Hixson v. Plump

Hixson v. Plump  (96-578); 167 Vt. 202; 704 A.2d 1159

[Filed 24-Oct-1997]


       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-578


Evelyn P. Hixson                             Supreme Court

                                             On Appeal from
     v.                                       Windsor Family Court

Ralph Eric Plump                             June Term, 1997


Alan W. Cook, J.

J. Eric Anderson, Manchester Center, for plaintiff-appellee

Philip M. Johnson, Taftsville, and Norman E. Watts, Woodstock, for 
  defendant-appellant


PRESENT:  Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       AMESTOY, C.J.   Ralph Plump appeals a Windsor Family Court order that
  he pay $1,000 per month to Evelyn Hixson, his former spouse and the mother
  of their two children. Plump argues that (1) under applicable New York and
  Vermont statutes of limitations, the court lacked authority to enter such
  an order, and (2) the court erred by ordering monthly payments without
  entering judgment for the total amount owed by him to Hixson.  We affirm.

       Defendant Ralph Plump and plaintiff Evelyn Hixson married in New York
  State in 1959. The couple's two children were born in 1960 and 1961.  The
  parties divorced in 1973, and under the terms of the divorce order,
  defendant was to pay child support to plaintiff, who retained custody of
  the two minor children.

       In 1981 plaintiff sued defendant in New York's Supreme Court to
  collect past-due child support.  Defendant made a personal appearance, but
  later ceased participation in the litigation. In 1984, the New York Supreme
  Court rendered a default judgment ordering defendant to pay plaintiff a
  total of $63,371.81 for child support arrearages, accumulated interest, and
  costs. Defendant did not appeal the judgment.

 

       As of 1990, defendant had made no payments on the 1984 judgment and
  had also moved his residence to Vermont.  In April 1990, plaintiff came to
  Vermont and sued in Windsor Superior Court to domesticate the 1984 New York
  judgment.(FN1)  Defendant signed a stipulation for judgment "in the amount of
  $96,642.02 as of January 27, 1990, together with interest at the legal rate
  of twelve (12%) percent per annum accruing from that date forward."  The
  court entered judgment for plaintiff on those exact terms.

       Plaintiff thereafter made several unsuccessful attempts to collect
  money from defendant pursuant to the 1990 Vermont judgment.  In 1992 she
  filed a motion for trustee process in an attempt to secure defendant's
  goods and, in 1993, she moved the Windsor Family Court to compel discovery
  of defendant's financial records.  Twice in 1994 the court found defendant
  in contempt of court orders relating to this litigation.

       In November 1995, continuing her effort to collect on the 1990
  judgment, plaintiff filed motions in Windsor Family Court to hold defendant
  in contempt of court under 15 V.S.A. § 603 and to suspend defendant's
  automobile driver's license under 15 V.S.A. § 798.  In its initial inquiry
  on the motions, the family court found that defendant had the ability to
  satisfy his financial obligation to plaintiff, but had theretofore
  neglected to pay the debt.

       On the issue of contempt the court found that defendant's ability to
  pay the debt had not been previously determined by a tribunal, and that a
  contempt order was not appropriate in advance of such a finding.  For the
  same reason, the court declined to suspend his driver's license.  The court
  also interpreted the automobile license suspension statute as more
  appropriately applied in situations where defendant is required to make
  periodic payments, instead of a single payment as under the 1990 judgment. 
  See 15 V.S.A. § 798(b) (suspension of operator's license appropriate where
  obligor fails to make payment on "one quarter of the

 

  annual support obligation").  Accordingly, while the family court denied
  plaintiff's motions for contempt and license suspension, it nonetheless
  ordered defendant to pay plaintiff a minimum of $1,000 per month toward
  satisfaction of the 1990 Vermont judgment and accrued interest thereon.

       Defendant's first argument on appeal to this Court is essentially a
  two-pronged challenge to the family court's order on the theory that
  relevant New York and Vermont statutes of limitations render the order
  unenforceable.  We address these arguments in turn.

       Defendant attempts a collateral attack on the New York judgment based
  on expiration of the applicable statute of limitation.  "A collateral
  attack is `one questioning the validity of a judgment in a proceeding which
  is not brought for the purpose of modifying, setting aside, vacating or
  enjoining the judgment.'"  Bennett Estate v. Travelers Ins. Co., 140 Vt.
  339, 342, 438 A.2d 380, 382 (1981) (quoting Burlington Data Processing,
  Inc. v Automated Medical Systems, Inc., 492 F. Supp. 821, 822 (D. Vt.
  1980)).  Collateral attack is only appropriate when a party can demonstrate
  a want in the court's jurisdiction over the subject matter or the parties
  to the judgment, or a court has acted outside its statutory authority.  Id.
  at 343, 438 A.2d  at 382.

