as well as the deference to be shown to pro se litigants.

 

            As above noted, in spite of the Magistrate court clearly being apprised of the nature of defendant's jurisdictional claims regarding “insufficiency of service” in hearings before it, (see cd/dvd of March 12, 2012 hearing at 3:07:28, 3:08:36, Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:01, 1:06:38, 1:10:40, 1:24:50, 2:20:06, 2:20:20), the court ultimately went on to rule in its May 10, 2012 order "none of Mr. Pahnke's motions were in the form of a motion to dismiss for insufficient service of process or a motion to quash service..." concluding, "[t]he court therefore believes My Pahnke has waived any claim that the June 15, 2011 service by OCS of the Motion to Modify was insufficient by failing to raise the issue in his July 22, 2011 motions." id., PC 17¶2.

            However, to the extent that such an interpretation of Court Rules requires defendant father to have raised his insufficiency-of-service claim using “magic words” or in a certain “form,” appellant submits it not only violates the spirit, if not the letter, of the basic premise behind the Rules of Civil Procedure, see Price v. Leland, supra, (“Rules of Civil Procedure are to be construed 'liberally' ” id. at 520, quoting V.R.C.P. 1), but more salient here violates long-standing principles of this court regarding the leniency that should be shown pro se parties.

            Indeed, such a “hyper-technical” application of court rules to block resolution of Appellant's claims on the merits clearly runs afoul of this court's settled precedents regarding pro-se litigants, (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), and should therefore not be countenanced by this Court. 

            Moreover, post-July 26, 2011, (and throughout the additional hearings below), Appellant father was clearly relying on the July 26, 2011 order of the Superior court for preservation of his jurisdictional claims, (see Putney, supra, cf. 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), a reliance that was not corrected by the Magistrate court in subsequent hearings in spite of the court itself noting the salience of this issue so as to give defendant a chance to directly address it (see dvd transcript of March 12, 2012 hearing at 3:07:28, 3:08:36).  Such conduct must, therefore, as a matter of law, either constitute clear legal error on the face of the record on the level of Putney, supra, or, in the very least, act to “collaterally estop” plaintiffs and/or the courts below from successfully prevailing on such arguments now.[20]

           Indeed, this court has an obligation to insure that pro se litigants are not 'taken advantage of by strict application of rules of procedure.' Town of Washington v. Emmons, 2007 Vt. 22, ¶7, 181Vt. 586, 925 A.2d 1002 (mem) lest a mockery be made of what at least one of this court's members have called a sacred “promise to protect the rights of pro se litigants,” In re Estate of Knott, 149 Vt. 245, 247; 542 A.2d 297, 298 (1988) (Dooley, justice, dissenting).

Q 3. Did the Superior Court family division judge commit plain and clear error on the face of the record by upholding the Magistrate Court's ruling that Appellant/ Defendant "waived" his right to raise his "insufficiency of service"/personal jurisdiction claims under the “law of the case”?

            In addition to the obvious impropriety of the Superior court failing to review this matter of law “de novo” as required under Canton v. Young, supra, and State v. Pollander, supra, the Aug. 1, 2012 order of the Superior Court Judge affirmed the denial by the Magistrate of defendant's Motions for Relief from judgment and refusal to grant his Motions for relief or to dismiss due to insufficiency of service and the resulting lack of jurisdiction by essentially adopting the Magistrate's position in the May 10, 2012 order regarding “waiver” of defendant's service related jurisdictional claims, ruling, “this court has previously determined that Father waived any objection he may have had to the court's personal jurisdiction by failing to include the objection in three motions, his August 13, 2009 Motion for Emergency Relief, his November 2, 2009 Motion to Reconsider, and a filing [appeal] with the Vermont Supreme Court...This argument is therefore barred by the doctrine of law of the case” (See Aug. 1, 2012 order of the Superior Court, PC 8, last ¶, as adopted by the Sept. 14, 2012 order, PC 2 ¶2, “Discussion”).

            However, leaving aside it was the Superior court's duty sitting as an appellate court to properly apply the law to the facts and procedural history of the case in rendering its judgment, (Brown v. Whitcomb, supra, cf. State v. Pollander, supra, Secretary of Natural resources v. Irish, supra), while the Superior Court correctly cited the legal doctrine of “law of the case,” it misapplied said doctrine in the procedural history of this case by misconstruing its own role in the context of the Magistrate's appeal according to the very decision of this court which it cited! (See 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.” id., italics added for emphasis, cf. 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, quoting Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 {1988})).            

            Indeed, contrary to the Superior Court's conclusion, it was not itself but in fact the Magistrate court in its May 10, 2012 order that concluded that defendant had “waived” his service of process jurisdictional claims, (appeal of which was properly then on Magistrate's Appeal before the Superior Court Judge). Therefore the Superior Court wasn't, in fact, a “same or higher court” which had “previously decided” this issue, see Morrisseau, supra, (only issues which have already been decided by the same or higher court are precluded from being resolved on appeal, id.). 

