THE NONMODIFIABLE ASPECTS OF A CHILD SUPPORT ORDER UNDER
SECTION 611 OF UIFSA:
YOU CANT MODIFY WHEN THE ORDER TERMINATES!
Laura W. Morgan
UIFSA was originally drafted by the National Conference of Commissioners
on Uniform State Laws in an effort to revise and replace the Uniform Reciprocal
Enforcement of Support Act (URESA), as originally adopted in 1950 and
amended in 1958, and its revised version, the Revised Uniform Reciprocal
Enforcement Act of 1968 (RURESA). UIFSA was approved by the National Conference
of Commissioners on Uniform State Laws in 1992 and ratified by the American
Bar Association in February 1993. Most United States jurisdictions have
since enacted UIFSA as their local law. See 9, Part IB, U.L.A. 26-27 (Supp.
Section 611 of UIFSA deals with modification of a child support order
by a state other than the original issuing state. Pursuant to this section,
A tribunal of this State may not modify any aspect of a child-support
order that may not be modified under the law of the issuing state.
9, Part IB, U.L.A. at 370 (1999).
The official commentary to this section explains:
Subsection (c) prevents the modification of any final, nonmodifiable
aspect of the original order. For example, if child support was order
through age 21 in accordance with the law of the issuing state and the
law of the forum state ends the support obligation at 18, modification
my the forum tribunal may not affect the duration of the support order
to age 21.
9, Part IB, U.L.A. at 373. See also Janet E. Atkinson &
Laura W. Morgan, The Uniform Interstate Family Support Act: 1999 Comprehensive
Update, 11 Divorce Litig. 173, 192 (1999) (Under UIFSA, nonmodifiable
terms are set for the life of the order. Thus, a court with jurisdiction
to modify an existing child support order cannot change the fixed terms
of the controlling order, such as the duration of the child support obligation.
The policy behind this provision is to prevent parties from seeking modification
in a state that terminates child support at an earlier date.)
UIFSA has a federal counterpart, the Full Faith and Credit for Child
Support Orders Act (FFCCSOA), 28 U.S.C. § 1738(B). UIFSA and the
FFCCSOA are complementary and not contradictory, working together the
same way the UCCJEA and the PKPA work together.
Section h of the FFCCSOA provides likewise:
(h) Choice of law.
(1) In general. In a proceeding to establish, modify, or enforce
a child support order, the forum states law shall apply except as
provided in paragraphs (2) and (3).
(2) Law of state of issuance of order. In interpreting a child
support order including the duration of current payments and other obligations
of support, a court shall apply the law of the State of the court that
issued the order.
(3) Period of limitation. In an action to enforce arrears under
a child support order, a court shall apply the statute of limitation of
the forum State or the State of the court that issued the order, whichever
statute provides the longer period of limitation.
As noted by at least one authority commenting on FFCCSOA, [I]t
seems obvious that a court of State A would be required to enforce a post-majority
child support order from State B even if State A had a rule ending support
at age 18. Such an issue would fit neatly into the duration of current
payments language of the statute. 2 Sowald & Morganstern,
Domestic Relations Law, § 23.27, at 60 (1997).
The cases have been absolutely consistent in their application of this
section of UIFSA: the responding state, if modifying the child support
order, cannot modify when the order terminates.
In one of the first cases to interpret this provision, Welcher v.
Rager, 491 S.E.2d 661 (N.C. Ct. App. 1997), a 1985 New York child
support order required the father to pay $45.00 per week in support for
his two sons. Later, the father moved to North Carolina, while the mother
and children remained in New York. The father stopped paying child support
when the youngest child reached age 18. The mother then registered the
order for enforcement in North Carolina. The North Carolina trial court
granted the fathers motion to dismiss based on the childrens
majority in North Carolina. The Court of Appeals reversed, finding that
UIFSA required the court to use the law of the issuing state to interpret
the support order. Thus, New Yorks 21-year age limit on the duration
of the obligation continued to determine the duration of the support obligation.
The same result was reached in State ex rel. Harnes v. Lawrence,
538 S.E.2d 223 (N.C. Ct. App. 2000). In that case, the original order
was entered in New Jersey. The Final Judgment of Divorce ordered the father
to provide support for the couples daughter until the infant
child reaches the age of twenty-two (22) years, or is emancipated whichever
event will occur first. When the mother attempted to enforce the
decree, the North Carolina court entered an order for arrears, but terminated
the child support obligation as of the date the child turned 18 and graduated
from high school. The appellate court reversed. The 1995 North Carolina
court order implied that because the age of emancipation in North Carolina
is eighteen, then the court could modify the New Jersey support order
to end support at age eighteen, not age twenty-two as required by the
New Jersey order. This is not in accordance with New Jersey law, which
we must apply. Accord Holbrook v. Cummings, 750
A.2d 724 (Md. Ct. App. 2000) (The original order was issued in New York,
where the age of emancipation is 21. The father moved to California, and
the mother moved to Maryland. The father then moved to terminate support
when child turned 18 under law of Maryland. The court held that it was
undisputed that New York law requires parents to support their children
until they reach twenty-one years of age and that the duration of the
fathers obligation to provide such support could not be reduced
under New York law. Accordingly, the judge below acted properly in denying
the fathers request to reduce the duration of his obligation to
provide child support for his son); Sharp v. Sharp, 765 A.2d
271 (N.J. Super. App. Div. 2001) (Original order was entered in California.