       Defendant argues that the original 1984 New York judgment was void
  from its inception and therefore unenforceable in Vermont because New
  York's statute of limitations for enforcement of child support had expired
  by the time plaintiff brought her action in 1981. Defendant cites New York
  statutory and case law to establish that an action in New York for past-due
  child support must be brought within six years of accrual of the
  arrearages.  He points out that plaintiff commenced her action
  approximately nine years after the 1973 divorce and concludes that New York
  courts lacked subject matter jurisdiction to hear the case.

       Defendant's challenge to the 1984 New York judgment is without merit. 
  Defendant waived any possible collateral attack on the judgment with his
  1990 stipulation to judgment in Vermont superior court.  "A waiver is the
  intentional relinquishment or abandonment of a known

 

  right and may be evidenced by express words or conduct."  Chimney Hills
  Owners' Ass'n v. Antignani, 136 Vt. 446, 453, 392 A.2d 423, 427 (1978).  A
  waiver "involves both knowledge and intent."  Liberty Mutual Ins. Co. v.
  Cleveland, 127 Vt. 99, 103, 241 A.2d 60, 63 (1968) (quoting Beatty v.
  Employees' Liability Assurance Corp., 106 Vt. 25, 31, 168 A. 919, 922
  (1933)).

       The Windsor Superior Court found that on July 11, 1990, defendant
  signed a stipulation for judgment consenting to entry of judgment against
  him in plaintiff's favor for $96,642.02 plus interest accumulating at the
  annual rate of twelve percent.  The 1984 judgment was the foundation for
  plaintiff's suit, and defendant's stipulation provided the basis for the
  Windsor court's order.  He cannot now rescind his waiver and attack the
  earlier New York judgment underlying his stipulation.  See Town of Putney
  v. Town of Brookline, 126 Vt. 194, 201-02, 225 A.2d 388, 393 (1967) (final
  judgment entered by consent and stipulation is just as conclusive on
  parties as if rendered after contest).

       Moreover, even without defendant's waiver, the purported expiration of
  the applicable New York statute of limitations does not render the New York
  judgment invalid.  In New York, as in Vermont, a statute of limitations is
  an affirmative defense that provides repose for a prospective defendant,
  and its expiration does not affect a court's jurisdiction to hear the case.
  See, e.g., Duffy v. Horton Mem. Hosp., 488 N.E.2d 820, 822 (N.Y. 1985)
  (primary purpose of limitations statute is fairness to defendant); Matter
  of Augenblick, 488 N.E.2d 109, 110 (N.Y. 1985) (despite expiration of
  limitations period, failure to plead statute of limitations in answer or
  appropriate motion entitled opposing party to judgment on merits); see
  also, V.R.C.P. 8(c) (statute of limitations must be pled as affirmative
  defense; otherwise, defense is waived). The proper avenue for defendant was
  appeal of the court's decision in New York, not subsequent attack in
  Vermont.  Miller v. A.N. Deringer, Inc., 146 Vt. 59, 60, 498 A.2d 501, 502
  (1985).

       Because the New York Supreme Court rendered a final judgment that was
  not appealed, and because defendant has stipulated to domestication in
  Vermont of that same judgment, we

 

  reject defendant's collateral attack on the 1984 New York judgment.  As
  defendant himself correctly points out, we are bound to give full faith and
  credit to judgments from foreign tribunals with jurisdiction to render the
  judgment.  U.S. Const. art. IV, § 1.; Poston v. Poston, 160 Vt. 1, 4-5, 624 A.2d 853, 855 (1993).

       Defendant's second statute of limitations argument challenges
  plaintiff's 1995 motions in Windsor Family Court to collect child support
  payments pursuant to the 1990 Vermont judgment.  He contends that because
  the couple's youngest child reached her majority in 1983, 15 V.S.A. §
  606(c) of Vermont's Child Custody and Support Statute bars plaintiff's
  recovery for child support arrearages after 1989.  "An action to enforce a
  judgment under subsection (b) of this section may be brought no later than
  six years after the youngest child covered by the support order attains the
  age of majority . . . ."  15 V.S.A. § 606(c).  Defendant acknowledges that
  this provision did not become effective until July 1, 1995, and that the
  superior court order was issued in 1990.  He asserts, however, that
  plaintiff did not commence her action to enforce the 1990 judgment until
  November 1995, after the effective date of the legislation.  By that time,
  defendant argues, more than a decade had passed since the couple's youngest
  child had reached the age of majority, and hence the action was long since
  time-barred.

