In my post a few weeks ago "updating" my readers on my pending Motion for Rehearing in the Vermont Supreme Court, (as revised and posted here), I promised more commentary on the critical procedural and legal issues at the core of my and my ex-wife's long running legal dispute recently addressed by the Vermont Supreme Court.
Due to my equally important mission in this blog of helping explain and represent the plight of non-custodial fathers generally however, I have since decided to take a post (or two) to give an overview of what is wrong with the system as is; i.e., why so many father's simply "bow out" and stop paying their support obligations and/or allow themselves to be pushed out of their children's lives altogether.
My purpose is not to justify such a result, indeed, my own life and experiences testify amply as to the mistake that this is. Indeed, as I said in my first post on this blog, if I could go back and do things differently I would have fought like hell to remain a part of my children's lives regardless of the claims and legal tactics of the other side, (and the cost to me personally).
And let me reiterate that I firmly support the idea that parents ought to support their children. Indeed, this is an important principle that must be upheld. But as important as that principle is, there is an even more important principle, and that is that the rule of law which protects all our rights as expressed through the our State and Federal Constitutions as well as the established civil and procedural rules that all must equally be bound to in order for our very justice system to work and protect everyone's rights equally.
And practically speaking, it is important, if ever courts are to succeed in compelling non-custodial parents to pay the support they rightfully owe, that we understand why doing so is often a legal and logistical struggle, (and, in the midst of that struggle, why it results in inherent unfairness to non-custodial parents, most often fathers, with devastating results on their children).
In short, why the current laws (and frankly, any others based solely on "enforcement" of child support orders), don't, and cannot work, (and no, it has nothing to do with "cracking down on deadbeat dads" as we are often told by the media or special interests with an agenda).
The reasons, which I will go into detail on in future posts, I group in three different areas: 1) The faulty premise of current child support laws which by and large presuppose a consistent ability of non-custodial parents to support their (former) families in absence of that family's structure and moral support. 2) The inherently unequal force of law as applied to non-custodial parents, (usually fathers, a big part of the unfairness from the getgo), and, 3) The inherently punitive nature of support "enforcement" which focuses on merely financial matters and is inherently designed (or at least results) in alienating good dads from their children's lives. I will begin with the last first.
The Pernicious Effects to Children of Alienating Fathers from their Children via "Policy".
In study after study it has now been shown that children from homes with an absent father are roughly five times more likely to have trouble with bad grades, teen sexuality, drug addition, and/or suffer from mental disorders like depression, anorexia, or bi polar disorder.
Ominously, they are also much more likely than their peers raised in intact, two-parent homes to get in trouble with the law, commit suicide, or end up in prison.
Don't believe me? Well you don't even have to be a social scientist to connect these dots. Just visit your local jail and ask people serving long jail sentences how their relationship with their father was when they grew up, (if they even had a relationship with their father).
While the reasons this is so may be up for debate among those in the field of social science, the results are well established and hard to dispute; Personally, unless your absent father is an active alcoholic or drug addict, a convicted child molester or an ax murderer, I believe there is something inherently stabilizing in simply knowing where you come from and having strong bonds with all those who love you and had a role in bringing you into the world and is the reason why you are, many times, the way you are, (at least genetic-wise if not personality-wise).
In fact, while it goes without saying that all of us are less than perfect, (the theologian would say due to sin, the run of the mill social scientist would say bad forces in "society" and the biologist might "blame it on your genes,") many studies show this positive effect on one's general well being and success in the world to be the case when one enjoys a consistent relationship with even seriously flawed fathers.
Moreover, while to some extent the presence of another stable and responsible male role model such as uncles and stepfathers can help mitigate these effects, they cannot entirely diminish them, (more on such effects and the scientific evidence for their existence in future posts).
But in keeping with today's discussion on the flaws in the present laws regarding support as applied to non-custodial fathers, and the reasons such laws are ineffective, it suffices to say they totally discount the importance of fathers beyond the mere financial and the critical interrelatedness the role such laws-- and the way "family law" is practiced generally in the vast majority of states today-- plays on the critical ability of father's to stay in their children's lives.
Indeed, to the extent such laws actually inhibit fathers from being involved in any meaningful way with their children, the repercussions are serious and long ranging, (as the above cited studies show).
Mind you, I am not saying that such laws, as interpreted by subsequent caselaw, are necessarily bad, i.e., were intended to have such effects; to the contrary, many such laws were no undoubtedly well-intentioned.
But when well-intentioned laws have a detrimental, or even opposite effect than their intentions suggest, while it is easy to rail against absent or "deadbeat" dads as is in vogue today, it would be far more beneficial if policy makers and those in the justice system would make note as to why the negative repercussions occure and correct the course accordingly.
