This article originally appeared in a somewhat different form in the March and April 1997 issues of Divorce Litigation. A new and updated version of that part of the article collecting case law under UIFSA will be published in the August 1999 issue of Divorce Litigation. copyright © 1999 National Legal Research Group and Laura Wish Morgan. All rights reserved.
INTERSTATE ENFORCEMENT OF SUPPORT
A SHORT PRIMER ON FEDERAL AND UNIFORM LAW
Laura Wish Morgan
During the last four years, the President of the United States and Department of Health and Human Services have sought to shine the spotlight on the problem of child support enforcement. In 1995, HHS released a joint report with the Department of Commerce, based on data collected in 1991 as part of the April 1992 supplement to Current Population Survey. The report showed that in 1991, of the 54% of custodial parents who had support obligations in place, only 67% of outstanding child support obligations were met. Of particular significance was another report issued by the General Accounting Office in 1995 based on data collected in 1992. This report showed that a smaller percentage of obligees who receive support from out-of-state obligors actually receive the support that is due than obligees who receive support from in-state obligors.
This focus on the problems of interstate support enforcement led to a number of new federal and state laws that every family law attorney must become familiar with: the Uniform Interstate Family Support Act (UIFSA), 9 U.L.A. 255 (Supp. 1996), approved by the American Bar Association in 1993, now enacted in all jurisdictions; the Full Faith and Credit for Child Support Orders Act (FFCCSOA), 28 U.S.C. § 1738B (Supp. 1999), enacted in 1994 and amended in 1996; and the Uniform Enforcement of Foreign Judgments Act (UEFJA), most recently revised in 1964, and enacted in some form in 44 states and the District of Columbia.
This article will describe each act and analyze the case law, if any, that has arisen under these acts.
II. THE FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT (FFCCSOA)
A. Why FFCCSOA Was Necessary
As noted above, the problem of enforcement of child support orders was particularly troublesome to Congress. Congress haS an interest in enforcement of child support orders because when child support is not paid by a non-custodial parent, the federal government pays child support in the form of welfare. As stated by one author:
To a large extent, the problem of welfare in the United States is due to the nonsupport of children by their absent parents. AFDC benefits are in a direct sense child support paid by the taxpayer: eligibility for AFDC requires a dependent child and a parent who is absent from the home.
Marian F. Dobbs, Margaret Campbell Haynes, Marilyn Ray Smith, Enforcing Child and Spousal Support § 4.04 at 4-10 (1995).
Compounding the financial burden on Congress was the fact that interstate modifications of child support orders were governed by the Uniform Reciprocal Enforcement of Support Act (URESA) or its revised version (RURESA). Under URESA, the forum state frequently asserted the right to modify any outstanding support orders. Under the anti-supercession clause of URESA, however, this led to the anamolous result of more than one valid support order being in effect in more than one state.
Congress recognized the confusion caused by this state of the law. See Bednarsh v. Bednarsh, 282 N.J. Super. 482, 660 A.2d 575, 578, fn. 5 (Ch. Div. 1995) (Congress no doubt had in mind the various interpretations of URESA emanating from the states when enacting the FFCCSOA). In 1994, Congress addressed the problems of interstate enforcement of child support by enacting the Full Faith and Credit for Child Support Orders Act (FFCCSOA), codified at 28 U.S.C. § 1738B. The FFCCSOA was drafted by the United States Commission on Interstate Child Support, and was intended to be consistent with the principles of the Uniform Interstate Family Support Act (UIFSA). To this end, FFCCSOA defines its key term, "continuing, exclusive jurisdition" in a manner consistent with UIFSA.
As part of the legislative history, Congress found that because of URESA, there was excessive relitigation of cases and the establishment of conflicting orders, leading to confusion, waste of judicial resources, disrespect for the courts, and a diminution of public confidence in the law. As stated in one case:
In 1994, Congress determined that a lack of uniformity in the laws regarding child support orders encouraged noncustodial parents to relocate to other states to avoid the jurisdiction of the courts of the home state. This contributed to the relatively low levels of child support payments in interstate cases and to inequities in child support payment levels that are based solely on the noncustodial parent's choice or residence. To counteract this problem, Congress enacted Public Law 103-383, known as the Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B (1994)).
Day v. Child Support Enforcement Division, 272 Mont. 170, 900 P.2d 296, 300 (1995).
Congress specifically provided that the central purposes of FFCCSOA were:
Pub. L. No. 103-383, § 2, 108 Stat. 4063, 1994 U.S. Code Cong. & Admin. News No. 9 (Oct. 20, 1994). Congress thus determined it was necessary to establish national standards under which the courts of the various states shall determine their jurisdiction to issue a child support order and the effect to be given by each state to child support orders issued by the courts of the other states. 140 Cong. Rec. 13,436 (1994).
The FFCCSOA and UIFSA thus interact together much like the PKPA and the UCCJA interact together. The federal statute lays out jurisdictional requirements for state courts to recognize, enforce, and modify orders of sister states, while the state statute lays out the requirements for the state to made original orders, recognize foreign orders, and modify any outstanding order. See Child Support Enforcement Division of Alaska ex rel. Brenckle v. Brenckle, 1997 WL 45159, *6, 23 Fam. L. Rep. (BNA) 1176 (Mass. Sup. Ct. 2/6/97) (requiring an independent finding of a duty of support by the Massachusetts court after Alaska has already made that determination would impede and frustrate the purposes of UIFSA, it would deny the court issuing the support order the full faith and credit of its judgment in violation of article IV, § 1, and it would violate FFCCSOA).
B. The Provisions of FFCCSOA
FFCCSOA is a federal statute that establishes the standards by which the states can determine their jurisdiction to issue their own support orders and the effect to be given to support orders from other states. As a jurisdictional statute, it is authorized by the Full Faith and Credit Clause of the United States Constitution, which empowers Congress to enact general laws, and to prescribe the manner in which state acts, records, and proceedings shall be proved, and the effect thereof. U.S. Const. art. IV, sec. 1. (The Parental Kidnapping Prevention Act (PKPA) is codified at 28 U.S.C. § 1738A; the Defense of Marriage Act is codified at 28 U.S.C. § 1738C.)
As a federal statute, the FFCCSOA pre-empts all similar state laws pursuant to the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, § 2. Isabel M. v. Thomas M., 164 Misc. 2d 420, 624 N.Y.S.2d 356, 359 (Fam. Ct. 1995); Kelly v. Otte, 123 N.C. App. 585, 474 S.E.2d 131, 134 (1996); Wilkie v. Silva, 685 A.2d 1239, 1241 (N.H. 1996); Office of Child Support ex rel. Degolier v. Crone, 21 Fam. L. Rep. (BNA) 1422 (Vt. Fam. Ct. 1995).
The PKPA similarly is a federal jurisdictional statute, superseding state law. In fact, the definitions in the FFCCSOA, contained in subSection (b), are similar to those in the PKPA.
"Child" is a person under 18 years of age and a person 18 years of age or more who is the subject of a child support order.
"Child's state" is the state in which a child resides.
"Child's home state" is the state in which a child lived with a parent or person acting as a parent for at least 6 consecutive months immediately preceding the time of the filing of a petition or comparable pleading for support and, if a child is less than 6 months old, the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of the child, parent, or person acting as a parent is counted as part of the 6 month period.
"Child support" is a payment of money, continuing support, or arrearages or the provision of a benefit (including payment of health insurance, child care, and educational expenses) for the support of a child.
"Child support order" is a judgment, decree, or order of a court requiring the payment of child support and includes both permanent and temporary support, and both an initial order and modification. "Court" is further defined either a court or administrative agency that is authorized to establish child support.
"Contestant" means a person who has the right to receive child support, a person who may have to pay child support, and the child who is the subject of the support order. A contestant also includes a state agency that has been assigned the right to obtain support.
"Modification" is a change in the child support order that affects amount, scope, or duration and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order.
The FFCCSOA confers upon the originating state "continuing, exclusive jurisdiction" to modify its child support orders. The general rule for jurisdiction is stated in subsection (a):
(a) The appropriate authorities of each State
(1) shall enforce according to its terms a child support order made consistently with this Section by a court of another state; and
(2) shall not seek or make a modification of such order except in accordance with subSections (e), (f), and (i).
Thus, a court must enforce a child support order made by another state, so long as it was made consistently with the FFCCSOA, and a court may not modify the order of another state except under subsections (e), (f), and (i).
Pursuant to subsection (c), an order is "made consistently" with the FFCCSOA if the court that makes the order, pursuant to its own laws and subSections (e), (f), and (g): (1) had subject matter jurisdiction and personal jurisdiction, according to the laws of the state of the originating court, and (2) reasonable notice was given to the contestants.
If an order is "made consistently" with the FFCCSOA under subSection (c), then, under subSection (d), the originating court has continuing, exclusive jurisdction over the order if the state is the child's state or the residence of any party, unless the court of another state, acting in accordance with subSections (e) and (f), modified the child support order.
Modification may be made under subsection (e). Pursuant to this subsection, a court of a state may modify a child support order issued by a court of another state if two conditions are met. First, the state must have jurisdiction under subsection (i), and second, the issuing state must no longer have continuing exclusive jurisdiction because the issuing state is no longer the child's state or the residence of any individual contestant, or each individual has filed a written constent with the state of exclusive, continuing jurisdiction for a court of another state to modify the order and assume jurisdiction over the order.
Jurisdiction under subsection (i) may be had when there is no individual contestant or child residing in the issuing state. In that case, the party seeking modification may register the order with the state having jurisdiction over the nonmovant for purposes of modification.
Under subsection (g), once a state gives up its continuing, exclusive jurisdiction, it may still enforce the order with respect to nonmodifiable obligations and arrears that accrued prior to the modification, under subsection (g).
