It's been almost two weeks since I last posted, so thought I would let my readers know what I've been up to.
Since last posting, I found out, (through talking with Cathy Gattone, the Chief docket clerk at the Vermont Supreme Court), that the Court rejected my Motion for Rehearing almost as soon as it got it, (received it timely on Jan. 14, 2014, rejected it on Jan. 17, 2014).... well, that's not entirely accurate...
According to Ms. Gattone, who I spoke with shortly after my last post on here, the Court rejected my filing, as they have many of them, (hey, I'm not a lawyer and don't pretend to be!), for not strictly complying with certain rules...
Apparently in my rush to get my Motion for Rehearing to the Court in a timely fashion at a friends home since losing mine in November, (you should try typing 12 hours a day five days in a row sometime under a strict deadline, is it any wonder why I suffer from carpal tunnel?? lol) I forgot to number my pages and include what's called a "certificate of compliance" which states that you are complying with the "word count" restrictions of the Appellate Rules, (which incidently I wasn't even aware applied to a Motion for Rehearing!) Unfortunately, due to time restrictions and the sheer number of arguments the Court entirely ignored in my briefs, I was only partially successful in shortening my Revised motion, so we shall see what happens... But it wasn't for lack of effort, (indeed, it is partly why I haven't been able to blog the last couple weeks, in addition to looking for work so I can get back on my feet and get on with the important tasks I am obligated to regarding my children).
Although the Court gave me until Feb. 4th to "refile" my Motion, due to my not getting the Court's notice to that effect in a timely manner (due to my essentially being homeless and living out of my car at this point), by the time I spoke with Ms. Gattone on Feb 7 I had already passed the date the court had set; Nevetheless, utilizing public libraries and working to the max they would let me every day, (you only get a couple hours and sometimes up to three when they aren't busy), I valiantly attempted the last couple weeks to "fix" my Motion per the Court's directions.
I say "attempted" because, though I tried valiantly as alluded above, I only succeeded in shrinking my Motion by about 35 percent... Editing is always difficult for a perfectionist like me; but in this case, due to my extremely limited time and the complete ignoring of the Court of virtually all my arguments in my briefs addressing the very issues the Court in fact ruled on in its Jan. 10 order, (but without even mentioning in their ruling!) it was virtually impossible...
Of course, this is partly why I originally took to blogger, (as well as to give others going through similar circumstances some help, and hopefully tips on how to get a fair hearing and not be completely screwed by their ex's and the legal system as I have been with their kids paying the price... but I digress... (and this is no surprise to anyone reading this blog)...
Indeed, it is a cruel truth that the legal system, I have found, is anything but fair much of the time, (especially to untrained pro se litigants like myself), and this is no more true than when dealing with fathers, (believe me, I have found that out the hard way!) But the Courts just don't have the resources to fully delve into all the whys and backstory of people's cases... If they did in my case, they would surely see how good my ex wife got it here, and how unfair this whole process has been to me as a father completely shut out of his children's lives for no good reason other than it was "easier" for my ex that way.
But it's not just the judges (or the laws!) which are to blame, (though there is plenty of blame to go around!) Indeed, as is often the case in great matters, there is no shortage of support for what should be done, or the principles in law to back it up, if those with the power would just want to make it so. (And make no mistake, my case is much more than about just money! It is at least as much about teh brainwashing of one's children against him, of getting a "full and fair hearing," and receiving ones "due process" before there can be levied huge arrearages against them to appease the vindictive motives of those who, while once satisfied with gaining almost everything of the things that matter most, decide that they want not only their piece of the pie, but the whole pie!)
In that regard, and in spite of dicta of various courts, including the U.S. Supreme Court and many State Supreme courts, (including Vermonts!) proclaiming the importance of "leniency" in applying the state procedural Rules on non-critical matters when dealing with pro se (or self represented parties for the uninitiated), so as not to be "taken advantage of" by legalistic and formulaic applications seemingly intended to prevent valid claims from being addressed, the fact of the matter, as my case has shown, is that the judges, and court system in general, just don't have the resources to adequately resolve all the cases before them on the merits, (especially in our litigious society with lawyers advertising on T.V. everyday how to get rich suing this person or that for every perceived wrong imaginable!).... This is one area where tort reform and other common sense changes in the Rules of Civil procedure could really have an impact, freeing up courts for addressing other issues dealing with children and families, matters of much more importance frankly, more fully...
