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Upson v. Wallace

September 9, 2010

DEANNE R. UPSON, APPELLANT,
v.
WILLIAM E. WALLACE III, APPELLEE.
WILLIAM E. WALLACE III, APPELLANT/CROSS-APPELLEE,
v.
DEANNE R. UPSON, APPELLEE/CROSS-APPELLANT. AND IN RE PATRICK G. MERKLE, APPELLANT.



Appeals from the Superior Court of the District of Columbia (Nos. PCS1375-04, DRB1756-06, DRB226-07, CPO3691-07) (Honorable Juliet J. McKenna, Honorable Jerry S. Byrd, Honorable Linda D. Turner, & Honorable Odessa F. Vincent, Trial Judges).

The opinion of the court was delivered by: King, Senior Judge

Argued January 26, 2010

Before KRAMER and FISHER, Associate Judges, and KING, Senior Judge.

These nine consolidated appeals and cross-appeal stem from protracted and contentious litigation surrounding the custody of Georgiana Rose Wallace, the daughter of William Wallace and Deanne Upson, who was born on May 30, 2004, in the Commonwealth of Virginia, nine months after her parents engaged in a brief intimate relationship. Because of the lengthy and confusing procedural history of this case, this opinion is divided into two sections, one dealing with the "D.C. Child Support Case," and the other dealing with the "Child Custody Proceedings in D.C. and Virginia." The central issues to be decided in this appeal are: (1) whether the District of Columbia had subject matter jurisdiction to adjudicate Upson's petition for child support under the Uniform Interstate Family Support Act; (2) whether the pendente lite child support order awarding Upson $4,000 per month was an abuse of discretion; (3) whether the trial court erred by dismissing Upson's 2007 Complaint for Custody in the District of Columbia for lack of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act; and (4) whether Wallace, as a pro se attorney litigant, is entitled to receive an award of attorney's fees under Super. Ct. Dom. Rel. R. 11 or pursuant to the inherent power of the court. We affirm all of the challenged orders and judgments on appeal, except for the two that grant attorney's fees to Wallace.

DISTRICT OF COLUMBIA CHILD SUPPORT CASE

Facts and Procedural History

On August 16, 2004, less than three months after Georgiana's birth, Upson, while a resident of Virginia, initiated a child support proceeding through counsel in the District of Columbia, requesting child support, pendente lite, and permanent, sole legal custody of Georgiana,*fn1 and costs and attorney's fees (Case No. 2004 PCS 1375). The record reflects that Upson filed this case in the District of Columbia because she believed it was Wallace's place of residence.*fn2 Wallace filed his Answer to Upson's petition on September 22, 2004, and counter-claimed for custody, but later voluntarily dismissed his claim for custody. After a hearing in the matter, Magistrate Judge Pamela Diaz initially ordered Wallace to pay pendente lite monthly child support on September 28, 2004 in the amount of $2,800 per month, retroactive to the birth of Georgiana, and then on November 22, 2004, modified the pendente lite support to $4,000 per month. Magistrate Judge Diaz also ordered that a $10,000 credit against any judgment of support be given to Wallace because he provided Upson with $10,000 while she was pregnant. On March 2, 2005, Wallace filed for custody of Georgiana in Alexandria, Virginia. Meanwhile, the record reflects that Upson and Georgiana relocated to the District of Columbia from Virginia around April of 2005.

On May 16, 2005, in the District of Columbia case, Wallace filed an "Amended Motion to Dismiss" Upson's petition for child support, arguing for the first time that the District of Columbia court did not have the jurisdiction to make a child support determination because neither he, Upson, nor the child, were residents of the District.*fn3 Magistrate Judge Diaz granted Wallace's motion to dismiss Upson's petition for child support on September 29, 2005, concluding that the court lacked subject matter jurisdiction to hear the matter and that it did "not have continuing, exclusive jurisdiction to enter any permanent child support order because the Commonwealth of Virginia is the Home state of the minor child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act and the Uniform Interstate Family Support Act." Magistrate Judge Diaz stated that the pendente lite support order "shall continue in full force and effect" and that "this Court shall continue to exercise jurisdiction with respect to any enforcement issues" until the pendente lite order was superseded by an order from the Virginia court.

