Medveskas v. Karparis

MEDVESKAS_V_KARPARIS.92-157; 161 Vt. 387; 640 A.2d 543

[Filed 28-Feb-1994]

 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. 92-157


 Zafa Medveskas                               Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Charles Karparis                             November Term, 1992



 David A. Jenkins, J.

 Patrick L. Biggam of Biggam, Fox & Skinner, Montpelier, for plaintiff-
    appellant

 Robert Halpert, Montpelier, for defendant-appellee



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


      JOHNSON, J.    Plaintiff-wife appeals from a superior court order
 dismissing her suit to recover on a money judgment obtained by her in the
 Massachusetts courts against defendant-husband for child support arrearages
 due pursuant to a Massachusetts child custody and support decree.  The issue
 on appeal is whether wife can recover on a Massachusetts contempt judgment
 based on a Massachusetts custody and support decree that modified a prior a
 Vermont custody and support decree without a finding of substantial change
 of circumstances.  We affirm.
      The parties were divorced by an order of the Washington Superior Court
 in 1974.  Originally, the court ordered joint custody of the three minor
 children, Charles, Jr., Andrew, and Zafa.  During the ensuing years, the

 

 parties filed several modification petitions.  As a result of one of these
 petitions, husband obtained physical custody of Charles, Jr.  In March 1977,
 husband brought a petition for modification in Washington Superior Court in
 which he sought custody of Andrew.  Wife obtained counsel and entered an
 appearance in this proceeding.  The court declined to resolve the petition,
 however, until after Andrew was evaluated by Washington County Mental Health
 Services.  In August 1977, the counselor recommended that Andrew live with
 husband.
      Subsequently, wife moved to Massachusetts with her new husband, Andrew,
 and Zafa.  On September 10, 1977, wife instituted an action in Massachusetts
 seeking custody of Andrew and Zafa.  On September 15, 1977, the
 Massachusetts court awarded wife temporary custody of Andrew and Zafa.
 Husband obtained counsel and appeared in the Massachusetts custody action.
      The two custody actions proceeded simultaneously, and Vermont
 pronounced judgment first.  On November 7, 1977, the Vermont court
 transferred custody of Andrew from wife to husband, and ordered that husband
 would be relieved of paying wife support payments of $25 per month for
 Andrew "[w]hen [he] obtain[ed] physical custody of Andrew."  Nevertheless,
 wife refused to relinquish custody of Andrew and he ultimately continued to
 reside with wife until his emancipation.  The court made no modification of
 support regarding Zafa, which continued at $25 per month.  Zafa also resided
 with wife until her emancipation.
      Following entry of the Vermont custody order, husband's Massachusetts
 counsel moved to dismiss the proceedings in that state, arguing res judicata
 and comity.  The Massachusetts court acknowledged that a Vermont court had
 given custody of Andrew to husband, but found that it was in the best

 

 interests of Andrew and Zafa to remain with wife.  On June 30, 1978, the
 Massachusetts court granted custody of Andrew to wife and ordered husband to
 make support payments of $25 per child per week.  The court also granted
 visitation rights to husband.
      In 1985, wife sought a contempt order in Massachusetts seeking support
 arrearages for both children under the June 30, 1978 Massachusetts custody
 order.  Husband failed to appear, and wife obtained a default contempt
 judgment for $18,952 on October 17, 1985.  Six years later, on July 3, 1991,
 wife filed a complaint in the Washington Superior Court seeking enforcement
 of the Massachusetts default judgment and requesting interest from October
 17, 1985 to July 3, 1991 in the amount of $12,887.36 and interest from the
 date of her complaint.  It is this suit on the Massachusetts contempt
 judgment that is the subject of this current Vermont action.
      The trial court dismissed plaintiff's suit.  The court found that
 normally, under the Full Faith and Credit Clause of the United States
 Constitution,(FN1) the judgment that is last in time controls.  In this case,
 however, the court ruled that the last-in-time rule should yield because:
 (1) wife approached the court with unclean hands in that she was in contempt
 of court for refusing to comply with the November 7, 1977 Vermont custody
 order, and (2) the Massachusetts custody order was not based on a
 substantial change in circumstances, and thus was unenforceable.
 Consequently, the court found that the subsequent contempt proceeding based
 on the Massachusetts order was equally unenforceable.  This appeal followed.