             In fact, excepting defendant's address of these issues in the previous Magistrate's appeal (which was dismissed on July 26, 2011 without resolution on the merits), the Aug. 1, 2012 order was the first time the Superior Court itself had ever ruled on these arguments sitting in judgment as an appellate court; Accordingly, the Superior Court's conclusion that it was impermissible to review the May 10, 2012 ruling of the Magistrate that defendant had “waived” his insufficiency-of-service jurisdictional claims was plain error on the face of the record and must be reversed (see Maurer v. Maurer, 178 Vt. 489; 872 A.2d 326 (2005) (appellate court "will reverse if the court's findings are not supported by the evidence, or if its conclusions are not supported by the findings," citing Spaulding v. Butler, 172 Vt. 467 at 475, 782 A.2d 1167 at 1174 (2001) 172 Vt. 467 at 475, 782 A.2d 1167 at 1174 (2001) (“findings of court below must support its conclusions of law”), Brown v. Whitcomb, 150 Vt. 106, 109, 550 A.2d 1 at p. 3 (1988), (when a court below's findings don't support it's legal conclusions or it wrongly applies the law to the facts of the case this court will reverse).


Q 4. Did the Magistrate and/or Superior Court err in its conclusion that Appellant “waived” his right to raise his insufficiency of service/personal jurisdiction claims by virtue of this pro se litigant failing to continually remind the court of his “Special Appearance” challenge to the court's jurisdiction?

            The Magistrate court below also ruled that in order to preserve his service-related claims regarding lack of personal jurisdiction by the court over him defendant had to “repeatedly assert” his “special appearance” status duly raised in his Jan. 31, 2011 “Special Appearance/ Motion to Dismiss,” (see in record). Indeed, the court particularly noted defendant's failure to do so in finding “waiver” by holding, "No such notice of "Special Appearance" was filed with the Notice of Appeal," (May 10, 2012 order, PC 14 ¶3), and concluding that defendant "fail[ed] to include the [personal jurisdiction] objection in three [subsequent] motions..." PC 17, last ¶.

            However, this ruling is distinctly contrary to the case of Hospital Corp of American v. District Ct., 112 Nev. 1159, 924 P.2d 725 (1996), in which it was held,

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).

 

            Moreover, federal precedent is clear that under Rule 12(b) of the Federal Rules of Civil Procedure 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).

            Further, since in the present case it is indisputable on the face of the record that defendant timely filed his “Special Appearance/Motion to Dismiss” on remand from this court, (a procedural fact which he continued to rely on in proceedings before the Magistrate, see dvd transcript of Nov. 14, 2011 hearing at 1:04:22, 1:06:38), even going so far as to specifically orally move to renew his “Special Appearance” at the Nov. 14, 2011 on remand from the subsequently-dismissed 2011 Magistrates Appeal and in his Rule 60(b) Motions with no objection or correction by the court or parties, (id. at 1:04:22), defendant submits that not only has he clearly satisfied the rule in Hospital Corp., supra, but, once again, the Magistrate's factual findings clearly fail to support its legal conclusions contrary to Maurer, supra, and Spaulding, supra, and failed to apply the proper law contrary to Brown v. Whitcomb, supra.

            Moreover, leaving aside the matter of first impression whether in light of the jurisdictional nature of service one can ever “waive” his right to lawful notice absent compliance with the provisions of the Vermont Rules of Civil Procedure regarding the same,[21] (see V.R.C.P. 4(l) ), defendant respectfully submits that his subsequent litigation of the court's void orders and jurisdiction— no matter how extensive— is equivalent to the “appearing at trial and arguing the case on the merits” noted under Hospital Corp., supra, as particularly exempt from “waiver,” and more saliently, that such litigations always and exclusively centered around the lack of the court's jurisdiction over him premised on a lack of sufficient service. [22]

            Finally, the Superior Court had already ruled in its July 26, 2011 order dismissing the prior Magistrate's appeal for being premature, that, “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). Therefore any failure of defendant to “continually remind” the court of his challenge to the court's jurisdiction should not be deemed to have “waived” his service-related jurisdictional claims.[23]       

 Q 5. Did the Superior Court's ruling on Personal Jurisdiction and the Nov. 7, 2011 Rule 60(b)(4) Motion for relief from the Aug. 15, 2000 order of the family court modifying custody and establishing this case in Vermont under the UCCJA and/or UIFSA misconstrue both the law and Appellant's argument regarding the effect of the lack of initial service and subject jurisdiction at any time in this case to the matter of personal and subject jurisdiction for the 2008 support modification going forward?