Under subsection (f), if one or more child support have been issued with regard to an obligor and child, then a court must apply the following rules in determining which order to recognize for purposes of continuing, exclusive jurisdiction and enforcement: (1) if only one court has issued a child support order, the order of state court must be recognized; (2) if two or more courts have issued child support orders and only one of the court would have continuing, exclusive jurisdiction under the FFCCSOA, then that order must be recognized; (3) if two more more courts have issued child support order and more than one of the courts would have continuing exclusive jurisdiction under the FFCCSOA, then an order issued in the current home state of the child must be recognized; if an order has not been issued by the child's current home state, then the last order issued must be recognized; (4) if two or more court have issued child support orders and none of the court would have continuing exclusive jurisdiction under the FFCCSOA, the court may issue its own order which must be recognized; (5) the court that has issued an order recognized under the FFCCSOA is the court having continuing, exclusive jurisdction.
Finally, subsection (h) provides the court with choice of law rules. In a proceeding to establish, modify, or enforce a child support order, the forum state's law shall apply, except: (1) when interpreting an issuing state's order, including interpretation as to duration and other obligations of support, then the issuing state's law shall apply; (2) in an action to enforce arrears, a court shall apply the limitations period of the forum state or the issuing state, whichever is longer.
C. Inconsistencies Between UIFSA and FFCCSOA
It was the goal of the United States Commission on Interstate Child Support that FFCCSOA be consistent with the principles of UIFSA. The 1994 version of FFCCSOA contained a number of inconstencies, however.
In the 1994 and 1996 versions, the definition of "contestant" in subsetion (b) includes a state or political subdivision of a state to which the right to obtain child support has been assigned. In the 1994 version, continuing, exclusive jurisdition remained in the issuing state so long as a "contestant" resided there. Thus, a state agency may hold the case in one state forever, even if all parties have left the state. UIFSA avoided that problem by referring only to individual parties. The 1996 version of FFCCSOA provides that continuing, exclusive jurisdiction is based on the residence of the child or the individual contestants, as in UIFSA.
The 1996 amendments also: added a definition of a child's home state that is identical to the definition contained in UIFSA; provided rules for determining the controlling order for purposes of enforcement and determination of continuing, exclusive jurisdiction to modify that are consistent with UIFSA; amended the choice of law subsection to be consistent with UIFSA, and clarified that the law of the issuing state governs duration of support; added a provision that if there is no state with continuing, exclusive jurisdiction, the party or agency seeking modification must register the order in a state with jurisdiction over the nonmovant for the purpose of modification, consistent with UIFSA. The result of this retooling is that the FFCCSOA is compatible with UIFSA. See Margaret Campbell Haynes, Full Faith and Credit for Child Support Orders Act, 10 Delaware Lawyer 26 (Spring 1996) (outlining conflicts between UIFSA and FFCCSOA); John L. Saxon, The Federal Full Faith and Credit for Child Support Orders Act, 5 Institute of Government Family Law Bulletin 1 (University of North Carolina at Chapel Hill, 1995).
Despite the amendments, it is possible that under FFCCSOA, a state must give recognition to a child support order that would not be recognized under UIFSA, and would refuse to recognize its own jurisdiction to modify an order because of FFCCSOA. This is the current state of the case law.
D. Case Law Interpreting FFCCSOA
1. "Continuing, Exclusive Jurisdiction"
The most important concept in the FFCCSOA is that of continuing, exclusive jurisdiction. If an order is made consistently with the FFCCSOA under subsection (c), then, under subsection (d), the originating court has continuing, exclusive jurisdction over the order so long as the state is the child's state or the residence of any party, unless the court of another state, acting in accordance with subsections (e) and (f), modified the child support order.
This provision was explained in Porter v. Porter, 684 A.2d 259 (R.I. 1996). In that case, a Rhode Island family court divorced the parties in 1982. In 1989, the father was living in Massachusetts, and at that time, the Rhode Island family court entered an order for child support. The father did not contest the court's jurisdiction. In 1990, the mother and children moved to Florida. In 1994, the mother and children moved back to Rhode Island, and the mother then moved in the Rhode Island court for a judgment of arrears and modification of the original order. The father contest the jurisdiction of the Rhode Island court. The Rhode Island Supreme Court held that the present case involved the issuing state enforcing its own order that had never been modified by another state. Thus, the FFCCSOA did not control. Even if it did, under subsection (d) of the FFCCSOA, Rhode Island, as the originating state where the mother and child lived, had continuing, exclusive jurisdiction over its order.
The concept of "continuing, exclusive jurisdiction" under the FFCCSOA has been interpreted to mean that a URESA court cannot modify a child support order merely because such an order has been registered in the state. Kelly v. Otte, 123 N.C. App. 585, 474 S.E.2d 131 (1996), explains the concept of continuing, exclusive jurisdiction. In that case, the North Carolina court conceded that when the trial court stated that a New Jersey order, on registration under URESA, becomes an order of the North Carolina court, the trial court erred. The FFCCSOA does not allow such a "transmutation" of a New Jersey order into a North Carolina order. The New Jersey court, however, had lost its continuing, exclusive jurisdiction because all the parties had moved to North Carolina. North Carolina could, therefore, modify the New Jersey order pursuant to subsection (e). In Schuyler v. Ashcraft, 293 N.J. Super. 261, 680 A.2d 765 (1996), the court made the same point: merely registering an out-of-state order in the forum state under URESA does not transmute the child support order into an order of the forum state that can be modified. Accord Harbour v. Harbour, 677 So. 2d 700 (La. Ct. App. 1 Cir. 1996) (under FFCCSOA, because father still lived in issuing state (Mississippi), although mother and child moved to Louisiana, Louisiana did not have jurisdiction under FFCCSOA to modify support order, but it could enforce order).
The impact of the FFCCSOA on URESA states has been dramatic. Whereas a state would previously not hesitate to issue a new order under the provisions of URESA, a state is now much more cognizant of its inability to do so. The recent State, Dept. of Revenue ex rel. Skladanuk v. Skladanuk, 683 So. 2d 624 (Fla. 2d DCA 1996) demonstrates the various courts' attitude toward FFCCSOA. In that case, in July 1994, a New York Family Court entered an order finding the father responsible for weekly child support in the amount of $168.49, plus $56.51 toward arrearages. The mother then filed a URESA action in Florida to enforce the order against the father. Because the mother and child still lived in New York, the originating state, Florida held that it did not have jurisdiction to modify the New York order. The court reasoned that the FFCCSOA preempted Florida law to the extent of removing jurisdiction to modify child support orders where the exceptions listed in subsection (e) of the FFCCSOA have not been satisfied. Accord State, Dept. of Revenue ex rel. Jorda v. Fleet, 679 So. 2d 326 (Fla. 1st DCA 1996).
Likewise, in the recent Wilkie v. Silva, 685 A.2d 1239 (N.H. 1996), the mother and father were divorced in Florida. At that time, a child support order was entered. The father then moved to New Hampshire, and the mother continued to reside in Florida with the children. The mother then had the Florida decree registered in New Hampshire. Shortly thereafter, the father moved to have the registered order modified. The New Hampshire Supreme Court held that because the mother and the children continued to reside in Florida and there was no written consent filed allowing New Hampshire to take jurisdiction, then New Hampshire could not modify the Florida decree, even though the order had been registered.
The same result was reached in Paton v. Brill, 104 Ohio App. 3d 826, 663 N.E.2d 421 (10th Dist. 1995). In that case, pursuant to a Maryland decree, the husband was ordered to pay support for the parties' two minor children. The husband moved to Ohio, and the wife filed a URESA petition for enforcement. The appellate court affirmed that a responding URESA court cannot modify a URESA enforcement order because of the inapplicability of the exceptions listed in subsection (e) of the FFCCSOA. The court concluded that the FFCCSOA clearly prohibits modification by the responding URESA court and requires the party seeking modification to petition the issuing court. Accord Isabel M. v. Thomas M., 164 Misc. 2d 420, 624 N.Y.S.2d 356 (Fam. Ct. 1995); Kelly v. Otte, 123 N.C. App. 585, 474 S.E.2d 131, 135 (1996); DeGolier v. Crone, 21 Fam. L. Rep. (BNA) 1422 (Vt. Fam. Ct. 1995).
2. Made "Consistently with the Act"
In order for a court to have "continuing, exclusive jurisdiction" under the FFCCSOA, the order made by the court must have been made "consistently" with the terms of the FFCCSOA. An act is made "consistently" with the FFCCSOA if the court that entered theorder had subject matter and personal jurisdiction over the parties, and the parties had notice and opportunity to be heard. In Bednarsh v. Bednarsh, 282 N.J. Super. 482, 660 A.2d 575 (Ch. Div. 1995), New Jersey interpreted the requirement that an order be made "consistently with the Act" to include allegations of fraud. A fraudulently induced order, the court concluded, was aking to the defrauded party's lack of opportunity to be heard. Until that fraud is proven in the issuing court, however, the FFCCSOA still demands that the order be given full faith and credit under the terms of the FFCCSOA.
3. An "Order" Entitled to Full Faith and Credit
According to subsection (b) of FFCCSOA, a "child support order" means a judgment, decree or order of a court requiring the payment of child support, and includes a temporary order or an initial order. In In Matter of Cross v. Mastowski, 650 N.Y.S.2d 511 (N.Y. Fam. Ct. 1996), the court interpreted this provision. In that case, an order for child support was entered in New York against the father pursuant to its Uniform Support of Dependents Law. Thereafter, parties were divorced by decree of a Florida court, which also ordered the father to pay child support, but in an amount slightly higher than the New York order. The Florida order was then registered in New York. The Child Support Enforcement Unit then determined that the father was in arrears, and suspended the father's driver's license. One of the father's arguments to the court was that the Florida court's order as to child support could not supersede the New York court's order under FFCCSOA. The court disagreed, holding that the initial New York order under New York's USDL was not the type of order that was to be given full faith and credit under FFCCSOA. By definition, a USDL order cannot affect any other proceeding or remedy available. Thus, FFCCSOA could not be applied to bar Florida from entering its own order based on the "continuing, exclusive jurisdiction" of New York. "To hold that the USDL order invalidates or otherwise affects the subsequent judgment of divorce would clearly be inconsistent with the purpose of the federal act." 650 N.Y.S.2d at 513, fn. 1.
