Mississippi State Department of Human Services v. Douglas F. Fargo ( 1998 )

IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1998-CA-01233-COA
MISSISSIPPI STATE DEPARTMENT OF HUMAN SERVICES APPELLANT
v.
DOUGLAS F. FARGO APPELLEE
DATE OF JUDGMENT: 03/26/1998
TRIAL JUDGE: HON. JOHNNY LEE WILLIAMS
COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: STEPHEN C. CHAYER
ATTORNEY FOR APPELLEE: ARTHUR D. CARLISLE
NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS
TRIAL COURT DISPOSITION: DEFENDANT GRANTED ARREARAGE IN CHILD
SUPPORT IN THE AMOUNT OF $18,268.44. THE ORDER
OF THE SUPERIOR COURT OF ALASKA WHICH
INCREASED CHILD SUPPORT PAYMENTS IS
WITHOUT PERSONAL JURISDICTION AND SHOULD
NOT BE AFFORDED FULL FAITH AND CREDIT. THE
CHILD SUPPORT PAYMENTS OF PLAINTIFF ARE
MODIFIED FROM $750 A MONTH TO $700 A MONTH.
DISPOSITION: AFFIRMED - 6/6/2000
MOTION FOR REHEARING FILED: 7/5/2000; denied 8/29/2000
CERTIORARI FILED: 9/6/2000; denied 11/22/2000
MANDATE ISSUED: 12/13/2000
BEFORE McMILLIN, C.J., BRIDGES, AND PAYNE, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. The issue presented in this appeal is whether notice of the filing of a motion to adjust the respondent's
periodic child support obligation mailed to the respondent's former Alaska address at a time when the
movant knew that the respondent had permanently relocated his residence outside the state satisfied due
process notice requirements when the respondent denied having actually received the notice. The chancellor
refused to afford full faith and credit to the Alaska order increasing child support entered ex parte after the
respondent failed to contest the motion, concluding that the procedure employed to notify the respondent
was not one reasonably calculated to apprize him of the pendency of the proceeding. We affirm.
I.
Facts
¶2. Douglas and Betty Fargo, both Alaska residents at the time, were divorced in 1987. Mrs. Fargo was
awarded custody of the three children of the marriage and Mr. Fargo was ordered to pay child support in
the amount of $750. In 1985, Mrs. Fargo permanently relocated her and the children's residence to
Mississippi. In 1994, the Alaska Child Support Enforcement Division (ACSED), charged by Alaska law
with enforcing noncustodial parents' support obligations, filed a Motion to Modify Child Support
accompanied by a Notice of Motion, as required by Alaska procedural rules. The motion sought to
increase Mr. Fargo's child support. Pursuant to Alaska Rule of Civil Procedure 5, the agency attempted to
notify Mr. Fargo of the motion by mailing a copy of the Notice of Motion and Motion to Modify Child
Support to the last known address in its file for Mr. Fargo, which was an Alaska address. Shortly before
the motion was filed, Mr. Fargo had permanently changed his domicile from Alaska to Mississippi for the
purpose, so he testified, of being closer to his children. Though the evidence on the point is disputed, the
chancellor found as a matter of fact that Mr. Fargo had informed ACSED of his intention to abandon his
Alaska residence and move to Mississippi prior to the time the agency sent the notice to Mr. Fargo's former
Alaska address. However, there is no contention that Mr. Fargo informed the Alaska agency of a new
address in Mississippi at the time he informed them that he was permanently forsaking his Alaska residence.
¶3. Mr. Fargo denied having actually received the mailed motion and notice. When Mr. Fargo took no
steps under applicable Alaska procedural rules to contest the motion, ACSED obtained an ex parte order
increasing Mr. Fargo's child support from $750 to $1,597 per month based upon income information that
he had provided earlier.
¶4. Upon learning that this order had been entered, Mr. Fargo commenced a proceeding in Forrest County
Chancery Court asking that court to assume jurisdiction of his support obligations since he, his former wife,
and the children were all residents of the State of Mississippi. He further sought a substantial decrease in his
child support, claiming that, due to medical difficulties, he was unemployed with no source of income other
than unemployment benefits. After some delays and procedural problems that are of little relevance to the
issues presented to this Court for decision, the Mississippi Department of Human Services was allowed to
intervene as the statutory assignee of Mrs. Fargo's child support payments. The Department sought to
enforce the Alaska modification order according to its terms, claiming that the chancellor was obligated to
afford full faith and credit to the order.
