Miller v. Miller

Burgess, J.,

¶ 32. dissenting. Mother has never challenged the family court’s findings that while suffering from depression she sought to curtail contact with father through an ex parte relief-from-abuse petition denied for lack of evidence, failed to follow up on scheduled treatment for the child’s brain lesion and rare seizure disorder, and then, after her abuse allegations against father were fully tried and adjudged meritless, took the child first to Massachusetts and then to other jurisdictions, including Canada, in defiance of a stipulated custody order.12 These findings and conclusions by the family court are not, despite the majority’s *485alarm, recited to tar mother’s character, but to reflect the actual character of the case from the perspective of the family court based on the evidence and record before it at the time of mother’s motions. On that record, the family court was not called upon to answer the majority’s new and relatively simple inquiry as to the most appropriate forum for a custody dispute involving a child living abroad. What confronted the family court was a motion for relief from judgment by mother, who had claimed, but failed to prove, abuse by father, and who was already found to have suffered from depression and “some sort of break-down,” “probably in the throes of some mental illness,” making her an “unfit guardian for the child,” “possibly . . . delusional,” potentially placing the child in “danger” and, intent on depriving father of his parental rights, in willful contempt of court by having absconded with the child to parts unknown for years. These undisputed facts, along with mother’s then continuing refusal to offer evidence of the child’s care and well-being, were considered with other factors in the family court’s denial of mother’s motions. The case as actually presented to the family court had nothing to do with the majority’s theory of forum non conveniens introduced today.

¶ 33. The record having been established, and with mother’s Vermont Rule of Civil Procedure 60(b)(6) motion for relief failing to challenge anything but subject matter jurisdiction, which the majority agrees was a doomed effort, the family court had no reason to grant the motion or to entertain other theories not asserted by mother. Mother failed to make any timely objection to the jurisdiction of the family court in 2002, and then later failed to appeal from the 2006 Vermont family court order from which she now seeks to be excused. In the meantime, mother was convicted by a federal jury of felony kidnapping for absconding with the child to Canada. While mother’s criminal interference with father’s parent-child contact was extraordinary, she demonstrated no extraordinary circumstances warranting relief from the family court’s order on jurisdiction under Rule 60(b)(6). There is no basis to disturb the family court’s discretionary and rationally explained denial of mother’s Rule 60(b) motion. Accordingly, I dissent from the reversal of the family court’s order.

¶ 34. The majority bypasses several legal standards to reach its result. The majority reverses the trial court’s reasoned decision *486despite our established abuse-of-discretion standard of review for denial of a Rule 60(b) motion, and the utter absence of any such abuse in the family court’s denial of mother’s request for relief. The majority also disregards settled law barring relief from judgments from which no appeal has been taken. Instead, the majority purports to consider the merits of mother’s jurisdictional claims under Vermont’s Uniform Child Custody Jurisdiction Act (UCCJA), 15 V.S.A. §§ 1031-1051, as if presented for direct, de novo appellate review. Rejecting, as a matter of law under 15 V.S.A. § 1032, mother’s belated claim that the Vermont family court lacked subject matter jurisdiction, the majority nevertheless proceeds to consider a claim not raised and preserved by mother in this appeal: that the family court should have discretionarily declined to exercise its jurisdiction under a different provision, § 1036. Finally, the majority assumes, without an evidentiary record, that the best interests of the child are extraordinary in this case and warrant relief from judgment when mother failed to raise, or refused access to evidence about, such a claim before the family court prior to its entry of final judgment, twice, against her. Given mother’s tactical choice not to pursue these arguments in the trial court or on appeal, the family court properly concluded that mother was not entitled to relief under Rule 60(b).

¶ 35. The majority treats these “procedural objections” as overcome in this case because it is one of those rare circumstances where the “finality of judgments must . . . yield to the best interests of the child.” Ante, ¶ 22. But the facts cited by the majority to support its conclusion are merely that the child lived in Canada for an extended period of time so that information about the child is there. Ante, ¶ 21. Of course, this situation would arise whenever one parent kidnaps a child to a foreign jurisdiction and then manages, even by contempt of court, to extend the illegal abduction. Thus, the majority rewards the kidnapper, and encourages others, by equating such unlawful frustration of family court jurisdiction with the best interests of the child. There are no findings, and nothing in the record to suggest, that Canadian information about the child could not be reasonably available to the Vermont family court. The only extraordinary circumstance appearing in this case is mother’s criminal contumacy, and this should not be a basis for Rule 60(b)(6) relief from judgment when mother passed, for her own tactical reasons, two opportunities to challenge the previous final judgments.