 

            The Superior Court judge ruled, in its reasoning and conclusions in the Aug. 1, 2012 order regarding the Aug. 15, 2000 “emergency” change of custody order challenged by Appellant's Nov. 7, 2011 Rule 60(b)(4) Motion subsequently adopted by Superior Court's Sept 14, 2012 order in the Magistrate's Appeal, that in order for the Vermont courts to “properly” make a permanent custody determination it must have had “home state jurisdiction” and that “a permanent custody change cannot be premised on emergency jurisdiction [under which mother had proceeded]” (Aug. 1, 2012 order p.3¶3), even as it simultaneously found “it is not clear that the youngest children had been in Vermont at least six months by August 2000,” and “The record in this case contains no indication that Father was provided... notice [as required by 15 VSA Sec. 1033&1034(b)]” (id.), concluding, “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, p.5¶2, italics and bold added).

            The Superior Court moreover noted that “custody determinations, as distinguished from support actions... are proceedings in rem or proceedings affecting status,” (Aug. 1, 2012 order at p. 4 ¶4), seemingly acknowledged that— at least for support modification purposes— notice, if not formal service, is required in order to effect “personal jurisdiction” over a defendant for purposes of support modification, (see Aug. 1, 2012 order, p. 5 ¶2).

            Nevertheless, the Superior Court ultimately went on to reject this party's Nov. 7, 2011 Rule60 (b)(4) Motion for Relief from the Aug. 15, 2000 order modifying custody in this case, inexplicably ruling,“Mother's noncompliance [with Vermont law re service], if any, does not effect the Court's jurisdictional analysis under the UCCJA...” (Id. p. 5 par.2).

            The Superior court reached this conclusion by reasoning, “Personal jurisdiction is not needed to modify a custody award made by a court in another state if the requirements of the UCCJA are met.” id., p.4 ¶4, and, that therefore, appellant's jurisdictional “argument must fail because the the August 15, 2000 Order was not a child support order; it was a child custody order.” (id. p. 6, Part III.) 

            However, in addition to the Superior Court applying the law as it is in Vermont now under the UCCJEA as opposed to the UCCJA that governed in 2000, (id. at p. 4 ¶4), it is clear the Superior Court only cites Vermont and other law in regard to “traditional” minimum contacts analysis, and not law regarding the effect on jurisdiction of the lack of notice under the UCCJA at the time of the change of custody in Vermont.  Appellant asserts this is clear and plain error, as it demonstrates the failure of the Aug. 1, 2012 Superior Court order to discern the difference between jurisdictional arguments premised on a lack of “minimum contacts,” from those advanced by Appellant premised on a lack of proper service, (see the Aug. 1, 2012 order at p. 4 ¶4 citing In re Termination of Parental Rights to Thomas J.R., 2003 WI 61, ¶30, 663 N.W.2d 734, as well as 15 V.S.A. §1071(c) and 15 V.S.A. Section 1040 referencing “status” determinations of custody, cf. LePage v. Bay Creek Development Corp., supra, In re R.W., supra.[24]

            Clearly, if notice was required by the UCCJA to be “served, mailed, delivered or published at least 20 days before any hearing in this state,” it's deprival couldn't fail to “affect” the validity of the Aug. 15, 2000 order, (see id. at p. 5, par.2, cf.15 V.S.A. Sec.1034(b), which states notice to an out-of-state parent is required, see also Town of Randolph v. White, 166 Vt. 280, 283 (1997), Mullane v. Hanover, supra.

            Indeed, the Superior Court's conclusion contradicts its own findings indicating that personal jurisdiction for purposes of support modification are not “in rem” proceedings and are ostensibly thus due a higher standard of notice than mere “status” changes in custody, (See Aug.1, 2012 order, PC. 7).[25]

            Most saliently, Appellant submits that if there were no subject jurisdiction over this matter in 2000 due to a lack of notice at that time, there is no “ancillary jurisdiction” going forward so as to effect personal jurisdiction over defendant for purposes of the 2008 support “modification” going forward! (See Gates v. Gates, 122 Vt. 371, 373; 173 A.2d 161, 162 {1961}).

            Accordingly, Appellant submits the Aug. 1, 2012 order clearly errs and that, further, it was clear and plain error for the Family Division's Sept. 14, 2012 order to simply “adopt” the Aug. 1, 2012 order instead of independently addressing father's jurisdictional arguments under UIFSA and Vermont law re: the support modification and Feb. 23, 2009 “zero out” order which the 9/14/2012 order failed to address (see Canton v. Young, Spaulding v. Butler, supra).[26]

Q 6. Did the Superior Court family division judge's affirmance of the Magistrate's ruling denying Appellant's father's Oct. 31, 2011 Rule 60(b) Motion to set aside the companion default order “zeroing out” Appellee mother's already-accrued-yet-unpaid support arrears owed father pursuant to the Oct. 8, 1997 Ingham Michigan Circuit Court decree of divorce violate the UIFSA and/or the U.S. Constitution's “Full Faith and Credit clause?”