4. A "Written Agreement" Shifting Jurisdiction to Modify from Continuing, Exclusive Jurisdiction State to New State
What constitutes a "written agreement" was considered in Bednarsh v. Bednarsh, 282 N.J. Super. 482, 660 A.2d 575 (1995). In that case, a Florida court entered an order for child support and arrears on December 10, 1993. This order was entered on agreement of the parties. Without knowledge of the Florida order, a New Jersey court entered an order on December 6, 1994, in excess of the Florida order. The court appellate court addressed its jurisdiction to modify the Florida order and concluded that the conditions of subsection (e) were not met: the father still resided in Florida, and there was no "written consent" to vest jurisdiction in New Jersey. The court paid particular attention to the "written consent" condition of subsection (e), holding that the parties' complete absence of any mention of the Florida order in the prior moving, opposing and reply papers of the parties cannot be equated with written consent to New Jersey's exercise of jurisdiction. The "written consent" requirement contemplated an unequivocal and express consent that the forum state assume jurisdiction over the matter of child support.
In Office of Child Support ex rel. Degolier v. Crone, 21 Fam. L. Rep. (BNA) 1422 (Vt. Fam. Ct. 1995) the court also addressed the "written consent" option. In particular, the court considered whether the petitioner's registration of a support order under URESA and the respondent's failure to object to the registration constituted an implied consent to Vermont's assumption of jurisdiction to modify under the FFCCSOA. The court concluded that the respondent's act of telephoning his lack of objection to registration could not be said to satisfy the requirement of a written consent.
5. Choice of Law Provisions of FFCCSOA
In In re Marriage of Lurie, 33 Cal. App. 4th 658, 39 Cal. Rptr. 2d 835 (1995), the court applied the choice of law provisions contained in subsection (h) (formerly subsection (g)). In that case, the ex-wife sought to enforce and modify her New York child support order in California pursuant to URESA. The trial court held that California's age of majority applied to the child support order, and declined to increase support for the 20 year old son. The Court of Appeals held that URESA's choice of law principles required application of California's age of majority. Moreover, the FFCCSOA did not compel a different result. The court held that since the mother, father, and child no longer lived in New York, then New York did not have continuing, exclusive jurisdiction. subsection (d). Thus, the California courts were free to modify the New York support order under FFCCSOA subsection (e). The "modification" that California could undertake under its own law applied to both the scope and duration of the order. subsection (b). Further, the choice of law clause in FFCCSOA that requires that an order be "interpreted" under the law of the issuing state did not change the result. The California court was not only "interpreting" the New York order, it was also "enforcing" the New York order. Hence, Californa could apply California law.
Subsection (h) also has a provision relating to the statute of limitations. subsection (h)(2) provides that in an action to enforce arrears, a court shall apply the limitations period of the forum state or the issuing state, whichever is longer. This subsection was applied in Day v. Child Support Enforcement Division, 272 Mont. 170, 900 P.2d 296 (1995). In that case, the court held that the longer Montana statute of limitations of 10 years must apply over the shorter limitations period of five years as provided by the Fort Peck Tribal Code. (Indian tribes are included within the definition of "state" under the FFCCSOA.)
6. Retroactivity of FFCCSOA
Thus far, in the states that have considered the issue of retroactivity, all have concluded that the FFCCSOA may be applied retroactively to support actions that were pending when the FFCCSOA was enacted. In the recent Child Support Enforcement Division of Alaska ex rel. Brenckle v. Brenckle, 1997 WL 45159, *6, 23 Fam. L. Rep. (BNA) 1176 (Mass. Sup. Ct. 2/6/97), the court determined that the provisions of FFCCSOA and UIFSA were not substantive but rather procedural changes in the law. Hence, their provisions could be applied retroactively. Accord Isabel M. v. Thomas M., 164 Misc. 2d 420, 624 N.Y.S.2d 356, 359 (Fam. Ct. 1995); Paton v. Brill, 104 Ohio App. 3d 826, 663 N.E.2d 421 (1995).
E. The Need to Adopt UIFSA and Recognize FFCCSOA
Because jurisdiction to modify a child support order is subject matter jurisdiction, a modified child support order issued by a court that did not have jurisdiction to modify under the FFCCSOA is void. In order to avoid the proliferation of void orders, it is incumbent upon the parties to notify the court of any and all outstanding child support orders. See Bednarsh v. Bednarsh, 282 N.J. Super. 482, 660 A.2d 575 (1995) (New Jersey court's order, modifying Florida order of which it was unaware, resulted in void New Jersey order). If the court is not cognizant of the FFCCSOA, it must be made so by the parties and their counsel. Otherwise, courts will issue orders that fail to address the FFCCSOA, just as courts issued orders that failed to address the PKPA. The result can only be more litigation of the type that the FFCCSOA specifically sought to reduce. See, e.g., In re Marriage of Chester, 37 Cal. App. 4th 1624, 44 Cal. Rptr. 2d 717 (1995) (in discussion of court's jurisdiction to modify registered order under URESA, court fails to discuss FFCCSOA); Oklahoma Dept. of Human Services ex rel. Pavlovich v. Pavlovich, 22 Fam. L. Rep. (BNA) 1381 (Okla. Ct. App. 1996) (court notes that UIFSA changes scheme outlined in URESA, but fails to note that FFCCSOA already changed that scheme); Cordie v. Tank, 538 N.W.2d 214 (N.D. 1995) (court states that the United States Constitution does not require that the court give full faith and credit to foreign child support judgment; court does not mention FFCCSOA). See also In re Marriage of Comer, 14 Cal. 4th 504, 59 Cal. Rptr. 2d 155 (1996) (declining to decide whether FFCCSOA provides father with defense to mother's claim for support arrearages, although noting the FFCCSOA's existence).
III. THE UNIFORM ENFORCEMENT OF FOREIGN JUDGMENTS ACT (UEFJA) AND CHILD SUPPORT
A. What is UEFJA?
Many of the problems engendered by the lack of uniformity in state laws regarding interstate enforcement of child support will be remedied by January 1, 1998, when all states must have UIFSA in place. UIFSA, in tandem with FFCCSOA, should provide consistent rules for the recognition, enforcement, and modification of child support orders across state lines.
There is, however, yet another weapon in the arsenal of interstate child support enforcement. The Uniform Enforcement of Foreign Judgments Act (UEFJA) was first approved by the National Conference of Commissioners on Uniform State Laws in 1948 and revised in 1964. The 1964 UEFJA "provides the enacting state with a speedy and economicla method of doing that which is required by the Constitution of the United States. It also relieves creditors and debtors of the additional cost and harassment of further litigation which would otherwise be incident to the enforcement of foreign judgments."
Only one state still has the 1948 statute on its books: Missouri. Forty-four states and the District of Columbia have enacted some version of UEFJA. 13 U.L.A. 10 (Supp. 1996). Because UEFJA is a model uniform act, and there is no requirement that states enact the act as written, states are free to enact the law with variations, so the act is not necessarily "uniform." See generally Sara L. Johnson, Annotation, Validity, Construction, and Application of the Uniform Enforcement of Foreign Judgments Act, 31 A.L.R.4th 706 (1984 & Supp. 1999).
UEFJA applies to: (1) judgments, decrees or orders, (2) of a court, (3) which are entitled to full faith and credit. Accordingly, the act covers not only money judgments, but any order, such as to pay health insurance costs of name a support obligor as the beneficiary of an insurance policy. But see 42 Pa. C.S. § 4306 (UEFJA limited to foreign orders requiring payment of money). The act also covers only judgments, decrees or orders of a court; thus, administrative orders are not covered. Cf. FFCCOSA, 28 U.S.C. § 1738B(b) ("court" is defined as including a court or administrative agency empowered to issue support orders). Some states have also excluded from their definition of "judgment" any default judgment obtained by confession. E.g., Conn. Gen. Stat. § 52-604; N.Y. Civ. Prac. L & R § 5401.
The most important definitional requirement of UEFJA is the third: it applies only to judgments, decrees or orders "which are entitled to full faith and credit." Supreme Court decisions have consistently held that states must give full faith and credit to orders that are non-modifiable in the issuing state. E.g., Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137 (1944). Since child support and spousal support are prospectively modifiable, UEFJA appears to apply only to money judgments for arrears or past-due installments of child support (which are non-modifiable by virtue of the Bradley Amendment, 42 U.S.C. § 666(a)(9)). E.g., Hixson v. Haygood, 516 So. 2d 694 (Ala. Civ. App. 1987) (judgment of sister state is entitled to full faith and credit for child support only to the extent that accrued child support is no longer modifiable under law of sister state); Robbins v. Robbins, 647 P.2d 589 (Alaska 1982) (California child support arrearages enforceable under UEFJA); Matson v. Matson, 310 N.W.2d 502 (Minn. 1981) (if judgment is subject to modification by rendering court, it need not be afforded full faith and credit; full faith and credit clause applies to past due support payments, which cannot be reduced); Siegel v. Mosier, 632 S.W.2d 76 (Mo. Ct. App. 1992) (past due child support constituted final judgment entitled to full faith and credit); Overman v. Overman, 514 S.W.2d 625 (Mo. Ct. App. 1974) (alimony, even past due, not entitled to full faith and credit where law of Tennessee provided that alimony could be retroactively modified); Wolfe v. Wolfe, 64 A.D.2d 700, 407 N.Y.S.2d 568 (2d Dep't 1978) (money judgment for arrears which had accrued under Florida decree was entitled to full faith and credit); Ehrenzweig v. Ehrenzweig, 86 Misc. 2d 656, 383 N.Y.S.2d 487, aff'd, 61 A.D.2d 1003, 402 N.Y.S.2d 683 (1976) (wife could use UEFJA to enforce Connecticut divorce decree requiring payment of alimony and support as to arrears); Sabrina D. v. Thomas W., 110 Misc. 2d 796, 443 N.Y.S.2d 111 (Fam. Ct. 1981) (foreign child support order, being subject to future modifications, is not a final money judgment within meaning of UEFJA); Mittenthal v. Mittenthal, 99 Misc. 2d 778, 417 N.Y.S.2d 175 (Fam. Ct. 1979) (full faith and credit does not apply to judgment that is subject to modification by the rendering court); Barnett v. Barnett, 85 Ohio App. 3d 1, 619 N.E.2d 38 (9th Dist. 1993) (order for child support, payable in installments and subject to modification under the laws of the rendering state, are not entitled to full faith and credit since they are not sufficiently final); Ames v. Ames, 66 Or. App. 50, 652 P.2d 1280 (1982) (child support order entitled to full faith and credit insofar as it represented past due support); Salmeri v. Salmeri, 554 P.2d 1244 (Wyo. 1976) (New Jersey judgment for support arrears enforceable in Wyoming under UEFJA). Cf. Gedeon v. Gedeon, 630 P.2d 579 (Colo. 1981) (judgment in favor of former wife for attorney's fees, contempt fine, and guardian ad litem fees, were final and collectible, and entitled to full faith and credit).
