Gavala v. Claassen

Gavala v. Claassen (2002-059); 175 Vt. 487; 819 A.2d 760

2003 VT 16

[Filed 14-Feb-2003]
          
                                 ENTRY ORDER

                                 2003 VT 16

                      SUPREME COURT DOCKET NO. 2002-059

                             JANUARY TERM, 2003


  Artemie Gavala	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Windsor Family Court
                                       }	
  Mary B. Claassen	               }
                                       }	DOCKET NO. 370-9-99 Wrdm

                                                Trial Judge: Theresa S. DiMauro

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

       ¶  1.  Father, who is seeking modification of a Massachusetts order
  in Vermont family court based on mother's residence in Vermont and his
  claim that he is no longer living in Massachusetts, appeals decisions of
  the magistrate and the family court setting aside an earlier order and
  dismissing his modification petition.  We affirm.

       ¶  2.  The parties were divorced under a 1988 Massachusetts order. 
  Mother moved to Vermont with the parties' minor daughter in 1993.  In
  September 1999, father filed a motion in the Windsor Family Court to
  register and modify the February 1999 Massachusetts order setting father's
  child support obligation at $300 per week.  In February 2000, following
  several days of hearings, the magistrate registered the Massachusetts order
  in Vermont based on evidence presented by father indicating that he was a
  Pennsylvania resident.  In June 2000, the Office of Child Support (OCS)
  filed a motion to reopen the registration of the Massachusetts order and to
  dismiss father's modification petition.  The magistrate denied the motion
  in an August 9, 2000 decision following a July 14 hearing.
   
       ¶  3.  In October 2000, OCS filed a renewed motion to reopen, citing
  newly discovered evidence indicating that no certificate of occupancy had
  been issued for the house at the address claimed by father as his
  Pennsylvania residence.  On December 1, 2000, one week before the scheduled
  hearing on the motion to reopen, OCS moved to permit a Pennsylvania
  planning commissioner to testify by telephone as to what he found when he
  recently inspected the house father was claiming as his residence.  The
  magistrate granted the motion on the day of the hearing, and the planning
  commissioner testified that the house in question was under construction
  and unoccupied.  On cross-examination, the planning commissioner conceded
  that he had not actually entered the basement of the house.  Based on the
  planning commissioner's testimony and other evidence, the magistrate found
  that father had falsely claimed to be a Pennsylvania resident to avoid
  Massachusetts jurisdiction over his child support obligation.  Accordingly,
  the magistrate granted OCS's motion to reopen and dismissed father's
  modification petition.  Father appealed to the family court, and filed a
  motion asking the court to allow him to submit the testimony of his
  landlord, who had been present when the planning commissioner inspected his
  claimed residence.  The court denied the motion and upheld the magistrate's
  decision.

       ¶  4.  On appeal to this Court, father argues that (1) the planning
  commissioner's speculative testimony was insufficient for the magistrate to
  find fraud by clear and convincing evidence; and (2) the family court was
  compelled by statute to grant his motion to submit the testimony of his
  landlord.

       ¶  5.  With respect to his first argument, father correctly states
  that, to obtain relief under V.R.C.P. 60(b)(3), OCS was required to
  demonstrate fraud by clear and convincing evidence.  See Bardill Land &
  Lumber, Inc. v. Davis, 135 Vt. 81, 82, 370 A.2d 212, 213 (1977) (in all
  cases where fraud is alleged, including motions to reopen under Rule
  60(b)(3), moving party must prove fraud by clear and convincing evidence). 
  We find no merit, however, to father's argument that the evidence of fraud
  in this case was not clear and convincing.  Notwithstanding the planning
  commissioner's acknowledgment on cross-examination that he did not
  physically enter the basement of the unfinished structure that father
  claimed to be his residence, his testimony of the state of the structure
  demonstrated to a high degree of certainty that it was unoccupied, and that
  father did not run his engineering consulting business from that address,
  as he claimed.  Indeed, coupled with other evidence, including father's
  elaborate rerouting of mail between Pennsylvania and Massachusetts, the
  fact that mail sent to the unfinished structure was returned as
  undeliverable, and father's own testimony, some of which was directly
  contradictory to the planning commissioner's undisputed testimony, the
  evidence of father's fraud was clear and convincing, if not overwhelming. 
  The family court acted well within its discretion in upholding the
  magistrate's order finding fraud on father's part and dismissing his motion
  to modify child support.  See In re N.H., 168 Vt. 508, 512, 724 A.2d 467,
  470 (1998) (clear and convincing is rigorous standard but does not require
  wholly uncontradicted or unimpeached evidence; nor is reviewing court free
  to ignore trial court's findings, which must be upheld as long as they are
  not clearly erroneous, even when standard of proof is clear and convincing
  evidence); Bingham v. Tenney, 154 Vt. 96, 99, 573 A.2d 1185, 1186 (1990)
  ("The decision on a Rule 60(b) motion is committed to the sound discretion
  of the trial court and will stand on review unless the record clearly and
  affirmatively indicates that such discretion was withheld or otherwise
  abused.").
        