       Defendant misconstrues the applicability of § 606(c) to the action
  plaintiff has commenced.  When, as here, a party seeks to enforce a
  previously rendered court order for payment of child support, the
  applicable provision is § 606(a).  That section provides that a judgment by
  the family court -- or in this case, the superior court, since family court
  had not yet been established -- shall be "as binding and as enforceable in
  all respects as though rendered in any civil action."  15 V.S.A. § 606(a). 
  Thus plaintiff's 1995 motions in Windsor Family Court were, technically,
  motions to enforce a judgment, and not motions to enforce the terms of a
  child support order.  Actions to enforce judgments by the court may be
  brought "at any time."  Id.

       Defendant's attempt to invoke the limitation on actions set forth in §
  606(c) is unavailing.

 

  Section 606(b) provides that "any support payment or installment shall
  become a judgment on the day it becomes due for the purpose of calculating
  interest."  15 V.S.A. § 606(b) (emphasis added).  Read together,
  subsections (b) and (c) establish a time limit for bringing actions on
  unpaid balances under the terms of divorce or separation agreements. 
  Significantly, "judgments" arising under § 606(b) are amounts owed between
  the parties that have not been adjudged by a court.  That type of judgment
  arising automatically by law contrasts markedly with a court order of the
  type obtained by plaintiff in 1990.  When statutory language is clear and
  unambiguous, the statute should be enforced according to its express terms. 
  Heisse v. State, 143 Vt. 87, 89, 460 A.2d 444, 445 (1983).  Accordingly,
  plaintiff was not time-barred in bringing her actions to enforce payment of
  the 1990 Vermont judgment.

       Finally, defendant argues that the family court's 1996 order that he
  make monthly $1,000 payments to plaintiff was not appropriate under the
  statute because the court did not "render judgment for the amount due under
  the judgment or order."  15 V.S.A. § 606(a) (emphasis added).  Defendant
  asserts that the monthly payments order is invalid because the court did
  not enter judgment on the total amount due.  His argument is unpersuasive
  because the family court clearly based its order on the underlying 1990
  Windsor Superior Court order.  The family court specifically found that in
  1990 the Windsor Superior Court had entered judgment against defendant in
  favor of plaintiff "in the amount of $96,642.02 plus interest of 12% per
  year." Based on that judgment of the total amount due, the family court
  ordered defendant to "immediately begin monthly payments to plaintiff
  towards the satisfaction of the June 1990 judgment and the accrued interest
  thereon at a minimum rate of $1,000.00 per month."(FN2)

 

  Defendant's stipulation to the 1990 judgment, and the court's entry of that
  judgment, gave him clear notice of the amount he owed plaintiff.  See
  Village of Morrisville Water & Light Dep't v. Town of Hyde Park, 140 Vt.
  615, 618, 442 A.2d 1288, 1289 (1982) (judgment in earlier action conclusive
  as to amount owed between parties); MacGowan v. Gaines, 127 Vt. 477, 481,
  253 A.2d 121, 123 (1969) (actual notice exists when person sought to be
  affected by it knows of existence of particular fact in question). 

       Inasmuch as defendant was on notice of the amount of his debt, he
  suffered no prejudice as a result of the family court's 1996 order.
  
       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Chief Justice



  ----------------------------------------------------------------------------
                                  Footnotes


FN1.  In April 1990, actions involving child support were heard in
  superior court.  The Legislature created the Vermont Family Court system to
  adjudicate child support and other matters of domestic relations filed or
  pending on or after October 1, 1990.  4 V.S.A. § 454.

FN2.  The court's denial of plaintiff's motion for contempt does not
  render its underlying periodic payment order infirm.  The contempt motion
  was predicated on defendant's failure to satisfy the 1990 judgment.  The
  trial court was well within its discretion to forego the serious sanction
  of contempt even as it found it appropriate to order monthly payments on
  the earlier judgment.  See Hunt v. Hunt, 162 Vt. 423, 648 A.2d 843 (1994)
  (in motion for contempt for failure to satisfy child support obligation,
  although contempt order not appropriate, order to make payment toward debt
  appropriate); Randall v. Randall, 129 Vt. 432, 435, 282 A.2d 794, 796
  (1971) (motion for contempt in child support proceeding within discretion
  of trial court).