On December 13, 2005, Superior Court Associate Judge Ronna Lee Beck vacated Magistrate Judge Diaz's September 29, 2005 order, stating that "the residency of the parties and the child, not the child's 'home state' were the relevant facts for the court to consider in this case when determining whether it had continuing exclusive jurisdiction."*fn4 The court noted that D.C. Code § 46-302.05 (a) "provides that a court issuing a child support order consistent with the law of the District has continuing, exclusive jurisdiction as long as the District remains the residence of the obligator, the individual obligee, or the child."*fn5 The court remanded the case because the record lacked any findings of fact or conclusions of law on the residency of the parties. Associate Judge Beck noted that even if Wallace was no longer a resident of the District of Columbia, the court may still have jurisdiction under D.C. Code § 46-302.05 (a) because the record indicated that Upson had moved to the District with Georgiana at some point in 2005. On remand, Magistrate Judge Diaz issued an order on May 23, 2006, finding that Upson "was a resident of the District of Columbia at the point in time the Respondent first raised the issue of subject matter jurisdiction" and that Wallace "has been a resident of the State of Maryland since March 23, 2004."*fn6 Accordingly, Magistrate Judge Diaz ordered Upson's petition for child support to be reinstated.

Eight months later, on January 23, 2007, the pendente lite orders of September 28, 2004 and November 22, 2004 were suspended by Magistrate Judge Diana Epps, following a Virginia court's award of custody to Wallace*fn7 and evidence that Georgiana had begun to reside with Wallace instead of Upson. The court also concluded that "any and all other related matters to this case are beyond the jurisdiction of this Court and are hereby dismissed." On June 18, 2007, Upson filed a "Motion to Finalize Child Support" in the Superior Court and Wallace filed his response on July 6, 2007. After a hearing on August 2, 2007, Magistrate Judge Diana Epps issued an order on October 1, 2008, (1) denying Upson's requests for a retroactive modification of previously paid pendente lite support payments and a finalized support order for further payments, (2) denying Wallace's request for recoupment of previously made pendente lite support payments, and (3) dismissing the matter without prejudice. Magistrate Judge Epps concluded that D.C. Code § 46-204 (c) precluded modification or recoupment of prior awards since there had been no support paid "for the period during which the petition for modification is pending." Further, she declined to order additional support absent a final custody order from Virginia, since "the duty of support follows custody."

Less than a year later, Upson again filed motions for support even though she no longer had custody of Georgiana. Magistrate Judge Dennis Doyle denied Upson's motion for emergency support on April 1, 2009, and her request for permanent support on May 5, 2009, because Upson "d[id] not have custody of the parties' minor child." Both Wallace and Upson requested review by a Superior Court Judge of the September 28, 2004 order (granting pendente lite support in the amount of $2,800 per month), the November 22, 2004 order (granting pendente lite support in the amount of $4,000 per month), and the May 5, 2009 order (denying Upson's most recent request for permanent support). Upson also requested review of the April 1, 2009 order (denying her emergency request for support).

Upon review of the Magistrate Judges' orders, Associate Judge Juliet McKenna issued an order on August 5, 2009, which, inter alia, (1) reversed and amended Magistrate Judge Diaz's September 28, 2004 order for pendente lite child support in the amount of $2,800 per month,*fn8 and instead ordered support consistent with the later $4,000 award, retroactive to Georgiana's birth; (2) affirmed Magistrate Judge Diaz's November 22, 2004 pendente lite order of child support in the amount of $4,000 per month; (3) affirmed Magistrate Judge Doyle's April 1, 2009 emergency order and his May 5, 2009 permanent support order because Upson no longer had custody of Georgiana; and (4) ordered the Office of Attorney General to conduct a complete audit of child support payments and recalculate the amount owed by Wallace to total $4,000 per month, from May 20, 2004 to January 23, 2007.*fn9 Associate Judge McKenna also concluded that Wallace filed his request for review of the May 5, 2009 order out of time, and therefore, the court was without jurisdiction to entertain his claims with respect to that order.*fn10 Both Upson and Wallace appealed to this court from Associate Judge McKenna's August 5, 2009 order (Appeal Nos. 09-FM-001151 & 09-FM-1620).*fn11

