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U.S. v. KERLEY

United States District Court, S.D. New York


July 8, 2004.

UNITED STATES OF AMERICA,
v.
CLIFFORD KERLEY, Defendant.

The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion & Order

The Deadbeat Parents Punishment Act ("DPPA") provides that any individual who "willfully fails to pay a support obligation with respect to a child who resides in another State, if such obligation has remained unpaid for a period longer than 2 years, or is greater than $10,000" may be subject to a fine and/or up to two years' imprisonment. 18 U.S.C. § 228. Defendant Kerley has been charged by information with the willful failure to pay a past due child support obligation, namely a child support order entered by a New York Family Court hearing examiner on July 6, 1990. He now moves to dismiss the information on the grounds that the support order was entered by a court that did not have subject matter jurisdiction.

Mr. Kerley received a summons in Spring 1990 to appear in New York Family Court to respond to allegations of paternity made by the New York City Commissioner of Social Services on behalf of a woman who gave birth to twin girls in 1989 and claimed that Mr. Kerley was the children's father. After making an initial appearance before a hearing examiner, where he contested paternity and requested that blood and genetic marker tests be performed, Mr. Kerley failed to appear for his scheduled blood test and failed to appear for his next scheduled court date. When Mr. Kerley failed to appear for the scheduled court date, Family Court Judge Bruce Kaplan entered an order of filiation. The support issue was then, according to the court file, referred to Hearing Examiner Richard Spegele, who made findings of fact with respect to child support and issued a support order. (Govt. 5/12/04 Ltr. Br. at 1-2, Ex. A).

  I. The Hearing Examiner Had No Jurisdiction to Enter the Support Order

  New York Family Court is a court of limited jurisdiction.*fn1 Kleila v. Kleila, 50 N.Y.2d 277, 282 (1980). Family Court judges may delegate certain tasks to hearing examiners. "Family Court Act Section 439 and the rules promulgated thereunder [22 NYCRR Sec. 205.32-205.37] enumerate the specific powers delegated to the Hearing Examiner. The Hearing Examiners possess no power beyond what is specifically enumerated in the statute."*fn2 Dep't of Soc. Servs. ex rel. Gary Z. v. Burton H., 151 Misc.2d 400, 401 (N.Y. Fam. Ct. Monroe Cty. 1991).

  As it existed in 1990, § 439 of the Family Court Act provided, in relevant part, that:

Except as hereinafter provided, hearing examiners shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding. . . . Hearing examiners shall not be empowered to hear, determine and grant any relief with respect to . . . issues of contested paternity . . ., which shall be referred to a judge as provided in subdivision (b) or (c) of this section.
The hearing examiner shall be empowered to hear and determine all matters related to [a proceeding to establish paternity] including the making of an order of filiation . . ., provided however, that where the respondent denies paternity, the respondent defaults in appearing before a hearing examiner after the court has obtained jurisdiction over the respondent or the acknowledgement of paternity is disputed, the hearing examiner shall not be empowered to determine the issue of paternity, but shall transfer the proceeding to a judge of the court for a determination upon the issue of paternity. Whenever an order of filiation is made by a hearing examiner, the hearing examiner also shall make a final or temporary order of support. When an order of filiation is made by the judge, the judge shall make a final or temporary order of support. If a temporary order is made the proceeding shall be returned to a hearing examiner for a final determination. . . .
Except in a proceeding to establish paternity in which the respondent has not acknowledged paternity, the hearing examiner . . . shall make a temporary order of support and refer the proceeding to a judge. Upon determination of such issue by a judge, the judge may make a final determination of the issue of support, or the proceeding shall be returned to a hearing examiner for a final determination upon the issue of support payments or other matters within the authority of the hearing examiner.
  By its terms, § 439 provides that a hearing examiner has no jurisdiction to enter an order of filiation in a proceeding where paternity is contested. The limits on the authority of a hearing examiner to enter an order of filiation act as a limitation on a hearing examiner's authority to enter orders of support, because § 439 requires that the court that enters an order of filiation also enter the order of support. See N.Y. Fam. Ct. Act § 439(b) ("Whenever an order of filiation is made by a hearing examiner, the hearing examiner also shall make a final or temporary order of support. When an order of filiation is made by the judge, the judge shall make a final or temporary order of support."); see also Dep't of Soc. Servs. ex rel. Katherine McL. v. Jay W., 482 N.Y.S.2d 810, 818 (2 Dep't 1984) ("the court in the paternity proceeding upon resolving the issue of paternity should have proceeded to determine as well the issue of support, within that same proceeding"). Put another way, in proceedings where a hearing examiner has no jurisdiction to enter an order of filiation, he also has no jurisdiction to enter an order of support.