       ¶  6.  Father complains, however, that he did not have an
  opportunity to rebut the planning commissioner's testimony because OCS
  moved to allow the testimony only five working days before the hearing. 
  Again, we find no merit to this argument.  For months, father had been
  aware that OCS was challenging his claim that he was a resident of
  Pennsylvania and lived at the address he claimed as his residence.  Several
  weeks in advance of the hearing, OCS put father on notice that it intended
  to show that there was no certificate of occupancy that had been issued for
  the structure at that address.  Still days before the hearing, OCS
  indicated that it would present the testimony of one of the town officials
  who had inspected the property.  Rather than present rebuttal testimony of
  his landlord at the December 8 hearing or seek a continuance to present
  such testimony, father attended the hearing, listened to the planning
  commissioner's testimony, engaged in cross-examination but failed to
  provide an adequate response to the planning commissioner's testimony when
  queried by the court, and only later sought to challenge that testimony. 
  On this record, father has failed to demonstrate that he did not have an
  opportunity to challenge the planning commissioner's testimony.

       ¶  7.  Finally, father argues that the family court was required by
  statute to hear the testimony of his landlord, even though it had not been
  presented before the magistrate.  Section 465 of Title 4 provides as
  follows: "An appeal from a decision of a magistrate shall be on the record
  to the family court.  At the request of a party, the family court shall
  hear additional evidence."  According to father, the use of the word
  "shall" in the second sentence of § 465 means that the family court has no
  discretion to refuse to hear new evidence proposed by a party, even though
  appeals to the family from magistrate decisions are "on the record."  We
  reject this argument.  The family rule governing magistrate proceedings
  provides that "[a]ppeal shall be solely on the record, except that where,
  for good cause shown, the record is found to be incomplete additional
  evidence may be submitted and review shall be de novo."  V.R.F.P. 8(g)(4). 
  The Reporter's Notes to Rule 8 address the apparent conflict between the
  statute and the rule:

         Subdivision (g) is adopted to implement the statutory
    language on appeals.  Section 465 says that appeals shall be on
    the record to the family court - but it also says that "At the
    request of a party, the family court shall hear additional
    evidence."  It would be unacceptably confusing, and
    counterproductive, for the family court to preside over an appeal
    which simultaneously is "on the record" and includes live
    testimony from new witnesses.  Appeal "on the record" consists of
    review to determine if the tribunal below committed an abuse of
    discretion.  Once the family court begins to accept additional
    testimony, the court will be forced to weigh the credibility of a
    live witness against the credibility of witnesses in the record;
    this is an extraordinarily difficult task, if not impossible. 
    Moreover, the effect of allowing live testimony upon request of
    any party would be to transform almost every "appeal" into a de
    novo hearing, since litigants will realize that the best way to
    respond to one live witness is to produce other live witnesses. 
    This will diminish the role of magistrates, squander the resources
    which have been expended to create magistrates proceedings, and
    seriously undermine the statutory and federal goal of concluding
    90 percent of support proceedings within 3 months and 98 percent
    within 6 months.

         The rule, therefore, authorizes submission of additional
    evidence upon appeal but only when the record from the magistrate
    is incomplete and good cause has been shown for its
    incompleteness.  An example would be when failure to comply with
    discovery by one party caused the other party to proceed before
    the magistrate with incomplete information.

         The rule also provides that when additional evidence is being
    submitted review will be de novo, for the reasons noted above.
     
       ¶  8.  For the reasons stated in the Reporter's Notes, we conclude
  that § 465 is internally inconsistent and therefore ambiguous, and must be
  construed as set forth in Rule 8(g)(4).  Here, father failed to demonstrate
  good cause for a de novo family court hearing, and thus the court properly
  denied his request to submit additional evidence.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice
                      
                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned