As noted in paragraph 24 of the Vermont Supreme Court's Jan. 10, 2014 decision in my case, "this Court accepted the parties' representation that father did not get notice of the 2008 motion to modify or the subsequent hearing due to a mistake in the tack process. The second time around, father's argument is less compelling."
Leaving aside, however, that this conclusion was not simply based upon "the parties' representation that father did not get notice" of the 2008 filed modification, (but was rather vociferously objected to by this party and only grudgingly conceded by the State when it was forced to admit the truth of my claims at the last minute in spite of my having said this again and again in the trial and intermediate appellate court), the characterization that this was due to a "mistake" in the "tack process" is simply not correct.
As the court clearly stated in its 2010 order, "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.”). While OCS contends that father must have had some indicia that proceedings were pending, OCS offers no evidence that father had actual or constructive notice of the hearing. Therefore, we reverse the denial, vacate the default child support order and remand for a consideration of the issue on the merits." See pages 2-3 of Dec 8, 2010 order here.
Note the following language in the Dec. 8, 2010 ruling, "It is the obligation of mother and OCS" language, (italics added for emphasis), and the citation by the Court to the Vermont Rules of Civil Procedure 4(i), making clear that it was the failure of my ex wife and Vermont OCS to comply with the Rules regarding proper service that resulted in the reversal and vacation of the 2008 modification and "tack service" at issue in the 2010 appeal, (italics and bold added for emphasis).
As pointed out in my prior posts, and as the Court of course knows, not just service and notice but proper service and notice is a pre-resuisite to the trial court exercising personal jurisdiction over a party under settled Vt. law, (see Motion for Rehearing, prior posts).
Why the Court recharacterized its 2010 order, whether due to simply an oversight or intentionally due to a "damn the torpedoes full speed ahead" desire to "make father's pay" is a mystery, (but one we shall in due course know more of once the court rules on my Motion for Rehearing), suffice to say that from a legal perspective this recharacterization of the Court's 2010 ruling was necesseary for the court to find differently "this time around" in spite of my ex and the State still failing to show they properly served me.
Just briefly, (because I address this at length in my Briefs and Motion for Rehearing posted here), under the "law of the case doctrine" if the Supreme Court's more recent ruling were to concede that. in spite of remand to allow Plaintiffs the opportunity to show "evidence of that father had actual or constructive notice of the [2009] hearing" it would be forced, under the "law of the case," to now also reverse the new support order, (at least if it wants to be consistent with its precedents and prior ruling).
Most saliently however, and on point with the main point of this post, contrary to the Court's recent holding that "the second time around father's argument is less compelling," I submits it is plain that my case, is, in fact, more compelling second time around!
This is so because, as we've just seen, the court's 2010 reversal was based on the lack of plaintiffs to adduce proper service and notice on me in 2009 of the modification proceedings and subsquent order.
Now however, and in spite of knowing my address for at least the three years proceeding this more recent decision of the Court, plaintiffs have still failed to properly serve me under the Rules of Civil Procedure! (the whole reason for the reversal in 2010!)
This is markedly different from in 2010, when plaintiffs could have (and did!) proffer the argument, rejected by the court in its 2010 decision, that they "meant well" and had "tried" to serve me under at least some rule of civil procedure regarding 'tack service." This, however, was notably not so in the years between 2010 and 2014!
To the contrary, as shown in my Motion for Rehearing and briefs before the Court, they have utterly failed to comply with the Rules in their most recent attempt at service. Moreover, as I have repeatedly pointed out below and in my briefs to the Supreme Court, (yet thus far entirely ignored by the Vermont Courts!) my ex wife Paula J. Pahnke, and more properly the State attorneys representing her for free, (try to get a free lawyer as a non-custodial father!) have themselves waived their own right to prevail on the "waiver" issue as applied to me now, (at least if one is to be consistent in applying V.R.CP. 12(h)(1)! ).
I continue to hope more level headed justices like Justice Dooley, (who has previously and forcefully defended the law regarding service in Vermont, see dissent of Justice Dooley in Rollo v. Cameron, 2013 VT 74), will prevail in the Court's jurisprudence on such fundamental matters. jp
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