And like it or not, contrary to common perceptions, it is not the judges who drive the legal system, but lawyers, and, even worse, often hardly trained "interns" culled from the ranks of second year law students (or simply civil servant legal "assistants" and researchers without an adequate grounding in either constitutional law or proper interpretation of procedural rules to begin with, witness the earlier "dismissal" by the Vermont Supreme Court of my appeal for being "untimely" only to subsequently concede that my 2013 appeal was, in fact, timely filed and, to their credit, reinstate it!)
And this is on top of the fact that those without lawyers often are relegated to the "wack job crazy" crowd and judged right off the bat, whose arguments need not be addressed as they are deemed, (apparently) too philosophical, too sophmoric, too lengthy, you name it, to be given a fair hearing! (or that there are a lot of people who really don't have any meritorious legal arguments at all, but routinely file actions with no merit which clogs the docket for others like yours truly with legitimate claims).
But verbose my filings may at times be, (and I'll be the first to admit that my initial Motion for Rehearing was not my best work!) that is a far cry from my well-reasoned and supported arguments presented in my briefs and prior motions to the state Courts, (as is obvious from the Supreme Court granting even a partial victory to me in its Jan 10 order!)
Of course, it doesn't help that my case deals with the political hot potato of "child support," an issue judges are loathe to appear "soft" on lest they appear to be stealing food from the mouths of babes, (never mind if, as in my case, the minor children are long from babes and were well provided for through other means!)
Which of these factors is most at play in the Vermont Supreme Court's curious repudiation of its former Dec. 2010 order in my case cannot be known.... And it is of course possible that the Court, which is after all a human institution, has made an error unwittingly in my case...
On that score, and to be entirely fair, I should note that the Court in the past has shown some willingness to allow me to correct my filings when they have found them in some way not to their liking and/or deficient, (although it would have been much nicer if they could have just accepted my pleadings, as technically insufficient as they were, and in the present case it is hard to see how I could possibly have completed the assignment of winnowing down my points "overlooked" by the Court, which are voluminous, to about ten pages from 30 with extremely limited understanding of what my Motion should consist of and the extremely limited time frame of 7 days in which the court initially ordered it, (which frankly, would barely have allowed time for mailing even if I had received timely notice of the Court's action!)
It is also important to note that the Court may yet find its bearings and grant me justice, (or at least have the intergrity to address the arguments I have raised again and again in the Vermont Courts with no redress, rather than once again demurring on technicalities)...
We shall see...
In the meantime, if I get a chance between job hunting I will try to delve more into the procedural and other matters this case is rife with in my next post, (after posting my "Revised" Motion for Rehearing).
Until next time... jp
Thursday, February 20, 2014
Friday, February 7, 2014
Why the 2004 registration of the Michigan decree can't confer "jurisdiction" for the purposes of the 2008 modification action
As pointed out in my briefs to the Vermont Supreme Court, even if the 2004 registration of the Michigan decree was proper (and properly noticed on me), and I have thus "waived" the right to challenge the registration of the Michigan decree, as noted in my brief and the very case cited by my ex wife's de facto counsel in their brief, (see Bowman v Bowman 917 N.Y.S.2d3 79, 82 A.D.3d 144, 146 (N.Y. Sup.Ct. 2011), "just because a court may have jurisdiction over a foreign decree does not mean it has jurisdiction to modify it." Bowman, supra (As the court even alludes to in its Jan. 10, 2014 order, see here at par. 31).
By the same logic, neither does proper registration automatically mean the Vermont court need not procure proper service and notice on father in order to effect personal jurisdiction over me for purposes of modifying the support order.
On this point Vermont law is well settled (as pointed out at length in my briefs, but entirely ignored by the Court in its Jan. 10, 2014 ruling).
As noted last time, the Superior court in its Aug 1, 2012 order, as well as settled precedents of the honorable Vermont Supreme Court clearly have made a distinction between matters which affect "status" and actions and orders of a State court which effect the property rights of individuals.