Since the passage of the FFCCSOA, however, we may query whether that definition still holds true. The FFCCSOA requires that full faith and credit be given to any child support order. "Child support order" is a judgment, decree, or order of a court requiring the payment of child support and includes both permanent and temporary support, and both an initial order and modification. 28 U.S.C. § 1738B(b). But see Cordie v. Tank, 538 N.W.2d 214 (N.D. 1995) (child support orders are recognized pursuant to comity, and the Constitution does not require that ongoing support orders be given full faith and credit; FFCCSOA not mentioned).
B. Procedure Under UEFJA
In order to enforce an order for support issued in another state pursuant to UEFJA, the obligee must file an authenticated copy of the support order in the clerk's office of the forum state. See McGinn v. McGinn, 884 S.W.2d 277 (Mo. Ct. App. 1994) (Texas judgment for child support in arrears could not be enforced in Missouri under UEFJA where wife failed to present authenticated copy of Texas judgment to court bearing attestation and seal of clerk of court, as well as certification of judge). If there is a money judgment for arrears, that judgment must be filed. If there is no money judgment for arrears, the obligee must file the original order and any modifications to that order. UEFJA § 2.
Authentication must be according to either 28 U.S.C. § 1738 or the statutes of the issuing state. Pursuant to 28 U.S.C. § 1738, an "authenticated copy" is one that the clerk of the issuing court has attested to with the court's seal and a certificate from the judge stating that attestation is in the proper form.
Along with the authenticated copy of the foreign judgment, the obligee must file an affidavit setting forth certain required information, such as the name and address of the obligor. UEFJA § 3. Some experts recommend that the obligee also file a true copy of any pay records and a sworn statement as to the support arrearage as of a particular date. Marian F. Dobbs, Margaret Campbell Haynes, Marilyn Ray Smith, Enforcing Child and Spousal Support § 6:94 at 6-98 (1995). See also Patricia M. Hoff, "The Uniform Enforcement of Foreign Judgments Act and Other Actions to Enforce Child Support in Sister States," in Margaret Campbell Haynes & Diane Dodson, eds., Interstate Child Support Remedies (U.S. Dep't of Health and Human Services 1989).
Once the order is filed with the clerk, the order has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the forum state and may enforced or satisfied in like manner. UEFJA § 2. The effect of filing an order under UEFJA is the same as the effect of registering an order under URESA. After the filing with the clerk, the obligor must be notified promptly. UEFJA § 3(b).
UEFJA provides for defenses to enforcement: an appeal from the foreign order is pending or will be taken; a stay of execution has been granted; a defense to enforcement exists under the laws of the forum state. UEFJA § 4.
C. Case Law Interpreting UEFJA
Many cases concerning UEFJA and the enforcement of support obligations have arisen under § 4: the obligor asserts a defense to enforcement under the laws of the forum state. As stated in Hatch v. Hatch, 247 Or. 588, 431 P.2d 832 (1967), the defenses of lack of jurisdiction, fraud in obtaining the original judgment, the running of the statute of limitations, and similar such defenses going to the viability of the judgment can be interposed in a proceeding for registration of a foreign judgment under UEFJA. Thus, an obligor can raise lack of personal jurisdiction in the original judgment as a defense, Stevens v. Stevens, 44 Colo. App. 252, 611 P.2d 590 (1980); Glotzer v. Glotzer, 112 Misc. 2d 851, 447 N.Y.S.2d 603 (1982), and lack of notice and opportunity to be heard. Ackerman v. Ackerman, 676 F.2d 898 (2d Cir. 1982); Nissen v. Miller, 642 S.W.2d 428 (Tenn. Ct. App. 1982). An obligor can also raise the statute of limitations as a defense to the judgment. E.g., In re Marriage of Kramer, 254 Ill. App. 3d 923, 625 N.E.2d 808 (1993); Foley v. Foley, 641 S.W.2d 138 (Mo. Ct. App. 1982); Ames v. Ames, 60 Or. App. 50, 652 P.2d 1280 (1982); Wellington v. Wellington, 19 Wash. App. 328, 575 P.2d 1088 (1978). The existence of these defenses, however, does not allow a party to relitigate issues of fact that were conclusively decided. Davis v. Davis, 558 So. 2d 814 (Miss. 1990). The existence of these defenses also does not allow party to assert these defenses when they were asserted in the original action. Bureau of child Support Enforcement v. Holjeson, 42 Wash. App. 69, 708 P.2d 661 (1985).
While many states have stated that only a final, nonmodifiable support order can be enforced under UEFJA, these same states have also held that an ongoing support order can be filed under UEFJA under the principles of "comity." Where states have permitted a UEFJA petition for ongoing support under the principles of comity, the courts have held that they may modify the ongoing support, see, e.g., Hutto v. Plagens, 354 Ga. 512, 330 S.E.2d 341 (1985); Light v. Light, 12 Ill. 2d 502, 147 N.E.2d 34 (1957); Foley v. Foley, 641 S.W.2d 138 (Mo. Ct. App. 1982); Paden v. Warnke, 110 Misc. 2d 61, 441 N.Y.S.2d 575 (Fam. Ct. 1981); Hatch v. Hatch, 247 Or. 888, 431 P.2d 832 (1967); Burback v. Burback, 724 P.2d 853 (Or. Ct. App. 1986), so long as the court has personal jurisdiction over the parties. Stephens v. Stephens, 229 Va. 610, 331 S.E.2d 484 (1985).
A state can modify a support order under UEFJA only in a manner consistent with UIFSA. If a state has enacted UIFSA, which defines full faith and credit, then UIFSA will act as a limitation on the court's subject matter jurisdiction to modify another state's support. Thus, although in Paden v. Warnke, 110 Misc. 2d 61, 441 N.Y.S.2d 575 (1981), the court held that it had the power to modify prospectively the filed order, it is doubtful that UIFSA would allow this result.
A. Why UIFSA?
UIFSA was approved by the American Bar Association in 1993 and has now been enacted in all jurisdictions. Quite significantly, all states were required toenact UIFSA by January 1, 1998, by virtue of 42 U.S.C. Section 666(f), inserted by Pub. L. No. 104-193, Section 321, 110 Stat. 2221 (1996) (part of the Personal Responsibility and Job Opportunity Reconciliation Act of 1996, also known as the Welfare Reform Bill):
(f) Uniform Interstate Family Support Act. In order to satisfy 42 U.S.C. Section 654(20)(A), on and after January 1, 1998, each State must have in effect the Uniform Interstate Family Support Act, as approved by the American Bar Association on February 9, 1993, together with any amendments officially adopted before January 1, 1998 by the National Conference of Commissioners on Uniform State Laws.
UIFSA takes the place of the Uniform Reciprocal Enforcement of Support Act (URESA), which was first drafted and approved by the National Conference of Commissioners on Uniform State Laws in 1950. At the time, URESA was an important development in the law of support enforcement: URESA provided the first mechanism by which support orders could be established and enforced across state lines. Pursuant to URESA, an obligee could establish paternity, establish a support duty, enforce an existing support order for both arrears and prospective support, seek a new order in a higher amount, and register a foreign support order in a second state. See generally Margaret C. Haynes, "The Uniform Reciprocal Enforcement of Support Act," in Margaret C. Haynes & G. Diane Dodson, eds., Interstate Child Support Remedies (United States Department of Health and Human Services 1989).
In the years since its adoption, URESA has proved incredibly troublesome, for a number of reasons. Indeed, criticisms of URESA were even noted by the United States Supreme Court:
Although appellant's argument that URESA is inadequate to enforce support obligations is persuasive, for purposes of deciding this case we need neither accept nor reject it.
Jones v. Helms, 452 U.S. 412, 425 n.26 (1981) (citing commentators critical of URESA).
The shortcomings of URESA were many. First, URESA did not have a long-arm provision all proceedings under URESA required initiation of a proceeding in the initiating state through the filing of a petition or a request for registration that was forwarded to the appropriate entity in the responding state. URESA thus always involved two states. Further, once the responding state took the URESA case, the responding state was limited to the URESA petition only, and jurisdiction was not conferred on the court on any counterclaim the obligor might have. Jurisdiction for modification had to exist independent of the URESA petition.
Second, URESA began its life as the Runaway Pappy Act : It was designed to allow obligees to track down obligors. Thus, through all its revisions and amendments, it only allowed obligees to initiate an action. Parties, however, may relocate for legitimate reasons, and both the obligor and the obligee should have access to the system of revision and enforcement.
Third, the biggest problem under URESA was that a URESA order did not nullify any other support order, and was not nullified by any other support order, regardless of the priority of issuance, unless as specifically provided by the court. Therefore, a URESA order existed independent of any other support order between the parties. If the URESA order required payment of support in a different amount than that required by another support order, both were valid orders with which the obligor had to comply. This result of multiple, conflicting orders caused the National Conference of Commissioners on Uniform State Laws to reexamine URESA and ultimately to abandon URESA altogether.