¶5. The chancellor, in detailed findings of fact, determined that Mr. Fargo had, in fact, abandoned his
residence in Alaska and permanently relocated to Mississippi prior to the time the notice was mailed to his
last known Alaska address. The chancellor further found as a matter of fact that ACSED was on notice of
Mr. Fargo's intention to move from Alaska prior to the time it mailed the notice to his last known Alaska
address. The chancellor held that, under constitutional due process standards, this procedure for giving
notice of a pending motion was not one reasonably calculated to actually apprize Mr. Fargo of the
proceeding, despite the fact that the method of service employed, according to the chancellor, complied
with Alaska procedural law pertaining to notices of hearings to modify divorce judgments.
¶6. MDHS has appealed that determination, claiming that the question of the sufficiency of the notice must
be determined according to Alaska law and that, under Alaska law, proof of mailing of the notice to the
respondent's last known address gives rise to a presumption of delivery that is not overcome by mere denial
of actual receipt of the notice. In effect, MDHS is arguing that to refuse full faith and credit to the
modification order under these circumstances is to hold that Alaska's procedural rules regarding notice in
these circumstances, even if complied with to the letter, do not pass constitutional due process muster.
¶7. In a second issue involving an evidentiary ruling by the chancellor, MDHS suggests that it was
improperly precluded from presenting compelling evidence that would tend to strongly weigh against Mr.
Fargo's claim of lack of actual notice. The excluded evidence consisted of an affidavit from an ACSED
official that detailed the agency's numerous contacts with Mr. Fargo undertaken in an attempt to amicably
resolve the matter of any child support adjustment in the period leading up to the modification hearing. The
chancellor excluded the affidavit on Mr. Fargo's hearsay objection. We will deal with this issue first, then
consider the full faith and credit issue.
II.
The First Issue: The Excluded Affidavit
¶8. MDHS proposed to introduce an affidavit from Michele Wall, a child support enforcement officer for
ACSED, which, among other things, purported to detail contacts between Mr. Fargo and ACSED during
the period prior to May 1994 when ACSED was gathering financial data as a part of its evaluation of the
appropriateness of a child support adjustment. The chancellor excluded the affidavit as hearsay. Miss. R.
Evid. 802; Hyatt v. Leslie, 10 So. 672, 673 (Miss. 1891). On appeal, MDHS urges that the chancellor
erred in that ruling because the affidavit was a record kept in the course of a regularly conducted business
activity within the meaning of Mississippi Rule of Evidence 803(6) and that it was self-authenticated
pursuant to Rule 902(11). That contention by MDHS is plainly wrong. The affidavit is a special document
prepared in anticipation of litigation. The fact that certain information contained in the affidavit may have
been obtained from other records that perhaps would qualify for admissibility under the "business records"
exception to the hearsay rule does not transform the affidavit itself into a business record. Neither can this
litigation-inspired document be considered a public record within the meaning of 803(8).
¶9. Even could the affidavit be found to come under some hearsay exception (such as the "catch-all"
provision found in Rule 803(24)), we conclude that it has little or no probative value to the central issue of
whether, under the facts of this case, mailing notice to a respondent's last known address at a time when the
notice-giver was aware that the respondent no longer resided at that address satisfies considerations of due
process. The affidavit details a number of informal contacts between ACSED and Mr. Fargo, but the last
reported contact indicating Mr. Fargo was still in Alaska was on March 25, 1994, and the notice of hearing
was not mailed until April 19, 1994. In fact, the affidavit reflects that on February 22, 1994, Mr. Fargo had
come into the ACSED office and "stated that he was leaving the state . . . ." Thus, even were we to
conclude that it was error to exclude the affidavit, it would not require reversal since the error in excluding
the evidence would, beyond doubt, be harmless, since it neither proves that Mr. Fargo had actual notice of
the motion in time to contest it or that he still resided at the Alaska residence at the time the notice was sent.
Miss. R. Evid. 103(a); Torre v. Jeannin, 76 Miss. 898, 25 So. 860, 862 (1899).
III.
The Second Issue: Full Faith and Credit
¶10. The chancellor determined that the Alaska modification order was not entitled to full faith and credit
because due process considerations required that Mr. Fargo be notified of the motion in a manner that
could reasonably be calculated to inform him of its pendency in time to affirmatively contest it, should he so
desire. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). It was the
chancellor's conclusion that the procedure utilized to attempt to notify Mr. Fargo of the pending motion was
not one reasonably calculated to accomplish this purpose and that, for that reason, any judgment based
solely on Mr. Fargo's failure to affirmatively contest an adjustment to his child support was void as violative
of due process considerations.