 

            Initially, Appellant submits that to refuse to set aside the “companion” Feb 23, 2009 “default order” of the trial court “zeroing out” plaintiff's arrearages owed defendant under the Michigan decree stemming from the time he had custody of the minor children— and notably prior to either registration or modification in Vermont of the Michigan decree— makes no sense in either law or logic, as the Feb 23, 2009 "companion default order" which the Magistrate refused to set aside was entered on the same exact day, between the same exact parties, and under the exact same "tack service" ultimately found improper under VRCP 4(d) by this Court with regards to its “sister order” imposing support obligations on defendant father for the first time in almost a decade in this case. 

            More to the point however, it is a blatant violation of settled federal and State law for a trial court to retroactively set aside support arrears accrued and unpaid for any reason, (see  42 USC § 666 (a)(9)(C), 15 VSA §660(e), Isham v. Isham, 152 Vt. 637, 639 (1989), MCL 552.603(2), cf. Malone v. Malone, Michigan Court of Appeals, Docket No. 272327, decided June 03, 2008, Towne v. Towne, supra, Lyon v. Lyon, supra, Isham v. Isham, supra. 

            Indeed, the Supreme Court in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), firmly established that under the 'Full Faith and Credit Clause' of the U.S. Constitution state are required to honor the final orders of their sister states, (id.).

    Such principles have been broadly recognized by the state courts, including Vermont's Supreme Court, which has held,

This retroactive modification does not extend to child support payments due and unpaid as of the date of the filing of a motion to modify, as this could unconstitutionally violate a party's vested property right.  See Shuff v. Fulte, 344 Ill. App. 157, 165, 100 N.E.2d 502, 506 (1951); cf.  Forte v. Forte, 143 Vt. 518, 520, 468 A.2d 561, 562 (1983) ( 15 V.S.A. § 606 removes trial court's discretion in ordering payment of arrearages for less than the actual amount due).

 

Towne v. Towne, 150 Vt. 286 at 288, 552 A.2d 404, (1988). Cf.  Lyon v. Lyon, 143 Vt. 458, (1983), Poston v. Poston 160 Vt. 591, 624 A.2d 853 (1992); Roddy v. Roddy, 168 Vt. at 347, 721 A.2d at 127, B & E Corp. v. Bessery, 130 Vt. 597, 601, 298 A.2d 544, 546 (1972), Waple v. Waple, 179 Mich.App. 673, 675–677, 446 N.W.2d 536 (1989), Malone v. Malone, Michigan Court of Appeals, Docket No. 272327, decided June 03, 2008, cf. O'Connell v. Ellen Corcoran, 2003 NY Int. 128, New York Court of Appeals, (2003).

 

            Indeed, these principles have come to be embodied via the prohibition on retroactively modifying state child support obligations in not only federal but state law, (see 28 USC §666(a)(9)(C), 15 VSA §660(e), MCL 552.603(2) ).   

            In the instant case however, the Magistrate proceeded to "zero out" Plainitiff mother's prior, accrued child support arrearages owed Defendant under the valid, Michigan decree of divorce for the time he had custody of the children,[27]utterly without regard to such considerations and the constitutional ramifications thereof, and refused to grant Rule 60(b) relief when moved to by this party, (in spite of the fact that the coterminous Feb. 23, 2009 default order establishing child support in this case was previously vacated by this Court's Dec. 8, 2010 order under the exact same circumstances!).

            Indeed, while the trial court's May 10, 2012 order properly recognized “this court has no authority to modify support retroactively to a time prior to modification,” (id. PC 13¶3), and cited Lyon v. Lyon, 143 Vt. 458, 462 (1983), and Isham v. Isham, supra, for the same principle, (id.), it then failed to apply the same rule of law to Appellant's Rule 60(b) Motion for Relief from judgment seeking vacation of the Feb. 23, 2009 "zero out" order.

             However, in the words of this party's dear mother, now 82 years old and afflicted with Alzheimer's but whose wisdom this party will always treasure, “What's good for the goose is good for the gander.” Indeed, the Magistrate fails to explain its overlooking that the principle which it earnestly cites from Lyon, supra, et al. is itself violated by failure to grant defendant's Oct. 31, 2011 Motion for Relief from Judgment!

            The Magistrate also found that granting Appellant's Rule 60(b) Motion would make Plaintiff's "hollowly comply with an order that Ms. Pahnke and OCS apparently failed to properly modify in a timely fashion," (May 10, 2012 order, p. 14, last paragraph, record).

            While Appellant disputes that to grant him Rule 60(b) relief from the void Feb. 23, 2009 companion order would be “hollow,” (PC. 14 last ¶), as such arrearages owed defendant from plaintiff Ms. Pahnke must be assumed to have been for the children's benefit at least during the time during which the minor children were with him, but even if true it doesn't change the fact that Vermont's UIFSA prohibits such retroactive “zeroing out” of already accrued support arrears, (see 15 VSA §660(e)),[28]nor that plaintiff mother never moved to modify in the Michigan CEJ (PC 22 ¶¶ 4-5).