URESA was amended in 1952 and in 1956, and it was substantially redrafted in 1968, resulting in R-URESA, the Revised Uniform Reciprocal Enforcement of Support Act. In 1988, the National Conference of Commissioners on Uniform State Laws formed a drafting committee to again revise URESA to reflect the changes in child support enforcement since 1968. The drafting committee concluded that the best course of action would be not to revise URESA, but to draft an entirely new act to supersede URESA, embodying the radically different, but better, policy of one order, one time, one place. The fruit of the efforts of the drafting committee is the Uniform Interstate Family Support Act (UIFSA), found at 9 U.L.A. (Master Edition) pt. 1 (Supp. 1999). URESA is dead; long live UIFSA. See Susan F. Paikin & William J. Reynolds, Ethical Issues in Interstate Family Support Litigation, 26 Del. Law. 10 (Spring 1996); United States Department of Health and Human Services, Uniform Interstate Family Support Act (UIFSA) Handbook (1995); John L. Saxon, The Uniform Interstate Family Support Act, 8 Institute of Government Family Law Bulletin (University of North Carolina at Chapel Hill 1995); Robert Levy, Highlights of the Uniform Interstate Family Support Act, 83 Ill. B.J. 647 (1995); Margaret C. Haynes, The Uniform Interstate Family Support Act, 15 Wis. J. Fam. L. 1 (1995); Tina M. Fielding, The Uniform Interstate Family Support Act: The New URESA, 20 U. Dayton L. Rev. 425 (1994); John J. Sampson & Paul M. Kurtz, UIFSA: An Interstate Support Act for the 21st Century, 27 Fam. L.Q. 85 (Spring 1993).
B. UIFSA Definitions and Provisions
UIFSA comprises nine articles. Article 1 contains general provisions, including definitions. Article 2, divided into three parts, contains the provisions concerning jurisdiction, probably the most important part of UIFSA. Article 3 contains the provisions relating to the duties of the state in a UIFSA action. Article 4 contains the provisions relating to the establishment of an order. Article 5 contains the provisions relating to direct enforcement of an order of another state without the need for registration. Article 6, divided into 3 parts, concerns the enforcement and modification of support orders after registration. Article 7 concerns paternity actions. Article 8 concerns interstate rendition. Article 9 contains miscellaneous provisions, i.e., the title of the act, its severability, the effective date of the act, etc.
Many of the definitions under UIFSA are the same or similar to the definitions under URESA. As stated in the Prefatory Note to UIFSA, the terminology of URESA was retained as much as possible to ease the transition from URESA to UIFSA. Nevertheless, some changes were made, and it is useful to consider all the important terms, which are contained in Section 101 of the Act.
Child is defined to include a child over the age of majority if he or she is the beneficiary of a support order. Section 101(1). Thus, UIFSA may be used to enforce support arrears on behalf of an obligee even if the child is no longer a minor. UIFSA may also be used to enforce an order for college tuition. The definition of child support order embodies this new definition of child. Section 101(2).
Duty of support is defined as an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support. Section 101(3). Thus, duty of support is broadly defined to include both prospective and retrospective support; UIFSA may be used to establish an initial support order.
Home state is defined as
the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the time of filing of a petition or comparable pleading for support and, if a child is less than six months old, the state in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.
Section 101(4). Thus, the home state will decide priority among competing jurisdictions. When two or more states have continuing, exclusive jurisdiction under UIFSA to modify an order, priority goes to the child's home state. This definition is consistent with the definition of home state in the Uniform Child Custody and Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA).
Income is defined as earnings or other periodic entitlements to money from any source and from any other property subject to withholding for support under the law of the state. Section 101(5). This definition of income incorporates the enacting state's definition of income for purposes of income withholding.
Initiating State and Initiating Tribunal are similarly defined in URESA. UIFSA, however, permits the direct filing of an interstate action in the responding state without an initial filing in the initiating state. Section 101(7), (8). Thus, the definitions of Responding State and Responding Tribunal in Section 101(16) and (17) also accommodate the direct filing of a petition in the responding state without the initial filing in the initiating state.
Obligee is defined to include a spouse in the case of spousal support, in the case of child support it can be the child, the custodial parent or other legal guardian, or a support enforcement agency to whom the right of support has been assigned. Obligor is the person who owes the duty of support. Section 101(12), (13).
State includes any foreign jurisdiction that has established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under UIFSA. Section 101(19). This Section essentially withdraws the requirement of reciprocity demanded by URESA. A state need not enact UIFSA in order for support orders issued by its tribunal to be enforced in other states.
Support enforcement agency replaces the role that the prosecutor played under URESA. Under UIFSA, the support enforcement agency is a public agency or official that provides general child support services. Section 101(20). In most states, the support enforcement agency is the state child support agency.
Support order under UIFSA is defined expansively. A support order includes an order for monetary support, arrears, health care, reimbursement, related costs and fees, interest, income withholding, and attorney's fees. Section 101(21).
Tribunal is defined as a court, administrative agency, or quasi-judicial entity authorized to establish, enforce or modify support orders or to determine parentage. Section 101(22). UIFSA thus recognizes administrative and judicial orders.
It is important to note that many crucial definitions depend on state law. For example, the definitions of child and child support order refer to the age of majority, which is determined by reference to state law. Similarly, the definition of support order refers to health care, arrearages, or reimbursement, which is determined by state law. Income also depends on state law.
The jurisdictional rules are set out in Part A of Article 2 of UIFSA, Sections 201 and 202. Section 201 establishes UIFSA's bases for jurisdiction over a nonresident, i.e., long-arm jurisdiction, by providing that a state may exercise jurisdiction over an individual if (1) the individual has been properly served in the state; (2) the individual submits to the jurisdiction of the court by entering a general appearance or by filing a responsive document; (3) the individual resided with the child for whom support is being sought within the state; (4) the individual provided prenatal expenses or child support while residing within the state; (5) the child resides within the forum state because of some activities of the individual; (6) the individual engaged in sexual intercourse in the state; (7) the individual asserted parentage in the state's registry or in another appropriate agency; (8) there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction. One scholar has stated that basis (1) is a codification of Burnham v. Superior Court, 495 U.S. 604 (1990), which affirmed the constitutionality of asserting personal jurisdiction based on personal service within a state (the tag rule). See John J. Sampson & Paul M. Kurtz, UIFSA: An Interstate Support Act for the 21st Century, 27 Fam. L.Q. 85, 114 (Spring 1993).
Part B of Article 2 of UIFSA, Sections 203-206, deals with what used to be two-state URESA actions. Under Section 203, a tribunal can serve as a responding tribunal when there is no initiating tribunal in another state in order to accommodate the direct filing of an action in a responding tribunal by a nonresident.
Section 204 concerns the situation where there are simultaneous proceedings in another state. The Section requires cooperation between and deference by sister-state tribunals in order to avoid the issuance of competing support orders. UIFSA opts for the PKPA method of resolving disputes between competing jurisdictional assertions by establishing priority for the tribunal in the child's home state. If there is no home state, then the state of first filing controls.
Section 205 is, according to the drafters' comments, perhaps the most crucial provision in UIFSA. This Section establishes the principle of continuing, exclusive jurisdiction over support orders: The issuing tribunal retains continuing, exclusive jurisdiction over the support order except in narrowly defined circumstances. Child support orders may be modified by another jurisdiction when (1) there is an agreement of the parties, or (2) the obligor, the obligee, and the child have permanently left the issuing state. Thus, where all parties reside outside the issuing state, the issuing state loses its continuing, exclusive jurisdiction. On the other hand, spousal support orders may always be modified by the issuing state, i.e., the issuing tribunal retains continuing, exclusive jurisdiction over an order of spousal support throughout the entire existence of the support obligation.
Section 207 establishes a priority scheme for recognition and enforcement of existing multiple orders regarding the same obligor, obligee, and child, and was designed to cover the time between the present, when some states still have URESA, and the future, when all states have UIFSA. Under this provision, an order issued by the child's home state is given the highest priority. If more than one of these exists, then the most recent is given priority.
Article 3 of UIFSA, Sections 301-319, provides rules of general application, detailing the functions of the initiating and responding tribunals, and in many ways is similar to URESA. The most profound difference from URESA occurs in the function of the initiating state: Under UIFSA, the initiating state's function is purely clerical, forwarding the appropriate documents to the responding state.
Section 301 provides that UIFSA governs the following types of proceedings:
UIFSA also recognizes that interstate cases present special problems of evidence. UIFSA thus contains provisions on the transmission of evidence and the relaxation of the best evidence rule. Sections 316-318.
Article 4 of UIFSA, Section 401, concerns the establishment of a support order. This Section authorizes a tribunal in a responding state to issue temporary and permanent orders. Of course, a tribunal cannot issue such orders when another support order exists and another tribunal has continuing, exclusive jurisdiction under Sections 205 and 206.
Article 5 of UIFSA, Sections 501-502, concerns the direct enforcement of an order of another state without registration of that order. Direct recognition by the obligor's employer of an income-withholding order issued by another state was long sought by child support enforcement advocacy groups, and these Sections are intended to replace the Model Interstate Income Withholding Act. Under Section 501, the employer, upon receiving an income-withholding order issued in another state, shall treat the order as though it had been issued in the state of the employer. Under Section 502, summary enforcement of a sister-state child support order through any administrative means available for local support orders is authorized.
Article 6, divided into three parts, concerns the enforcement and modification of support orders after registration. Sections 601-604 detail the means for registration. Under the one order, one time, one place system of UIFSA, only the existing order may be enforced, and registration is the first step to enforcement. If a prior support order has been validly issued, only that order may be enforced against the obligor. Sections 605-608 provide the procedure by which the nonregistering party may contest registration of an order. To prevail in a challenge to the validity of a support order, the obligor must show that:
Sections 609-611 concern those situations where it is necessary for a registering state to modify the existing child support order of another state. Particular attention should be paid to these Sections. As long as the issuing state has continuing, exclusive jurisdiction over its order, a registering state is precluded from modifying that order. This is the most significant departure from the URESA multiple-order, multiple- modification system. Where the issuing state does not have continuing, exclusive jurisdiction, the registering state may assume the power to modify. Section 611 is thus the counterpart to Section 205(b), which establishes continuing, exclusive jurisdiction. (Note that these provisions relate only to child support. UIFSA does not contemplate modification of spousal support orders.)