¶11. A Mississippi court having personal jurisdiction over a child support obligor under a judgment
rendered by a court of competent jurisdiction in another state is required under constitutional notions of full
faith and credit to enforce that judgment so long as the obligations sought to be enforced have ceased to be
modifiable by the court originally ordering the support payment. Sollitt v. Robertson, 544 So. 2d 1378,
1381 (Miss. 1989); Hinds v. Primeaux, 367 So. 2d 925, 928 (Miss. 1979). Under Alaska law, once a
periodic support obligation falls due, it is unmodifiable except in certain limited circumstances that have no
application in this case. Alaska R. Civ. P. 90.3; Alaska, Dept. of Revenue, Child Support Enforcement
Div. v. Bromley,987 P.2d 183, 188 (Alaska 1999); Hendren v. Alaska, Dept. of Revenue, Child
Support Enforcement Div., 957 P.2d 1350, 1352 (Alaska 1998). Therefore, on its face, it would appear
that the obligations imposed by the Alaska judgment and sought to be enforced against Mr. Fargo in
Mississippi would be enforceable under the concept of full faith and credit.
¶12. Mississippi recognizes two general exceptions to the requirement of affording full faith and credit to
foreign judgments. One is that the judgment was acquired through false representations without which the
judgment would not have been granted. See Cappaert v. Walker, 680 So. 2d 831, 834 (Miss. 1996).
That exception has no application in this case. The other exception, however, warrants further
consideration. That exception states that a Mississippi court will not enforce a foreign judgment if it can be
demonstrated to the satisfaction of the Mississippi court that the foreign court lacked jurisdiction of the
subject matter or the person at the time the judgment was entered. Id.; Lambert v. Lawson, 538 So. 2d
767, 769 (Miss. 1989). It is within these broad concepts that the chancellor determined that the Alaska
modification was not enforceable. While we disagree to some extent with the reasoning employed by the
chancellor to determine that the Alaska modification violated Mr. Fargo's rights to due process, we do
agree that the Alaska court ran afoul of Mr. Fargo's constitutional due process protections when it
purported to amend his support obligation in an ex parte proceeding under these circumstances. We
conclude that Mr. Fargo's failure to affirmatively contest the motion was based solely on the fact that
ACSED did not fully comply with Alaska procedural rules governing notice procedures and that the
procedure actually employed was not one reasonably calculated to notify Mr. Fargo of the filing of the
motion and of his resulting obligation to take some affirmative steps to protect his interests in the matter,
should he so desire.
¶13. While the Alaska court had, since the commencement of the divorce proceeding, continuing
jurisdiction over the person of Mr. Fargo (Alaska Stat. § 25.24.160 (1999); Balchen v. Balchen, 566
P.2d 1324, 1327 (Alaska 1977)), nevertheless, it is universally acknowledged that the authority of a court
to modify an obligor's support obligations depends upon a due process proceeding for which the obligor
has adequate notice and reasonable opportunity to appear and be heard on the question. See, e.g.,
Childers v. Childers, 717 So. 2d 1279 (¶8-9) (Miss. 1998); Bostic v. Alaska, Dept. of Revenue, Child
Support Enforcement Div., 968 P.2d 564, 568-69 (Alaska 1998); Bellamy v. Bellamy, 674 N.E.2d
1227, 1230 (Ohio Ct. App. 1996); Wooding v. Williams, 581 So. 2d 985, 986 (Fla. Dist. Ct. App.
1991).
¶14. Alaska's rules of civil procedure permitted Mr. Fargo to be notified of the filing of a child support
modification motion by first class mail sent to his last known address. Alaska R. Civ. P. 5. Under Alaska
Rule of Civil Procedure 77(c), upon receipt of notice of the filing of the motion, Mr. Fargo had a duty to
respond within 10 days after service to file a "statement of the reasons in opposition to the motion." (The
notice sent in this case allowed 13 days from the date of mailing, which we assume to be an allowance of
three days for mail delivery, after which service would be deemed completed.) Alaska R. Civ. P. 77(c).
¶15. There is no dispute that, at the time ACSED mailed its notice, the address it had on file for Mr. Fargo
was 3733 W. 42nd Ave., Anchorage, Alaska 99517. While there was evidence, and the chancellor so
found, that Mr. Fargo had notified ACSED of his intention to abandon that address and move to
Mississippi, there is no contention that he had, by the time the notice was mailed out, notified ACSED of a
different specific mailing address in Mississippi. Nevertheless, we must deal with the fact that the chancellor
found as a matter of fact that ACSED knew on the date it mailed the hearing notice to the Anchorage
address that it was not Mr. Fargo's then-current address.