 

      Essentially, the parties are advancing two inconsistent and competing
 custody orders that differ in two ways.  The Vermont order awards custody of
 Andrew to husband, while the Massachusetts order awards custody of Andrew to
 wife.  The Vermont order also obligates husband to pay support payments of
 $25 per month per child, whereas the Massachusetts order imposes that amount
 on a weekly basis.
      Ordinarily, we would turn to the Parental Kidnapping Prevention Act,
 (PKPA), 28 U.S.C. { 1738A, to resolve this dispute.  Shute v. Shute, 158 Vt.
 242, 245, 607 A.2d 890, 893 (1992).  When it was enacted in 1980, the PKPA
 established national standards for the enforcement and modification of child
 custody determinations.  The PKPA prohibits a state from exercising
 jurisdiction in any proceeding to determine custody when the action is filed
 during the pendency of a custody proceeding in the courts of another state,
 as long as the other state is acting consistently with the PKPA.  Id. {
 1738A(g).  It also prevents a second state, which would otherwise have
 jurisdiction over the matter, from modifying a foreign custody determination
 unless the original state no longer has jurisdiction or has declined to
 exercise its jurisdiction.  Id. { 1738A(f).  Otherwise, the PKPA requires
 states to enforce a foreign custody determination made consistently with the
 PKPA.  Id. { 1738A(a).
      If we were to apply the PKPA to this case, we could not enforce the
 Massachusetts custody order.  Vermont was the children's home state (FN2) at 

 

 the time of the divorce and Vermont would have had continuing jurisdiction to
 modify its custody order.  See id. { 1738A(c), (d).  Therefore,
 Massachusetts could not have modified that order absent exigent
 circumstances.  See id.  Moreover, Massachusetts exercised jurisdiction
 while a custody determination was pending in another state that was
 exercising jurisdiction consistently with the PKPA, which would have
 violated the PKPA.  See id. { 1738A(g).  The conflicting judgments, however,
 were entered prior to the enactment of the PKPA.  Thus, we must look to the
 law as it existed before the PKPA.
      Prior to the enactment of the PKPA, courts applied general conflict-
 of-laws principles to determine which of two conflicting judgments to
 enforce.  Wife argues that the Massachusetts judgment awarding her custody
 of Andrew and setting the child support level for Andrew and Zafa at $50 per
 week was valid and enforceable because it was later in time than the Vermont
 custody order and therefore superior under the Full Faith and Credit Clause
 of the United States Constitution, art. IV, { 1, and 28 U.S.C. { 1738.
 Husband counters that the Full Faith and Credit Clause does not mandate
 recognition of a foreign judgment in the forum state when the forum state
 issued a prior, conflicting judgment binding the same parties with respect
 to the same subject matter.  Wife responds that husband's argument is
 without merit because Vermont custody orders are subject to modification,
 and thus are not entitled to full faith and credit.  Therefore, wife argues,
 the Massachusetts court was not required to grant full faith and credit to
 the prior Vermont custody order.