Challenge to the Subject Matter Jurisdiction of the District of Columbia to Adjudicate Child Support

We begin with the issue of subject matter jurisdiction, as it implicates the court's power to adjudicate child support in this matter. Wallace argues that the "District of Columbia did not have subject matter jurisdiction to adjudicate [Upson's] Petition for an original support order where neither the mother, the father nor the child were residing in the District of Columbia when the action was commenced." Wallace contends that Upson's support petition was properly dismissed by Magistrate Judge Diaz for lack of subject matter jurisdiction in her September 29, 2005 order, and therefore, Associate Judge Beck erred in her December 13, 2005 order vacating Magistrate Judge Diaz's order. Thus, Wallace argues, "each of the orders of pendente lite child support were erroneous as a matter of law."*fn12 Subject matter jurisdiction is a question of law, which we review de novo. Keeton v. Wells Fargo Corp., 987 A.2d 1118, 1121 n.5 (D.C. 2010).

As an initial matter, we note the inconsistent, and often confusing, representations by Wallace as to his place of residence during this lengthy litigation. In his September 22, 2004 Answer to Upson's initial petition filed in the Superior Court on August 16, 2004, requesting child support, Wallace responded to Upson's statement of the District's jurisdiction by stating that he was "not required to admit or deny" the jurisdictional allegation. Then, a few lines later, he denied that he was a "bona fide resident and domiciliary of the District of Columbia, and has been for more than six months prior to the filing of this action." In the same filing, as part of his counterclaim for custody,*fn13 however, Wallace stated that "[h]e has practiced law and has lived in the District of Columbia for more than twenty-five years preceding the filing of this Counterclaim."*fn14 It was not until May 16, 2005, in his "Amended Motion to Dismiss," that Wallace affirmatively contested the jurisdiction of the District of Columbia Court to make a child support determination, alleging that none of the parties were residents of the District. In that Motion, Wallace claimed for the first time that he was a resident of Florida. When Associate Judge Beck vacated Magistrate Judge Diaz's September 29, 2005 order dismissing Upson's petition for support for lack of jurisdiction, and remanding the case for findings on the parties' residences, Wallace stated that he was a resident of Maryland. Ultimately, Magistrate Judge Diaz accepted Wallace's latest assertion and found that Wallace had been a resident of Maryland since March 23, 2004.

Against this backdrop of Wallace's seemingly opportunistic representations regarding the place of his residence, we conclude that his claim challenging the District's assertion of subject matter jurisdiction over the instant child support matter was properly rejected by the trial court. As a general rule, subject matter jurisdiction may not be waived, and an objection may be raised by the parties or by the court at any point in the litigation. See Super. Ct. Civ. R. 12 (h)(3); B.J.P. v. R.W.P., 637 A.2d 74, 78 (D.C. 1994). However, "[t]he purported lack of subject matter jurisdiction based on territorial considerations -- a fair characterization of the asserted defect here -- has been held to be analytically similar to improper venue; it does not go to the power of the court to adjudicate the case, and may be waived if not asserted in [a] timely fashion."*fn15 Id. at 78-79. Statutes that impose territorial constraints on the court's assertion of subject matter jurisdiction "require[] the court to have a geographical relationship to a particular 'thing' or 'status,' in addition to the competence to adjudicate the type of claim at issue[.]" Id. at 80-81 (internal citation omitted) (Ferren, J., concurring).