*487¶ 36. Having nothing extraordinary to explain its departure from ordinary Rule 60 practice, the majority recites extensively from mother’s allegations of abuse, as well as a visitation supervisor’s allegations of abuse and a psychologist’s report based on those same allegations — all of which, after some six proceedings spread across seven years, two states and the Province of Quebec, remain wholly unproven.13 Mother failed to carry her burden of proof at the relief-from-abuse hearing. Mother failed to present any evidence at the hearing on father’s motion to transfer custody. Mother elected not to offer evidence to the family court that contact with father was contrary to the best interests of the child.

¶ 37. The majority correctly holds that the family court had subject matter jurisdiction under § 1032, and that the family court could decline to exercise its jurisdiction in favor of a more appropriate or convenient foreign forum under § 1036. But the majority is incorrect to entirely recast mother’s Rule 60(b) motion as a challenge to the forum as inconvenient or inappropriate, when the actual issue before the family court, and this Court, was narrower: whether mother’s belated assertion of subject matter jurisdiction in Canada — to the exclusion of Vermont — could justify relief under Rule 60(b) from a judgment that she failed to challenge through appeal. That decision was discretionary, and the family court’s ruling must “stand on review unless the record clearly and affirmatively indicates that such discretion was withheld or otherwise abused.” Bingham v. Tenney, 154 Vt. 96, 99, 573 A.2d 1185, 1186 (1990) (reiterating that Rule 60(b) determinations are committed to the sound discretion of the trial court).

¶ 38. While the procedural history of this case may be long, it is punctuated by just a few critical events — each the product of mother’s tactical choice. Having hidden the child in Canada and secreted herself there, mother was duly served by publication, but failed to appear for the hearing on father’s motions to modify and for contempt in August 2002. Her default resulted in the family *488court’s September 19, 2002 order, finding mother in contempt based on her willful violation of the earlier custody order, and temporarily transferring child custody to father pending further hearing. Served with the contempt order in October 2002, mother chose not to respond to the Vermont proceedings or otherwise challenge the family court’s order for almost two years. Instead, mother commenced proceedings in the Canadian courts, eventually receiving a favorable custody ruling there in May 2003. In the Vermont proceedings, mother did respond to father’s motion for medical records in 2004, with her own motion to dismiss for lack of jurisdiction which was dismissed as moot upon the court’s denial of father’s request. Mother raised no further challenge to the court’s jurisdiction or its custody order over the next sixteen months.

¶ 39. Then, in January 2006, upon entering Vermont, mother was arrested and held on the contempt order. In February 2006, mother filed a motion to vacate the 2002 custody order on the grounds that the court lacked jurisdiction. The family court concluded that Vermont did have jurisdiction over the matter and denied the motion, explaining that mother’s “failure to offer evidence about this child’s present and future needs, and her unilateral detention of this child in violation of this court’s order should not operate to confer ‘home state’ jurisdiction in the place [Canada] where mother has secreted the child.” Mother appealed, but her appeal was dismissed in April 2006 for her failure to comply with a scheduling order.

¶ 40. On June 16, 2006, mother filed her motion for relief from judgment under Rule 60(b)(6). Couched as a plea for recognition and enforcement of the Canadian custody order as a matter of international comity and adherence to the UCCJA, mother urged the family court to resolve the “jurisdictional contest between the sovereign state of Canada and the State of Vermont” that had “yet never . . . been addressed by the Vermont courts.” Notwithstanding her invitation to respond to a conflict of international proportions, mother’s invocation of Canadian jurisdiction as either exclusive or more convenient was, according to our more mundane domestic law, too late and properly denied.