            The Magistrate also ruled that because plaintiff allegedly was receiving public assistance under 33 V.S.A.§3902(e) (now repealed), granting relief was prohibited by Lambert v. Beade, 2003 Vt 75 at ¶13 (1983). However, whatever the validity of this position with regard to prospective accrual or collection of arrears at the time for which a Vermont resident is receiving Vermont public assistance, it cannot prohibit accrual of support arrears for purposes of a valid, foreign order of support without running afoul of the Full Faith and Credit clause, to which it must yield. 

            Indeed, most pertinent here— and leaving aside the failure of the Magistrate's duty to properly apply the law contrary to Brown v. Whitcomb, supra— this ruling of the Magistrate blatantly contradicts clear and settled precedent of the U.S. Supreme court, (see Estin v. Estin, 334 U.S. 541 at 547 (1948), May v. Anderson, supra), which requires deference be shown “sister state's” final judgments under the federal Constitution's 'Full Faith and Credit Clause,' (cf. Appellant's brief before the Vermont Supreme Court, pp. 19-20).  It should thus be reversed by this honorable court.

Q 7. Did the Magistrate and/or Superior Court below err in finding that the appropriate date of retroactivity for the beginning of said support "modification" could properly extend to prior to the time of "service" on June 15, 2011 when any delay in imposition of a Vermont order of support was due to plaintiffs failure to adhere to Vermont law regarding service and notice and this honorable court had explicitly found in its Dec. 8, 2010 order that the Jan. 12, 2009 "service" of the modification was improper and already vacated the same?

 

            In reversing the retroactivity ruling of a trial court in Towne vs. Towne, 150 Vt. 286, 552 A.2d 404, 1988 Vt. LEXIS 158, (1988) this court ruled:

The trial court stated no rationale and made no findings as to why it chose the October 30 date.  While choosing such a date would be within the trial court's discretion, without any stated rationale or findings of fact on this issue, "[w]e are left to speculate as to the basis upon which the trial court . . . reached its decision.  This we will not do." Jensen v. Jensen, 139 Vt. 551, 553, 433 A.2d 258, 260 (1981); see also Mayer v. Mayer, 144 Vt. 214, 217, 475 A.2d 238, 240 (1984) ("facts essential to the disposition of the case must be stated.").  Therefore, we remand this case to the trial court for the narrow purpose of determining the appropriate date [***8]  for a reduction in defendant's child support payments."

 

Towne v. Towne, supra, at 150 Vt. 288, italics and bold added, pp. 289.

 

    Similarly, in the case at bar, Appellant can't see how the trial court's failure here to adequately explain why Appellant's support obligations shouldn't rather start from June 15, 2011 than the date of the Sept. 8, 2008 modification process already struck down by this honorable Supreme Court— when “service” hadn't even occurred yet by the trial court's own estimation until the "ordinary mail" notice of June 2011 and any delays were due to Plaintiffs' dilatory actions— is not equally an abuse of discretion as in Towne, supra. Indeed, the trial court's selection of the date of retroactivity is more than a matter of rote.[29] 

    The only justification the court below seems to provide is the fact that Plaintiff has "at all times since August 2000 borne the financial responsibility for caring for the parties' children," (May 10, 2012 order, p. 14, last ¶)^[30], and an apparently earnest desire on the part of the court to "recoup" support for the parties children, (who as of the June 15, 2011 date of “service” which the court below affirmed, were of the age of majority and no longer subject to a support order pursuant to the clear terms of the Michigan decree, see Oct. 8, 1997 divorce decree of the Ingham, Michigan Circuit Court, in record, cf. May 10, 2012 order, PC 18-19 noting that the duration of support are governed by Michigan law).

    However, as shown above the court does so in complete derogation of the relevant federal and state precedents, (cf. Isham v. Isham, supra, Towne v. Towne, supra, Malone v. Malone, supra, and 42 USC § 666 (a)(9)(C) ), and the practical impact its decisions will have on the ability of Defendant to meet his many current obligations, (including those to his current minor children who will in fact be negatively impacted by the court below's rulings).  

    Moreover, as a matter of law, to allow his support obligations to accrue from the date of filing in Sept. 2008 rather than the time the Magistrate found "service" in June of 2011 would result in a gross distortion of law itself rife with "Ex Post Facto" questions seemingly barred by the doctrines of latches and/or collateral estoppel, (see fn 20). Indeed, as noted above, in the circumstances here it allows defendant to be "bound" to an obligation for which he legally hadn't yet received service of process! (See order of the court below finding Plaintiffs must first "properly serve" defendant before modification of support could proceed, March 10, 2011 order of division Magistrate, PC 26-27). 