¶16. The issue therefore becomes whether a party, having actual knowledge that a previously-valid address
for the respondent is no longer the respondent's actual address, can nevertheless comply with the provisions
of Alaska Rule of Civil Procedure 5 by mailing a notice to an address that remains, in a strictly literal sense,
the respondent's "last known address." Based on our review of Alaska law on the subject, we are satisfied
that such notice does not meet the requirement of Rule 5 and is, therefore, not adequate to satisfy due
process considerations unless proof of such mailing is accompanied by additional evidence showing that the
movant has made a good faith effort to obtain a more current address for the respondent and one,
therefore, more likely to have a reasonable chance of success in actually - as opposed to constructively -
informing the respondent of the proceeding.
¶17. The Alaska Supreme Court, in the case of Rosenberg v. Smidt, discussed the concept of giving notice
by mail to the affected party's last known address. Rosenberg v. Smidt, 727 P.2d 778 (Alaska 1986).
Though that case dealt with a statutory requirement for giving notice to interest holders in a non-judicial
foreclosure of a real property deed of trust, the court also discussed the matter in the context of giving
notice in judicial proceedings. In fact, the Alaska court seemed to conclude that a stricter rule would apply
in the judicial setting than in the case of a foreclosure because of specific federal due process requirements
in judicial proceedings that the notice method employed be one "reasonably calculated to apprize the parties
of the pendency of the action." Id. at 781. After a lengthy analysis, the Alaska Supreme Court concluded
that the term "last known address" meant something more than would appear from a literal reading of the
phrase, and concluded that the phrase carried with it an obligation of due diligence on the part of the person
giving notice to determine that the address is "that one most likely to give the party to be served notice." Id.
(citing Waddell v Mamat, 72 N.W.2d 763, 766 (Wis. 1955)). In the context of notice of non-judicial
foreclosure, the court announced a firm rule:
We conclude that the last known address is that address most likely to give the affected party notice.
The trustee is obligated to exercise due diligence to determine that address. Failure to impose such a
requirement would not balance adequately the competing interests involved.
Rosenburg, 727 P.2d at 783.
¶18. In Rosenberg v. Smidt, the court found inadequate a notice sent to an interested party's last address
on record with the mortgagee when the notice came back unclaimed, imposing a due diligence duty on the
trustee in that circumstance to obtain a better address, even though the statute specifically permitted notice
to be sent to the "last known address." Id. at 779-80.
¶19. We can find no reason to conclude that the Alaska court would impose a lesser due diligence
obligation when Alaska Rule of Procedure 5 is involved than it would when an identical notice procedure is
dictated by statute. We also conclude that actual knowledge that Mr. Fargo was relocating his residence to
Mississippi is equally as effective to invoke a duty to further inquiry as is the return of mail sent to a former
address.
¶20. Therefore, unlike the chancellor, who determined that Rule 5 had been complied with, we conclude
that the notice procedure employed by ACSED to inform Mr. Fargo of the pending modification hearing
did not comply with Alaska Rule of Procedure 5. We reach that conclusion because the notice was sent to
an address that ACSED knew was not Mr. Fargo's current address and there was no accompanying
indication that ACSED had made a diligent effort to obtain an alternate mailing address for Mr. Fargo
having a greater likelihood of accomplishing the desired result - the delivery of actual notice of the motion in
sufficient time to permit Mr. Fargo to be heard in opposition to the motion.
¶21. Because the order was entered at an ex parte proceeding at a time when Mr. Fargo had no actual
knowledge of the pendency of a formal modification proceeding and when he had been afforded no
reasonable opportunity to be heard in opposition to the motion, we conclude that the Alaska court was
without authority to modify Mr. Fargo's support obligation. We, therefore, affirm the decision of the
chancellor on that basis.
¶22. It must be remembered that our decision does nothing to affect those monthly support obligations
accruing under the original Alaska divorce judgment that continued to accrue prior to the Mississippi
chancellor's modification order. To the extent that any of these obligations remain unpaid, nothing we have
decided today alters Mr. Fargo's obligation to pay those amounts or the duty of the appropriate courts of
the State of Mississippi to enforce those obligations under the full faith and credit provisions of the
Constitution of the United States.
¶23. THE JUDGMENT OF THE CHANCERY COURT OF FORREST COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING AND SOUTHWICK, P.JJ., BRIDGES, IRVING, LEE, MOORE, PAYNE, AND
THOMAS, JJ., CONCUR.