DelinquentDad.com

As you will have noticed if this isn't your first visit, DelinquentDad.com has gone back to its roots to focus on the parent who was the inspiration for this site: Daniel Dennis Phillips, a Missouri lawyer and the owner of Vinyl Renaissance, a vinyl record and audio equipment store in Shawnee, Kansas. He is also the owner of a mail-order business, Daneva Classical Records, and sells under the eBay seller id Vinyl_Renaissance.

Phillips has an outstanding contempt judgment entered against him, following an August 2003 Washington support enforcement trial (affirmed by the Washington Court of Appeals in 2005 and reaffirmed by the trial court in 2006). Less than one month after the 2003 trial, Phillips was arrested on federal charges for willful nonsupport of his son. After pleading guilty, he was sentenced in March 2004. In October 2008, after a trial in the Johnson County District Court, the Washington order was registered in Kansas and the Kansas trial court entered judgments against Phillips in October 2008 and February 2009, in amounts totaling $103,366.64. (That amount is considerably higher now, with the addition of interest at 12% per annum that would add slightly more than $12,000 for the past year.) Phillips is now pursuing his fifth appeal involving the validity of a final Washington order and/or the jurisdiction to enforce the terms of a 1989 child support order.

This site offers a unique perspective on the loopholes in federal and state child support legislation that have allowed Phillips (and almost certainly others) to ignore multiple appellate decisions that are the law of the case at lawful child support orders and enforcement orders, even after his willful failure to support his child netted him a conviction in federal court. o:p>

Overview of the Case

This matter has been before the trial and appellate courts of Missouri, Kansas, and Washington.  In addition to these were the proceedings in the earlier-noted federal criminal prosecution in the United States District Court for the District of Washington (occurring in 2003-2004) and a federal civil lawsuit that was filed in 2006 by Phillips in the United States District Court for the District of Kansas. 

History & Litigation

The parties were divorced in June, 1989, with one child, for whom support was ordered in the Johnson County District Court in Kansas. The Stipulation and Property Settlement Agreement incorporated into the parties’ decree of dissolution was drafted by Plaintiff and his legal counsel.  No other attorneys were associated with the dissolution.

Less than two weeks following the dissolution, despite Phillips’ position as a bankruptcy attorney with the law firm of Stinson, Mag, & Fizzell in Kansas City, Missouri, Plaintiff defaulted on his child support obligation, thus necessitating the first of numerous enforcement proceedings against him over the next twenty years.

In August 1989, two months after the divorce and without notice to his former wife or to the court, Phillips moved from the state of Kansas and took up residence in Missouri. Phillips' former wife and child moved from Kansas in 1991, and relocated to the state of Washington in 1992, where they remained.  Enforcement, however, continued through the Johnson County (Kansas) District Court Trustee.

By 1993, in the face of mounting arrearages, Phillips began challenging jurisdiction in Kansas.  In a December 1993 letter to the District Court Trustee that his reading of the law indicated Kansas no longer had jurisdiction to enforce its order, as all parties had left the state.

On April 25, 1995, against the written objections of Martin, the Johnson County District Court entered an order relieving the Court Trustee of further enforcement duties. In July 1995, the State of Washington’s Division of Child Support took over enforcement of the Kansas order following Martin's registration of the Kansas order. Washington’s exercise of long-arm jurisdiction over Phillips. 

A contempt trial was held in 2003 in the King County Superior Court in Washington.  Despite the fact that the contempt at issue was civil rather than criminal, Phillips obtained a public defender through SCRAP (Society of Counsel Representing Accused Persons). 

By using public funds, Phillips avoided the cost of defending the nonsupport action. In Kansas, it was a different story. See At Taxpayer Expense, later in this article.

On August 14, 2003, Martin obtained a judgment in Washington against Phillips for an aggregate amount of $71,700.00. Broken down, the judgment included the principal past-due child support in the amount of $36,096.00, with additional awards for interest on the principal, unreimbursed medical expenses, attorney fees, and costs totaling $35,604. Phillips appealed the Superior Court order to the Washington Court of Appeals.

In September 2003, Phillips attempted to sidestep the Washington contempt order by filing an action in the Johnson County court in which he sought to have that tribunal determine any arrearages remaining from the 1989 order, although Kansas had not heard any matter between the parties for eight years. (See 1995 order that relieved the Trustee of further duties in the matter, following Phillips' continuing insistence that Kansas had no jurisdiction to enforce its order once all parties had left the state. See also Phillips' 2004 Kansas appellate argument, where he reversed his position and then claimed that Kansas had continuing, exclusive jurisdiction to determine arrearages under the order on the basis that Phillips had returned to Kansas after a seven-year absence from the state.)

(See Phillips' 1993 letter to the Johnson County District Court Trustee, informing that office that Kansas did not have jurisdiction over its own order as no party remained in the state. See also the Court Trustee's letter to Martin from the same period, Martin's reply to the Trustee, and a sample of the numerous contempt proceedings attempted by the Court Trustee between 1993 and 1994.) See Proceedings in Kansas, 2003 - 2009.

United States v. Daniel Dennis Phillips

In September 2003, Phillips was arrested in the state of Kansas and ordered to appear in the federal court in Washington for his violation of 18 U.S.C. § 228 (willful nonpayment of child support). 

As in the Washington civil contempt trial, Phillips' defense was paid with public funds. See Financial Affidavit in Support of Request for Attorney Expert or Other Court Services Without Payment of Fee, filed by Phillips in the criminal proceeding. "List persons you actually support and your relationship to them" is one of the questions the form asks of the applicant. Phillips' written response was "Son – age 20 – arrears and child support," which was false.

According to his affidavit, signed under penalty of perjury, Phillips claimed monthly debts of $1,075 for rent, $400 for utilities, and $350 for food, denied having any money in bank accounts, and claimed as his only assets two vehicles with a total value of $18,500. 

Phillips stated that he earned only $200 per month, (that's only $2,400 per year), that his wages were paid to him by a "co-worker", and that he had not received "any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, retirement or annuity payments or other sources". 

The following was not included in the affidavit:

• Income from Phillips' active eBay seller accounts for Vinyl Renaissance/ Daneva Classical Records, through which he received significant revenue by selling audio equipment and vinyl records. 

• Employment with Mercantile Properties, owned by W. Malcolm Knarr. (In his own Sentencing Memorandum, filed with the federal court in March 2004, he admitted that "[h]e is currently employed in a paralegal type [sic] position with a real estate company, where he earns a small income, and is provided with the townhouse in which he resides with his current family".)

• In-kind income received as rent in exchange for legal services. Phillips claimed the rent as a monthly expense, and did not mention that he had zero housing costs.

• Assets of an undetermined value that were stored in his home and additional storage units, as admitted by Phillips in a June 2005 Shawnee, Kansas newspaper article on his business, Vinyl Renaissance. (See the section on Businesses, Income & Assets.)

In January 2004, Phillips pleaded guilty under the terms of a plea agreement between Phillips and the United States Attorney for the Western District of Washington.

At his March 2004 sentencing in the United States District Court, Western District of Washington, Phillips was ordered to pay restitution to his former wife, Ms. Martin, in the amount of the principal child support arrearages. As a result of a plea bargain and claims of indigence, Phillips' criminal restitution requirement did not include the additional amounts owed for interest on arrearages, child medical expenses, attorney fees, or costs assessed to him in an August 2003 contempt order entered in King County, Washington.

Only Phillips and the U.S. Attorney know the substance of their plea negotiations, and Phillips' presentencing report is sealed to protect the privacy of the defendant. However, it is true that sentencing guidelines differ between first and second offenses, as noted in the 2003 Federal Sentencing Guidelines, § 2J1.1-Contempt. [1]

From 2005 to the present, Phillips has attempted to argue that the restitution order of the U.S. District Court in Washington preempted all state court orders and, therefore, Martin was barred from enforcing the remaining $35,604 from the Washington contempt order. That argument has not served Phillips, and runs counter to existing law. [2]

Since his release from federal probation in 2005, Phillips has not volunteered any payments toward the outstanding balance. As a result, Martin's current judgment stands in excess of $103,366.04, following the entry of the most recent Kansas judgment in October 2008, and additional attorney fees awarded in February 2009. (This does not include interest that has accrued over the past year.) 

In March 2004, Phillips was sentenced to five years’ probation and ordered to pay restitution for the principal amount of child support arrearages, an amount that Phillips later admitted—in a document filed with the Washington Court of Appeals—did not include interest on arrearages, medical support, attorney fees, or costs.

Litigation on All Fronts

On September 9, 2003, ignoring the Washington contempt order, Phillips filed a motion in the Johnson County District Court to “Determine the Outstanding Amount Owing under the Support Order, and for an Order Establishing a Payment Schedule.” 

Martin appeared, pro se, to defend the Kansas action, and the Court held the Washington State order was res judicata to further Kansas proceedings. Phillips appealed the decision to the Kansas Court of Appeals, and Martin was forced to defend through a lengthy appellate process that began slightly before Phillips’ March 2004 sentencing in federal court. 

The 2003 Kansas litigation and Phillips’ subsequent appeal in that state occurred during the pendency of the Washington appeal.

In mid-2004, Martin retained counsel in Kansas to register the Washington state order, as execution had not been stayed pending the Washington Court of Appeals decision. 

In February 2005, Phillips paid the restitution to Martin as required by his criminal conviction, but did not make payment on the remainder of the King County judgment from Washington. 

On February 25, 2005, Phillips advised the Washington Court of Appeals that payment of restitution had been made, and stated, without qualification, that “the outstanding sums remaining at issue in the [appeal] are the accrued interest, medical reimbursements and attorneys [sic] fees of approximately $35,000.”

At no time did Phillips inform the Washington Court of Appeals of his theory—later asserted in a 2006 federal complaint filed by Phillips—that the restitution order barred enforcement of the additional judgment amounts.

The Washington Court of Appeals handed down its decision on March 21, 2005, and mailed copies to counsel for the parties. 

Importantly, and notwithstanding Phillips’ continued statements to the contrary, the appellate court  ruled, “[w]e affirm the superior court’s order, but remand so that the court can allow Phillips to answer the enforcement motion,” and ruled that “[o]n remand, the trial court shall allow Phillips 10 days to file a responsive pleading and conduct any further proceedings it deems necessary.”

On November 29, 2005, the Supreme Court of Washington denied Phillips’ petition for review of the Court of Appeals’ decision, and noticed all parties. Phillips was sent two copies; one through his Washington counsel, and one to his home in Kansas. (Phillips denies to this day that he received any notice of the mandate being returned from the Court of Appeals.)

(In the interim, concurrent litigation and an appeal occurred in the state of Kansas, following Martin's attempt to register the Washington order of contempt.  For more, see the section on Kansas litigation.)

Washington Litigation, 2006

Eight months after the mandate was returned to the Washington trial court, Phillips had still made no effort to file any of the evidence he had earlier asserted was available as a defense to the contempt proceedings.  The Washington Court of Appeals’ ruling had allowed only ten days to do so. 

In August 2006, Martin's Washington counsel submitted to the King County Superior Court a motion to confirm the Court’s earlier contempt order and judgment, and asked for a ruling as to the effect of the federal restitution order.

On August 22, 2006, Phillips filed a late reply and request to establish a case scheduling order, advising the Court that “the Washington Court of Appeals reversed this Court’s calculations of arrearages,” a statement known by Phillips to be false.

The following day, less than an hour before the hearing, Phillips called the presiding judge, the Honorable Dean S. Lum, and demanded the hearing be later in the day than the scheduled 1:30 p.m. calendar. As Judge Lum explained in open court following that telephone conversation, he informed Phillips that he (Judge Lum) was in control of his own docket, at which point Phillips summarily ended the call. Phillips did not appear at the hearing, and Martin’s motion to confirm the contempt judgment was granted by order dated August 23, 2006.  An amended order followed on September 6, 2006.

Phillips' subsequent motion for reconsideration or new trial was denied.  Phillips did not file a notice of appeal.  Instead, in October 2006, on the same date that the Washington appeal was due, Phillips filed suit against Martin in the United States District Court for the District of Kansas.

Federal Civil Lawsuit and Appeal, 2006-2009

Although Martin is not a lawyer, she appeared pro se in the District of Kansas court to answer Phillips' complaint.  At the heart of Phillips' federal was his contention that Martin, as his victim, was bound by the terms of Phillips' criminal sentence and the order releasing him from probation upon payment of the restitution and was barred from enforcing the underlying state child support order.  In his complaint (filed at taxpayer expense), Phillips alleged: 

"Defendant's continued disregard of the District Court's judgment and her collateral attacks upon the same is irreparably harming Plaintiff in that suchclaims affect Plaintiff's credit, jeopardize Plaintiff's personal and business reputation and put at risk various licenses Plaintiff holds."

"Defendant's [sic] has attempted to collect additional sums above those found by the District Court [federal criminal proceeding] to be owing under the Support Order, in complete disregard for the District Courts [sic] findings and judgment."

"In addition to instituting such proceedings, the Defendant actively participated in the proceedings and entered her appearance in such case, filed a Victims Impact Statement and appeared and addressed the Court at Plaintiff's sentencing and requested additional sums." (Emphasis added.)

"The District Court by entry of its order of restitution without Defendant's additional sums, impliedly found that any such additional sums were not valid unpaid support obligations owing under the Kansas Support Order."

"Defendant is bound under the Federal common law of Res Judicata and Collateral Estoppel." (Capitalization as found.)

After 16 months of legal maneuvering by Phillips—which required extensive research by Martin—the United States Attorney who prosecuted the case against Phillips filed a sworn affidavit that refuted Phillips' claims.  In his affidavit, the U.S. Attorney stated that: 

• Ms. Martin "was not a party to the above-mentioned case. All decisions on this matter were made by me."

• "The Federal Government did not have any agreement with Mr. Phillips that he would not continue to be responsible for the interest, medical expenses, or any other costs, since those were ordered by a State Court Judge and that issue was not litigated in this case."

• "The amount of restitution set at sentencing was $36,096.00. This amount represented the arrearage for support...it did not include interest, medical expenses, Ms. Martin's attorney fees, or any other related costs Ms. Martin may have incurred."

Phillips' complaint was dismissed on January 29, 2008.

Delaying again, Phillips filed an appeal to the United States Court of Appeals for the Tenth Circuit. On December 3, 2008, the dismissal was affirmed by the Tenth Circuit Court of Appeals. Phillips filed a petition for rehearing en banc. On February 18, 2009, the Tenth Circuit Court of Appeals denied the petition.

Despite his loss, the total delay of 28 months was a substantial victory for Phillips, because the clock continued to run on the statutorily defined time during which Martin could execute on her judgment.

Proceedings in Kansas, 2003 through 2009

Shortly after Phillips lost at trial in the 2003 Washington contempt proceeding, and less than three days before his arrest on the federal charges, Phillips filed a motion in Johnson County, Kansas, to "establish judgment and determine repayment schedule". In essence, he asked the court to do what the Washington courts had been doing for the past several years (1995-2003):  calculate the arrearages owing on the 1989 support order.

Martin appeared without counsel to defend in the Kansas action and moved to dismiss, providing a certified copy of the August 2003 contempt order with her motion.  As a result, and in very little time, the Kansas Court denied Phillips' motion and his motion for reconsideration. Phillips appealed the denial, which meant that for several months, the Kansas appeal overlapped the Washington appeal. 

(It should be remembered that Phillips was prosecuting his Washington appeal at the public's expense, just as he had in the trial below. Martin, on the other hand, had substantial attorney fees.) 

On January 6, 2005, Martin moved to register the Washington contempt order in Johnson County.  Phillips moved to cancel the registration and to prohibit the court from recognizing any order other than that issued by the federal court upon Phillips' release from probation.

It appears that the public funded Phillips' challenge of the registration in Kansas. On February 4, 2005, an entry in the court docket report indicates that "Defense Attorney Droege, J. Charles [was] assigned on 02/04/05." 

On February 10, 2005, Phillips paid the remaining restitution in a lump sum.

On February 25, 2005, the Kansas Court of Appeals issued its opinion affirming the Johnson County order, followed by its mandate on March 31, 2005.  In the interim, the Washington Court of Appeals handed down its decision affirming the King County order on March 21, 2005.  More on the Washington litigation from 1995 and from 2003-2008.  

(Also on February 25, Phillips submitted a notice of payment to the Washington Court of Appeals, advising the court that "[o]n February 10, 2005 Appellant caused to be paid to the Clerk of the United States District Court for the Western District of Washington the sum of $32,941.00.  In conjunction with the prior payments made by Appellant such sum represents payment in full of the restitution order for accrued child support of $36,090 entered in Appellee's [Martin's] favor of in [sic] the case of US v Phillips. Such sum coincides with the sum determined by the [Washington] Superior Court in this matter. The outstanding sums remaining at issue in the matter before this Court are the accrued interest, medical reimbursements and attorneys fees of approximately $35,000." 

Phillips was very successful in delaying enforcement proceedings in Kansas from January 6, 2005 to March 30, 2006 (14 months) as a result of his deliberate misrepresentation to the Johnson County District Court that the 2003 Washington order had been overturned.  (Remember, Phillips is a lawyer and knows full well the legal difference between the terms 'affirmed' and 'reversed', and the Washington Court of Appeals very clearly affirmed the trial court's decision.) 

Presented with two appellate decisions that were both squarely against Phillips position, Phillips represented to the Johnson County District Court that the Washington appellate opinion reversed the Washington contempt order.

Phillips further muddied the waters by claiming—as he later claimed in his failed federal lawsuit—that Martin's enforcement action was barred by the Supremacy Act, the Commerce Clause of the U.S. Constitution, the Uniform Interstate Family Support Act, the Full Faith and Credit for Child Support Orders Act, the laws of the states of Washington and Kansas, collateral estoppel, laches, etc.  

In June 2005, Phillips hired a private attorney to represent his interests, and the case continued on. 

The Johnson County court declined to rule on Phillips' motions to recognize that all child support orders were satisfied by Phillips' criminal sentence, but nonetheless dismissed the enforcement proceeding on March 23, 2006.  As shown in the court docket report, the Kansas trial court ruled that  the appellate court in the state of Washington overturned the judgment and therefore it was not a final judgment and could not be registered. 

Phillips appealed this order, too, although he reconsidered and withdrew the appeal after Martin had invested considerably more in attorney fees.

More than 14 months passed between the filing of the action and the dismissal. 

Martin was left with no choice but to return to the Washington court to affirm what had already been affirmed: that the 2003 contempt order entered against Phillips was valid, that no reversal had ever occurred, and that Phillips' payment of restitution did not relieve him of the duty to perform as required in the contempt trial.  More on the Washington litigation.

(The same Johnson County judge presided over Martin's renewed enforcement action from 2007-2009, with an entirely different outcome. See more about this further in this section.)

In April 2007, the State of Washington Division of Child Support sought to register the 2003 support order in Johnson County, Kansas. 

Phillips objected to registration and stalled the proceedings by advising the Johnson County Court Trustee of his federal complaint. In June, the Court Trustee and Phillips mutually consented to set the matter aside, with a status conference set for January 2008.

In April 2008, Martin retained counsel in Kansas and joined the interstate enforcement proceedings.  Following trial in August 2008, the Johnson County Court ruled for Martin, registering the Washington order in Kansas and ordering additional interest, attorney fees and costs.  The Memorandum and Order was entered in October 2008. 

Phillips was ordered by the Kansas court to pay the remaining judgment from Washington State (by then in excess of $66,000.00), plus additional interest, attorney fees, and costs that brought the total judgment to $103,366.64. 

In his memorandum and order (currently on appeal at the Kansas Court of Appeals), Johnson County District Court Judge Slater carefully set out the facts in the case:   

• "The Washington Court of Appeals held that the Superior Court in the State of Washington had subject matter jurisdiction to enforce the Kansas support order, (See In Re Marriage of Owen and Phillips, supra, at 829), and that the Court in Washington had personal jurisdiction over Phillips for the purposes of enforcing the Kansas support order. See In Re Marriage of Owens and Phillips, supra, at 830."

Speaking of Phillips' earlier filing in 2004, the court noted that

• "Daniel Phillips further attempted to re-litigate the issue of the Washington court's jurisdiction in the District Court of Johnson County, Kansas, in Case No. 89 C 6890.  The Johnson County trial court denied Daniel Phillips' collateral attack on the Washington court judgment enforcing the Kansas order. On appeal . . . the Kansas Court of Appeals through Presiding Justice Elliott held as follows: "Further, we affirm the Johnson County District Court's holding that Phillips is precluded from re-litigating the issue of the Washington court's jurisdiction under the principle of res judicata."

In summary the court specifically found that "[t]he appellate court in Washington and the Supreme Court in Missouri have judicially determined that Washington had subject matter jurisdiction to enforce the Kansas child support order and personal jurisdiction over Daniel Phillips to enforce the Kansas child support order. Daniel Phillips may not and cannot collaterally attack the Washington judgment in Kansas courts.   

Phillips moved for reconsideration, and the Kansas court denied the motion. On March 2, 2009, Phillips appealed to the Kansas Court of Appeals. 

The Kansas appeal is being held back by Phillips' inability to produce an appellant's brief that is either on time or within the allowable page limit, despite having had several months do do so, and is currently on this third extension of time. (He did file a 69-page brief that was nineteen pages over the limit, but the appellate court rejected it. It does make for interesting reading.)

In his rejected brief, Phillips knowingly misrepresented material facts to the Court of Appeals, as he has with the Kansas trial court, the Washington courts, the United States District Court, and the Tenth Circuit Court of Appeals. In particular, he persists in maintaining that the 2003 Washington contempt order was "reversed" by the Washington Court of Appeals in 2005, and that he was never given notice that the mandate had returned to the Washington trial court. 

These assertions are completely false, as shown by the actual opinion and the mandate itself, which clearly indicates that the Clerk of the Court sent copies to Phillips in Kansas and to his court-appointed attorney in Washington State.

As a lawyer and officer of the court, Phillips has broken a fundamental rule of professional conduct:  candor toward the tribunal.

Justice Delayed

Phillips has been unsuccessful in his attempts to declare the 2003 and 2006 Washington contempt orders void and unenforceable, but he has been completely successful in delaying justice and increasing the cost of litigation. 

Although enforcement of the order is ongoing, Phillips has been successful in delaying that as well. No supersedeas bond was provided to stay execution on the recent Kansas order pending appeal, but Phillips still continued to stall and has not voluntarily paid any portion of the judgment. (A payment of approximately $500 was made indirectly through a tax offset.)

In order to get around execution on the judgment, and to avoid a supersedeas bond, Phillips is currently attempting to negotiate an arrangement with the Johnson County District Court Trustee, in which he would make payments of $150.00 per month to the Court, with such payments being held until the appeal is concluded.

This stalling tactic is a rather large advantage to him, of course. Given that Washington limits the time in which a judgment may be executed on, and only 2 years remain before a single extension may be granted, it serves him to delay proceedings as long as he might. There is no hearing scheduled on the matter until December 2009, so no payments would be required unless and until the Court Trustee agreed to Phillips' terms.

Meanwhile, concurrent with the appellate proceedings, Phillips is actually trying to relitigate the same issues in the enforcement proceedings, and has recently (October 2009) submitted a Motion to Dismiss for Lack of Subject Matter Jurisdiction. 

(Phillips also submitted a Request For Court-Appointed Counsel, which the Hearing Officer denied on the grounds that Phillips did not qualify.)

It's Not Over Yet...

Despite multiple decisions from three state appellate courts and from the federal appellate court, Phillips continues to assert to the Kansas Court of Appeals in the ongoing appellate proceedings that he was not obligated to pay any judgment once he was released from federal probation.  As if that were not enough, Phillips is simultaneously attempting to relitigate the same issues with the Johnson County District Court Trustee in Kansas, through which office the October 2008 judgment is currently being enforced. Although Judge Slater, the District Court judge who presided over the 2008 trial, did not stay enforcement pending the appeal and Phillips did not file a supersedeas bond to prevent execution in the interim, he is attempting to negotiate an agreement with the Court Trustee allowing Phillips to pay a very modest amount ($150) each month into a fund to be held by the District Court and not forwarded to his former wife.

As neither Phillips nor the District Court Trustee serves copies of filed documents on Ms. Martin, there is no opportunity for her to present her concerns.  Meanwhile, the clock ticks down the statutorily limited time in which Martin may execute on the Washington judgment.