I argue this is the very purpose of Rule 5(a)'s provision that for "new or additional claims" a plaintiff must effect service in conformance with the more rigorous requirements of V.R.F.P. 4 requring service by Sheriff or certified mail with return receipt or an initial attempt at such service followed by service by regular mail with an affidavit showing the due diligence of plaintiffs to comply with the Rules' and Vermont's settled public policy favoring the "best possible service." (See Aiken v. Mallory, In re R.W., other cites in my posted briefs).
Therefore, it is irrelevant if the 2004 registration of the Michigan decree was proper or not, or I was properly served notice of the registration at that time.
Indeed, if proper service was not required based on the 2004 "service" of the registration of the Michigan decree, and "new or additional claims" effecting the property rights of a defendant don't require service in strict conformance to any Rule of Civil or Family procedure, then why did the Supreme Court not uphold Appellees' lack of proper service in 2010 as Appellees then urged it to? (An argument the high court completely ignores in its Jan. 10, 2014 order!)
Therefore, as pointed out last post, even if the 2004 registration was proper, that still doesn't serve as "double duty" as proper notice of a modification action four years later! (As the Supreme Court's own Jan. 10, 2014 order seems to concede in upholding the rulings of the trial court that I "must have known" of my ex's desire to "modify" support due to our last five years of legal wrangling!)
To the contrary, as I point out exhaustively in my Motion for Rehearing and brief, the law doesn't say service can be assumed proper, and jurisdiction attaches merely if you "knew or should have known" of an attempted modification, (else why even have Rules of Procedure?!) Rather, the Rules must be adhered to for the protection of everyone and the integrity of the process itself in order to insure the constitutional interests at stake are not gradually eviscerated.
However, the Court seems to focus on "minimum contacts" and a cramped view of the important policy at the core of the due process right to proper notice to the derogation of proper service under the Rules, (and with complete disregard to the precedents thereon!)
Why this is is indeed a curious matter, and one I shall delve into in future posts. jp
By the same logic, neither does proper registration automatically mean the Vermont court need not procure proper service and notice on father in order to effect personal jurisdiction over me for purposes of modifying the support order.
On this point Vermont law is well settled (as pointed out at length in my briefs, but entirely ignored by the Court in its Jan. 10, 2014 ruling).
As noted last time, the Superior court in its Aug 1, 2012 order, as well as settled precedents of the honorable Vermont Supreme Court clearly have made a distinction between matters which affect "status" and actions and orders of a State court which effect the property rights of individuals.
I argue this is the very purpose of Rule 5(a)'s provision that for "new or additional claims" a plaintiff must effect service in conformance with the more rigorous requirements of V.R.F.P. 4 requring service by Sheriff or certified mail with return receipt or an initial attempt at such service followed by service by regular mail with an affidavit showing the due diligence of plaintiffs to comply with the Rules' and Vermont's settled public policy favoring the "best possible service." (See Aiken v. Mallory, In re R.W., other cites in my posted briefs).
Therefore, it is irrelevant if the 2004 registration of the Michigan decree was proper or not, or I was properly served notice of the registration at that time.
Indeed, if proper service was not required based on the 2004 "service" of the registration of the Michigan decree, and "new or additional claims" effecting the property rights of a defendant don't require service in strict conformance to any Rule of Civil or Family procedure, then why did the Supreme Court not uphold Appellees' lack of proper service in 2010 as Appellees then urged it to? (An argument the high court completely ignores in its Jan. 10, 2014 order!)
Therefore, as pointed out last post, even if the 2004 registration was proper, that still doesn't serve as "double duty" as proper notice of a modification action four years later! (As the Supreme Court's own Jan. 10, 2014 order seems to concede in upholding the rulings of the trial court that I "must have known" of my ex's desire to "modify" support due to our last five years of legal wrangling!)
To the contrary, as I point out exhaustively in my Motion for Rehearing and brief, the law doesn't say service can be assumed proper, and jurisdiction attaches merely if you "knew or should have known" of an attempted modification, (else why even have Rules of Procedure?!) Rather, the Rules must be adhered to for the protection of everyone and the integrity of the process itself in order to insure the constitutional interests at stake are not gradually eviscerated.