¶ 41. Mother was incorrect in claiming that jurisdiction was not addressed by the family court until her June 2006 motion for relief. Mother raised lack of Vermont jurisdiction four months earlier in her February 2006 motion to vacate the 2002 transfer of *489custody to father. Her argument was rejected, and final judgment on that question was entered against her. Mother failed to prosecute her appeal of the issue. We have repeatedly emphasized that Rule 60(b) “is not intended to function as a substitute for a timely appeal.” Donley v. Donley, 165 Vt. 619, 619, 686 A.2d 943, 945 (1996) (mem.) (quotation omitted). Having failed to appeal the family court’s denial of her jurisdictional complaint, and citing nothing extraordinary to excuse that failure, mother was foreclosed from seeking consideration of that matter through Rule 60(b).14

¶ 42. The majority claims that mother’s Rule 60(b) motion afforded the family court an “opportunity” to consider the discrete question of whether jurisdiction would be most appropriately exercised by Canada rather than Vermont. Ante, ¶ 22. Mother, however, already had multiple opportunities to litigate this claim and failed to raise it. The issue of inconvenient forum under the UCCJA, 15 V.S.A. § 1036, on the same facts, was available to mother when she defaulted on the motion to modify in 2002. The issue was equally available to mother when she moved to vacate the 2002 custody order in February 2006. Examination of mother’s pleading and memoranda reveals no such claim. Where a party has an opportunity to contest jurisdiction and fails to do so, “Rule 60(b)(6), which normally affords relief only under extraordinary circumstances, is unavailing . . . with respect to [the] jurisdictional claims.” Donley, 165 Vt. at 620, 686 A.2d at 945. This is because “simple failure” to raise jurisdictional issues “is not an ‘extraordinary circumstance’ justifying relief from judgment under Rule 60(b)(6).” Town of Washington v. Emmons, 2007 VT 22, ¶ 7, 181 Vt. 586, 925 A.2d 1002 (mem.). Even if the standards for exercising jurisdiction in § 1036 of the UCCJA were somehow invoked by mother’s argument, or by the family court’s decision, *490the ruling was not appealed and so could not be raised anew under Rule 60(b). See Donley, 165 Vt. at 619, 686 A.2d at 945.

¶ 43. Moreover, having failed to raise the issue of inappropriate forum below, mother failed to preserve that question for appeal. The issue was not raised, nor was there any mention of § 1036 or its grounds for family court deference to a more appropriate jurisdiction, in her Rule 60(b) motion or in her appeal here. Rather, in her Rule 60(b) motion and on appeal, mother argued lack of subject matter jurisdiction — an argument the majority rightly rejects here because the family court’s subject matter jurisdiction was evident on the record. Ante, ¶ 17. To reach the question of appropriate forum, the majority disregards established limitations on appeal: (1) that claims not raised below will not be reviewed for the first time on appeal, Greene v. Bell, 171 Vt. 280, 287 n.3, 762 A.2d 865, 871 n.3 (2000); and (2) that matters not briefed will not be considered on appeal. State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982). “It is our long standing rule that this court should not put the lower court in error when the latter was not afforded the opportunity of considering and acting upon the issue itself.” Laird Props. New England Land Syndicate v. Mad River Corp., 131 Vt. 268, 282, 305 A.2d 562, 570 (1973). Instead, the majority reconstructs mother’s failed appeal to present a different “critical question” of the “more appropriate forum” and then reverses the family court, not for an abuse of discretion, but for not correctly answering a question that mother never asked. Ante, ¶ 12 (quotation omitted).

¶ 44. Mother asserted no issue actionable under Rule 60(b)(6). The family court’s ruling on jurisdiction was not appealed, so the jurisdictional issues may not be raised now through a motion for relief from judgment. See Kellner v. Kellner, 2004 VT 1, ¶ 12, 176 Vt. 571, 844 A.2d 743 (mem.) (“Rule 60(b)(6) may not substitute for a timely appeal . . . .”) (quotation omitted). Furthermore, despite opportunities to do so, mother never raised the issue of Vermont as an inappropriate forum, so the failure to present that question to the family court was not an extraordinary circumstance subject to review under Rule 60(b)(6). See McCleery v. Wally’s World, Inc., 2007 VT 140, ¶ 13, 183 Vt. 549, 945 A.2d 841 (mem.) (holding that issues that could have been raised at trial or on direct appeal may not be asserted for the first time in a Rule 60(b) motion). Even if mother’s repeated claims of no subject matter jurisdiction under § 1032 are treated as challenging the *491appropriateness of the forum under the standards of § 1036, mother sought no appeal from the family court’s ruling. Thus, if the family court failed to address the § 1032 claims as a § 1036 challenge, Rule 60(b) remained unavailable to mother as a means for collateral attack on the judgment in lieu of appeal. McCleery, 2007 VT 140, ¶ 13.