Section 611 provides:
(a) After a child support order issued in another state has been registered in this State, the responding tribunal of this State may modify that order if, after notice and hearing, it finds that:
(1) the following requirements are met:
(i) the child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) a petitioner who is a nonresident of this State seeks modification;
(iii) the respondent is subject to the personal jurisdiction of the tribunal of this State; or
(2) an individual party of the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this State may modify the support order and assume continuing, exclusive jurisdiction over the order.
In sum, under UIFSA, there are two ways for a state to assume jurisdiction for the purpose of modifying another state's order. Either no one continues to reside in the issuing state, and the petitioner seeking modification is a nonresident of the same state assuming jurisdiction, and the assuming state has personal jurisdiction over the respondent; or some person is subject to personal jurisdiction and all the parties have filed a written consent in the issuing state for the assuming state to modify the order.
It is quite important to note that jurisdiction for modification of child support is quite different from jurisdiction for modification of custody under the PKPA and UCCJA. In custody modification, a court with continuing, exclusive jurisdiction may decline jurisdiction. This privilege is not authorized under UIFSA. Once an initial child support order is established, there is, at all times thereafter, an existing order in force to be enforced. Thus, even if the issuing court no longer has continuing, exclusive jurisdiction, the order of the court remains fully enforceable until a court with modification jurisdiction issues a new order.
Section 611 also provides that the final, nonmodifiable aspects of a child support order may not be modified. For example, if the issuing state issued an order that child support terminates at age 21, the responding state cannot change that aspect of the order, even if support in the responding state ends at age 18. To make this Section work, Section 612 provides the deference to the support order of a sister state that was missing in URESA.
For purposes of illustration, let us take a number of examples where the parties are in different states. (Unless otherwise stated, assume that the custodial parent and child have been living in STATE 1 for the last six consecutive months.)
Example 1: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 2 has not. The controlling order is in STATE 1.
Example 2: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has not issued an order; STATE 2 has issued an order. The controlling order is in STATE 2.
Example 3: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 2 has issued an order. Assuming that the child has been in STATE 1 for the prior consecutive six months, the controlling order is in STATE 1.
Example 4: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 3 has issued an order. The controlling order is in STATE 1.
Example 5: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 has issued an order; STATE 2 has issued an order. This time, however, the child had been in STATE 1 for one month before STATE 1's order was issued; prior to that, the child had lived in STATE 2 for at least the prior consecutive six months. The controlling order is in STATE 2.
Example 6: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 1 issued an order in 1990; STATE 2 issued an order in 1994. This time, the child has been in STATE 1 for one month and, prior to that, had been in STATE 2 for two months. The controlling order is in STATE 2.
Example 7: Custodial parent and child are in STATE 1; noncustodial parent is in STATE 2. STATE 3 has issued an order; STATE 4 has issued an order. There is no controlling order, and STATE 1 or STATE 2 may issue an order. The first order issued will have priority.
A Decision Tree may also be utilized to determine what state's order controls:
First ask, Are there any child support orders?
A. If no, then the responding state is involved in an establishment case under Section 401, and may become the court of continuing, exclusive jurisdiction.
B. If yes, then ask, How may outstanding child support orders are there?
(1) If one, then the responding state must recognize that order under Section 207(a)(1), and must enforce the order. The responding court may modify the order if the requisites for modification are met under Section 611.
(2) If more than one outstanding child support order exists, then the priority scheme contained in Section 207 of UIFSA controls.
C. A Comparison of UIFSA and URESA
Much of the terminology of URESA is retained in UIFSA. For example, both use the terms initiating state and responding state. One important difference in terminology is the use of the word tribunal instead of court, so that a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or determine parentage is embraced within the definition.
Apart from terminology, UIFSA differs from URESA in several significant respects, and each difference bears discussion.
First, under URESA, a URESA order existed independent of any other support order. Thus, several conflicting support orders governing the same parties and child could exist at the same time. UIFSA has dealt with this major flaw by establishing priority among orders to achieve one order, one time, one place. Under UIFSA, there can be only one controlling order. Thus, for the first time, all states will be enforcing the same amount.
It is important to note that UIFSA does not result in only one state being involved with a support order. Under UIFSA, several states may enforce a support order at the same time. What distinguishes UIFSA is that, for the first time, all states will be enforcing the same amount: there is only one controlling order.
UIFSA accomplished the one order, one time, one place principle by adopting continuing, exclusive jurisdiction principles similar to those contained in the UCCJA. Sections 204-207.
Second, UIFSA contains a much-expanded long-arm provision that allows the state to assert jurisdiction over a nonresident and to process the case locally. Bases for exercising jurisdiction include (1) the individual resided with the child in the forum state; (2) the individual resided in the state and provided prenatal expenses and support for the child; (3) the child resides in the forum state as a result of the acts or directives of the individual; (4) the individual engaged in sexual intercourse in the state and the child may have been conceived as a result of that sexual act. Section 201.
By containing expanded long-arm jurisdiction, UIFSA follows what was termed by the drafters as a one-stop shop approach. Included within UIFSA are both the traditional two-state remedies contained in URESA and the one-state remedies that are available to establish and enforce support.
Third, UIFSA contains a one-state enforcement mechanism referred to as direct withholding. Under Section 501, an attorney or a child support agency can send an income-withholding order directly to an out-of-state employer, regardless of whether the employer does business in the issuing state. This one-state enforcement mechanism is in addition to the traditional two-state mechanism found in URESA for establishing paternity and support, for enforcing support, and for modifying support.
Fourth, URESA was available to only obligees. UIFSA, however, is available to both obligors and obligees. Both an obligor and an obligee can register an order under UIFSA. This is accomplished by UIFSA using the word petitioner to refer to the party initiating the proceeding under UIFSA.
Fifth, UIFSA eliminates the requirement that URESA or R-URESA be enacted in a state before another state can enforce its order. Public policy favored this reciprocity between states even when such reciprocity is not included in a state's statute. The reciprocity language thus allows for easier enforcement of Canadian and Mexican orders, provided that the orders substantially conform to the principles of UIFSA.
Sixth, under URESA, obligees may have been reluctant to register an order because URESA allowed multiple support orders. URESA in effect encouraged an obligee to begin a second suit in the responding state rather than utilizing the process of registration. In contrast, UIFSA makes registration the primary means by which support is enforced in a nonissuing state.
D. Case Law Interpreting UIFSA
As noted above, Section 101(19) defines state to include any foreign jurisdiction that has established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under UIFSA. This Section withdraws the requirement of reciprocity demanded by URESA.
This provision was interpreted, or rather ignored, by the trial court in Jefferson County Child Support Enforcement Unit v. Hollands, 23 Fam. L. Rep. (BNA) 1236, 1997 WL 96398 (Ark. Mar. 3, 1997). In that case, the trial court held that because Michigan had not adopted UIFSA the support order could not be registered and enforced under UIFSA in Arkansas. The Supreme Court of Arkansas reversed and held that, although Michigan did not have UIFSA at the time the order was registered, the order could nonetheless be registered and enforced under UIFSA in Arkansas, as Michigan's law concerning child support was substantially similar.
Similarly, in Link v. Alvarado, 929 S.W.2d 674 (Tex. App. 1996), the court held that Hawaii, a URESA state, was a state with law substantially similar to Texas's UIFSA. Thus, the Texas courts were required to recognize the continuing, exclusive jurisdiction of Hawaii over its orders. Accord Neville v. Perry, 648 N.Y.S.2d 508 (N.Y. Fam. Ct. 1996) (New York's Uniform Support of Dependents Law is substantially similar to UIFSA); Thompson v. Thompson, 893 S.W.2d 301 (Tex. App. 1995) (Indiana law under URESA is substantially similar to Texas's UIFSA; Texas could not modify Indiana order since Indiana had continuing, exclusive jurisdiction).
2. Long-Arm Jurisdiction
Although not technically a UIFSA case, one case is certain to affect future UIFSA litigation, in Alaska at least. In McCaffery v. Green, 931 P.2d 407 (Alaska 1997), the court held that jurisdiction under the UCCJA to modify a custody order gives the court jurisdiction to modify a child support order. In this case, the husband and wife were divorced in Texas in 1987. At that time, a child custody and support order was entered. The support obligation was modified in Texas in 1991.
In 1991, the mother and child moved to Alaska, and the father moved to Oregon. No one lives in Texas anymore. In 1994, the mother filed a request to modify the Texas support order in Alaska. The father objected on the grounds that Alaska had no jurisdiction over him. The trial court sustained the father's objections, noting that the mother had failed to register the Texas order in Alaska and that, even if she had, while the court would have had jurisdiction over the father on matters of custody under the UCCJA, it did not have jurisdiction over the father on matters of support, citing Kulko v. Superior Court, 436 U.S. 84 (1978).
The Alaska Supreme Court reversed. It first noted that under the UCCJA the Alaska court would have jurisdiction to hear custody and visitation issues since Alaska was the child's home state. The court then distinguished Kulko by noting that, in Kulko, the father had remained in the original issuing state. In Green, all parties had left the issuing state. Thus, Texas did not have continuing, exclusive jurisdiction over its child support order any longer. The order merely remained in effect until it was properly modified. The court further distinguished Kulko by noting that Kulko was decided before the widespread enactment of the UCCJA. The court also found it significant that if Alaska could not hear the support issue then the mother would have to divide her issues among various states; Texas or Oregon would have to hear the support claim, while Alaska, as the child's home state, would have to hear the custody claims. Although the court concluded that it remains to be seen what difference UIFSA will bring, McCaffery v. Green, 931 P.2d at 413, the court nevertheless determined that Alaska's assertion of jurisdiction over the issue of child support simply made sense under its long-arm statute. It thus appears that in at least one case long-arm jurisdiction may be asserted by the fact that the UCCJA would grant jurisdiction, Kulko notwithstanding. See also In re Marriage of Peck, 82 Wash. App. 809, 920 P.2d 236, 240 n.1 (1996) (UIFSA may provide mechanism for enforcing support decrees when the children live in a state that cannot obtain personal jurisdiction over the defendant).