  Here, the hearing examiner had no authority to determine the issue of paternity because Mr. Kerley had made an initial appearance before a hearing examiner and contested paternity; rather, the issue could be decided only by a judge. Because an order of paternity was entered against Mr. Kerley by a Family Court judge, that judge was required to enter the order of support.

  The Government makes several arguments, based upon various canons of statutory construction, why the hearing examiner had subject matter jurisdiction to enter the order of support. Each of the Government's arguments fails in light of the plain language of the statute. As the Supreme Court has explained:

[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992). Here, the plain language of § 439 unambiguously required that this matter be transferred to a Family Court judge for an order of filiation and that, after entering the order of filiation, the Family Court judge was required to enter a temporary or permanent order of support. The hearing examiner had no authority to enter a support order in the first instance.

  The Government argues that the paternity proceeding before the Family Court judge was governed by Article 5 of the Family Court Act, rather than Article 4,*fn3 and therefore § 439 (which appears in Article 4) is not relevant. As a general matter, Article 4 of the Family Court Act sets forth the procedures for support proceedings, and Article 5 sets forth the procedures for paternity proceedings. See N.Y. Fam. Ct. Act. §§ 411, 511. A description of the authority granted to hearing examiners — and the limitations on that authority — appears only in § 439; there is no parallel provision in Article 5. Yet nothing in § 439 suggests that the enumerated limitations on a hearing examiner's authority apply only to Article 4 proceedings. Indeed, the plain language of § 439 states otherwise: "Hearing examiners shall not be empowered to hear, determine, and grant any relief with respect to . . . issues of contested paternity . . ., which shall be referred to a judge as provided in subdivision (b) or (c) of this section." N.Y. Fam. Ct. Act § 439(a) (McKinney 1990). Since paternity proceedings are generally governed by Article 5 of the Act, this explicit limitation of the hearing examiner's authority to determine contested paternity indicates that § 439 limits the authority of hearing examiners in both Article 4 and Article 5 proceedings. This reading is confirmed by 1994 Recommendations of Family Court Advisory and Rules Committee, which stated "[s]ection 439 presently limits the authority of hearing examiners to hear and determine proceedings under articles 4, 5, and 5-A relating to support and paternity.")

  The Government further argues that, because § 439(a) empowers hearing examiners to determine and grant any relief within the powers of the court in any proceeding under Article 4 and Article 5 and because § 545 provides that "[i]n a proceeding in which the court has made an order of filiation, the court shall direct the parent or parents" to pay child support, the Family Court judge was permitted to refer the support determination to the hearing examiner. However, § 439(a) provides that:

Except as hereinafter provided, hearing examiners shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five and five-A of this act, article three-A of the domestic relations law, and objections raised pursuant to section fifty-two hundred forty-one of the civil practice law and rules.
N.Y. Fam. Ct. Act § 439(a). The phrase "except as hereinafter provided" makes clear that there are certain enumerated restrictions on the ability of a hearing examiner to perform the duties of a family court judge. Those enumerated exceptions include a prohibition on a hearing examiner deciding issues of contested paternity and, consequently, a prohibition on entering a support order in a proceeding where a Family Court judge entered the order of filiation (unless the Family Court judge first enters a temporary support order). These specific limitations on the hearing examiner's authority may not be overcome by reference to the more general language that Article 5 matters may be referred to a hearing examiner. Cf. Cook v. New York State Div. of Parole, 321 F.3d 274, 279 n. 4 (2d Cir. 2003) ("It is a well-established canon of statutory construction that when two statutes cover the same situation, the more specific statute takes precedence over the more general one. The rationale for this canon is that a general provision should not be applied when doing so would undermine limitations created by a more specific provision.").

