Opinion
19-P-593
05-07-2020
LOVELYNN JENSEN v. DEREK JENSEN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Derek Jensen (father), appeals from a Probate and Family Court order denying his motion, filed pursuant to Mass. R. Dom. Rel. P. 60 (b), in which he sought to vacate a modification judgment that changed the amount of child support he was obligated to pay to the plaintiff, Lovelynn Jensen (mother). The father argues that the underlying judgment is not valid because the Probate and Family Court lacked subject matter jurisdiction. We affirm.
Background. The parties were divorced in Florida in 2009, at which time the mother resided in Florida with the parties' children. The father thereafter relocated to New Mexico, and the mother moved with the children to Massachusetts (with the father's consent). In March of 2012, the mother registered the Florida divorce judgment in the Massachusetts Probate and Family Court, and filed a complaint seeking to modify the judgment's child support provisions. The father was served with the complaint for modification in Massachusetts. On November 3, 2014, the parties executed an agreement for modification of child support (modification agreement), which was filed in the Massachusetts Probate and Family Court and incorporated into a judgment dated January 6, 2015 (modification judgment). The agreement addressed child support from May 2, 2012, onward, and provided that Massachusetts would have continuing, exclusive jurisdiction.
Then, in September of 2018, the father, acting pro se, filed a rule 60 (b) motion to vacate the 2015 modification judgment, claiming that the Massachusetts Probate and Family Court lacked subject matter jurisdiction to modify the Florida divorce judgment because the mother failed to satisfy the "nonresident" requirement under the Massachusetts Uniform Interstate Family Support Act (UIFSA), G. L. c. 209D.
The motion was denied by a judge of the Probate and Family Court with prejudice in a written order. Relying on Draper v. Burke, 450 Mass. 676 (2008), the judge concluded that the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (2000), preempted the nonresident requirement and conferred subject matter jurisdiction in Massachusetts on the ground that "Florida no longer had jurisdiction because no one resides there, no other state has modified the Florida order and Massachusetts has personal jurisdiction over the defendant." The judge further noted that in addition to being served in Massachusetts, the father had signed a stipulation providing that Massachusetts has jurisdiction over child support matters from May 2, 2012, forward.
In Draper, the Supreme Judicial Court held that, notwithstanding the wife's status as a Massachusetts resident, Massachusetts had subject matter jurisdiction to modify an Oregon support order because UIFSA's "nonresident" requirement was preempted by the FFCCSOA. See Draper, 450 Mass. at 677-678, 685-686.
Discussion. We agree with the judge's rationale in all material respects. To begin with, despite the father's criticism of the court's decision in Draper as an outlier, "we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003) (citing cases). Thus, to the extent the father urges us to overturn Draper, we are compelled to decline the invitation.
We need not address the father's argument made at pages 11 through 14 of his brief that his motion to vacate was timely filed. The mother does not contest the timeliness of the father's rule 60 (b) motion, and in any event, we agree that the motion was timely filed.
In addition, as the judge observed, notwithstanding the fact that Draper controls, Massachusetts has subject matter jurisdiction under G. L. c. 209D, § 6-611 (a) (2), because (as noted) the father consented to Massachusetts modifying the Florida divorce judgment and assuming continuing, exclusive jurisdiction in a stipulation dated March 27, 2013. A stipulation to that effect was filed in Florida as required by the statute. We have reviewed a January 3, 2019, order of the Florida court confirming the report and recommendation of the general magistrate serving as the child support hearing officer, which was provided to us upon our request following oral argument in this case. The order makes specific reference to an April 2013 stipulation providing, among other things, that "Massachusetts has jurisdiction over all child support matter[s] from May 2, 2012 forward." The order also refers to the modification agreement and its provision that Massachusetts would have continuing jurisdiction. We are thus confident that the requirements of G. L. c. 209D, § 6-611 (a) (2), have been met.
Attorney's fees. The mother has requested an award of her appellate attorney's fees and costs. In light of the stipulation referenced above, we conclude that the father's appeal is frivolous and allow the mother's request. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). The mother may submit a petition for fees and costs, together with supporting materials, to the clerk of this court within fourteen days of the date of this decision. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The father shall have fourteen days thereafter to respond. Id.
Order entered December 11, 2018, affirmed.
By the Court (Vuono, Rubin & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 7, 2020.