However, the Court seems to focus on "minimum contacts" and a cramped view of the important policy at the core of the due process right to proper notice to the derogation of proper service under the Rules, (and with complete disregard to the precedents thereon!)
Why this is is indeed a curious matter, and one I shall delve into in future posts. jp
Thursday, February 6, 2014
The court's Jan. 10, 2014 "waiver" ruling is hard to square with its logic or precedents cited in its Dec. 8, 2010 ruling.
As noted last time, the Court's rulings in its Jan. 10, 2014 decision are hard to square with its Dec. 8, 2010 ruling under the settled doctrine of "law of the case" for two principle reasons. 1) The Jan. 10, 2014 finding disregards the primary purpose of the 2010 remand, which was to give plaintiffs and opportunity to show "evidence of actual or constructive service" or (ostensibly) suffer dismissal in accord with settled Vermont caselaw that absent lack of proper service personal jurisdiction the necessary result must be dismissal for lack of jurisdiction, and/or 2) Proper service is the plaintiffs burden and waiver of service under the V.R.C.P. must be knowing and intentional under the very precedents the Court cites in support of its Jan. 10, 2014 ruling.
Moreover, as shown in my briefs and prior posts, the Court overlooks that there has never been proper service of process in my case, and that there is no precedent whatsoever for the idea that one can simply "waive" proper service in the first instance in a case absent compliance with V.R.C.P. 4(l)'s specific "waiver" provisions. (This is an exception to the rule of "ancillary jurisdiction" under Gates v Gates et al because proper service, and hence jurisdiction, was never properly secured in this case going back to its very inception in 2000! As argued in my brief, even if the Court finds that I didn't timely appeal the 2000 custody determination, this is an entirely separate matter from an almost-decade-later support modification under V.R.C.P. 5(a) and the Superior court's own findings emphasizing the difference between custody and support actions in its Aug 1, 2012 order!)
Nor, contrary to the Supreme Court's Jan. 10, 2014 ruling, must one continually remind the Court of a "special appearance" challenge to insufficiency of service in an underlying matter provided it is raised initially under American Hospital Corp v. Nevada (cited in Appellant's brief(s) ).
Additionally, as noted in my briefs and above, however concisely I did so I clearly raised my "insufficiency of service" claims in my very first Aug. 2009 Motion for Relief from Judgment, and in light of my pro se status and the trial court's own noting of the issue at the March 2011 and Nov. 14, 2011 hearings the Court was clearly apprised of my intentions and basis of my lack of service/insufficiency of service arguments, thus making entirely unfair the sudden penchant for "form over substance" which the Court embraces in its most recent ruling.
Indeed, as pointed out in my briefs, rather than "intentionally and knowingly" waiving my insufficiency of service arguments which the court took very seriously in 2010, (only to seemingly and nonchalantly cast aside in its latest ruling), I had been litigating these arguments continually in one form or another beginning in 2009 through the first appeal and in almost every filing since down to the latest appeal yet was denied redress on the merits of them due to procedural and interim rulings, (including the July 26, 2011 order of the Superior court).Thus this holding of the Vermont Supreme court that I could have possibly "waived" them is as nonsensical as it is unfair.
Secondly, the Court completely ignores my argument regarding both the the plaintiffs own "waiver" of their right to raise the issue of my alleged waiver of this issue due to their own failure to timely raise it either after my Aug. 2009 Motion or my "Special Appearance/Motion to Dismiss."
Although the Court makes much of the fact noted by the magistrate that I filed three motions subsquent to the June 15, 2011 "ordinary mail" service it (apparently) upheld as sufficient in this matter, it completely overlooks my salient and onpoint argument that all those motions were with regard to the then-pending and subsequently dismissed 2011 Magistrate's appeal, and therefore are entirely inapropos to the question of "waiver" regarding the June 15, 2011 "service."
But just supposing for arguments sake that I had, in the midst of a pending Magistrate's appeal in which these very arguments were fully briefed by the parties, again raised this identical issue, would not the Appellees objected, and rightly so, on the grounds that the issue was already before the (Superior) court judge on appeal and thus entirely redundant to raise again??