    Such a result against Defendant/Appellant is not only grossly unfair in light of Plaintiffs' willful failure to properly notice Defendant of their intention to procure such order of support in this matter for the first time in almost a decade, but it would seemingly (and has!) resulted in an immediate and excessively large arrearage owed Plaintiff from Defendant which he can't possibly pay, in seeming violation of prior precedents and the wise observances of this Supreme Court:

                      

                       There is a practical aspect to this issue.  A clearly excessive child

 support order may lead, as here, to collection difficulties and periodic

 returns to court.  In 1990, defendant was obligated to pay approximately 56%

 of his gross income in child support.  Once he fell behind, it was virtually

 impossible to make up the arrearage.  His income, as well as plaintiff's,

 was drained by the costs of the child support litigation.  A support amount

 that, on paper, appears generous to the children becomes illusory if, for

 reasons related to the excessive size of the payments, collection must be

                       coerced on a regular basis.  The court that establishes a child support

 amount must be satisfied that it is fair and reasonable, so that it can be

 paid regularly, without further intervention of the legal system.

 

                     Grimes v. Grimes, 159 Vt. 399, 406, 621 A.2d. 211, 214 (1992).

 

            Therefore, absent complete dismissal appellant respectfully requests this court make support only retroactive to the time of service in accordance with the Magistrate's rulings thereon, (June 15, 2011).        

 

III. CONCLUSION AND PRAYER FOR RELIEF

 

            Therefore, for all of the foregoing, Appellant requests this court reverse the March 10, 2011, May 10, 2012, Aug. 1, 2012, Sept. 14, 2012 orders of the courts below, GRANT the Motions for relief from judgment of the Aug. 15, 2000 and Feb. 23, 2009 “companion” orders, and dismiss the modification action of Plaintiffs and/or take whatever other action as the needs of justice require in this case.

Respectfully submitted this 15th day of June 2013 by:


_________________________________


Jonathan A. Pahnke, Appellant/Defendant





jpahnke68@gmail.com Ph. 419-371-8324

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[1]              As subsequently detailed, the trial court here ruled defendant had “waived” his right to raise his insufficiency of service related jurisdictional claims. However, if the Magistrate's rulings are correct that this party's appellate filings“waived” his insufficiency of service claims it raises the question why this court even bothered to reverse in 2010 when it could just as easily have dismissed defendant's first appeal for the same reason at that time. Instead, however, this court ruled, “In this case, we conclude that the trial court abused its discretion in denying father’s Rule 60(b) motion for relief from judgment given that a default judgment was entered without proper [i.e. “sufficient] service upon father. It was the obligation of  mother and OCS to ensure proper service of process of  father.  See V.R.C.P. 4(i) (“The plaintiff’s attorney shall, within the time during which the person served must respond to the process, file the proof of service with the court.”).  See Dec. 8, 2010 order of the Vermont Supreme Court, bold and italics added for emphasis, PC 31.

[2]             The outcome of such perverse incentives can only further burden the courts of this state with needless litigation and result in an undermining of the esteem and confidence of the public in the fairness and efficiency of the courts of the State of Vt.

[3]          Moreover, it is Appellant's contention that doing so unlawfully "shifts the burden of service" to Defendant contrary to settled Vermont law, see Brady, supra, and Weisburgh, supra.

[4]          The courts below failed to substantively address the FFCCSOA and Vermont UIFSA as they relate to establishment of both personal and subject jurisdiction and the related critical issue of whether the FFCCSOA “supercedes” the UIFSA for jurisdictional purposes under the “Supremacy Clause,” (see LeTellier v. LeTellier,  40 S.W.3d 490, 496–98  (Tenn.  2001) (examining  the history  of  UIFSA and  FFCCSOA  and  concluding  that  Congress  did  not  intend  FFCCSOA  to preempt UIFSA), United States v. Bigford, 365 F.3d 859, (10th Cir. 2004) at fn 2, and compare Vermont's UIFSA found at 15B VSA §§ 603, 611 and 613 with FFCCSOA at 28 U.S.C. § 1738 B.  See also Appellee's Response Memorandum in the prior Magistrate's Appeal, in which they stated, "15B V.S.A. §611(a)(B)(2) would seem to disallow the modification to proceed at the present time as Plaintiff, who is the petitioner in the present matter, is a resident of Vermont and none of the parties have filed with the State of Michigan their written consent to proceed with the modification," Appellee's June 15, 2011 Response Memorandum, p. 15 ¶2, but concluded “the provisions of UIFSA pertaining to subject jurisdiction are preempted by FFCCSOA by virture of the Supremacy Clause as codified at US Const. art. vi, cl. 2.” (id. pp. 16, 17-18, supp. pc                ). While such arguments were dutifully raised and briefed by both Appellant and Appellees below and in this parties initial brief here, (see May 30, 2013 filed 47 page brief at pp. 37-41, Appellant's supplemental pc pages            ), they have not been fully litigated here due to defendant's earnest pleas with this honorable court to enlarge the size of the brief so as to allow their inclusion being rejected by the court, (see June 3, 2013 order). This party thus respectfully requests, if these issues are deemed salient to resolution of the instant appeals, that this honorable court order additional briefing on these issues and/or now reconsider acceptance of Appellant's prior brief filed electronically via email on May 24, 2013 (and via paper form subsequently), cf. Appellant's prior Aug. 21, 2012 Amended Magistrate's Memorandum below at pp. 59-77, rec .  

