Scully v. Schubert
Annotate this Case
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 89-291
Allison M. Scully Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit
Charles J. Schubert May Term, 1990
Theodore S. Mandeville, Jr., J.
James P. Mongeon, Rutland County State's Attorney, and Susanna M. Longo,
Paralegal (On the Brief), Rutland, and Robert W. Katims, Department of
State's Attorneys,Montpelier, for plaintiff-appellant
Judy G. Barone of Carroll, George & Pratt, Rutland, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
MORSE, J. This case presents the issue of whether the usual rule of
appellate waiver of trial error applies when a state's attorney's office,
after mishandling a URESA petition, moves for relief from judgment on an
erroneous ground. We hold that due to the nature of URESA proceedings the
rule that a lawyer's tactical decisions bind a client is relaxed and
accordingly reverse and remand.
Allison Scully was an unmarried inn-worker in the Dorset area of
Vermont when she became pregnant in September 1985. She left the state and
moved to Ipswich, Massachusetts, in November 1985, and there gave birth to
Emma. She later filed a URESA complaint in a Massachusetts district court,
which was forwarded, along with a sworn statement of facts, to the Rutland
district court. She claimed the child's father was defendant Charles
Schubert, a married man, who had employed her in Dorset. Mr. Schubert
responded with a motion to dismiss on grounds of non-paternity, which was
supported by an affidavit, signed and sworn to by Scully in Massachusetts on
December 4, 1985. This Affidavit of Non-Paternity ("affidavit") states in
part that Schubert was not and could not possibly be the father of her then-
unborn child and that she had not received money, property, or any other
inducements to convince her to sign the document.
A hearing was held in Rutland district court at which Ms. Scully was
represented by a Rutland County deputy state's attorney, as provided by 15
V.S.A. { 406(b). The deputy prosecutor neither contacted Ms. Scully nor
moved for a continuance to investigate the truth of what was contained in
the affidavit, as provided for in 15 V.S.A. { 408. Instead, he volunteered
that the affidavit established that Schubert was not the father and agreed
that the motion to dismiss should be granted. On this basis, the court
dismissed the petition in January, 1988.
After learning of the dismissal, Ms. Scully made a second URESA
complaint, which included greater documentation than the first. The Rutland
County state's attorney filed this complaint in March 1988 and followed up
with a motion for relief from judgment in the first URESA action, claiming
that the dismissal was procured by fraud, D.C.C.R. 60(b)(3). Mr. Schubert
opposed the motion and moved for dismissal of the second action on grounds
of res judicata.
In considering the motions, the court found that the parties had a
sexual relationship, Ms. Scully became pregnant, and at the urging of Mr.
Schubert and others, she moved to Ipswich to stay with friends and have the
baby. Mr. Schubert sent her money. Some time later when Ms. Scully was
three months pregnant, Mr. Schubert went to Ipswich with the unsigned
affidavit. Schubert told Ms. Scully that if she did not sign it, his wife,
who knew about her, would move all of their jointly held assets out of his
control so that he could no longer send her money. Ms. Scully was
persuaded to sign the affidavit because she needed the support and trusted
Mr. Schubert. Schubert stopped paying Scully support in late 1987, which
prompted her to file the first URESA action.
In denying the motion for Rule 60(b) relief, the court held that Scully
was in effect seeking relief from her own fraud, stating, "[Scully] signed
the document for a quid pro quo, and that was that she receive money towards
the support of herself and her child and for hospital expenses without
resort to litigation," and "should not now be heard to complain [of it]."
The court then dismissed the second URESA complaint on grounds of res
judicata.
On these facts, the plaintiff should not have relied on Rule 60(b)(3)
to reopen the judgment. What prevented the plaintiff's claim from being
fully adjudicated was not fraud, but the state's attorney's failure to talk
with her, to investigate the veracity of the affidavit, or to request an
opportunity as provided by 15 V.S.A. { 408 for an extension of time to allow
her to present contrary evidence. The plaintiff could have relied on Rule
60(b)(6), the rule's catchall section, broadly providing relief from
judgment "for any other reason justifying [it]", and, given the undisputed
facts, she should have prevailed on her motion. However, she did not raise
Rule 60(b)(6), relying solely on Rule 60(b)(3). Ordinarily we would not
reach points not raised in the trial court and would affirm. Nevertheless,
because of the unique character of URESA proceedings, we reach the merits of
plaintiff's request for relief from judgment.