A few examples might illustrate what I am talking about here.
The Danger of "Ex Parte Orders" in Child Support cases vis a vis their Effects on Due Process.
One particularly obnoxious abuse of the law with far reaching (and often unfair) consequences is the use of "constructive service" of "Ex parte" orders, often not even served, or "given notice" to the non-custodial parent (father) prior to so called "emergency" hearings (or served by "publication," with no actual notice to fathers prior to procuring changes in custody and/or support).
Such "service" stems from a general loosening of jurisdictional and procedural requirements as expressed in the Rules of Civil Procedure with the advent of our mobile society and the need to allow single mothers to procure a divorce from absent fathers whose whereabouts are unknown but have abandoned their marital obligations, (as well as the dramatic rise in unwed births of couples who were never bound by the commitments of matrimony in the first place).
Such "loosening" of the procedural rules regarding service, ostensibly justified by the policy needs outlined above, are gathered loosely under the rubric of "status" cases and have sprung out of a distinction which courts have found between "In Rem" jurisdiction over the absent party and "In Personum" jurisdiction (but often without a corresponding assessment of the threat of erosion of the important due process principles at stake).
This had led to increasing acceptance of "constructive" service on non-custodial parents, which has been reflected in modern updates to the Rules of Civil Procedure, (which is nonetheless limited in the circumstances it can be used as spelled out in the Rules themselves in order to protect the very constitutional interests noted above).
In sum, while such "constructive" service is usually discouraged by the Courts unless the "moving party" first attempts service in strict conformance to the Rules of Civil Procedure, (which require either personal or registered mail notice in conformance "Rule 4" of both the State and Federal Rules of Civil Procedure), the modern trend is to disregard these critical limitations which the Rules clearly designate in order to protect the overriding public policy interests due process demands.
As a result, there seems to be a present (and alarming!) trend towards erosion of the fundamental right to be given an opportunity to "be heard" prior to State courts entering orders with far reaching consequences to the rights of non-custodial parents.
Indeed, and in my particular case, the Vermont Supreme Court has essentially disregarded its own precedents on the underlying and core issue of State and Federal service and notice jurisprudence pursuant to the due process clauses in the State and Federal Constitutions, (as abundantly addressed in my briefs posted on this site).
The danger in this is even more amplified when court orders altering the parties' rights are done "Ex parte" (which simply means "one side only"), due to the inherent and obvious unfairness to the non custodial parent of such orders, (as they allow changes in custody or support to be entered without even hearing from both parent's point of view, which is the reason why some jurisdictions have curtailed their use).
This was fulfilled with damning results in my own case, to wit:
A Brief Case History of Pahnke v. Pahnke in Vermont- How Vermont OCS and Paula Pahnke's Repeated Spurning of the Rule of Law and basic Fairness has Resulted in the Derogation of Justice in This Case.
Back in 2000, before I had voluntarily turned over the children I had from my ten year marriage to their mother in Vermont so they could spend more time with each other while I finished my studies in Nashville TN-- I won't here share all the details but their mother and I had previously shared split custody two and two-- my ex wife procured sole custody of our children in Vermont pursuant to just such an "Emergency"
Ex Parte order while I was in Tennessee, (even though she had previously promised me according to an "off the record" agreement not to "change anything" in the courts if I allowed all the children to come to Vermont).
As I was to find, possession is indeed, "nine tenths of the law," and that fact, coupled with my own hopes at the time that we might eventually reconcile, (not to mention the enormous cost of mounting an interstate battle to reverse this order), convinced me to take a "wait and see" approach that sadly proved disastrous to my children's welfare vis a vis our relationship, (take note if you're a non custodial "nice guy" father, do not let your emotions or a manipulative ex govern your decisions when it comes to your kids!)
Of course, if one is to judge by the Vermont Courts completely ignoring that my ex lied under oath in the Aug. 15, 2000 custody change hearing which initially established this case in Vermont while I finished my studies in Nashville TN by telling the Family Court judge that I had been "served" with notice of the hearing, (when she in fact had disregarded both the UCCJA and the Rules of Civil Procedure and I did not get notice of this critical hearing until after it took place), the Court's ignoring of most of my points and morally judgmental tone in its Jan. 10, 2014 order is as perplexing as it is contrary to the whole facts in this case, (i.e., its fully crediting certain statements of my ex wife in a service info form about me personally, of course, we all know that a bitter ex's statements are accurate and unbiased with no agenda, right? NOT!)
Indeed, as the Superior Court judge ruled in this case, (but the Supreme Court inexplicably mischaracterizes!) my wife of ten years only served me notice of the modified order changing custody, not notice of the hearing, and utterly failed to produce proof of notice of this critical hearing within 3 days of the Aug. 15, 2000 hearing changing custody as the Court itself had ordered her to do (and was required under the Vermont Rules of Civil Procedure!). Of course, my ex wife Paula couldn't produce such proof of service because she had failed to serve the "notice" of the Aug. 15, 2000 hearing by sheriff or certified mail as clearly was required under the above noted and settled law.
