Cantin v. Young

Cantin v. Young (99-267); 170 Vt. 563; 742 A.2d 1246

[Filed 3-Nov-1999]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 1999-267



Lynn Cantin	                       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Essex Family Court
                                       }	
Douglas Young	                       }
                                       }	DOCKET NO. 21-8-91 Exdm
 
                                                Trial Judge: Douglas P. Cohn

             In the above-entitled cause, the Clerk will enter:

       Defendant Douglas Young moves to dismiss the appeal filed by the
  Office of Child Support (OCS) because OCS has exceeded its power to act. We
  grant the motion.

       Lynn Cantin and Douglas Young were divorced in 1993. In 1998, Cantin
  petitioned the court for a modification of child support, after she was
  notified that Young was to receive a workers' compensation award. Several
  hearings were held in the matter at which OCS participated, assisting
  Cantin. After a decision was rendered in July 1998, defendant requested a
  reconsideration, which was decided by the magistrate in his favor. OCS
  appealed from that decision; Cantin did not. Defendant moved to dismiss the
  appeal because OCS was not a party, and was exceeding its statutory
  authority. The court denied the motion, and decided the appeal,
  substantially affirming the magistrate's decision. On OCS's appeal to this
  Court, defendant has again moved to dismiss the appeal, on the same
  grounds.

       We must first address the basis for the family court's decision.
  It found that defendant had failed to object to OCS's participation
  during the hearings before the magistrate, and therefore was barred from
  objecting on appeal. We do not agree that defendant waived his right to
  object to OCS participation as a party. It was not until OCS filed its
  appeal that it became apparent that OCS was not merely assisting Cantin, as
  her representative, but was acting as an independent party. Thus, we reach
  the merits of defendant's motion.

       At the outset, we emphasize that this is not a case in which the
  support obligee--Cantin--has assigned her rights to OCS. See 33 V.S.A. §
  4106. Defendant agrees that in that circumstance OCS is the party in
  interest and can appeal from an adverse decision. Here, OCS is
  acting pursuant to its responsibility to provide "[u]pon application of the
  parent of a minor child ... [a]ny ... services required to be provided
  under Title IV- D." 33 V.S.A. § 4102(c)(6) "Title IV-D" refers to Title
  IV-D of the Social Security Act, which requires that states implement
  programs to assist in obtaining spousal and child support from absent
  parents. See 42 U.S.C. § 651. The state is required to provide "all
  appropriate IV-D services" in non- assignment cases. 45 C.F.R. §
  302.33(a)(5). We have reviewed the federal statute and implementing
  regulations and can find no requirement that the state child support agency
  have the power to independently seek court action, apart from a parent it
  is assisting, except where there is an assignment of support. Indeed, the
  statutory requirement that the state have a periodic review process for
  child support orders specifically applies only to modification requests
  made by "either parent," except in assignment cases. See 42 U.S.C. §
  666(a)(10)(A).

       Assuming the power that OCS seeks is not specified or required in
  federal law, OCS suggests that it can be found in Vermont statutes. We
  agree that the Legislature could grant OCS the power to intervene in
  support establishment and modification proceedings, acting independently,
  and not for either parent. See, e.g., In re Marriage of Lappe, 176 Ill. 2d 414, 223 Ill.Dec. 647, 680 N.E.2d 380, 387 (1997) (Illinois statutes
  authorize the Department of Public Aid to intervene in support
  proceedings.). We cannot find, however, that it has done so. The most
  relevant statutes are 15 V.S.A. §§ 658(b) and 660(a). The former statute
  allows a request for support to be made "by either parent, by a guardian,
  or by the departments of social and rehabilitation services or social
  welfare, or by the office of child support, if a party in interest." OCS
  was added as a permissible party to file a support petition in 1990, see
  1989, No. 220 (Adj.Sess.), § 21, but like the departments of social welfare
  and social and rehabilitation services, its power is limited to instances
  in which it "is a party in interest." See 15 V.S.A. § 658(b). We believe
  the effect of the proviso is to limit its power to cases in which it holds
  an assignment of support rights. If it could initiate any support case, the
  proviso language would be unnecessary. See In re Lunde, 166 Vt. 167, 171,
  688 A.2d 1312, 1315 (1997) (we will not construe a statute to render a
  significant part of it pure surplusage).

       This interpretation is reinforced by § 660, which deals with
  modification proceedings, the type of proceeding before us. The power to
  initiate a modification proceeding is limited to "either parent or any
  other person to whom support has previously been granted, or any person
  previously charged with support." 15 V.S.A. § 660(a). OCS is not mentioned,
  except possibly as a "person to whom support has previously been granted,"
  a position it would be in if it had an assignment of the right of support.
  In any event, OCS is seeking the power in this case to pursue modification
  of a support order irrespective of the wishes of the parents, and the
  statute does not give it such power.

       OCS also urges us to find its power to appear in court independent of
  the child support obligor and obligee in 4 V.S.A. § 464(a), which
  allows nonattorney OCS employees to participate in proceedings before a
  child support magistrate and declares their participation not to be
  unauthorized practice of law. We find that argument unpersuasive. The
  statute does not address whether the employees are acting for OCS or for a
  child support obligor or obligee.

       Finally, OCS urges that we find its power to act independently in its
  authorizing language's statement of purpose, requiring that it "be guided
  by the best interests of the child." 33 V.S.A. § 4101(b). This language
  follows a statement that establishment and enforcement of family support
  obligations is important to the welfare of Vermont's children. We cannot
  read into a general statement of purpose a specific power for OCS to
  intervene in child support proceedings on its own behalf pursuing its
  independent determination of what it thinks is in the best interest of the
  child involved. The Legislature could have implemented the statement of
  purpose as OCS desires, but we cannot find it has so implemented it. We
  also question the logic of OCS's position. It calls its actions "appellate
  services" to Cantin, relying on the fact that Ms. Cantin sought its
  assistance, but claiming once its assistance is sought, it acts
  independently and can take positions directly contrary to Cantin's wishes.
  We cannot understand how OCS can assist a parent by acting contrary to the
  parent's position.

       Although we grant the motion to dismiss, we are concerned that Cantin
  may not have appealed, with or without OCS assistance, in reliance on the
  independent appeal by OCS. Therefore, by our mandate, we are providing
  Cantin the opportunity to appeal.


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice



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