[5]             As detailed subsequently herein, Appellant submits that in light of the failure of plaintiff's to ever properly commence this case via proper service and notice from 2000 to the present, plaintiff's are deprived of relying on “ancillary jurisdiction” as might ordinarily be the case under Gates v. Gates, 122 Vt. 371, 373; 173 A.2d 161, 162 (1961).

[6]             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.

[7]              Which, as shown subsequently herein, didn't even comply with the provisions of V.R.C.P. 5(a).

[8]              Indeed, this honorable court found no proper service or other reason to uphold the 2008 modification filing last time this matter was before the court in 2010,(which seems mighty strange if this party had “waived” his right to challenge service, see Dec. 8, 2010 order).

[9]               The Superior court also entered this ruling notwithstanding it being blatantly contrary to the prior July 26, 2011 ruling of Superior court Hon. Justice Thomas J. Devine who, sitting in appellate fashion regarding the 2011 Magistrate's Appeal which the court ultimately rejected as "premature" (a ruling this court subsequently refused to review due to an untimely notice of appeal). Indeed, rather than finding Appellant had "waived" his service/personal jurisdiction claims, the 7-26-11 order assured this party he could have them resolved upon appeal of a “final order” of the Magistrate! (see July 26, 2011 order of Superior Court Judge Thomas J. Devine, in record).  While flattered by the Superior Court's subsequent citation of the "law of the case" which this Appellant so strenuously argued below vis a vis the disregard of this court's Dec. 8, 2010 order in this matter, the Aug. 1, 2012 ruling is erroneous (and extremely ironic!) in its ensuing citation of the "law of the case" doctrine without even considering that the Magistrate court's refusal to address defendant's personal jurisdiction/lack of service claims in light of this Supreme Court's Dec. 2010 ruling on this very matter violates the very same doctrine!

[10]           Moreover, to the extent the Magistrate subjects the “grand purposes” of Rule 60(b), to the more mundane Rule 12 of the V.R.C.P. governing pre-trial practice in Superior Court it clearly errs, as rather than Rule 12's terms it is the provisions of Rule 60(b) itself that is to be used in properly determining if relief from judgment should be granted, see 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).

[11]           In light of the similarity of defendant's service-related claims noted by the Magistrate, (see May 10, 2012 order of court, PC 18¶2), as well as the Superior Court's July 26, 2011 order, how can it reasonably be claimed that defendant's re-raising the already-well-pled "insufficiency of service" claims with particular regard to the June 15, 2011 "service" effected after his 2011 Magistrate's appeal was lodged would have been perceived as anything less than redundant in light of the Magistrate's pointing out the similarity of such claims and defendant's extensive history of litigating them?("Since his August 13, 2009 pleadings, the issue of modification of the obligation of support of his children has been before the magistrate court, the Family Court, and the Supreme Court." Magistrate's May 10, 2012 order,  PC 16 ¶4, cf. PC 17, ¶2).

[12]           See dvd transcript of May 10, 2012 hearing “I will have to rule as to whether or not that was sufficient, or not sufficient, in terms of having you still served.” id. 3:08:36, cf. Nov. 14, 2011 dvd tr. at 1:04:22, 1:06:01, 1:06:38, 1:10:40, 1:24:50, 2:20:06, 2:20:20, Jan 31, 2011 dvd at 2:43:34, 2:43:46, 2:44:45, 2:44:55, March 12, 2012 dvd tr. at 2:45:15, 2:49:23, 2:49:49, 3:12:32, 3:12:58, 3:19:50 Cf. May10, 2012 order, p. 8, ¶ 2, record.).

[13]           As noted elsewhere, it would have been curious indeed if this honorable court hadn't noticed this “waiver” in the 2010 appeal to this court.

[14]           Then too, the Superior court's July 26, 2011 order dismissing defendant's 2011 Magistrate's appeal for being premature, rather than finding “waiver” by defendant of his service-related jurisdictional claims, explicitly stated that defendant could re-raise his jurisdictional issues on appeal of the final order of the Magistrate in this case! (A funny thing to rule if this party had “waived” his service-related jurisdictional claims, which the Magistrate notes haven't changed since the filing of his Emergency Motion for Relief, see May 10, 2012 order of Magistrate, PC 17 ¶2, July 26, 2011 order of Sup. Court, record).