Further, even if the Vermont Supreme Court's Jan. 10, 2014 ruling that I had "waived" the right to challenge the 2000 change of custody by waiting so long to challenge it, (itself a position contrary to significant caselaw stating that "void orders are subject to attack at any time), it doesn't follow that the validity of this establishment of the case in Vermont is not a proper subject of inquiry to the proper jurisdictional basis for the 2008 filed modification more directly at issue in the Dec. 8, 2010 and Jan. 10, 2014 orders.
Rather, as I point out at length in my briefs before the court, (but apparently completely overlooked by the Court as it utterly fails to address my argument), if there was no proper jurisdiction over my person in the "underlying matter" under Vermont law, there is no ancillary jurisdiction going forward sufficient to personally bind me in the 2008 support modification, (at least without proper service of process under the Rules of Civil Procedure in line with the well settled and above noted due process and service and notice principles the Vermont Courts have previously vindicated).
Instead, absent "jurisdiction over the parties" (see FFCCSOA and UIFSA), procured by proper service of process at some point, (see U.S. v. Bigford, U.S. v. Kramer), the Vermont Courts, while arguable able to make a "status" determination regarding my children in Vermont in 2000, were unable to procure personal jurisdiction over me for purposes of support modification without first procuring proper service and notice upon me of the intention to modify the prior Michigan decree!
The Court's Jan. 10, 2014 Conclusion of Waiver- An illustration of selective issue resolution
But what of the Court's conclusion that I had "waived" my right to object to the improper notice/service of process so that it could indeed gain "in personum" jurisdiction over me for purposes of the 2008 modification? To that I have four main contentions, (none of which the court addressed on the merits in its Jan. 10 2014 order, which is why the Court, if it is fair, will grant the Motion for Rehearing).
First, the State and my ex themselves waived their right to raise/prevail on this issue as they failed to raise it in their first responsive pleading of Feb. 9, 2011 in response to my Jan. 31, 2011 Motion to Dismiss for lack of Personal Jurisdiction.
Relatedly, and more saliently, the Supreme Court completely ignores my argument that under Vermont law a "waiver" must be both knowing and intentional, (see Hixson v. Plump). Thus, in light of the Superior Court's July 26, 2011 order seemingly preserving my personal jurisdictional claims, as well as my repeatedly raising my reliance on that ruling to preserve my claims in hearings before the trial court, (as well as significant federal precedent indicating that, once raised in my Jan. 31, 2011 Motion to Dismiss, I couldn't subsequently "waive" my insufficiency of service claims by arguing the merits, see American Hospital Corp, as cited in my briefs), I couldn't possibly have "waived" my insufficiency of service claims here.
Second, while perhaps not explicitly raised as to the June 15, 2011 "ordinary mail" service of plaintiffs, contrary to the Court's multiple pronouncements that I had ignored defects in service until after the Nov. 14, 2012 modification hearing, the record is clear that, however concisely or wrongly captioned I may have challenged the insufficient service in this case, I clearly had been objecting to insufficient service and the resulting lack of jurisdiction since my Aug. 13, 2009 Motion for Relief from Judgment, (which the Court had already addressed and validated in its 2010 decision!) Thus, in line with the lenience in pleadings which the Vermont Supreme Court has routinely held must be applied to pro se litigants, to hold me to such an exacting standard-- especially when the trial court had expressly taken judicial notice of my insufficiency of service arguments with regard to the June 15, 2011 "service" at the Nov. 12, 2014 hearing-- is to abandone its duty to insure pro se litigants are not "taken advantage of" by a hyper technical application of the Rules.
Third, since the Vermont Supreme Court had already vacated the original "tack" service in my case in its Dec. 8, 2010 order and remanded for the limited purpose of determining if "constructive notice" had been given me of the 2008 modification, (and the State and my ex wife failed to produce any such evidence in spite of multiple opportunities on remand), under the law of the case this matter must now be dismissed, and/or alternately, the State was required to "start over" in their efforts to serve me, (beginning with "due diligence" to personally serve me as the Court has repeatedly ruled in other cases).
So what is "retroactivity" and why does it matter?- Due Process and the unfair effects of immediately effective retroactive rewards to prior to the time of the insufficient June 15, 2011 "service" under Grimes v. Grimes.