¶ 45. Rule 60(b)(6), a catch-all provision, offers relief from judgment for “any other reason justifying relief from the operation of the judgment” not already available under the rule’s several more specific grounds for relief. See V.R.C.R 60(b)(l)-(5).15 Rule 60(b)(6) relief requires “extraordinary circumstances.” Donley, 165 Vt. at 620, 686 A.2d at 945. Extraordinary circumstances do not include, as the family court recognized, the “free, calculated, and deliberate choice” of mother to not appeal either the 2002 or the 2006 order.16 See Estate of Emilo v. St. Pierre, 146 Vt. 421, 424, 505 A.2d 664, 666 (1985) (ruling that “clause (6) of [Rule 60(b)] may not be used to relieve a party from. free, calculated, and deliberate choices he has made”). Nor is there anything extraordinary about mother’s tactical choice to litigate subject matter jurisdiction under § 1032, rather than argue that Vermont was an inappropriate forum under § 1036. That mother failed to appear at the custody hearing in 2002, or might have pursued other tactics or arguments afterwards, is similarly unremarkable. See Kellner, 2004 VT 1, ¶¶ 12-13 (denying Rule 60(b)(6) relief from a tactical decision that, in retrospect, was ill-advised). The family court’s denial of mother’s motion on these grounds was entirely correct.

¶ 46. The majority does not, and cannot, point to any abuse of discretion in the family court’s denial of Rule 60(b)(6) relief. Vermont’s UCCJA mandates that the family court recognize an out-of-state custody decree when the foreign court “assume[s] jurisdiction under statutory provisions substantially in accordance with this chapter or which was made under factual circumstances *492meeting the jurisdictional standards of the chapter.” 15 V.S.A. § 1041. Mother made no such showing here. The family court explained that it would not defer to the Canadian order because mother failed to demonstrate that Canadian jurisdiction was exercised compatibly to Vermont’s statutory standard. That standard directs the court to determine “if it is an inconvenient forum” by considering “if it is in the interest of the child that another state assume jurisdiction,” and gives the court discretion to weigh several factors including residence, family connections and availability of evidence in the other state. 15 V.S.A. § 1036(c).

¶ 47. In contrast, the Canadian exercise of jurisdiction was premised on the merits of the custody petition, different substantive law, and on payment of child support. The Quebec court recited that it considered the best interests of the child, not in the context of convenience to the child and geographic availability of relevant evidence as in the UCCJA, but from its conclusion based on an expert’s report that contact with the father was inadvisable. The Quebec order also explained, essentially, that its doctrine of forum non conveniens presumed that jurisdiction would not be declined in favor of another forum, and that to do so would require an “exceptional exercise” of its power. The Canadian court declared, without description or analysis, that the “judge ha[d] studied the pertinent facts and . . . concluded that no other jurisdiction was manifestly more appropriate than Quebec.” Reciting that the child’s best interests guided its tribunal, the Quebec order emphasized that best interests “consists in receiving as soon as possible the child support to which he is entitled!’ These differences are not, as posited by the majority, mere matters of form over substance, but are different substantive standards quite apart from Vermont’s UCCJA.

¶48. The Quebec order, on its face, affirmed the exercise of Canadian jurisdiction on grounds substantially different from Vermont’s UCCJA jurisdictional provisions. The record confirms that the Quebec court’s conclusion — that no other forum appeared more appropriate than itself — was not based on standards or facts warranting the exercise of jurisdiction under the UCCJA. Thus, it was not error for the family court to declare that it could not find that Canada exercised its jurisdiction according to considerations substantially similar to the UCCJA standards. The family court was correct in pointing out that the Canadian court considered none of the other factors set forth in *493§ 1036(c). Unable to satisfy the statutory precondition to recognition of the foreign order, mother was not entitled to its enforcement. 15 V.S.A. § 1041. It was no abuse of discretion for the family court to follow the dictates of the statute and deny mother’s motion.

¶ 49. Even if we turn back the clock and pose this as an appeal from a family court decision that Vermont was not an inconvenient forum, the record below still supports such a ruling as wholly within the family court’s discretion under § 1036. The court did consider the best interests of the child and concluded that mother absconded with him to frustrate father’s parental rights, that her alienation of the child was unjustified and the product of reasons “known only” to her and not supported by the evidence. Those facts did not recommend that it was “in the interest of the child that another state assume jurisdiction.” 15 V.S.A. § 1036(c). The family court’s findings support its exercise of jurisdiction because, wherever the child was located, it was only in furtherance of mother’s kidnapping and alienation of the child from his father. Mother’s refusal to respond to process precluded findings by the court about the child’s “home state,” his connections to another state or the availability of evidence. Id. § 1036(c)(l)-(3). These findings are not challenged.