Rather, as noted in previous posts, the chronology of these events, along with Appellees belated raising of this "waiver" issue at the late time of it's June 15, 2011 brief in the 2011 Magistrate's Appeal, conspired with the trial court's subsequent ruling after dismissal of the 2011 appeal to allow Appellees a "second gratuitous chance" to re-raise this issue they had already at that point waived in contrast to the principles of fairness and finality forbidden by Putney School v. Schaff.
On these points Appellant is still waiting for the Court to explain the flaw in his logic or application of legal precedents of the Court.
Moreover, as shown in my briefs and prior posts, the Court overlooks that there has never been proper service of process in my case, and that there is no precedent whatsoever for the idea that one can simply "waive" proper service in the first instance in a case absent compliance with V.R.C.P. 4(l)'s specific "waiver" provisions. (This is an exception to the rule of "ancillary jurisdiction" under Gates v Gates et al because proper service, and hence jurisdiction, was never properly secured in this case going back to its very inception in 2000! As argued in my brief, even if the Court finds that I didn't timely appeal the 2000 custody determination, this is an entirely separate matter from an almost-decade-later support modification under V.R.C.P. 5(a) and the Superior court's own findings emphasizing the difference between custody and support actions in its Aug 1, 2012 order!)
Nor, contrary to the Supreme Court's Jan. 10, 2014 ruling, must one continually remind the Court of a "special appearance" challenge to insufficiency of service in an underlying matter provided it is raised initially under American Hospital Corp v. Nevada (cited in Appellant's brief(s) ).
Additionally, as noted in my briefs and above, however concisely I did so I clearly raised my "insufficiency of service" claims in my very first Aug. 2009 Motion for Relief from Judgment, and in light of my pro se status and the trial court's own noting of the issue at the March 2011 and Nov. 14, 2011 hearings the Court was clearly apprised of my intentions and basis of my lack of service/insufficiency of service arguments, thus making entirely unfair the sudden penchant for "form over substance" which the Court embraces in its most recent ruling.
Indeed, as pointed out in my briefs, rather than "intentionally and knowingly" waiving my insufficiency of service arguments which the court took very seriously in 2010, (only to seemingly and nonchalantly cast aside in its latest ruling), I had been litigating these arguments continually in one form or another beginning in 2009 through the first appeal and in almost every filing since down to the latest appeal yet was denied redress on the merits of them due to procedural and interim rulings, (including the July 26, 2011 order of the Superior court).Thus this holding of the Vermont Supreme court that I could have possibly "waived" them is as nonsensical as it is unfair.
Secondly, the Court completely ignores my argument regarding both the the plaintiffs own "waiver" of their right to raise the issue of my alleged waiver of this issue due to their own failure to timely raise it either after my Aug. 2009 Motion or my "Special Appearance/Motion to Dismiss."
Although the Court makes much of the fact noted by the magistrate that I filed three motions subsquent to the June 15, 2011 "ordinary mail" service it (apparently) upheld as sufficient in this matter, it completely overlooks my salient and onpoint argument that all those motions were with regard to the then-pending and subsequently dismissed 2011 Magistrate's appeal, and therefore are entirely inapropos to the question of "waiver" regarding the June 15, 2011 "service."
But just supposing for arguments sake that I had, in the midst of a pending Magistrate's appeal in which these very arguments were fully briefed by the parties, again raised this identical issue, would not the Appellees objected, and rightly so, on the grounds that the issue was already before the (Superior) court judge on appeal and thus entirely redundant to raise again??
Rather, as noted in previous posts, the chronology of these events, along with Appellees belated raising of this "waiver" issue at the late time of it's June 15, 2011 brief in the 2011 Magistrate's Appeal, conspired with the trial court's subsequent ruling after dismissal of the 2011 appeal to allow Appellees a "second gratuitous chance" to re-raise this issue they had already at that point waived in contrast to the principles of fairness and finality forbidden by Putney School v. Schaff.
On these points Appellant is still waiting for the Court to explain the flaw in his logic or application of legal precedents of the Court.
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