  This canon of statutory construction similarly defeats the Government's argument that § 435 permitted the hearing examiner to enter the order of support against Mr. Kerley. Section 435 provides that "[t]he hearing examiner shall enter an order of support on default if the respondent fails to answer or appear after having been properly served." However, § 439(b) specifically states that "where the respondent denies paternity, the respondent defaults in appearing before a hearing examiner after the court has obtained jurisdiction over the respondent or the acknowledgment of paternity is disputed, the hearing examiner shall not be empowered to determine the issue of paternity." Here, Mr. Kerley did not entirely fail to answer or appear, rather he made an initial appearance before the hearing examiner, contested paternity, and only later failed to appear. Since Mr. Kerley appeared and contested paternity, this is not a case of default. Myndi O. v. Ronald K., 690 N.Y.S.2d 407, 410 (N.Y. Fam. Ct. Monroe Cty. 1999) ("This is not a true default case, however, since Mr. K. appeared in Family Court and entered a denial to the paternity petition."). Thus § 439 — not § 435 — must apply.

  Finally, the Government argues that the "hearing examiner's jurisdiction to enter a support order was further conferred by the statute [Family Court Act § 439-a] setting forth the requirements for `expedited process.'" (Govt. 5/12/04 Ltr. Br. at 6). Section 439-a provided that "[t]he chief administrator shall assign a sufficient number of hearing examiners to ensure that such expedited process shall conform to the requirements of such case processing as set forth in federal statutes and regulations." N.Y. Fam. Ct. Act § 439-a (McKinney 1990). The term "expedited process" is defined as "a process in effect in the family court which reduces the processing time of support order establishment and enforcement efforts . . . by the referral of proceedings to hearing examiners appointed and qualified under section four hundred thirty-nine of this article and exercising the powers set forth in such section." Id. Because federal regulations required New York State to adopt an expedited process for establishing child support, and because those federal regulations further provided that "orders established by means other than full judicial process must have the same force and effect under State law as paternities and orders established by full judicial process," 45 C.F.R. § 303.101(c), the Government apparently believes that the support order in this action must be accorded full force and effect even if it would otherwise be defective.

  Under federal regulations, which were adopted in response to the Federal Child Support Enforcement Amendments, in order to receive federal funding, every state is required to institute expedited support enforcement processes to establish paternity and to establish, modify, and enforce support orders. The federal regulations require that 75% of actions to establish support orders must be completed within 6 months of service of process and 90% must be completed within 12 months, 45 C.F.R. § 303.101(b)(2)(i), thus discouraging state courts from granting stays or multiple adjournments. See Charles v. Charles, 501 N.Y.S.2d 589, 590 (N.Y. Fam. Ct. Onondaga Cty. 1986). The legislative history of the 1984 amendments specifically states that the federal regulations are not intended to specify the particular administrative or judicial structures to be adopted by the states, rather a state's compliance should be measured according to the results it produces. H.R. Conf. Rep. No. 98-925, at 29, reprinted in 1984 U.S.C.C.A.N. 2447, 2454 (Aug. 1, 1984). Thus, there is no support for the proposition that "expedited process" in any way alters the explicit jurisdictional boundaries of New York law set forth in the Family Court Act or the traditional principle that "[c]ourts created by statute can have no jurisdiction but such as the statute confers." Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818 (1988). Moreover, § 439-a specifically states that the "expedited process" adopted in New York will include the referral of proceedings to hearing examiners whose powers are set forth in § 439. Thus, by its terms, § 439-a incorporates the jurisdictional limitations enumerated in § 439.

  II. Because the Support Order Was Entered By a Court Without Subject Matter Jurisdiction, the Information Must Be Dismissed.