The Uniform Interstate Family Support Act ("UIFSA"), codified at D.C. Code §§ 46-301.01 to -309.01 (2009 Pocket Part), governs matters of child support in the District of Columbia, and specifies territorial jurisdictional limitations on a court's assertion of subject matter jurisdiction. See DeGroot v. DeGroot, 939 A.2d 664, 670 (D.C. 2008) ("UIFSA attempts to clarify the methods of 'establishment, enforcement, or modification of support orders across state lines.'") (citation omitted); D.C. Code §§ 46-302.04 & -302.05 (2001) (codifying §§ 204 & 205 of the UIFSA and referring to "jurisdiction" and "continuing, exclusive jurisdiction"). Although the UIFSA never speaks explicitly of "subject matter jurisdiction," the terms that it does use -- "jurisdiction" and "continuing exclusive jurisdiction" -- are simply alternative ways of referring to subject matter jurisdiction and its territorial limitations. See UNIF. INTERSTATE FAMILY SUPPORT ACT § 205 comment (2001), 9 U.L.A. (Part IB) 194 (2005) ("[I]f all the relevant persons -- the obligor, the individual obligee, and the child -- have permanently left the issuing State, the issuing State no longer has an appropriate nexus with the parties or child to justify the exercise of jurisdiction to modify its child-support order."); Nordstrom v. Nordstrom, 649 S.E.2d 200, 204 (Va. Ct. App. 2007) ("As the official comment makes clear, [§ 205] provides that when a court loses continuing, exclusive jurisdiction over its prior child support order, it has no subject matter jurisdiction to modify that order."); Sharp v. Sharp, 765 A.2d 271, 277-78 (N.J. Super. Ct. App. Div. 2001) ("UIFSA has engrafted into our child-support jurisprudence the concept of 'continuing, exclusive jurisdiction,' which establishes which forum has subject-matter jurisdiction over the issue of child support.") (citation omitted); Spencer v. Spencer, 882 N.E.2d 886, 891 (N.Y. 2008) ("Because the father still resides in Connecticut, that state has continuing, exclusive jurisdiction of the child support order [under the UIFSA] and New York does not have subject matter jurisdiction to modify that order."). McLean v. Kohnle, 940 So. 2d 975, 980 (MisS.Ct. App. 2006) ("Because the Virginia court maintains continuing, exclusive jurisdiction under the UIFSA, Mississippi does not have subject matter jurisdiction to hear Kohnle's petition for modification[.]"). Thus, we hold that under the UIFSA, territorial jurisdiction is waivable, and any challenge to the subject matter jurisdiction of the court based on territorial limitations in child support proceedings must be raised at the outset of the litigation. See B.J.P., supra, 637 A.2d at 78-79.

Here, Wallace did not contest the Superior Court's assertion of subject matter jurisdiction in his answer and counterclaim and thus failed to timely challenge the exercise of jurisdiction by the District of Columbia Courts. He argues in his brief on appeal that he "'suggested' the lack of jurisdiction by explicitly denying the critical jurisdictional allegation of the Petition at the very outset of the proceeding -- and before a single hearing was held." Despite Wallace's characterization of his actions as a timely objection, he did not in fact deny Upson's jurisdictional allegation in his answer and counterclaim. Rather, he asserted that Upson's jurisdictional statement was an allegation that he was "not required to admit or deny." Wallace also made contradictory statements in his submission to the court -- both denying that he was "a bona fide resident and domiciliary of the District of Columbia," and stating that "[h]e has practiced law and has lived in the District of Columbia for more than twenty-five years preceding the filing of this Counterclaim." We are satisfied that any "suggestion" asserted by Wallace was not sufficient to apprise the trial court of a challenge to its jurisdiction. Wallace only affirmatively challenged the subject matter jurisdiction of the court in his May 16, 2005 "Amended Motion to Dismiss," exactly nine months after Upson filed her petition for support, and approximately one month after the mother and child moved from Virginia to the District. Therefore, Wallace has waived the argument.

Moreover, even assuming that Wallace did not waive his claim of lack of jurisdiction, the March 2, 2005 filing by Wallace in the Virginia Court did not divest the Superior Court of jurisdiction, as he argues on appeal. Under D.C. Code § 46-302.04, which codified § 204 of the UIFSA:

(b) A tribunal of the District may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or ...


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