THE “NONMODIFIABLE ASPECTS” OF A CHILD SUPPORT ORDER UNDER SECTION 611 OF UIFSA:
YOU CAN’T 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. 2001).

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, paragraph (c):

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 state’s 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 father’s motion to dismiss based on the children’s 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 York’s 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 couple’s 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 father’s obligation to provide such support could not be reduced under New York law. Accordingly, the judge below acted properly in denying the father’s 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 child’s 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 father’s contention would encourage parents obligated to pay support to avoid one state’s 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 Oregon’s child support guidelines to reduce the amount of his child support obligation, but denied the mother’s request to extend the duration of the father’s child support obligation, pursuant to Oregon law. The Court of Appeals upheld the trial court’s 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 mother’s 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 order.

[O]nce Nebraska assumes continuing, exclusive jurisdiction, then Nebraska’s Judges are to apply familiar, local rules. In doing so, Nebraska courts are to apply Nebraska’s 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 in Massachusetts.

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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