Well the Vermont Supreme Court finally issued its order in me and my first wife's long legal battle, and it's a doozy. But first, a short (relatively speaking!) primer.
Me and my ex have been locked in a five-years-long legal battle ever since my wife of ten years, after gladly taking years of support pursuant to an "off record" agreement between me, my ex, and my mother, (who administered said support given to my ex from a family trust, among other monies and "estates"), decided she wanted more money and that the home, cars, and regular support she had received for years in exchange for settling things "out of court" wasn't enough (and claimed this all was just "gifts"). I know, I know, my stupidity to do so instead of getting it "in writing," (more on this later), but to make a long story short now, I originally had custody of our children when she abandoned our marriage; Through a later confluence of events, (involving my second most stupid thing in my life, jumping into a Vegas marriage on the rebound, do NOT try this at home!), and my desire to avoid more trauma to my kids due to the to turmoil of their then-stepmom coming and going constantly and an ensuing uncertain and very difficult time in my life which they didn't need to be exposed to, I agreed to give our kids back to my ex "temporarily" (upon her "promise" not to change anything "legally" of course). Can you guess what happened next? Yup, you guessed it!
As a result I subsequently lost custody of my kids in an "emergency" hearing which I didn't even get advance notice of, ("possession" really is nine tenths of the law!) and the rest is a long, sad, history.
Of course, as alluded to in my first post on this blog, in hindsight I compounded my mistake by not immediately going to court in Vermont after the dust settled and attempting to "set aside" the "emergency" custody order, (which a court later ruled wasn't, in fact an "emergency" and that I had not, in fact, gotten proper notice beforehand). But at the time I still loved my first wife and hoped we would get back together (and knew if I rushed into court that would definitely not happen) so I continued to wait, and wait... for her to come around.
Unfortunately, little did I realize that my previous spurning of my ex when she had called seeking reconciliation right before I was to jet off to Vegas and get remarried, (another story for another time!) had long before poisoned that well and she would never come around. Instead she just consolidated her power over our children and began a long and steady process of shutting me out of our children's lives, at first with unpublishing her number and attempting to block visitation for specious reasons when I would come up from where I then lived in Tennessee to eventually full blown parental alienation based on trumped up claims of "abuse" based on "recovered memories" (if you're not familiar with this highly controversial concept then click here and here).
While I can't tell you the whole story now, (and much of it is recounted in my various legal briefs, which I intend shortly to post online), the long and short of it is that, as often happens, through a woman's need for "security," her desire for vengeance, ("hell hath no fury like a woman scorned" comes to mind), or both of those combined with very poor public (legal) policies dealing with divorce and related issues in our country, what should be about treating each other civilly for the kids' sake becomes, when all else fails, about simply money.
Not only did my ex want to be paid double support via a court imposed order of support retroactive for almost a decade (including overlapping years in which she received "off record" support from our family, as indicated above), but she had spend years alienating our children not just from me, (essentially brainwashing, see this link on parental alienation), but eventually also from my mother as well who had been nothing but kind to her and our children!
Needless to say, after the years of alienation and brainwashing of our kids she effected, (it's amazing what fifty sessions with Freud can stick in a kids head!) I was having nothing to do with that, and have been fighting her ever since 2008 when she took advantage of my temporary return to my Vermont to assist my ailing mother with Alzheimer's to file the above-mentioned legal action.
The last time around it took two years before— after an appeal by the State and my unsuccessfully representing myself in fending off her legal attacks at the trial level— I was able to appeal to the Vermont Supreme Court, (again, representing myself, I mean, who can afford lawyers?? And of course, the Vermont courts laud themselves as "citizen friendly" which the average Joe is supposed to be able to navigate on his own and still get justice, something the jury is still out on in my experience. For the most part, other than additional time, (or "continuances" in legal parlance), the Courts have rejected the vast majority of my requests for accommodation throughout my and my ex's legal fight).
But again, making a long story short, when the Court finally ruled on our case, (in 2010) they ruled completely in my favor, finding no proper service had ever been made on me as required by law and vacating and reversing the trial and intermediate appellate court decisions, (in Vermont the first appeal you can make is to the Superior Court or what used to be called the "Family Court Judge"). You can read the court's opinion here.
But in a nutshell, because Vermont Office if Child Support, the state agency responsible for representing my ex due to laws which mandate custodial parent's "assign" their cases to the State when they have received any kind of state "assistance"— my kids were on State health insurance and my ex was on various other state "programs" like food stamps, etc.— claimed in briefing before the court that in spite of my not being served notice as required by Vermont law and court rules I nonetheless "must" have had some "indicia" or constructive notice of the action, the Supreme Court allowed the case to get remanded, (sent back) to the trial court to see if the State could provide any "evidence of actual or constructive notice" upon me.
Of course, on remand to the trial court the State failed to produce any evidence that I had received notice, "constructive" or otherwise of the 2008-filed modification, (to the contrary, the evidence showed I didn't even live in the State at the time the "notice," which was nailed to the vacant home where my mom and I used to live!) Which brings me to the core question, at least from my unlearned perspective— although I do know a bit from my years of research on this subject— in this case. NOTE: This is not a "trick question," but I really would like any input from others on this point, and it doesn't seem like rocket science to me, but my question is: Logically speaking, (and I realize the law and logic don't always line up, obviously!) if the Supreme Court sent this case back to the trial court to see if the State could produce "evidence" that I had ever received notice of my ex's support modification action, (which actually sought to modify our divorce decree which took place in Michigan, not relevant at this point), and the State Office of Child Support in response could not show any such evidence in the trial court, shouldn't the matter then be dismissed? (Ya think?)
But I kid you not, believe it or not folks the trial court essentially ignored this clear implication of the 2010 decision and ultimately reasoned, after several hearings and legal shenanigans, that, "You're right, the State can't show they ever have properly served you proper notice of the 2008 action, (or the 2000 "emergency" change of custody hearing for that matter!), but since you have been fighting it in the Vermont courts for a couple years you clearly now know about it, so it doesn't matter," and the Supreme Court just bought it! You can't make this stuff up folks! But I'm getting ahead of myself.
In the meantime and while an intermediate appeal was still pending in the Superior Court, OCS had sent me the 2008 "modification" papers via "ordinary mail" and claimed that was notice, (even though it wasn't in compliance with any Vermont Rule of Civil Procedure!), but again, from my perspective at least, this is irrelevant to whether, in the first instance, I had been properly served the modification process, (the issue the Supreme Court had remanded for the trial court to consider!)
Legally speaking this is an argument— one thoroughly briefed in "Question one" of my opening Brief, see in subsequent posts— based on something called the "law of the case" stemming from the 2010 decision which clearly implied that the requirements of the Rules of Civil Procedure re service had to be followed and that if the State could not show proper service of the 2008 action, (and logically in the time period before the 2010 appeal, as that was the time at issue in the 2010 appeal and there is no legal mechanism to "re-file" an old action if proper service isn't achieved within 60 days under Vermont Rule of Civil Procedure 3), than my ex would have to start over and the present action must necessarily be dismissed (it would seem).
And there are, of course, other arguments I make in my briefs which I don't have time to address here, (you can read the Court's most recent and perplexing opinion on the matter here), but that's the essence of it.
Now the Court in their Jan. 10, 2014 ruling did rule in my favor on the question of back support which my ex owed me from our old Michigan divorce, (because she never filed in Michigan to change our original divorce decree and didn't do so in Vermont until 2008, which I frankly would have been shocked if the court hadn't held this way or they would have egregiously violated the "Full faith and credit clause" of the U.S. Constitution), but the amount of support she owed me from our old divorce and the time I had the kids will frankly be a pittance due to the artificially low amount I set it in our 'default' Michigan divorce due to wanting to help her get a "new start" and my still warm feelings for her as noted above, (I also took all our marital debt). I guess trying to be the "good guy" doesn't always pay. (Good thing this isn't about money to me; for me it's much more about the principle and justice, which I will talk more about in the future). In the meantime take heed men, do NOT let your feelings for your ex (or current wife/gf for that matter), turn you into a non-thinking idiot whose "feelings" make you ignore the obvious.
Don't get me wrong, there are many sacrifices both partners must make if a marriage/relationship is going to work, and it certainly helps if you choose carefully and are both humbly willing to seek help for the rough spots from a counselor or trusted spiritual advisor, (as all relationships go though that occasionally).
But if you find yourself consistently getting the short end of things with a partner who consistently doesn't seem to care about your feelings or want to work it out, (or worse yet, has a drug or abuse problem they refuse to seek help for), you must have the courage to get help yourself or even break off the relationship if necessary. Remember, thanks to "no fault" divorce, you can't control if your partner abandons your marriage, as happened to me. You can however, take commonsense actions to protect yourself and your relationship with your kids if the terrible, (but inevitable) occurs. Ok, self help psychology session over. Back to the main point of this post... (sorry for that ADD moment! lol)
I would love to hear anyone else's thoughts on this decision of the Court, (especially members of the bar), because it's been one heck of a journey, and perhaps you can shed light on where I may be wrong in my legal thinking on this. But after pouring my life into this the last five years it's certainly a disappointing and infuriating outcome, (especially since the basis for the Court's ruling seems so entirely contradictory to its 2010 decision; indeed, it now appears that the High Court could have ruling against me in 2010 on the same basis as it has now and saved us all much time and me personally thousands of hours of writing and research, more on this in my Motion for Rehearing, posted this same day).
I really can't figure out the court's reasoning is so contradictory to not only its 2010 decision but also its settled precedents on service and notice jurisprudence, again, not exactly novel concepts, (as I exhaustively demonstrated in my opening brief, also posted in this blog, and see here).
Indeed, in that regard I should note that it appears the judge who authored the opinion was "specially assigned" to the five judge panel in my case, which usually occurs when a justice has been replaced for a conflict of interest, (though I don't know this is the case or why or if it in fact effected the outcome). More saliently, I couldn't afford to travel to Vermont for Oral Argument in October, (which I think may have really hurt me). I thought of hitchhiking but decided against it at the last minute due to some nerve issues with a bum leg. Guess I shall never know if my appearing for oral argument before the court might have better illuminated my argument or swayed the justices my way, (though it certainly appears they have misapprehended or overlooked many of my arguments and citations of authority). In that regard, though I don't claim to be privy to all the back room workings of the Vermont Supreme Court, I was surprised at how quickly they issued their decision, (almost too quick given the complexity of the case).
Through this, and other experiences I have had which I will soon blog about on here, I am beginning to think that perhaps when you are "pro-se"— I am thus far resisting mightily the urge to just chalk up the court's ruling to the "politics" of child support and societal disdain for "dead beat" dads, which it is frankly a miracle there are not more if this is the way fathers are treated— that this is just kindof the way it goes when you represent yourself due to so many crazies filing meritless suits. (And that as a result you're looked at askance as a "pro se" litigant whose pleadings don't perhaps get as finely or fairly looked at consequently). Indeed, though I could be wrong, I could swear from the court's Jan. 10, 2014 order that they hardly read my well-argued briefs because they didn't even address most of my on-point arguments on many matters which I have rebutted at every stage of these proceedings, — like the well worn argument of the trial court and Appellees re "waiver," notwithstanding my definitive refutation of it from the record and caselaw— yet the Court nevertheless went on to rule against me on this issue without responding my arguments as if I never uttered a word in rebuttal to the flawed (and inevitable?) conclusion, (which the briefs show is far from the case!)
Or perhaps the courts just don't have the resources or staffing to properly or thoroughly read the briefs before it or do the research in order to come to proper or consistent conclusions; I do note that due to a rather simple error earlier on in this case the court "accidentally" dismissed my case due to a miscalculated due date for my Notice of Appeal! Though the Court reinstated upon my bringing it to the clerk's attention in a Motion, this was basic court 101 procedure and shouldn't have been necessary, (indicating perhaps more serious problems in the back-office processes of the Court). The chief docketing clerk at the Court, Cathy Gattone and her assistant Jill McKeon are however great gals and extremely competent (and dedicated!) to their jobs, so I don't think that's the problem... but there is definitely something going on, (I suspect one of the 1L law student clerks or something along those lines).
Now, for the record, I did just file a Motion for Rehearing raising my most salient points the Court appears to have completely overlooked and/or on which they ruled against me (or utterly failed to address!) in their Jan. 10, 2014 order, (see my Motion/memorandum for Rehearing next post), so we shall see what the Court says in due order.
But if the Vermont Supreme Court is the "jury" and the final arbiter of justice in this saga, as it most likely will be, I would have to say, both literally and figuratively, that the "jury is still out" on whether a broke, non-custodial, self-represented father can truly get justice in the State of Vermont. (NOTE: I could of course pursue an appeal to the U.S. Supreme Court on the issue of lack of service, as I think it's a very important and interesting constitutional question, but that is far from assured; they take very few cases and I just don't have the time, money, or energy to do this all on my own anymore).
Well that's my story... hope it hasn't bored you. What say you? Jp
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