[15]             Cf. "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 added for emphasis, see also id., p. 2 ¶3, pp. 5-8). See also Appellant's Brief in Vermont Supreme Court, p. 11, fn 16, Appellant's Reply Brief in previous and subsequently-dismissed 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.

[16]           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).

[17]           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) ).

[18]           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.

[19]           Nor did the Superior Court mention it in the July 26, 2011 order of dismissal. Instead, it explicitly stated defendant could raise his “jurisdictional” issues in any future appeal of the “final order” of the Magistrate, (see July 26, 2011 order, record).

[20]           " '[T]he doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith, and justice, and its purpose is to forbid one to speak against his own act, representations or commitments to the injury of one to whom they were directed and who reasonably relied thereon."' My Sister's Place v. City of Burlington, 139 Vt. 602, 609, 433 A.2d 275, 279 (1981) (quoting Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 193, 303 A.2d 811, 815 (1973), and cited in Humphrey v. Vermont Tap & Die Co.  (96-187, filed 23-Apr-1997). “Essential to a finding of equitable estoppel is a showing of prejudice.” (id.). Here, the failure of plaintiff's to raise their “waiver” defense in their “first responsive pleading” of Feb. 9, 2011 seriously prejudiced defendant in light of the subsequent rulings of the trial court. It should therefore be rejected by this court, (Humphrey, supra, My Sister's Place, supra, Dutch Hill Inn, supra).

[21]          A matter upon which this party would respectfully request additional briefing be ordered if the court deems it salient.

[22]          In this regard, while in the course of these last years of litigation defendant certainly had to file many motions and papers such as for continuances, changes of mailing address, extensions of time, and the like, which the Magistrate court particularly notes, (see May 10, 2012 order, PC 16, par. 4), such filings were merely incident to the main challenges to the court's jurisdiction, and should not be able to be used, as the Magistrate does, to buttress “waiver.”

[23]          As under the “law of the case” defendant should have been able to rely on the July 26, 2011 order of the Superior court.

[24]         Cf. 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 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).

[25]          It is also salient that "residency" for purposes of jurisdiction under Vermont's UIFSA encompasses much more than mere physical presence in the State. Indeed, "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.

[26]           Due to word count restrictions this party is unable to comprehensively brief all jurisdictional issues relating to UIFSA here, but respectfully refers this honorable court to his below-filed Aug. 21, 2012 Magistrate's Appeal Brief in the record, (as amended), and requests additional briefing on UIFSA and the FFCCSOA if this court deems it dispositive.

[27]             Contrary to Magistrate's order, (see PC 24 ¶1), defendant never sought “back child support” for 2000-2008, but only seeks reversal of the Feb. 23, 2009 “zero out” order re arrears which had already accrued under the Michigan decree prior to the time of modification and/or registration in Vermont (see 42 USC § 666 (a)(9)(C) and 15 VSA §660(e), (cf. May 10, 2012 order at PC 23, ¶1).

[28]  Moreover, courts are not afforded discretion to disregard the law just because they might not like the outcome in certain cases, but must apply it evenhandedly. Further, in light of the dilatory tactics of plaintiffs and fact mother never moved to modify in the Ingham Michigan CEJ or Vermont until 2008, she must bear the burden of any anomalies that result.

[29]             It would seem the trial court's failure to explain its rationale for choosing the same date for support to begin that it did before this court's 2010 reversal violates the court's duty to “state the essential facts” under Mayer v. Mayer, supra.

[30]            In doing so the court below misconstrues this party's laches and unclean hands claims and fails to explain how this "concern" over the parties' providing for their childrens' needs doesn't apply equally to the significant arrearages owed Defendant under the Oct. 8, 1997 Michigan decree of divorce which the court below with a flick of its wrist "disaappeared" (see Feb. 23, 2009 companion "default" order "zeroing out" Plaintiff's arrears towards Defendant, in record).  Nor does the court explain how disallowing any credit for Defendant's other significant support obligations or establishing such extensive "instant" arrearages owed Plaintiff from Defendant stemming from the Sept. 2008 modification “filing date” which Defendant can't possibly pay will further the interests of the parties' now grown children, (see Grimes v. Grimes, 159 Vt. 399,  406, 621 A.2d. 211, 214 (1992), Mayer v. Mayer, supra, (court must state essential facts its conclusions rely on).

[31]  Although this party initially had difficulty getting a word count due to “Poly Edit” lacking a native word count feature, Appellant was able to comply with this court's June 3, 2013 order by finding and downloading freeware word processor “Kingsoft Writer” (which did have a “word count” feature) and separately copying, pasting and laboriously reformatting his brief section by section. Appellant thanks the court for its patience and extension of time to this indigent pro se party.