¶ 50. Had it appeared that mother settled the child in another forum, the family court’s exercise of its jurisdiction still did not “contravene any of the purposes of this chapter.” Id. § 1036(c)(5). Indeed, the family court’s insistence on exercising its jurisdiction served the express purpose of the UCCJA to “discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child,” and to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” 1979, No. 136 (Adj. Sess.), § l(4)-(5). Even if, from the viewpoint of the majority, mother was not “consciously forum-shopping in moving to Canada,” ante, ¶ 20, there is no reasonable doubt that she was consciously kidnapping the child in obvious derogation of an existing parent-child contact order and Vermont’s UCCJA.

¶ 51. The 2002 findings were essentially reiterated in the family court’s February 23, 2006 order denying mother’s belated motion to dismiss for lack of subject matter jurisdiction. Those findings remain unchallenged. Even imagining that the family court decided forum non conveniens under § 1036, mother’s introduction of *494the Canadian court’s opinion — that Vermont’s forum was no more appropriate than Quebec’s based on the child’s residence and connections in Quebec — did not trump Vermont’s statutory and family court interest in refusing to accept parental abduction and alienation as being in the child’s best interests. Another court more tolerant of parental kidnapping might have balanced the § 1036 factors differently, but a “difference in judicial opinion is not synonymous with abuse of judicial discretion.” Dyer v. Lalor, 94 Vt. 103, 116, 109 A. 30, 36 (1920) (quotations omitted). Deferral by the family court to Quebec as the child’s “home state” under the unfortunate circumstances of this case would lend judicial imprimatur to mother’s illegal detention of the child — exactly what the UCCJA was intended to discourage, if not eliminate. The family court did not abuse its discretion in deciding not to defer to Quebec when, instead, its own exercise of jurisdiction was expressly authorized by § 1036.

¶ 52. Accordingly, I would affirm the family court order. I am authorized to state that Judge Teachout joins in this dissent.

The majority’s characterization of this history as a “manipulation,” ante, ¶ 26, is simply puzzling. The unchallenged findings are expressly set forth in the family court’s September 13, 2002 order, and are referenced again at length in its February 23, 2006 order. The majority adds, correctly, that mother did obtain a temporary relief-from-abuse order in Massachusetts in 2000 limiting father to supervised visitation, but omits the Vermont family court’s finding that when father contested and was in the process of litigating those issues and restrictions, mother “removed herself from the jurisdiction” of Massachusetts. The family court’s findings, its chronology of events, and the fact that mother abducted the child, are *485not disputed. While these facts may not serve the majority’s perception of the case, there is no manipulation of the settled facts as found by the family court.

The psychologist’s report, apparently based on information supplied by mother and an interview with the child, simply assumes father battered mother and threatened his child, and recommends against contact with father without some extended preparation. The Quebec court relied on the report in assessing its retention of jurisdiction. It cannot be determined from the record if the author, or mother, was subjected to cross-examination, or if the report was subject to challenge in Quebec. It is clear from the record, however, that mother presented no evidence of abuse nor evidence concerning the best interests of the child to the Vermont family court.

The majority intones, without evidence, that this is “one of those rare instances justifying relief’ and “does not represent an abandonment of the rule.” Ante, ¶ 27. As acknowledged by the majority, the power to reform a judgment under Rule 60 in special circumstances must be exercised “guardedly.” Levinsky v. State, 146 Vt. 316, 318, 503 A.2d 534, 536 (1985). Mother’s situation is no different from the Rule 60 claim rejected in Levinsky, wherein this Court explained that such extraordinary powers are not for situations where a litigant “realizes he made an error in judgment,” and there is no showing “that mistake, accident, or fraud prevented appellant from presenting a meritorious defense in the original proceeding.” Id. at 319, 503 A.2d at 537.

These include opportunity for relief on account of “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . ; (4) the judgment is void; [and] (5) the judgment has been satisfied ... or it is no longer equitable,” provided that “[t]he motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment.” V.R.C.R 60(b).

The family court’s ruling refers only to mother’s failure to appeal the 2002 order, but mother also failed to perfect and prosecute her appeal of the 2006 order.