URESA provides a civil enforcement mechanism, 15 V.S.A. {{ 395-422, by
which this state helps out-of-state custodial parents to collect support
from those responsible to pay who live here. Amounts of support owed --
while they may be vital to the custodial parents, largely women -- are
usually fairly small in the larger scheme, and it is often impossible or
economically prohibitive for the custodial parent to travel to this state
and use our courts to collect. The cost of collection often exceeds the
debt. URESA seeks to remedy this problem by having agents of the state act
on behalf of the person owed support. Thus, URESA has a remedial purpose
and should be construed liberally to effectuate its objectives. Bushway v.
Riendeau, 137 Vt. 455, 461, 407 A.2d 178, 181 (1979).
In the URESA scheme, the parent seeking support petitions a court in
his or her home state, which passes the petition to the responding state,
the home state of the other parent. Once the petition arrives in the
responding state -- as plaintiff's did here in Vermont -- the state's
attorney has an obligation to prosecute the case diligently on behalf of the
petitioner. 15 V.S.A. { 406(b). The relationship between the petitioner
and the state's attorney in the corresponding state is not that of a normal
client and attorney. The petitioner has no say on what legal action to
pursue. Rather, all the duties and obligations of the attorney are provided
by the statute.
Likewise, the URESA proceeding is not open ended; the petitioner is not
free to decide what issues to raise. Essentially, the court is limited to
determining the duty of support. The paternity issue is obviously central
to the duty of support, and URESA does not contemplate a dismissal without
an adjudication when the issue is raised. Rather, 15 V.S.A. { 415 provides
that when a putative father denies paternity, the court may only adjudicate
paternity if both parties are present or if the presence of both parties is
not necessary to decide the issue. Ordinarily, the mother is not present:
the law is designed to make interstate and intercounty enforcement easier by
not requiring the mother to travel and be present at the hearing. If the
presence of a party is necessary, the law contemplates a continuance. 15
V.S.A. {{ 408, 415. The court has the duty to determine whether the
mother's presence is necessary, see id., but here the determination was not
made, the deputy state's attorney simply "threw in the towel" and allowed
the petition to be dismissed on the merits.
Ordinarily, the actions and negligence of an attorney are attributable
to the client. Haskins v. Estate of Haskins, 113 Vt. 466, 471, 35 A.2d 662,
664-65 (1944). However, this rule has no application where an attorney
acquiesces to dismissal of a case without a client's permission. A court
may not "allow[] counsel . . . to negate . . . clients' claims without their
knowledge or permission. It is a well-established rule that an attorney has
no authority, without the permission of his [or her] client, to dismiss a
case with prejudice or do any act that will have the effect of irrevocably
renouncing or barring his [or her] client's right of action." In re J.H.,
144 Vt. 1, 4, 470 A.2d 1182, 1184 (1983); see also New England Educational
Training Service, Inc. v. Silver Street Partnership, 148 Vt. 99, 104, 528 A.2d 1117, 1120 (1987)(citing sources for the more general proposition that
an attorney has no authority to compromise or settle a client's claim
without his or her permission).
At the hearing on plaintiff's motion for relief from judgment, Ms.
Scully presented uncontroverted testimony that she had no contact with her
attorney until after the first complaint was dismissed. The court thus
knew that the deputy state's attorney had dismissed the first action without
any contact with Scully and therefore also knew that she had not agreed to
the dismissal. On this record, the court should have granted plaintiff's
motion to set aside the URESA judgment in defendant's favor, but was
sidetracked by the erroneous fraud issue raised by the state's attorney.
In this case the legislative purpose in creating URESA and the
potential hardship to Emma Scully -- one of the supposed beneficiaries of
the URESA scheme -- require that ineptness in administering the URESA
scheme not prevent this case from being decided on the merits of paternity.
The order denying plaintiff's motion for relief is reversed and the
matter is remanded for trial on the issue of paternity and, if found, the
appropriate relief.
FOR THE COURT:
Associate Justice
________________________________________________________________________________
CONCURRING
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 89-291
Allison M. Scully Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Rutland Circuit
Charles J. Schubert May Term, 1990
Theodore S. Mandeville, Jr., J.
James P. Mongeon, Rutland County State's Attorney, and Susanna M. Longo,
Paralegal (On the Brief), Rutland, and Robert W. Katims, Department of
State's Attorneys,Montpelier, for plaintiff-appellant
Judy G. Barone of Carroll, George & Pratt, Rutland, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
ALLEN, C.J. concurring. I concur with the result only.
______________________
Chief Justice
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