 

      Before addressing the parties' arguments, it is important to define the
 limits of this case.  As previously noted, all of the relevant judgments
 occurred prior to the passage of the PKPA.  Moreover, Andrew and Zafa are
 now emancipated.  This case is not about who should have custody of the
 children or whether they are being adequately supported.  Rather, the sole
 issue is child support arrearages.  Thus, we focus solely on the provisions
 for support in the Vermont and Massachusetts orders, and not on the findings
 or provisions regarding custody of Andrew.
      Wife is correct that Vermont custody orders are modifiable.  Vermont
 permits modification of a custody order if the petitioning party
 demonstrates a substantial change in material circumstances from the earlier
 decree.  Valeo v. Valeo, 132 Vt. 526, 527, 322 A.2d 306, 308 (1974).
 Likewise, Massachusetts permits modification of a Massachusetts custody
 order or a foreign custody order upon a "showing of material change in
 circumstances."  Buchanan v. Buchanan, 231 N.E.2d 570, 571 (Mass. 1967).
 Wife concludes that Massachusetts did not deny Vermont's order full faith
 and credit because it was modifiable.  See Lowery v. Lowery, 156 Vt. 268,
 271, 591 A.2d 81, 83 (1991) ("prospective [spousal] maintenance orders are
 not entitled to full faith and credit if they can be modified in their state
 of origin").
      What wife's analysis overlooks is the reason a substantial change in
 circumstances is required before a custody order can be modified -- that
 "[o]therwise, the doctrine of res judicata prevents a judgment of
 modification."  French v. French, 128 Vt. 138, 139, 259 A.2d 778, 779
 (1969); see also In re Forslund, 123 Vt. 341, 343, 189 A.2d 537, 539 (1963)
 (foreign child custody decree "is res adjudicata as between the parents upon

 

 facts as they existed on the date of the decree").  Thus, the Vermont
 custody order was res judicata on the issue of custody and support as the
 facts existed on November 7, 1977.
      The Massachusetts court modified the Vermont decree eight months later.
 In the current action, the trial court found that if there were changed
 circumstances regarding custody of Andrew, they resulted merely from
 plaintiff's non-compliance with the Vermont custody order.  It also found
 that no changed circumstances existed entitling wife to modification of the
 Vermont decree as to the support of Zafa.(FN3) Our own examination of the
 Massachusetts court's findings of fact reveals that there was no finding of
 a change in material circumstances.  Moreover, we cannot infer such a change
 because the findings are devoid of any reference to the children's and
 wife's financial needs or husband's ability to pay.  By refusing or failing
 to apply commonly accepted rules regarding modification, the Massachusetts
 court modified a judgment that was not subject to modification in Vermont
 and thereby denied the Vermont order the full faith and credit to which it
 was entitled.
      Nevertheless, wife argues that we are required to give full faith and
 credit to the Massachusetts judgment under the "last-in-time" rule.  That
 rule provides that when courts of different jurisdictions reach different
 results in a matter involving the same parties and the same issues, the
 later judgment controls.  Restatement (Second) of Conflict of Laws { 114
 (1971).  The rationale for permitting the later judgment to control is that

 

 the winner of the first judgment had the opportunity to litigate the defense
 of res judicata in the second forum and an appellate avenue for correction
 if the defense was erroneously rejected.  Ginsburg, Judgments in Search of
 Full Faith and Credit: The Last-In-Time Rule for Conflicting Judgments, 82
 Harv. L. Rev. 798, 798 (1969).  According to the Restatement comments, the
 rule applies even when the later judgment denied full faith and credit to
 the first judgment.  Restatement (Second) of Conflict of Laws { 114 comment
 a (1971).  The Restatement notes, however, that if the second forum (F-2)
 denies full faith and credit to the first forum (F-1), the losing party
 appeals, and the United States Supreme Court denies certiorari, it may be
 inappropriate to give full faith and credit to F-2's judgment, even though
 it is last in time.  Id. { 114 comment b.
      The United States Supreme Court has recognized the last-in-time rule
 under the Full Faith and Credit Clause.  See, e.g., Sutton v. Leib, 342 U.S. 402, 408 (1952); Treinies v. Sunshine Mining Co., 308 U.S. 66, 76-78 (1939);
 Dimock v. Revere Copper Co., 117 U.S. 559, 566 (1886).  But the Court has
 never addressed the applicability of the last-in-time rule where F-1's order
 was raised and denied full faith and credit in F-2 and the prevailing party
 in the F-2 action seeks to enforce that inconsistent judgment in F-1.  State
 courts faced with this scenario have divided over whether the rule applies.
 Those that followed the last-in-time rule and enforced F-2's order reasoned
 that the parties had the opportunity to litigate full faith and credit in F-
 2 and that denial of full faith and credit to F-2's judgment would exhibit
 the very "parochial attitude" the Full Faith and Credit Clause is designed
 to override.  See, e.g., Sullivan v. Sullivan, 424 N.E.2d 957, 960-61 (Ill.