Tag-rule long-arm jurisdiction and UCCJA jurisdiction were also utilized in In re Marriage of Calhoun, 1995 WL 265047, 1995 Minn. App. LEXIS 624 (1995). In that case, the parties were divorced in 1984. The mother and child moved to West Virginia and then to Minnesota. The father, a Navy physician, lived in Japan and then transferred to Washington State. When the father came to Minnesota to pick up his child for visitation in 1993, he was personally served with the mother's request to modify support. The trial court found that it had jurisdiction over the father because he had availed himself of the Minnesota courts for postdivorce modification of visitation under the UCCJA. The appellate court affirmed, holding that Burnham v. Superior Court, 495 U.S. 604 (1990), fully supported jurisdiction over the father. He had been properly served personally in the state.
Long-arm jurisdiction was properly invoked in Abu-Dalbough v. Abu-Dalbough, 547 N.W.2d 700 (Minn. Ct. App. 1996). In that case, the wife and children lived in Minnesota, while the husband resided in Jordan. The appellate court noted that UIFSA provides for extended personal jurisdiction over nonresidents in child support on eight separate grounds. The district court properly asserted jurisdiction based on the following facts: (1) the mother and father conceived the couple's first child in the state; (2) the husband resided in the state and provided for the wife and the second, then unborn, child in the state; (3) the husband lived in the state for a short while. Thus, an initial support order could properly be entered against the husband under UIFSA.
The same result was reached in In re Marriage of Lustig, 1996 WL 679693, 1996 Minn. App. LEXIS 1335 (1996). In that case, during the marriage of the parties they lived in Minnesota from 1983 to 1992 and in South Dakota from 1992 to 1995. In 1995, the wife moved back to Minnesota. Before the wife and children established residency in Minnesota, the husband filed for divorce in South Dakota. Then, when the wife and children established residency in Minnesota, she filed for divorce there. Simultaneously, the husband moved to dismiss the Minnesota action on the basis that it lacked personal jurisdiction over him as to child custody and support, spousal support, and marital property in South Dakota, and the wife moved to dismiss the South Dakota action on the basis of forum non conveniens. The Minnesota court denied the husband's motion, while the South Dakota court granted the wife's motion. The Minnesota Court of Appeals agreed that Minnesota was the better forum for a determination of all the issues and remanded the matter back to the trial court for specific findings regarding its UIFSA jurisdiction, i.e., that the husband and the children had resided in Minnesota.
Jurisdiction was also the issue in Davis v. Child Support Enforcement Unit, 326 Ark. 677, 933 S.W.2d 798 (1996). In that case, the mother, a Minnesota resident, executed a Uniform Support Petition, claiming that Charles Davis, a resident of Arkansas, was the father of her child. The petition was forwarded from Minnesota to the Arkansas Child Support Enforcement Unit, which filed paternity and support claims against Davis. Pursuant to the Arkansas UIFSA, a hearing was held on the petition. Davis, however, objected to the proceeding on the bases that the court lacked jurisdiction and the proceedings were unconstitutional in that he was denied his constitutional right of confrontation. The court found both arguments infirm, referring to UIFSA's provisions on the right to present evidence:
In a proceeding under this chapter, a tribunal of this state may permit a party or witness residing in another state to be deposed or testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. A tribunal of this state shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony.
933 S.W.2d at 800. Since Davis made no effort to confront his witnesses using this provision, he could not challenge the proceedings on that basis.
3. Retroactivity of UIFSA
In Child Support Enforcement Division of Alaska v. Brenckle, 424 Mass. 214, 675 N.E.2d 390 (1997), the Supreme Judicial Court of Massachusetts held that UIFSA is a remedial statute not affecting substantive rights and, thus, applied retroactively. In that case, the husband and wife were married in California and divorced in Alaska in 1978. The wife and son remained in Alaska, while the husband moved to Massachusetts. A year and a half after the divorce decree was entered, in December 1979, the father stopped making child support payments. In 1991, when the son turned 17, the mother filed an action in Alaska to recover arrears. The Alaska court entered a judgment of $75,000 plus interest. The mother then filed a petition in Alaska under URESA. Alaska certified the petition and transmitted the case to the Massachusetts Department of Revenue. The Massachusetts district court entered judgment for the mother on February 10, 1995, the exact same day that URESA was repealed and UIFSA instated. The supreme judicial court held that UIFSA would apply to the action:
It was the express intention of the Legislature that UIFSA be applied retrospectively; its provisions govern any URESA action that is pending or was previously adjudicated. It is also clear that UIFSA, like its predecessor URESA, does not create a duty of support, but rather provides a procedural framework for enforcing one state's support order in another jurisdiction. As a remedial statute, and one not affecting substantive rights, it is proper that UIFSA should be applied retroactively.
675 N.E.2d at 393. This pronouncement of the court is true as it was applied to the facts of the case. Remember, however, that UIFSA can be used to create an initial support order under Section 401. Would the result have been different under those circumstances? The Massachusetts Supreme Judicial Court's opinion gives no guidance. See also Office of Child Support Enforcement v. Troxel, 326 Ark. 524, 931 S.W.2d 784 (1996) (when decision relating to previous R-URESA order was reversed and remanded, on remand, trial court was to apply UIFSA).
A different result as to retroactivity was reached in Deltorro v. McMullen, 471 S.E.2d 742 (S.C. Ct. App. 1996). In that case, the parties lived in South Carolina but then relocated to Virginia. The parties separated in 1982, and the mother and children returned to South Carolina, while the father remained in Virginia. In 1985, the mother brought a URESA action in South Carolina, and the matter was transmitted to Virginia. The Virginia court entered an order of support, and the mother then registered the order in South Carolina. In 1985, the mother initiated a divorce in South Carolina, which was granted. In 1993 the mother instituted an action in South Carolina seeking modification of the Virginia support order. An order modifying the support obligation was entered by the South Carolina court on July 15, 1994. UIFSA became effective in South Carolina on July 1, 1994.
On appeal, the South Carolina Court of Appeals held that URESA, not UIFSA, governed the mother's modification action. As a URESA action, the trial court had the jurisdiction to modify the previously registered order. UIFSA would not operate retroactively to deny the court jurisdiction to modify the Virginia order.
The issue of the effective date of UIFSA, an issue related to retroactivity, was at the core of Cowan v. Moreno, 903 S.W.2d 119 (Tex. App. 1995). In that case, the court held that UIFSA, effective September 1, 1993, applied to registration proceedings commenced on December 15, 1993. The obligee had cited the language of UIFSA that provides:
This Act takes effect September 1, 1993, and applies only to an order, decree or judgment entered on or after that date.
Based on that language, the obligee argued that UIFSA could not apply to the case because the original order to be enforced was entered in 1982. The court disagreed and held that the language referred to orders entered under the Act, not prior orders to be enforced. Accord Neal v. Office of Attorney General, 1997 WL 122236, 1997 Tex. App. LEXIS 1381 (1997) (1991 Iowa support order enforceable under UIFSA, where UIFSA Notice of Registration of Foreign Support Order was filed March 20, 1995).
4. Defenses to Enforcement Under UIFSA
In Child Support Enforcement Division of Alaska v. Brenckle, 424 Mass. 214, 675 N.E.2d 390 (1997), the Supreme Judicial Court of Massachusetts noted that under UIFSA a responding state is not required to make an independent finding that a duty of support is owed. Rather, under UIFSA, a support order issued by a tribunal of another state is registered in the responding state. Once registered, it may be enforced according to its terms unless one of the enumerated defenses are proven:
UIFSA requires no de novo or independent review by a [responding state's] tribunal whether [the obligor] owns a duty of support[.]. . . Indeed, requiring an independent finding of a duty of support when [the initiating state] has already made that determination would impede and frustrate the purpose of UIFSA.
675 N.E.2d at 394. Thus, the defense that a duty of support is not owed is not cognizable under UIFSA. Only those defenses enumerated by UIFSA may be brought forth.
The same result regarding an enforcing state's ability to revisit issues previously litigated was reached in Beyer v. Metze, 23 Fam. L. Rep. (BNA) 1206, 1997 WL 71782 (S.C. Ct. App. Feb. 18, 1997). In that case, a divorce decree was entered in 1981 in Ohio, stating that three children were born of the marriage. UIFSA, the South Carolina court determined, prevented a party whose parentage had already been determined from pleading nonparentage as a defense to a proceeding to register and enforce a foreign order. The trial court thus did not have jurisdiction to order blood tests and determine paternity.
In In re Marriage of Comer, 14 Cal. 4th 504, 59 Cal. Rptr. 2d 155 (1996), not a UIFSA case, the concurrence felt compelled to comment upon the powers of a responding state in enforcing another state's support order under UIFSA:
[R]ecognition of a concealment defense to an action for arrearages is inconsistent with URESA and [the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. Section 1738B]. Finally, it is also inconsistent with the Uniform Interstate Family Support Act (UIFSA) which the National Conference of Commissioners on Uniform Laws adopted in 1992 with the intent that it ultimately replace URESA. UIFSA expressly provides that a state responding to an interstate request for enforcement of a support order may not condition payment of a support order on compliance with visitation provisions.
59 Cal. Rptr. 2d at 175. Because Section 607 of UIFSA permits a party contesting the validity or the enforcement of a child support order registered in the responding state to contest only on grounds that (1) the issuing court lacked personal jurisdiction, (2) the order was procured by fraud, (3) the issuing state has suspended, vacated, or modified its order, (4) the order has been stayed pending appeal, (5) responding state law provides a defense to the remedy sought, or (6) payment has been made or the statute of limitations precludes enforcement of the order, it necessarily follows that an equitable defense such as concealment of the child cannot be used to bar enforcement in an interstate support action.