Finally, as noted above, since the Court itself notes this was not done, (see Par. 31 of Jan. 10, 2014 order), and the State itself concedes that even the "ordinary mail" service which they claim is sufficient to effect "jurisdiction" over me notwithstanding the Supreme Court's throwing out the prior service in its Dec. 8, 2010 order didn't take place until June 15, 2011, it only follows that support, if any owed my ex wife, shouldn't start until that date as a matter of logic and simple fairness, (indeed, while the Court ruled that my wife of ten years owed me under the MI decree for 2000 through 2008, they failed to address the years 1997-2000 for which I was never paid support even though I indisputably had physical responsibility of our children in those years).
Of course, this is ostensibly due to the prejudicial effect this willful delay of service occasioned by the State would cause to their action; Notably, if the High Court were to be consistent and either require the State to re-file and properly serve what essentially must necessarily be considered a "new" modification, (as the Court had invalidated service of the 2008 action in 2010, and see V.R.C.P. 5(a) ), or count my obligations from the June 15, 2011 date of service proffered as sufficient, the age of majority of our children from that date forward would limit a corresponding support obligation to only my and my ex wife's youngest child (who, in 2011, was the only child still a minor). Why, exactly, the Court did this, (and such an "about face" to the principles it clearly enunciated re the need to strictly abide by the Rules of Civil Procedure's requirements re service), is a mystery. (But I am sure political calculations re such a hot button issue as "dead beat dads" and child support didn't enter into the Court's decision. It goes without saying that such "political" considerations are beyond a Court of law's proper purview and best are left to the political branches to sort out; indeed, this is the very reason judges are appointed, to insulate them from "political" considerations and influence of popular, but often wrong, sentiments when it comes to the law).
What's love got to do with it?- A Word about "fairness" in the overall context of this Case.
Finally, a word about "fairness" to those reading this who might think, "Well how is that 'fair' to the mother?"
To that, as I note in my briefs, I can only say, if we start to "change" the requirements of the Rules of Civil Procedure on a whim to accomodate parties who clearly disregard the longstanding requirements on the plaintiffs to properly serve defendants, we not only are turning on its head established precedents meant to buttress the important due process principles outlined above, but are denying key facts in this case.
Number one, plaintiffs had at least three years in which they indisputably knew my address where they could have served me personally, but utterly failed to make any due diligence to do so in accordance with settled Vermont law, 2) My ex made absolutely no effort to even attempt modification in the Michigan courts which had entered the initial decree, 3) Plaintiffs in this case clearly failed not just in the method of service in this matter, but, the support modification being a "new and additional claim" pursuant to V.R.C.P. 5(a) or serve me within 60 days of the trial court's March 10, 2011 order, failed to properly commence the case at all, and, 4) It is inherently unfair for my ex to have reaped the benefits of our "off record" agreement and collected years of Pahnke family support, (including the home she still lives in, a brand new car, and many other benefits), only to turn around, after my mother is found incompetent due to Alzheimer's mind you and can no longer testify as to the purpose of the years of support provided my ex wife through "family money," and claim support after almost a decade of silent acquiescense, (the "collateral estoppel" argument).
Furthermore, when I and my Michigan attorney wrote the Oct. 8, 1997 divorce decree, the support obligations of my ex wife were set artificially low (only 12 dollars a week per child, approx. 200 month for four children!!) I did this so she could have a "fresh start" in her life in light of my (then) having custody of all our children and her desire to attend cosmetology school.
I also allowed her to keep a new car and other possessions and assumed sole responsibility for over 20,000 in marital debt. When examined in that light, and the fact that the Vermont trial Court's order of support set at more than twice that, (and disregarding the offset required by law of my current obligations to my other children), such cries of "unfair" ring hollow indeed!
While the Court has already indirectly dealt with such arguments in its ruling that my ex-wife cannot retroactively collect support back to 2000 or "set aside" her obligations to me prior to 2008, it does so without explaining what operation of law properly "resurrects" the modification process struck down in 2010 so as to even allow it to be "renewed" absent proper service of a new modification upon me, (and without explaining why the date of support shouldn't more properly proceed from June of 2011!)
As I point out in my Motion for Rehearing, (as revised), the present result binds a defendant (me) to a judgment for which, according to the Court's own rulings, hadn't even been served yet! (Raising all kinds of thorny Ex Post Facto and Due Process problems in itself!) It also seems to disavow the once-reasonable approach of the Court in Grimes v. Grimes, which notes the "instant arrears" such an order will inevitably heap on me and the prejudicial effect this will likely cause to the likelihood of both payment and a more rational paradigm going forward that could innure to the actual benefit of the children involved.
It will be interesting to see how the Court resolves these issues in any modifying order on the Motion for Rehearing, (assuming it does so), or if litigation on such issues will continue in another forum. jp
P.S. I will see if I can post a copy of the Superior Court's Aug. 1, 2012 and July 26, 2011 orders (as well as others) soon.
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