  As a general matter, a defendant in a DPPA prosecution may not collaterally attack the underlying support order. See, e.g., United States v. Brand, 163 F.3d 1268, 1275-76 (11th Cir. 1998); United States v. Bailey, 115 F.3d 1222, 1232 (5th Cir. 1997); see also United States v. Sage, 92 F.3d 101, 107 (2d Cir. 1996) (the CSRA "does not authorize a federal court to revise the domestic relationship adjudicated by the State courts or to modify any part of a State court decree"). However, two Circuit Courts have held that a collateral attack is permissible on the limited grounds that the rendering court lacked personal jurisdiction over the defendant. See United States v. Kramer, 225 F.3d 847 (7th Cir. 2000); United States v. Bigford, 365 F.3d 859 (10th Cir. 2004).

  Of course, subject matter jurisdiction differs from personal jurisdiction. Subject matter limitations on jurisdiction serve institutional interests, keeping courts within prescribed bounds. See Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 316 (1870) ("By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.") Personal jurisdiction, on the other hand, represents a restriction on judicial power as a matter of individual liberty.*fn4 Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999). Nonetheless, given the doctrinal and historical importance of subject matter jurisdiction, I conclude that the narrow rule adopted by the Seventh and Tenth Circuits should be extended to permit collateral attacks of the underlying support order in DPPA prosecutions where the order was rendered by a court lacking subject matter jurisdiction.

  A court that lacks subject matter jurisdiction has no authority to hear or decide a controversy. See Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 305 (1923) (noting that "jurisdiction is the power to decide a justiciable controversy"); see also McNitt v. Turner, 83 U.S. 352, 366 (1872) ("Jurisdiction is authority to hear and determine. It is an axiomatic proposition that when jurisdiction has attached, whatever errors may subsequently occur in its exercise . . . can be impeached collaterally only for fraud."). A judgment entered by a court lacking subject matter jurisdiction is void because "the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment." Burnham v. Superior Court of California, 495 U.S. 604, 609 (1990); see also Grumon v. Raymond, 1 Conn. 40, 45 (1814) ("Where there is a want of jurisdiction over the persons . . . or over the cause, as if a justice should try a man for murder, or over the process, . . . it is the same as though there was no court. It is coram non judice."). See generally Perry Dane, Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra L. Rev. 1, 23 n. 55, 59 (1994) (collecting sources).

  Because American courts have traditionally invalidated or denied recognition to judgments entered without subject matter jurisdiction, Burnham, 495 U.S. at 609, I will examine the statutory language and the legislative history of the DPPA against the backdrop of this traditional rule.*fn5 Cf. Kramer, 225 F.3d at 857 ("it is clear that, as Congress legislated, it was well aware of the long-standing rule, both in federal and state jurisprudence, that a default judgment in a civil case is void if there is no personal jurisdiction over the defendant and that a judgment may be attacked collaterally on that basis").

  The plain language of the DPPA indicates that a collateral attack ought to be permitted where the court rendering the underlying support order did not have jurisdiction. The DPPA criminalizes the willful failure to pay a support obligation and defines the term "support obligation" as

any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living.
18 U.S.C. § 228(f)(3). As explained by the Tenth Circuit, the statutory language "pursuant to the law of a State" requires that the underlying order must be lawful in order to form the basis of a DPPA prosecution; otherwise, the statutory language would be superfluous.*fn6 Bigford, 365 F.3d at 870; see also United States v. Nordic Village Inc., 503 U.S. 30, 36 (1992) ("a statute must, if possible, be construed in such fashion that every word has some operative effect").

  The Government argues that the information against Mr. Kerley should not be dismissed because, as the Bigford Court noted, "as long as a party had an opportunity to litigate the jurisdictional issue, it is not subject to collateral attack on that basis."*fn7 Bigford, 365 F.3d at 865. The Government argues that because Kerley could have moved to reopen the proceedings after the child support order was entered, he had an opportunity to litigate the question of subject matter jurisdiction and thus should not be permitted this collateral attack. (Govt. 5/12/04 Ltr. Br. at 11).