 

 App. Ct. 1981); DiRusso v. DiRusso, 287 N.Y.S.2d 171, 178-81 (Sup. Ct.
 1968).
      Courts that have rejected the last-in-time rule in the present
 scenario reason that to afford full faith and credit to a foreign judgment
 that is inconsistent with a valid binding order issued in their own
 jurisdictions would require them to give "greater faith and credit to the
 judgments of the courts of other states" than to their own judgments.
 Hammell v. Britton, 119 P.2d 333, 339 (Cal. 1941); accord Pruitt v. Key,
 203 So. 2d 450, 453 (Ala. 1967); Porter v. Porter, 416 P.2d 564, 568 (Ariz.
 1966), cert. denied, 386 U.S. 957 (1967); Colby v. Colby, 369 P.2d 1019,
 1023 (Nev.), cert. denied, 371 U.S. 888 (1962).
      We agree that the Full Faith and Credit Clause does not compel us to
 give greater effect to the Massachusetts judgment than to our own previous
 state judgment.  The Full Faith and Credit Clause nationalizes state
 judgments and thereby discourages jurisdictional competition between the
 states.  We are not persuaded that giving full faith and credit to a
 judgment that denies full faith and credit will advance the purpose of that
 Clause.  And though it is not controlling, the PKPA is instructive.  Under
 that statute, if a state court is required to enforce one of two
 inconsistent custody determinations, the PKPA would require the court to
 enforce the order made consistently with the PKPA, no matter which of the
 two orders issues last in time.  See generally 28 U.S.C. { 1738A.  Thus,
 the PKPA rejects the last-in-time rule, at least in the realm of child
 custody determinations.  Accordingly, we decline to give effect to the
 Massachusetts custody and support order by enforcing a contempt and
 arrearage order in aid of that judgment.

 

      Wife argues in the alternative that even if the Massachusetts order
 granting her custody of Andrew was defective, that portion of the order
 that awarded custody and support for Zafa should be upheld and enforced.
 This argument is without merit because the Massachusetts order denied full
 faith and credit to the Vermont order as it related to support of both
 Andrew and Zafa.
      Today's decision does not prohibit wife from now seeking to enforce the
 November 7, 1977 Vermont order, nor husband from raising any and all
 defenses permitted by law.
      Affirmed.

                                    FOR THE COURT:


                                    ________________________________
                                    Associate Justice



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                               Footnotes


FN1.  The Full Faith and Credit Clause provides: "Full Faith and Credit
 shall be given in each State to the public Acts, Records, and judicial
 Proceedings of every other State.  And the Congress may by general Laws
 prescribe the Manner in which such Acts, Records and Proceedings shall be
 proved, and the Effect thereof."  U.S. Const. art. IV, { 1.

FN2.  The PKPA defines "home State" as:
     the State in which, immediately preceding the time involved, the
     child lived with his parents, a parent, or a person acting as
     parent, for at least six consecutive months, and in the case of a
     child less than six months old, the State in which the child lived
     from birth with any such persons.
 28 U.S.C. { 1738A(b)(4).

FN3.   Wife argues that we can only speculate on the basis for the
 Massachusetts decision because we do not have a transcript of that
 proceeding before us.  Wife, however, submitted a copy of the Massachusetts
 custody order and underlying findings of fact to the Vermont courts.  Thus,
 we are not speculating on the basis of the Massachusetts court's decision.