The concurrence further opined that the Bradley Amendment, 42 U.S.C. Section 666(a)(10), which prevents retroactive modification of child support, mandates that proof of arrearages must result in enforcement.
The same point was made in Chaisson v. Ragsdale, 323 Ark. 373, 914 S.W.2d 739 (1996), a UIFSA case. In that case, the parties were divorced in New Jersey, and an order was entered in New Jersey requiring the father to pay $100 per week. The father later moved to Mississippi. Due to a back injury, the mother agreed to transfer custody to the father. The father consequently filed requests in Mississippi to transfer custody to him and to terminate his support obligation. The Mississippi court entered an order granting the father's requests.
The father then filed a UIFSA petition in Arkansas, where the mother had relocated. The father requested that the mother pay him support. After the hearing, the Arkansas trial court granted the father support, but set off the support by the amount of a debt that the mother had paid on behalf of the father after his bankruptcy, and further conditioned support on certain visitation rights. The father appealed.
The Arkansas Supreme Court held that, under UIFSA, a court simply may not condition a support order upon compliance with visitation rights. Moreover, consideration of the debt issue was beyond the jurisdiction of the court:
UIFSA actions are not intended to open up for renewed scrutiny all issues arising out of a foreign decree. The purpose of UIFSA is support of the child and enforcement of the same. Other issues such as visitation and payment of debts under the divorce decree are collateral matters which necessarily burden the child support determination and run counter to the goal of streamlining these proceedings.
914 S.W.2d at 741.
A defense to registration and enforcement of a foreign support order based on lack of visitation was also rejected in Cowan v. Moreno, 903 S.W.2d 119 (Tex. App. 1995). In a defense to registration of a Colorado support order, the father contended that arrearages did not accrue because he did not exercise his visitation rights. The court held that this issue related to enforceability, not to the existence and registration of the order, and was thus not a valid defense to registration.
The defense that the original orders were ambiguous was rejected as a cognizable defense under UIFSA in Villanueva v. Office of Attorney General, 935 S.W.2d 953 (Tex. App. 1996). In that case, in 1982 the circuit court in Howard County, Indiana, entered a child support order. In 1983, the same court found the obligor in arrears and entered a judgment in the amount of $1,800. In March 1995, the Texas Attorney General filed a Notice of Registration of Foreign Support Order and Motion for Enforcement under UIFSA. The obligor contested the validity and/or enforcement of the orders.
The Texas appellate court held that the obligor had not proven any of the seven grounds of defense provided in UIFSA which allow a party to contest the validity or enforcement of a registered order. The attempted grounds, there is a defense under the law of the state, is without merit because there is no law to support the proposition that an order which is not enforceable by contempt cannot be the subject of an order for arrears.
Finally, much like the court in Beyer v. Metze, 23 Fam. L. Rep. (BNA) 1206, 1997 WL 71782 (S.C. Ct. App. Feb. 18, 1997), the Texas court held that the trial court was not compelled to order blood tests and discovery to determine the issue of paternity. Since the Indiana decree referred to the child of the marriage, the obligor was not free to argue that he was not the father of the child; that issue had already been determined.
5. Defense to Modification: Continuing, Exclusive Jurisdiction
As noted in the discussion above, one of the most important concepts in UIFSA is that of continuing, exclusive jurisdiction. So long as a state has continuing, exclusive jurisdiction, another state may not modify the support order. This provision was applied in Link v. Alvarado, 929 S.W.2d 674 (Tex. App. 1996). In that case, William Link and Pamela Alvarado were married and divorced in Hawaii. The Hawaii divorce decree ordered the father to pay child support in the amount of $240 per month. Alvarado moved to Texas and filed a motion there to increase child support. Link responded that he could not attend the hearings as he was a sailor in the Navy, citing the Soldiers' and Sailors' Relief Act. Nonetheless, the Texas court entered a support order of $600 per month. The Texas Court of Appeals reversed. Under UIFSA, the court held, Hawaii had retained its continuing, exclusive jurisdiction.
The situation in Link, where one of the parties remains in the originating state and modification is sought in another state, should be contrasted with the situation in Commonwealth, Department of Social Services, Division of Child Support Enforcement ex rel. Kenitzer v. Richter, 23 Va. App. 186, 475 S.E.2d 817 (1996). In that case, the parties were divorced in Virginia, and the father was ordered to pay child support. After the divorce, the mother moved to California and the father moved to South Carolina. Neither party resided in Virginia any longer.
While in California, the mother filed a request for wage withholding of the father's salary in South Carolina. South Carolina stayed implementation of the request, finding there was a genuine question or dispute concerning the existence of the arrearage. Later, through the California child support agency, the mother sought to collect the arrearages by an action in Virginia. The mother registered the Virginia order in California, and a URESA petition was received by the Virginia Department of Child Support Enforcement (DCSE). The father made a special appearance in Virginia and claimed that South Carolina had jurisdiction over him by virtue of its support order. The trial court agreed and dismissed. The DCSE appealed.
The appellate court reversed. The trial court clearly erred in registering the South Carolina stay. The South Carolina order barred automatic withholding in light of the father's possible defenses and stayed further action without making a factual determination. It was not the type of order that could be registered under UIFSA. Moreover, even if all the parties had left the state, until the support order was modified by another state that had jurisdiction to modify, Virginia continued to have the right to enforce its own decrees even if all the parties were no longer residents. See also Taylor v. Taylor, 672 A.2d 44 (Del. 1996) (a court always has the power to enforce its own orders regarding support); Cordie v. Tank, 538 N.W.2d 214 (N.D. 1995) (Meschke, J., dissenting) (Minnesota decree relating to custody did not interrupt North Dakota's continuing, exclusive jurisdiction as to support; North Dakota thus had jurisdiction to enforce and modify its own order); Porter v. Porter, 684 A.2d 259 (R.I. 1996) (under FFCCSOA, originating state retains jurisdiction to enforce its own orders); Hubanks v. Hubanks, 204 Wis. 2d 386, 555 N.W.2d 647 (Ct. App. 1996) (original order entered in Wisconsin, different order entered in Iowa under URESA; Wisconsin still had authority to enforce its own orders under UIFSA, notwithstanding URESA order).
The principles of continuing, exclusive jurisdiction under UIFSA were referenced in Harbour v. Harbour, 677 So. 2d 700 (La. Ct. App. 1996). Although the case was decided under the provisions of the FFCCSOA, the court noted that under Louisiana's recently enacted UIFSA the results would be the same. In that case, Mississippi had entered a support order in connection with the divorce of the parties. Subsequently, the mother and child relocated to Louisiana. In 1995, the mother filed an action in Louisiana, seeking to make the order executory in Louisiana and requesting modification of the support award. The father still resided in Mississippi. The court concluded that under the FFCCSOA and under UIFSA Mississippi retained continuing, exclusive jurisdiction over the order because the father still resided in Mississippi. Therefore, Louisiana could not modify the support order.
In this period of URESA being phased out and UIFSA being phased in, questions of procedure are bound to arise. For example, in Neville v. Perry, 648 N.Y.S.2d 508 (N.Y. Fam. Ct. 1996), the Texas Attorney General commenced a child support/paternity proceeding against a New York resident under the provisions of UIFSA. Texas was the assignee of the mother's support rights, as she was receiving public assistance benefits. The father argued that the New York court did not have jurisdiction to hear the case. If the mother was the real party in interest, then the court lacked jurisdiction because the mother did not execute or verify the petition. If the State of Texas was the real party in interest, then the court lacked jurisdiction because it was not the named petitioner in the caption. The New York court held that the State of Texas was the real party in interest, but because Texas was the initiating state, the state itself did not have to be named the petitioner. Texas, under its own law, was authorized to commence the litigation, and its agent could verify the petition. Accord Arkansas Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995) (whenever duties are imposed on the state pursuant to UIFSA, state is real party in interest in proceedings).
In Mathis v. State, 930 S.W.2d 203 (Tex. App. 1996), the issue was the sufficiency of the registration of a New Jersey support order. The court held that a copy of the New Jersey judgment, bearing an original seal of Somerset County, with the certification that it was a true copy, signed by the Somerset County clerk, satisfied the requirement of registration.
In Dotzler v. Coldwell Banker Island Realtors, 1997 WL 13745, 1997 Tex. App. LEXIS 162 (1997), the issue was the sufficiency of a wage-withholding order. In that case, the parties were divorced in 1989 in Nebraska. At the time, the father was ordered to pay $800 per month in child support. On September 9, 1994, the mother filed a Notice of Registration of Foreign Support Order under UIFSA. The mother then requested ex parte a wage-withholding order, which was issued on November 9, 1994. The entity to which the wage-withholding order was sent, Coldwell Banker, replied to the clerk of the court that it was not the father's employer; the father was an independent contractor, and, thus, his wages could not be withheld. No hearing was requested by Coldwell Banker.
In April 1995, the mother then filed a motion for enforcement and clarification, arguing that since Coldwell Banker had not withheld the husband's wages it was liable to her for support. Coldwell Banker then filed a motion to set aside the wage- withholding order. The trial court granted Coldwell Banker's motion. The mother appealed, arguing that Coldwell Banker had only 20 days after the original issuance of the wage-withholding order to contest it. Since it did not contest the order by December 8, 1994, the trial court did not have jurisdiction to set aside the wage-withholding order.
The appellate court disagreed, reasoning that it was only when the mother filed her Motion for Enforcement against Coldwell Banker that the issue of whether Coldwell Banker was the father's employer was placed into contention. Coldwell Banker therefore had responded in a timely fashion, and the trial court had jurisdiction to consider the issue.
The increasing mobility of the American population has wrought many legal problems. For example, the issue of custodial parent relocation has exploded in the last 10 years. This mobility has also had the effect of decreased child support compliance. A smaller percentage of obligees who receive support from out-of-state obligors actually receive the support that is due than obligees who receive support from in-state obligors. The FFCCSOA and UIFSA are the primary weapons in the arsenal of interstate child support enforcement. Practitioners must become familiar with their provisions in order to service their clients.
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