  I do not believe that Mr. Kerley had "an opportunity to litigate" the issue of subject matter jurisdiction in this case, as that phrase is used by the Bigford Court. Indeed, the district court in Bigford found that because, under Oklahoma law, Bigford could have challenged the underlying child support order for up to three years after it was entered, but did not, he could not collaterally attack the child support order in the DPPA proceeding. This conclusion that Bigford had "had an opportunity for judicial review of the underlying default support order," Bigford, 365 F.3d at 863, was rejected by the Tenth Circuit in reversing the district court and holding that Bigford was entitled to challenge the underlying support order. Therefore, the Government's reading of Bigford — that because Kerley had the ability to reopen the child support proceedings for up to one year, he had an opportunity to litigate the jurisdictional issue — cannot be correct. Rather, in order to preclude a collateral attack, the issue of jurisdiction must have been actually litigated. Indeed, this was the rule adopted by the Supreme Court in Durfee v. Duke (and quoted in Bigford, 365 F.3d at 865):

[W]hile it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court's jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rule that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment. 375 U.S. 106, 111 (1963) (emphasis added).*fn8 Here, the issue of subject matter jurisdiction only arose after the order of filiation was entered by the Family Court judge — which occurred on a date when Mr. Kerley failed to appear — and the proceeding was transferred to the hearing examiner (which occurred the same day). There can be no dispute that the issue of subject matter jurisdiction was neither "fully and fairly litigated" nor "finally decided."
  The Government also argues that Kerley should not be entitled to attack the support order because the order was entered on default and, according to the Restatement of Judgments:

 

Relief from a default judgment on the ground that the judgment is invalid will be denied if:
(1) The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid; and
(2) Granting the relief, would impair another person's substantial interest of reliance on the judgment. Restat.2d of Judgments § 66. Even assuming that the Restatement is controlling, I find that Mr. Kerley has not "manifested an intention to treat" the child support order as valid. To the contrary, as the Government noted in its initial opposition to Defendant motion to dismiss the information, "Kerley has never made a voluntary [support] payment." (Govt. 10/22/03 Ltr. Br. at 3). In any event, if any additional inquiry into the preclusive effects of the support order is required, that inquiry should focus on what res judicata effect, if any, a New York court would accord to the order. See Durfee v. Duke, 375 U.S. 106, 109 (1963) ("Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it."). "If the state courts would not give preclusive effect to the prior judgment, `the courts of the United States can accord it no greater efficacy.'" Haring v. Prosise, 462 U.S. 306, 313 n. 6 (1983) (quoting Union & Planters' Bank v. Memphis, 189 U.S. 71, 75 (1903)).
  Having reviewed the applicable New York law, I am satisfied that the New York courts would find the underlying support order in this action void and unenforceable. "It is blackletter law that a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived." Lacks v. Lacks, 41 N.Y.2d 71, 74 (1976). Although New York law limits the principle that lack of subject matter jurisdiction renders a judgment absolutely void, the limitations on the principle are directed at defects that, although labeled jurisdictional, do not involve the competency of the rendering court. For example, in Lacks v. Lacks, the Court of Appeals distinguished between a court's competence to entertain an action and other so-called jurisdictional defects, e.g., mootness, standing, or the absence of certain elements.*fn9 While the Lacks Court explained that finality should not be denied to judgments that lack "merely substantive elements of a cause for relief," the Court affirmed "the importance traditionally attached to so-called subject matter jurisdiction, really competence of courts, and the grave consequences, including denial of res judicata effect to judgments, which may result from a lack of true subject matter jurisdiction or competence." Id. at 77, 75; see also David D. Siegel, New York Practice § 8 (3d ed. 1999) ("If a court lacks subject matter jurisdiction, its judgment is void, which generally means that the judgment is subject to collateral attack, i.e., that it can be resisted when the question of its validity arises in another forum later on.").

  Because I conclude that the DPPA was not intended to permit prosecution for the failure to abide by an order entered without subject matter jurisdiction, and because to allow this prosecution to continue "would permit the federal criminal law to accomplish what the states forbid in their own civil and criminal courts and, indeed, what Congress has forbidden in the civil remedies is has created," Kramer, 225 F.3d at 857, the information in this action is dismissed.

  SO ORDERED:


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