Mother moved to New Jersey, sought enforcement, and to impose on father
New Jersey duty of support, which allows an order for college costs. The
court held that the California order applied as to duration); Emig
v. Massau, No. 99AP-1473 (Ohio App. Dist.10 Nov. 16, 2000) (The original
order was entered in Missouri, providing for support until the child reached
age 21. The mother moved to Ohio, and the father moved to Pennsylvania.
The father then sought to terminate support under Ohio law, asserting
that since Ohio law provides for emancipation at age eighteen (assuming
graduation from high school) of a child receiving child support, his support
obligation should have terminated when his daughter reached that age,
based upon the childs Ohio residency. The court held that the order
had to be enforced according to its own terms, including the age of termination
for support.); Robdau v. Commonwealth, 543 602 (Va. Ct. App.
2001) (Original order was entered in New York. The father moved to Virginia,
where the mother sought enforcement. The father claimed that the age of
majority in Virginia applied. The court held that to accept the fathers
contention would encourage parents obligated to pay support to avoid one
states child support order by moving to another state that has a
lower age requirement for support. Through such forum shopping,
the parent would be able to control the duration of child support. Such
a result undermines the very purpose of UIFSA.)
The result is no different when the case is a modification case rather
than an enforcement case. In Cooney v. Cooney, 946 P.2d 305 (Or.
Ct. App. 1997), a Nevada divorce decree awarded the parents joint legal
custody of the children and ordered the father to pay child support to
the mother. Later, after the father relocated in Tennessee and the mother
and children moved to Oregon, the mother petitioned an Oregon court to
modify the Nevada custody order. The father entered an appearance in the
action and asked the court to reduce the amount of his child support obligation,
based on a reduction in his income. The trial court found that the father
had not intentionally impoverished himself and applied Oregons child
support guidelines to reduce the amount of his child support obligation,
but denied the mothers request to extend the duration of the fathers
child support obligation, pursuant to Oregon law. The Court of Appeals
upheld the trial courts determination, finding that UIFSA applies
to all actions to modify or enforce foreign child support orders; and
precludes modification of any aspect of a child support order that may
not be modified under the law of the issuing state.
In Cavallari v. Martin, 732 A.2d 739 (Vt. 1999), the court reached
the same result. The court first noted that UIFSA governs when a state
court may modify a child support order from another state if the parties
to that order have left the original issuing state. As to the duration
of the order, the court stated,
Generally, [a state] court may modify the order, but certain
of the substantive restrictions of UIFSA apply to that modification decision.
. . . The important applicable restriction is contained in § 611(c).
That section provides that the [new modification state court] may
not modify any aspect of a child support order that may not be modified
under the law of the issuing state. Because the [original issuing
court] could not modify the order before it to reduce its duration to
the eighteenth birthday of the child, the new modification state court
could not make that modification under § 611(c).
732 A.2d at 744.
The court engaged in a rather expansive discussion of section 611(c)
of UIFSA in Groseth v. Groseth, 600 N.W.2d 159 (Neb. 1999). In
that case, the parties were divorced in Massachusetts. The mother and
children relocated to Nebraska, while the father relocated to Texas. The
parties then agreed to submit to the jurisdiction of the Nebraska court
concerning the mothers request for modification. The Nebraska court
applied the substantive law of Massachusetts, and the mother appealed.
The court held that the substantive law of Nebraska, i.e., its child
support guidelines, applied to determining the amount of the child support
order, but the law of Massachusetts applied as to the duration of the
[O]nce Nebraska assumes continuing, exclusive jurisdiction,
then Nebraskas Judges are to apply familiar, local rules. In doing
so, Nebraska courts are to apply Nebraskas substantive law to any
provision of the child support order that could have been modified under
Massachusetts law; by the same token, Nebraska may not modify any aspect
of the Massachusetts child support order which could not have been modified
600 N.W.2d at 168. See also Palagi v. Palagi, 10 Neb.
App. 231 (2001) (The court interpreted a Nebraska child support order,
which terminates at age 19. The father sought to terminate the Nebraska
order, alleging that the child had established a residence in Kansas,
and so the Kansas age of majority (18) applied. The court held that although
UIFSA was not controlling, because all the parties still resided in under
UIFSA, the result would have to be that Nebraska law, the law of the issuing
state, controls as to the duration of the order.)
In sum, when a court takes jurisdiction to modify a child support order
under UIFSA, it may NOT modify the order to change the date of termination
if the issuing state could not have so modified the order.
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