Lyon v. Lyon

466 A.2d 1186, 143 Vt. 458, 1983 Vt. LEXIS 553
CourtSupreme Court of Vermont
DecidedSeptember 28, 1983
Docket82-425
StatusPublished
Cited by13 cases

This text of 466 A.2d 1186 (Lyon v. Lyon) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lyon v. Lyon, 466 A.2d 1186, 143 Vt. 458, 1983 Vt. LEXIS 553 (Vt. 1983).

Opinions

Underwood, J.

Defendant appeals from a portion of an order of the Windham Superior Court which assessed a money judgment against him for arrearages owed for child support payments under a divorce order dated August 31,1971. We affirm.

On October 5, 1970, plaintiff filed her petition for divorce. In response to her prayer for temporary relief, defendant joined with her in executing a stipulation wherein, among other things, he agreed to pay her the sum of $40 per week for the support of their infant child. Defendant accepted service of the temporary order dated November 25, 1970, which was based on the stipulation and which contained the same proviso that he would pay $40 per week child support “until further Order of this Court.”

On January 25, 1971, and June 12, 1971, plaintiff filed petitions for contempt against the defendant alleging he was in arrears in temporary child support. On May 23, 1971, a mittimus issued but defendant purged himself by paying the then arrears. The contempt petition of June 12th was heard at the same time as the hearing on the merits of the divorce case on July 12, 1971. The court found defendant to be in arrears under the temporary child support order in the sum of $1,040 and ordered him to pay that sum to the Department of Social Welfare. He was further ordered to pay $40 per week child [460]*460support to the Department for the period July 23, 1971, to September 3, 1971.

Although defendant did not appear personally in the courtroom at the time of the hearing on the merits of the divorce and the petition for contempt, he was represented by counsel, and in his own words was “out in the hallway by the doors.”

On July 30, 1971, the entry in the case was made and on August 31, 1971, the finding and decree were filed. In each instance copies were mailed to counsel for the parties. The final decree ordered him inter alia to pay plaintiff $20 per week child support “until the child becomes of age and self-supporting.”

Defendant was never personally served with a copy of the final decree until February 17, 1982, in conjunction with plaintiff’s petition for contempt and for modification.

Although the trial court found that it “appears he knew that the separation was granted . . . ,” that there was “no evidence that he knew of a duty to support. . . ,” and that “[i]t therefore appears that defendant was unaware of the terms of the 1971 decree until service was made on February 17, 1982,” our review of the record indicates he knew, at the time of the divorce hearing, that he was in arrears in his child support payments under the temporary order, which provided that they were to continue weekly “until further Order of this Court.”

In 1973, defendant telephoned the plaintiff and asked if he could see the child. At that time plaintiff indicated that he could if he would assume his financial responsibility to support the child. Defendant retaliated with an obscene remark and hung up. She never heard from him again.

In 1978 defendant remarried. Before he could obtain his marriage license he had to have proof that he was divorced. His fiancee obtained a copy of the divorce decree. When asked if he saw the decree then his answer was, “I might have and I might not have. I don’t remember.”

Defendant admitted that he made no child support payments during this ten year interval but never claimed an inability to pay child support. He did maintain, however, that he did not know where the plaintiff was living. Yet they were both living and working in Vermont and each knew where the parents of the other lived. He also stated he never once saw his child during this ten year period.

[461]*461Plaintiff’s petition for contempt and modification dated February 22, 1982, prayed for some ten years of back support payments, arrearages in medical and dental expenses, and other relief. After a hearing on the merits on July 22, 1982, the court: (1) dismissed the petition for contempt, ruling that service of the order is a procedural prerequisite to the institution of such a petition; (2) entered judgment for plaintiff in the sum of $11,080, the amount of arrearages it found owed by defendant to the plaintiff for child support; and (3) modified the support order to provide $48 per week.

Defendant appeals from the money judgment of $11,080. He argues that (1) he cannot be held responsible for arrearages on a support order which was never served and about which he had no knowledge, and (2) recovery of arrearage is barred by laches and/or the doctrine of equitable estoppel. We disagree with both of defendant’s contentions.

In support of his first argument, defendant submits that the court properly ruled that without service there could be no contempt. He then argues that the same rule should extend to the enforcement of judgments. Defendant is correct in stating that a party who has not been served with an order may not be punished for contempt. Socony Mobil Oil Co. v. Northern Oil Co., 126 Vt. 160, 163, 225 A.2d 60, 63 (1966). However, he offers no legal support for his position that enforcement of support orders is predicated on the fact of service of the order. Moreover, defendant ignores the rule that a judgment order or final decree in a divorce case becomes effective, not upon the date it is served upon the losing party, but rather upon the date that it is issued by the court. V.R.C.P. 54(a) and 58.

Contrary to defendant’s assertions, the requisites for a finding of contempt are not the same as those for a finding that a party is in arrears under a child support order. The statute which provides for the action to recover child support from the person liable for it, 15 V.S.A. § 606, does not require service of the original order. Rather, a judgment may be “obtained on judgments, decrees, and orders previously rendered and still in force.” Id. Nonservice does not excuse a person from liability for the payment of arrears under a child support order.

[462]*462Defendant next argues that plaintiff is barred from recovering arrearages by her laches and/or the doctrine of equitable estoppel. However, we hold that these affirmative defenses are not available in an action brought to secure enforcement of a child support order. In so doing, we follow those jurisdictions which hold that child support arrearages may not be defeated by such means. Armour v. Allen, 377 So. 2d 798 (Fla. Dist. Ct. App. 1979) ; Paterson v. Paterson, 73 Wis. 2d 150, 242 N.W.2d 907 (1976) ; Holmes v. Burke, 462 S.W.2d 915 (Ky. 1971) ; Peters v. Weber, 175 Kan. 838, 267 P.2d 481 (1954).

An order for child support does not involve only the parent required to make such payments and the custodial parent entitled to receive them. Under 15 V.S.A. § 651 such payments are made for the support, maintenance and education of the minor children of the parties. The rights of such children are to be served and protected. Their welfare is paramount. White v. White, 141 Vt. 499, 503, 450 A.2d 1108

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Lyon v. Lyon
466 A.2d 1186 (Supreme Court of Vermont, 1983)

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Bluebook (online)
466 A.2d 1186, 143 Vt. 458, 1983 Vt. LEXIS 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyon-v-lyon-vt-1983.